[00:00:00] Speaker 05: 22-1438, Rocky Mountain Wild versus Dallas. [00:00:12] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:15] Speaker 03: Caitlin Shugart-Schmidt, here on behalf of the federal appellants. [00:00:18] Speaker 03: At council's table with me is counsel for the private landowner, LMJV. [00:00:22] Speaker 03: I will try to keep to 10 minutes here, reserving three for rebuttal and leaving the balance for LMJV and to keep an eye on the clock. [00:00:30] Speaker 03: Your Honors, the federal agencies here did exactly what this court held they must do under ANITA, which is to provide LMJD with access to its private property. [00:00:40] Speaker 03: In doing so, both the Forest Service and the Fish and Wildlife Service correctly considered both the federal action itself, the grant of the right way, along with all effects of that action, including the expected eventual development of the village at Wolf Creek. [00:00:55] Speaker 03: Instead of looking to that thorough and consistent analysis, [00:00:59] Speaker 03: The district court here summarily held against the agencies via the law of the case doctrine. [00:01:04] Speaker 03: Now more than three decades after the original land exchange, we asked this court to exercise its jurisdiction and reverse the district court so that the agencies may proceed in granting and meeting their legal obligation to provide access under ANUKA. [00:01:18] Speaker 05: Focusing first on jurisdiction, the district court's decision was a remand order, wasn't it? [00:01:26] Speaker 03: Yes. [00:01:27] Speaker 05: So do we have jurisdiction over this matter? [00:01:31] Speaker 03: Yes, I think that this case clearly meets the practical finality exception to the administrative remand rule. [00:01:36] Speaker 03: I'm happy to go through the specific components of that in terms of the importance and urgency of this matter and also ultimately the balancing test about the value in resolving this now versus [00:01:48] Speaker 03: waiting until some later point in time to do that review. [00:01:52] Speaker 03: But I also think it's in the judicial interest to hear this case now in the sense that these are tricky issues that have serious implications for how the agency and the private party does their work moving forward. [00:02:04] Speaker 04: I mean, that sounds like the administrative remand rule would have no force if we used that [00:02:09] Speaker 04: There are many, many important cases that may need to be heard. [00:02:12] Speaker 04: But it would be helpful, as you suggested, to go through the point by point on practical finality. [00:02:19] Speaker 03: Sure. [00:02:19] Speaker 03: So to begin with, this case I think is clearly important in the sense that it determines the scope of the NEPA analysis that a federal agency needs to undertake. [00:02:27] Speaker 03: Now, NEPA analysis, as the court is well aware, is a complicated process that requires a lot of the agency [00:02:34] Speaker 03: time and commitment of resources. [00:02:37] Speaker 03: And putting the agency in a position where it has to consider NEPA alternatives that it can't actually ultimately implement would be a serious drain on agency resources without any sort of corresponding ultimate benefit. [00:02:48] Speaker 05: Well, the agencies wouldn't have any ability then to appeal as to the district court's decision. [00:02:54] Speaker 03: Right, and I think that's true for both the NEBA and the ESA issues here, which is why it's important that this Court address both at this time. [00:02:59] Speaker 05: And how does it affect the analysis that we have a mandate from our prior opinion that says give them access? [00:03:07] Speaker 03: I think that's an important consideration for why we are here today appealing this District Court decision instead of attempting to go back and comply with this rather untenable remand because it has now been more than [00:03:18] Speaker 03: 30 years since the original land exchange occurred, the agencies have tried multiple [00:03:31] Speaker 03: with their overarching statutory obligations, and the time has come for this right of way to be granted, and I'm happy to have that access. [00:03:38] Speaker 04: To agree with you, do we have to interpret Judge Maich's analysis of direct and indirect effects as limited to the land exchange? [00:03:55] Speaker 03: regard to the direct and indirect effects. [00:03:57] Speaker 04: Right, Judge McHugh said as much in her order. [00:03:59] Speaker 03: Right, he certainly talks about it in the abstract, that there was no specific deficiency identified in the EIS as a result of this labeling. [00:04:07] Speaker 03: And I think to that point, when it comes to the direct versus indirect effects issue here, first of all, if there was any such error in the ATC's analysis, it would have been harmless, because there is no such... Well, aren't these merits issues? [00:04:19] Speaker 05: I mean, we're focused now on jurisdiction. [00:04:22] Speaker 05: Sorry, Your Honor. [00:04:23] Speaker 05: I mean, aren't you conflating them right now? [00:04:26] Speaker 03: You're right. [00:04:26] Speaker 03: Perhaps I was moving too quickly into the marriage issues. [00:04:29] Speaker 03: I'm sorry. [00:04:31] Speaker 05: I thought Judge Rossman was still on the practical finality rule, so I may have... [00:04:37] Speaker 05: You may have lost me in the discussion. [00:04:40] Speaker 03: Well, I think this conversation certainly gets confusing in the briefing. [00:04:43] Speaker 03: There's a lot of conflation between the law of the case issue and the jurisdiction issue, the effect of the prior 2017 case, the migrant case here. [00:04:50] Speaker 05: Well, let's shift to law of the case. [00:04:53] Speaker 05: Is this an instance where we have law of the case? [00:04:57] Speaker 03: I think the district court was plainly incorrect to apply it, but I think regardless of whether or not it was applied correctly, it's certainly not a barrier to this court's review of the underlying merits issues. [00:05:07] Speaker 05: I think in particular... You're saying that it is law of the case but there's an exception? [00:05:13] Speaker 03: I think that there are three avenues by which the court would look at this. [00:05:15] Speaker 03: I think the most correct one and sort of the most straightforward is to look specifically to what Judge Meach's decision in 2017 held and see clearly here that those were conclusions, those were holdings that are just not applicable in any way to the case we have before us. [00:05:29] Speaker 05: What's the new record of decision? [00:05:31] Speaker 05: Right. [00:05:32] Speaker 03: It is a new agency action. [00:05:33] Speaker 05: New agency action. [00:05:34] Speaker 03: I think that's the second avenue by which this court can simply say law of the case was not correctly applied here because we are talking about a substantively different new agency action and new record of decision. [00:05:43] Speaker 05: Okay. [00:05:44] Speaker 05: There may be flaws in the decision that carried over, but it's a new agency action and it's a different federal action. [00:05:52] Speaker 03: It is absolutely a different federal action. [00:05:55] Speaker 03: It is the selection of a different alternative. [00:05:57] Speaker 03: and a new draft record of decision was produced, a new final record of decision was produced, a new biological opinion and consultation was done. [00:06:04] Speaker 03: This is, I think, very clearly a new agency action on the District Court error to apply law of the case here instead of substantively engaging with these merits issues. [00:06:13] Speaker 05: Okay. [00:06:16] Speaker 05: Can we turn to Anilsa, or A-N-I-L-C-A is my colleague. [00:06:23] Speaker 05: Anilka. [00:06:25] Speaker 05: Anilka. [00:06:28] Speaker 05: an interesting statute and I'm a little uncomfortable relying on legislative history after the fact, but it seems to me that we have already decided this issue. [00:06:44] Speaker 03: Yes, I don't think this court needs to do anything to look into the specific application of whether, sorry, look into whether or not ANILCA applies in this instance because a prior panel of this court has said in a [00:06:55] Speaker 03: non-binding opinion, certainly, that an ILCA applies to this specific case, but further, that U.S. [00:07:00] Speaker 03: v. Cenk's case from many years ago held conclusively, and it was necessary holding to the resolution of that case that this provision of an ILCA applies in the lower 48 states. [00:07:11] Speaker 05: Yeah, I mean, is it something, I mean, are we right? [00:07:14] Speaker 03: Yes, and I hope that the detailed analysis in the briefing and both the statutory language, long-standing agency practice, [00:07:22] Speaker 03: And the legislative history associated with the act makes clear that this court is right. [00:07:27] Speaker 03: But regardless, this court is bound by the prior panel decisions on this issue. [00:07:31] Speaker 02: Right. [00:07:31] Speaker 02: I'm sorry. [00:07:32] Speaker 02: If I could jump in, your point is that it doesn't matter if we're right because we're bound. [00:07:37] Speaker 02: Well, I think you are both right and bound. [00:07:39] Speaker 02: OK. [00:07:40] Speaker 02: But it is true that it doesn't matter if we were right. [00:07:44] Speaker 03: I think that that's correct. [00:07:45] Speaker 03: I think this word is bound by the prior decision of Jenks, because it was a necessary holding. [00:07:48] Speaker 05: Well, wasn't it dicta in our first decision? [00:07:52] Speaker 03: I don't think so, because I think that the... Sorry, do you mean the 2018 non-binding decision about this case or the Jenks case? [00:08:02] Speaker 05: the Jenks case? [00:08:03] Speaker 03: I don't think so. [00:08:04] Speaker 03: As I read that case, it seems that the determination that Anilfa applied was what made this court believe that the Forest Service had the authority to require and implement the permitting system in the first place. [00:08:17] Speaker 03: So I think that that was a necessary conclusion for the outcome of that case. [00:08:21] Speaker 05: What about Sturgeon versus Frost? [00:08:23] Speaker 05: Has the Supreme Court suggested that we might be wrong? [00:08:28] Speaker 03: I don't think so. [00:08:28] Speaker 03: I think all of the cases that are cited to you by the petitioners with regard to the Anilka issue from the Supreme Court after the Jenks decision really deal with other provisions of Anilka, and not this one that specifically talks about land access with respect to forest service in holdings, and which this court and other courts have affirmed. [00:08:47] Speaker 03: or have held if it applies to the lower 48 states. [00:08:50] Speaker 03: And nothing that the Supreme Court has held since has indicated otherwise. [00:08:58] Speaker 03: I notice that I only have about a minute left at this point, but I'm happy to turn to either the EFA or the ESA merits issues if I raise a particular interest. [00:09:06] Speaker 05: Are you doing ESA? [00:09:08] Speaker 03: I'm happy to do both, to talk about both. [00:09:10] Speaker 03: We want the court to resolve both issues. [00:09:12] Speaker 05: Yeah, shouldn't you have complied with Section 10? [00:09:15] Speaker 05: No, I don't think so. [00:09:16] Speaker 05: I think in a really important... Well, you're not... The development isn't a federal action, is it? [00:09:25] Speaker 03: Correct. [00:09:25] Speaker 03: It is absolutely not a federal action. [00:09:27] Speaker 03: But it is clearly, clearly an effect of the federal action. [00:09:31] Speaker 03: And that's how we should want the ESA to function. [00:09:33] Speaker 03: We should want an agency to look at what the federal action is, [00:09:36] Speaker 03: to look at what the expected effects of that federal action is and then to scope its biological opinion discussing the impact of those effects and ultimately its incidental take statement to cover that same range. [00:09:48] Speaker 03: That allows it to put restrictions and control on both the federal actor and the private party in order to ensure conservation measures are in place. [00:09:55] Speaker 05: Well, I'm not sure it matters so much what I think, how I wish the agency would behave. [00:10:02] Speaker 05: I think it matters what it says. [00:10:05] Speaker 05: It says Section 10 is for non-federal actions. [00:10:09] Speaker 03: Well, it says Section 10 is for non-federal actions that don't have a federal component or a federal applicant. [00:10:14] Speaker 03: And that's clearly not the case here. [00:10:15] Speaker 03: There's a lot of discussion in the briefs and in the record about agency individuals being concerned about the application of Section 7 versus Section 10. [00:10:22] Speaker 03: But all of those are in the land exchange context, not in the context of the grant to the right of way. [00:10:27] Speaker 03: And that's when we included that agency guidance that goes all the way back to 2003, which discusses precisely these circumstances. [00:10:34] Speaker 03: and why it's beneficial to have an incidental take statement that follows the full scope of the federal action and all of the corresponding... Are you asking us to defer to the agency guidance? [00:10:46] Speaker 03: I think that this court can look to the text of the ESA itself. [00:10:59] Speaker 03: covered under an incidental take statement if it is an applicant for purposes of a Section 7 consultation. [00:11:24] Speaker 01: Good morning, Your Honors. [00:11:25] Speaker 01: May it please the Court, I'm Aaron Van Ork, representing LNJB. [00:11:30] Speaker 01: For 37 years, my client has been denied the access to its land that Anilka guarantees, and that this Court held it must have. [00:11:39] Speaker 01: This Court has the power to end that denial and delay by affirming the Forest Service's issuance of an easement, and we're here asking this Court to affirm. [00:11:49] Speaker 01: Now, I want to address what's most important to you. [00:11:52] Speaker 01: So if you have questions, I invite them. [00:11:54] Speaker 01: Otherwise, I'm going to make three points and make you four by the time, Your Honor. [00:11:59] Speaker 01: First, the harmless error argument here is stronger in a way than perhaps we've ever seen in this kind of case, because not only must the access be granted, but the same road is going to be built in the same place, regardless of whether this stays the government's land, which it is now, or if they were ever some day to do a land exchange. [00:12:22] Speaker 01: And this is clear from the EIS. [00:12:25] Speaker 01: It's page 2386 in our appendix. [00:12:28] Speaker 01: It's the very same thing. [00:12:30] Speaker 01: So the only real question here is, should the easement remain in place for as long as the government holds the land? [00:12:38] Speaker 01: And it should, because the analyses required to do what they had to do under ANILCO were done. [00:12:44] Speaker 01: So the second point is, there was a big discussion about whether this was a direct effect or indirect effect, whether this is federal or private. [00:12:53] Speaker 01: Now, the government treated it entirely consistently, both for NEPA and the endangered species. [00:12:58] Speaker 01: It always treated it as an indirect effect of a government action. [00:13:03] Speaker 05: What difference does it make in the NEPA analysis? [00:13:07] Speaker 01: Zero. [00:13:08] Speaker 01: It makes no, and the Forest Service correctly said that it makes no difference, and it's right. [00:13:14] Speaker 01: It makes a difference, Your Honor, to whether a NEPA analysis triggered in the first place, whether there's any major federal action in the first place. [00:13:22] Speaker 01: But once there is, all the effects are analyzed. [00:13:25] Speaker 01: And now under the Endangered Species Act, Your Honor, it was mandatory for them to address us under Section 7 because you have to address all of the effects that will be caused by the government action. [00:13:40] Speaker 01: And they're required to both consider those effects and then address any mitigation. [00:13:45] Speaker 01: And once they have done that, the regulations say you don't have to redo it under Section 10. [00:13:51] Speaker 01: Regardless, though, Your Honor, so it was correct. [00:13:55] Speaker 01: But regardless, again, the same road is going in the same place, the same development. [00:14:00] Speaker 01: And so this is where we get to the error the district court made in vacating this decision. [00:14:05] Speaker 01: We pointed out how the district court said, [00:14:08] Speaker 01: You have to show extraordinary effects not to vacate. [00:14:11] Speaker 01: And how that's completely backwards under this court's law, they have to show extraordinary effects the other way. [00:14:17] Speaker 01: And so under this standard, this decision should stand after 37 years. [00:14:23] Speaker 05: I'm still confused on why it wasn't required that you comply with Section 10 of the Endangered Species Act. [00:14:32] Speaker 01: Yeah, let me walk through the logic. [00:14:34] Speaker 01: And this is an art. [00:14:37] Speaker 01: First of all, the Forest Service had to consult with Fish and Wildlife Service because granting an easement is an agency action. [00:14:44] Speaker 01: We're all there, okay? [00:14:46] Speaker 01: Second, it had to consider take from the development because under the regulations 50 CFR 402.02, private effects that are enabled by it and are caused by it must be enabled. [00:14:58] Speaker 01: So they had to consult, they had to consider our development. [00:15:03] Speaker 01: Once they did that, they had to issue an [00:15:06] Speaker 01: Incidental take statement, establishing reasonable and prudent measures to minimize. [00:15:14] Speaker 01: Those measures don't just apply to the government, they had to apply to us. [00:15:18] Speaker 01: And that's under both the statute directly, that's 16 USC 1536 B4 and the regs, so the Chevron deference issue is in play. [00:15:28] Speaker 01: And then once they had addressed it, [00:15:34] Speaker 01: statement would cover us. [00:15:35] Speaker 01: And then the regulations say, if you've already done it, you don't have to do it again. [00:15:38] Speaker 01: Section 10 is for private effects or private developments that don't have this federal clause. [00:15:46] Speaker 01: And that's why you didn't have to repeat it here, Your Honor. [00:15:49] Speaker 05: When you say that Section 10 is for private developments that don't have a federal clause, I think that's what you just said. [00:15:57] Speaker 05: Where do you see that in Section 10, that it's limited in that way? [00:16:04] Speaker 01: Where I see it, Your Honor, is in 50 CFR 402.14 sub i sub 5. [00:16:12] Speaker 01: And it says, when take is allowed by an incidental take statement, no other authorization or permit under the Act is required. [00:16:19] Speaker 01: And so that's the logic that went through, because the agencies already had to do it under Section 7 and did. [00:16:25] Speaker 01: And as the government said, you want the agencies to do it, because at that point, they consider the full effects. [00:16:31] Speaker 01: And they can impose conservation [00:16:33] Speaker 01: Now here, they found that there wasn't going to be any threat to the preservation of links, regardless of any conservation. [00:16:39] Speaker 01: So the conservation is a bonus, but you definitely want that built into Section 7. [00:16:45] Speaker 01: I'm going to stop for now, Your Honor, unless you have more questions so we can reserve her about a time. [00:16:49] Speaker 05: That's fine. [00:16:50] Speaker 05: Thank you. [00:16:50] Speaker 05: Thank you. [00:16:50] Speaker 05: Well, I guess I should check with my colleague. [00:16:52] Speaker 01: Thank you. [00:17:13] Speaker 06: Good morning, Your Honors. [00:17:15] Speaker 06: My name is Travis Stills, Energy and Conservation Law. [00:17:18] Speaker 06: I represent the conservation groups here. [00:17:21] Speaker 06: Co-Counsel Matt Sandler is at the desk. [00:17:24] Speaker 06: One point that I'd like to jump right into is this question of the NEPA trigger. [00:17:29] Speaker 06: What is the major federal action that triggered NEPA? [00:17:33] Speaker 06: The major federal action was a request for expanded access. [00:17:38] Speaker 06: LMJB has access, they've always had, on Forest Service [00:17:43] Speaker 06: Road 391. [00:17:45] Speaker 05: Well, they have it in the summer on a dirt road, right? [00:17:49] Speaker 06: It's actually a gravel road. [00:17:50] Speaker 05: Gravel road. [00:17:51] Speaker 06: Makes a difference in western Colorado, the gravel distinction. [00:17:55] Speaker 06: And there is some pavement and blacktop there. [00:17:57] Speaker 06: I can't answer the specifics on that at the moment. [00:18:01] Speaker 06: But that major federal action is the request for expanded utility and road access to the site. [00:18:10] Speaker 06: Because, but for that, [00:18:12] Speaker 06: They can't build the development. [00:18:14] Speaker 05: Well, the prior action was based on a land exchange, right? [00:18:21] Speaker 06: The terms government action, federal agency action, which is a NEPA term. [00:18:30] Speaker 06: Government action is not really a meaningful term here. [00:18:33] Speaker 06: Major federal action is a NEPA trigger term. [00:18:37] Speaker 05: I think everyone agrees we have a major federal action here that triggered NEPA. [00:18:43] Speaker 05: I don't think there's any dispute. [00:18:46] Speaker 05: But the option that was decided upon in the first record of decision that first came up here and then they dismissed the appeal was for a land exchange. [00:19:03] Speaker 05: Now they decided [00:19:06] Speaker 05: The agency withdrew the appeal and they went back to the drawing board and they picked a different option, which is an easement. [00:19:19] Speaker 06: Those that you just described in the parlance of all of these terms with modifiers of action are final agency actions for purposes of judicial review [00:19:36] Speaker 06: that triggered the NEPA review, or the agency action. [00:19:40] Speaker 06: We describe major, I'm sorry, final agency actions that triggered APA review. [00:19:45] Speaker 06: And when we go back and look at what that underlying federal action, major federal action, the term used in NEPA and in the regulations, what is sought is the same in all, and that is utility and road access for the development of an unlimited [00:20:04] Speaker 06: up to 10,000-person village under which it's confirmed within the NEPA side of this that there is agency control and authority under the sports precedents, under the CEQ regulations. [00:20:19] Speaker 06: That's what triggers the NEPA process and the ability to look at a range of alternatives to compare the impacts. [00:20:29] Speaker 06: Those all flow from that major federal action. [00:20:35] Speaker 06: there was not a clean slate on remand. [00:20:37] Speaker 06: That's part of our underlying argument. [00:20:40] Speaker 06: They went back and relied on the same 2014 EIS that hadn't had public comment on it since 2012. [00:20:52] Speaker 04: Why wasn't there a clean slate on remand from Judge Maich's order? [00:20:57] Speaker 04: I mean, I guess my real [00:21:01] Speaker 04: misunderstanding that I hope you can clarify is, if we disagree that the law of the case doctrine applies here, what import, if any, does Judge Maich's order have in the analysis? [00:21:12] Speaker 06: The Judge Maich's order at its core, and I think it's what this court has said, in the remand order, the Judge Maich remanded for APA violations, or procedural violations under the APA. [00:21:30] Speaker 06: We think the law of the case is an easy application. [00:21:35] Speaker 06: Judge Arguello decided not to go into all of the details that Judge Mage had gone into. [00:21:39] Speaker 06: And your question is, if law of the case did not apply, then it would be to send the case back to Judge Arguello for her analysis in the first instance, based on an administrative record that is still in dispute. [00:22:00] Speaker 06: Contractor records were never produced based on sort of the sequences of how the administrative record in these cases came to be. [00:22:09] Speaker 06: But we know this court doesn't have a full administrative record in front of it to analyze. [00:22:15] Speaker 05: Well, we have the record of decision. [00:22:16] Speaker 05: I mean, we have the administrative record. [00:22:20] Speaker 05: And we've got a case law that says that we are in a position to go ahead and review [00:22:28] Speaker 05: the administrative record in the first instance. [00:22:31] Speaker 06: But you don't have it. [00:22:32] Speaker 06: You have an appellate record in front of you. [00:22:36] Speaker 06: There are a considerable amount of materials that were not provided to this court. [00:22:41] Speaker 06: Judge Arguello, in her opinion, laid out, she reviewed, I believe it was a 17,000 page administrative record. [00:22:52] Speaker 06: And we also submit that [00:23:02] Speaker 06: There were some rolling disputes over access to records under FOIA, Freedom of Information Act, standards versus what we should be able to get to under the APA standards. [00:23:15] Speaker 06: We've never had the opportunity to put in front of any court the contract or records that show what was actually done in preparing that 2014 EIS. [00:23:28] Speaker 06: As that record shows, and even the appellate record shows, there was considerable influence by LMJV over what should be done in the scope of that analysis. [00:23:38] Speaker 06: And that's what gets us here. [00:23:39] Speaker 06: Judge Mays referred, or Judge Keane referred to that influence on, for instance, the ANELCA theories from the agency, or from LMJV, from the applicant who, when they didn't get a legal or procedural decision that they liked, [00:24:05] Speaker 06: from an application to a citizen here, and that's why sending this back with a clean slate to the agency. [00:24:13] Speaker 06: There's so much mess involved with what has happened since this federal action was first proposed in 2018, and I believe that's in the notice of intent, until now. [00:24:27] Speaker 06: There's never been a comparison of a range of reasonable development alternatives. [00:24:35] Speaker 06: implemented on this parcel. [00:24:38] Speaker 06: There's much concepts. [00:24:40] Speaker 06: Just here's some things we might do. [00:24:42] Speaker 06: There's no real analysis of what may be done. [00:24:46] Speaker 06: The Corps of Engineers was pushed out of the labor process, even though there's most clearly weapons out there. [00:24:53] Speaker 06: The Federal Highway Administration, again, wanted to participate. [00:24:57] Speaker 06: We're not talking about a few additional cars coming on and off Highway 160 on the top of [00:25:12] Speaker 06: This is a massive, massive federal action. [00:25:25] Speaker 06: The proposal for how to get utility access, which is not available under an outcome. [00:25:31] Speaker 06: How could you say that their development proposal was reasonable in any way, shape, or form? [00:25:37] Speaker 06: They don't even have utility access. [00:25:41] Speaker 06: This has been chopped up into segments, but over time, conceptually, legally, to where Judge Mache, and based on his order, Judge Aguejo, carefully looked into it, and saw that there was, I believe, some artful dodges as to the colorful language that he used. [00:26:03] Speaker 06: There was a lot of attempts to minimize disclosure [00:26:14] Speaker 06: Federal Land Policy Management Act provides access to standards for the scenic easement. [00:26:23] Speaker 06: There's no dispute up here about federal authority and control over the development. [00:26:28] Speaker 06: It's undisputed now. [00:26:31] Speaker 06: The Forest Service plays some games within its briefing and then also switches gears in the ESA side to say, oh no, now there's no federal agency action because we want to use section 10 [00:26:44] Speaker 06: I'm sorry, use section seven. [00:26:45] Speaker 06: There is federal agency action. [00:26:46] Speaker 06: There's diminished federal agency action. [00:26:48] Speaker 06: There's a lot of hiding the ball. [00:26:51] Speaker 06: There's a lot of, I think it's the Lee versus Army case, a lot of sweeping issues under the rug. [00:26:56] Speaker 06: And trying to untangle all of this has been a challenge for three district courts, one preliminary injunction by Judge Cain, one ruling on the APA merits by Judge May. [00:27:12] Speaker 06: And now an APBA ruling partially on the merits, but also partially following the rule of the case. [00:27:20] Speaker 06: Which, in our view, did Judge Mages' opinion and reconsideration order mean anything? [00:27:35] Speaker 05: Well, it's a new day. [00:27:37] Speaker 05: It's a new record of decision. [00:27:40] Speaker 05: It's a new agency action. [00:27:42] Speaker 05: You have a new biological opinion. [00:27:45] Speaker 05: You had an SIR evaluating whether to implement a new EIS. [00:27:51] Speaker 05: You know, I don't know how law of the case could apply here. [00:27:58] Speaker 06: There is no new NEPA. [00:28:01] Speaker 06: The SIR is not a NEPA document. [00:28:03] Speaker 06: It cannot be used under this court's, under the circuit's authorities. [00:28:07] Speaker 06: I don't know what you mean. [00:28:09] Speaker 05: There's no new NEPA. [00:28:11] Speaker 05: I agree with you. [00:28:11] Speaker 05: The statute is the same. [00:28:15] Speaker 06: There is no new NEPA. [00:28:16] Speaker 06: There is no new amendment to the 2014 EIS. [00:28:20] Speaker 06: There is no public comment period. [00:28:22] Speaker 06: For anyone to participate in the agency's objections process, they had to have issued comments in 2012. [00:28:29] Speaker 06: The agency construed their own regulations in saying if they weren't substantive, we would [00:28:37] Speaker 06: So NEPA, which involves the twin aims of informing decision makers and involving the public, shut down in 2012 and then was followed by the 2014 EIS. [00:28:49] Speaker 05: But to me, that's not a law of the case issue. [00:28:52] Speaker 05: That's a, is this agency action, should it be upheld? [00:28:58] Speaker 05: is it arbitrary and capricious? [00:29:00] Speaker 05: It's not whether it's barred by something that happened when they were looking at the land exchange. [00:29:08] Speaker 06: With that framing, Your Honor, I can say categorically, if the federal action now is based on the 2018 proposal for access that LNJB ended and then the Forest Service gave its decision on, [00:29:27] Speaker 06: There is no NEPA at all. [00:29:30] Speaker 05: When you say there's no NEPA at all, you mean that they did not comply with the requirements of NEPA? [00:29:36] Speaker 05: That is correct. [00:29:38] Speaker 06: There is no analysis of a range of alternatives based on the 2018 application. [00:29:48] Speaker 06: There is no analysis of what they would do with that access once it went through. [00:29:54] Speaker 06: If we'll have the case and we're starting fresh, [00:29:57] Speaker 06: in 2018, but that is a new request. [00:30:02] Speaker 06: And the Anoka access, there's no comparison of alternatives that would restrict that access. [00:30:11] Speaker 05: Okay, so the NEPA deficiency is there's not a comparison of alternatives. [00:30:16] Speaker 05: You also think that that's at the heart of it, that you also think, if I'm reading your brief correctly, that they didn't accurately define indirect and direct effects. [00:30:32] Speaker 06: And after all, NEPA is a procedural statute. [00:30:36] Speaker 06: It pains me when I read court opinions saying over and over that it doesn't go to the substance. [00:30:42] Speaker 06: There are academic reads that suggest it might have, but that ship has long sailed. [00:30:47] Speaker 06: But what we have today is a statute that imposes specific procedures with the presumption that they will result in protection of the environment. [00:30:57] Speaker 06: Now we're not even getting those procedures, and we have the government up here saying, eh, it doesn't matter what category it goes into. [00:31:06] Speaker 06: Both judges below, and especially I think Judge Cain in his 2017 order, said, well, I don't need to figure out what categories things go under. [00:31:15] Speaker 06: But what we know is they should be direct impacts under the framework of the statute and the regulations, because that helps define the range of alternatives and the purpose of need. [00:31:28] Speaker 06: And NEPA is a process that flows through, and you get the opportunity to bring in other [00:31:34] Speaker 06: agencies and public comments, so in order that the agency, the main action agency, the Forest Service, but also other agencies with jurisdiction and control, the Corps of Engineers, Federal Highway Administration, UPA, and others, can be cooperating under the one EIS theory and look at it all. [00:31:55] Speaker 06: Rossi FHA is a classic on segmentation and why that's prohibited, and I think this case really [00:32:03] Speaker 06: in a practical way shows how everything has sort of been chased down. [00:32:10] Speaker 06: There was no analysis of any endangered species in the NEPA document, which also requires that. [00:32:17] Speaker 06: Based on the 2018 appeal, it's part of the impacts analysis, even though there's also [00:32:26] Speaker 05: Well, they do have the new biological opinion for the 2018, and they actually, their incidental take analysis is different. [00:32:38] Speaker 00: Yes. [00:32:39] Speaker 05: It's actually a little better under the easement proposal than it was on the land exchange, if I'm reading it correctly. [00:32:48] Speaker 06: It still doesn't open itself to the light of day, which is what the NEPA, the parallel [00:32:55] Speaker 06: requirements are. [00:32:57] Speaker 06: And the traffic studies and the underlying data is plucked out of the pre-2014. [00:33:07] Speaker 05: When you have to show somehow that it had changed, and I mean, as I read the case law, it's not enough to say you made a mistake. [00:33:16] Speaker 05: You have to show that that mistake has caused some kind of impact, a negative impact, [00:33:23] Speaker 05: on the decision-making process. [00:33:25] Speaker 05: So, for example, if they used an old traffic study, wouldn't it be your burden to show that a more recent traffic study would have been different than the one that they relied on and different in ways that would weigh against approving the project? [00:33:50] Speaker 06: The last opportunity to provide that evidence in a way [00:33:58] Speaker 06: It's been a closed record since 2012. [00:34:01] Speaker 06: We're stuck with the environmental and administrative record in the challenge in 2017 in front of Judge Aguayo and also here. [00:34:11] Speaker 06: We'd have to move that in under actual evidence, a part of the problem that was not assessed. [00:34:22] Speaker 06: So when things come in in an administrative, [00:34:29] Speaker 06: proceeding, you know, they differ from what the court is perhaps more used to in the trial, but there are a lot of similarities. [00:34:38] Speaker 06: And that's when a superior body makes a ruling that inferior bodies should follow. [00:34:43] Speaker 06: And the forester said flat out, we're not going to follow Mages, Judge Mages' ruling. [00:34:48] Speaker 05: Well, they followed in the sense that they didn't try to push through a land exchange. [00:34:54] Speaker 05: Right. [00:34:54] Speaker 05: They said, we give up. [00:34:56] Speaker 05: We're going back to the drawing board. [00:34:58] Speaker 05: And that happens all the time, doesn't it? [00:35:00] Speaker 06: They didn't go back to the drawing board, if I may disagree, Your Honor. [00:35:06] Speaker 06: They went back to the same EIS, did not meet the agency's NEPA duties, as Judge Mayh ruled, as court recognized, and Judge Aguayo followed. [00:35:15] Speaker 06: They went back and just did that, and the end of the road here, [00:35:32] Speaker 06: as much property as you want, and that will end the federal control and authority over this project. [00:35:40] Speaker 06: Of course, that's contrary to the record. [00:35:42] Speaker 06: It's contrary to the scene engagement. [00:35:44] Speaker 06: It's contrary to Enelka. [00:35:47] Speaker 06: It's contrary to FLIPMA. [00:35:49] Speaker 05: But they still argue that. [00:35:50] Speaker 05: Let me ask a question, and correct me if I'm wrong. [00:35:54] Speaker 05: We don't yet have a plan of the development that's been approved or disapproved yet, right? [00:36:01] Speaker 06: There's never been a plan offered to the Forest Service. [00:36:05] Speaker 06: Only a bucket full of concepts. [00:36:08] Speaker 06: That's not what NEPA does. [00:36:10] Speaker 05: I understand, but so at this point we don't know what's going to be approved for that development. [00:36:18] Speaker 06: The Forest Service position is we'll never know because this is it. [00:36:24] Speaker 06: What is it? [00:36:26] Speaker 06: This approval gives [00:36:29] Speaker 06: Carp launch to go out and do whatever they please going forward. [00:36:33] Speaker 06: That's their position. [00:36:34] Speaker 06: Our position is this really needs to go back and have a clean slate. [00:36:40] Speaker 06: Because when you start parsing through this, it's confusing. [00:36:47] Speaker 06: It's not clear. [00:36:48] Speaker 04: Before you're out of time, I wanted to ask you to clarify something that you said that if we find that the law of the case has no application here, you said, [00:36:59] Speaker 04: that we should send this back to Judge Arguello because the record is in dispute. [00:37:02] Speaker 04: And I'm not sure I know what you mean by that, if you could clarify. [00:37:05] Speaker 04: In what way would the record look different if we held there was an error in relying on law of the case and the district court now needs to do what, and based on what evidence? [00:37:20] Speaker 06: The record developed when the EIS was being carried out. [00:37:28] Speaker 06: in 2008 through 2014 is incomplete. [00:37:34] Speaker 06: A parallel case came up under FOIA concerning contractor records that we weren't able to get under NEPO. [00:37:44] Speaker 06: But, I'm sorry, we weren't able to get under FOIA. [00:37:47] Speaker 06: But the court ruled a different set of standards apply to an APA administrative record. [00:37:52] Speaker 06: Those decisions were made after Judge Mage, I believe, in the sequence of bouts [00:37:58] Speaker 06: We've never had the opportunity to go after the original administrative record that underlies the final agency action that, there's two different final, three different final agency actions I think, two different final agency actions, but that underlies the major federal action on which the NEPA analysis was based. [00:38:25] Speaker 06: I see I'm out of time. [00:38:27] Speaker 05: Thank you. [00:38:37] Speaker 05: I would appreciate it if you would start with the question about the record that Judge Rossman just asked. [00:38:43] Speaker 05: Do we have a record that's in dispute? [00:38:46] Speaker 03: No, the record here is not in dispute. [00:38:47] Speaker 03: And this court can absolutely rule on the three issues that the federal appellants have asked this court to rule on. [00:38:52] Speaker 03: That is the scope of the federal action underneath, [00:38:57] Speaker 03: sort of function of Section 7 and Section 10 without, on exactly the record you have before you today. [00:39:03] Speaker 05: And has that record been closed since 2012? [00:39:06] Speaker 05: No. [00:39:07] Speaker 03: In fact, the original EIS had a huge number of public comments, many of which were supportive of the land exchange. [00:39:14] Speaker 03: After that point in time, when the draft record of decision in this case, for this case, was issued, comments were again accepted. [00:39:21] Speaker 03: Those are available in the record, at record page 640 in our appendix. [00:39:25] Speaker 03: And I would encourage you to go back and look at both the detail with which the Forest Service engaged with the questions and comments that were submitted, and also the way it thoroughly considered the scope of issues that were raised there in the final record of decision, which is also available via their appendix. [00:39:39] Speaker 05: So that would be in around 2018, 2017? [00:39:44] Speaker 03: Yes, but thinking backwards, right, the draft record of decision was issued in 2018. [00:39:48] Speaker 03: The final record of decision came shortly after. [00:39:51] Speaker 03: This case has now been in litigation for almost four years. [00:39:54] Speaker 03: Although those seem like farther back in time points, they were quite contemporaneous with the actual action of issue. [00:40:01] Speaker 05: And the agency is the one who designates the record, the rod, right? [00:40:09] Speaker 05: Correct. [00:40:10] Speaker 03: I want to make one other point if I can on the Section 7 versus Section 10 sort of apparent conflict. [00:40:15] Speaker 03: I think that there's a perception that sort of flows through petitioners brief that somehow the agency is trying to get away with something by not somehow imposing Section 10 on LMJD. [00:40:25] Speaker 03: And so I just want to make a clear couple of things about the relationship there. [00:40:28] Speaker 03: The first is that the decision to participate in a Section 10 process is voluntary. [00:40:32] Speaker 03: on the part of an applicant, the federal government has no authority to force a private applicant to go through that process unless they otherwise want to. [00:40:40] Speaker 03: So in this case, if LMJD was told that it was not able to be covered by the Section 7 process as the ESA permits, the agency wouldn't have any ability to enforce those conservation measures [00:40:51] Speaker 03: on LMJP unless they voluntarily chose to seek protection from the take liability of the one lease that's expected to be harmed as a result of this development. [00:41:00] Speaker 03: If they don't choose to engage in that process willingly, the agency loses the ability to implement the reasonable and prudent measures that benefit conservation. [00:41:08] Speaker 03: So there's a real conservation benefit here to having this comprehensive, connected Section 7 process. [00:41:13] Speaker 03: and not a separate section 10 process, which doesn't necessarily produce any higher conservation benefit and is voluntary on the part of a private applicant. [00:41:23] Speaker 03: I know we're very limited in time, so if this court has further questions for me, I'm happy to answer them. [00:41:26] Speaker 03: Otherwise, I will research the balance for our engineers council. [00:41:30] Speaker 03: We ask this court to reverse, thank you. [00:41:41] Speaker 01: Your Honors, this court can review the Forest Service directly, regardless of what the District Court did. [00:41:46] Speaker 01: That's your Olin House decision. [00:41:48] Speaker 01: The entire record is before you. [00:41:50] Speaker 01: It is closed. [00:41:51] Speaker 01: The FOIA suits the counsel referred to both came to this court and they lost, both times. [00:41:58] Speaker 01: There's been no hiding the ball on this development at point. [00:42:08] Speaker 01: It shows that before the CENA easement was granted in May 1987, we applied for and got water rights for 2,444 units publicly. [00:42:19] Speaker 01: The largest development that's considered and assessed here is below that. [00:42:23] Speaker 01: This has always been clear. [00:42:26] Speaker 01: And as to timing, Your Honor, we've lost the 80s and the 90s and the aughts and the teens. [00:42:31] Speaker 01: We don't want to lose the 20s. [00:42:38] Speaker 01: I'm glad to answer them. [00:42:40] Speaker 05: Who has the final say over what the development will be? [00:42:45] Speaker 01: There will be many agencies down the road that will have that. [00:42:50] Speaker 01: Mineral County is the direct regulator. [00:42:53] Speaker 01: It's the one that does the zoning, the platting, and all of that. [00:42:57] Speaker 01: But of course, this is just an easement to build a road. [00:43:00] Speaker 01: CDOT is going to actually have to approve a connection to Highway 60. [00:43:05] Speaker 01: on that, if there are thermal things, there are water rights that are going to have to be considered. [00:43:09] Speaker 01: And so, Your Honor, this is step one of a lot of steps. [00:43:15] Speaker 01: And so the idea that this is going to be unregulated by anyone going forward is completely wrong. [00:43:22] Speaker 01: And the 800-page environmental impact statement, Your Honor, you guys probably remember, we analyzed three different levels of development. [00:43:31] Speaker 01: Because we said, we don't know exactly what's going to happen. [00:43:33] Speaker 01: We're going to analyze all of them. [00:43:35] Speaker 01: And none of the labels that council was complaining about affected in any way that analysis, whether it's direct or indirect. [00:43:42] Speaker 01: They were all still analyzed. [00:43:44] Speaker 01: The water, the wildlife, everything was analyzed on here. [00:43:48] Speaker 01: And they said there has to be a road under Anilka. [00:43:52] Speaker 01: It has to be in this location. [00:43:54] Speaker 01: The only question is, is this easement going to be there to allow it as long as the land is the government's? [00:44:10] Speaker 05: Thank you. [00:44:11] Speaker 05: We will take it under advisement.