[00:00:00] Speaker 02:
I'm Jennifer Bess on behalf of Friends of Animals and I'd like to reserve one minute for rebuttal.

[00:00:29] Speaker 00:
Today, I'd like to emphasize the importance of this case because the open-ended decisions to round up and remove wild horses eliminate valuable public input and disregard important safeguards that Congress put in place to protect wild horses.

[00:00:43] Speaker 06:
Can I start you where we have to know you can satisfy as jurisdiction?

[00:00:49] Speaker 06:
The case law is pretty strong.

[00:00:52] Speaker 06:
in a remand order like this, there is no jurisdiction that the court has.

[00:00:56] Speaker 06:
And that has been stated in very strong terms by a number of our colleagues over the years.

[00:01:03] Speaker 06:
I realize that it can go both ways, but I don't understand using the analysis that's appropriate

[00:01:13] Speaker 06:
what you would effectively be denied if we say we don't have jurisdiction now.

[00:01:18] Speaker 06:
Because when you look at what the district court is ordering, the district court is simply saying there are things you have to go back and do, make sure you do them appropriately, but that's it.

[00:01:30] Speaker 06:
And in the cases that I've looked at, we've done it more than a couple of times.

[00:01:35] Speaker 06:
There's no jurisdiction here.

[00:01:37] Speaker 00:
Well, Your Honor, under the four sort of factors of jurisdiction, it does indicate that we do have jurisdiction.

[00:01:44] Speaker 00:
I think the issue is when the court issued a final decision, it gave jurisdiction back to the agency.

[00:01:51] Speaker 00:
It said, this is final.

[00:01:52] Speaker 00:
It is not going to make another decision.

[00:01:54] Speaker 00:
And it essentially said that BLM can continue to round up and remove horses as many times as it likes until it achieves an appropriate management level.

[00:02:04] Speaker 06:
You know, it actually says a number of things that can easily be challenged by you folks later on if the guidance or the questions raised by the district court have not been effectively attended to.

[00:02:18] Speaker 06:
Conduct the required gathers promptly as reasonably possible.

[00:02:24] Speaker 06:
That's a potential fight later on.

[00:02:27] Speaker 06:
You can't take an entire decade to act, but there's nothing indicating you must act within

[00:02:34] Speaker 06:
eight years, nine years.

[00:02:36] Speaker 06:
You must use then available inventory when you do gather again or propose to gather again.

[00:02:42] Speaker 06:
These are all things where the district court is sending things back to be attended to.

[00:02:50] Speaker 06:
And that's exactly the kind of cases I understand the case, although we said we don't have jurisdiction to take this.

[00:02:57] Speaker 00:
Well, Your Honor, Friends of Animals' concern is that each time BLM makes a decision to round up and remove horses, it should comply with certain statutory requirements.

[00:03:09] Speaker 00:
The district court said it was OK that it doesn't comply with those statutory requirements every single time it rounds up and removes horses.

[00:03:18] Speaker 00:
It remanded back to BLM, who has not made any

[00:03:24] Speaker 00:
indication that it's going to change its decisions.

[00:03:28] Speaker 00:
These decisions are still in effect and will remain for years.

[00:03:32] Speaker 00:
And it can conduct a separate roundup to remove horses under those decisions.

[00:03:38] Speaker 05:
Do you think the BLM could lawfully just leave these orders in place with an extra explanation?

[00:03:51] Speaker 05:
just you know they say a bunch they say a bunch of more words about how hard it is to manage these things it's oh so terribly complicated and we really need a decade so we're not changing anything you think that would be lawful under the district court's opinion well your honor that is what blm's doing and our concern they haven't decided yet it's

[00:04:15] Speaker 00:
And we've seen them in other cases, they are continually rounding up horses.

[00:04:27] Speaker 00:
And I think our concern.

[00:04:28] Speaker 05:
Okay.

[00:04:29] Speaker 05:
But the district court's opinion.

[00:04:33] Speaker 05:
It's sort of a Goldilocks opinion, right?

[00:04:35] Speaker 05:
He says there are extreme positions from the parties, and yours is you only get one gather or roundup, and theirs is they can take 10 years.

[00:04:49] Speaker 05:
And he's saying neither of those extremes is right.

[00:04:54] Speaker 05:
There are a whole bunch of line drawing problems about how long is too long and how much information you need.

[00:05:01] Speaker 05:
And he sends it back to the agency to work all that out.

[00:05:05] Speaker 05:
It seems like, you know, if one of the major inquiries on finality is, is the nub of the controversy still open on remand?

[00:05:18] Speaker 05:
It seems like a textbook case where lots of core issues are still open.

[00:05:25] Speaker 00:
Your honor, I think the core issue for friends of animals is that on their face, these decisions violate the law.

[00:05:33] Speaker 00:
That court issue was resolved by the district court's opinion.

[00:05:36] Speaker 00:
He said on their face, it does not violate the law.

[00:05:40] Speaker 00:
He claims that friends of animals.

[00:05:41] Speaker 05:
I don't think he said that.

[00:05:42] Speaker 05:
He said.

[00:05:44] Speaker 05:
He said, does not violate the law merely because more than one gather is allowed.

[00:05:53] Speaker 00:
Correct, Your Honor.

[00:05:54] Speaker 00:
And that is a core issue that Friends of Animals disputes.

[00:05:58] Speaker 00:
And we don't think our position is extreme because this is the position that the Bureau of Land Management took for nearly 50 years and is only now changing it.

[00:06:06] Speaker 05:
All right.

[00:06:07] Speaker 05:
Fair enough.

[00:06:07] Speaker 05:
But let me give you one other consideration.

[00:06:09] Speaker 05:
So broad range of discretion still open on remand.

[00:06:14] Speaker 05:
And the other one is, whether or not it's extreme, your position on one end of that spectrum will be fully open for you to pursue on appeal later.

[00:06:29] Speaker 00:
Well, no, Your Honor, because respectfully, the district court judge said he's drawing the line in the middle and that on their face, these decisions don't violate the law.

[00:06:42] Speaker 00:
This is a core dispute that Friends of Animals has.

[00:06:45] Speaker 00:
We believe these decisions on their face do violate the law.

[00:06:49] Speaker 00:
And it is significant.

[00:06:50] Speaker 05:
I think you're over reading the opinion.

[00:06:53] Speaker 05:
But even if I'm wrong about that,

[00:06:57] Speaker 05:
goes back on remand and the agency shaves 10 years down to eight or five or two or whatever, right?

[00:07:08] Speaker 05:
You go up to the district court and he says, that's okay.

[00:07:15] Speaker 05:
And then you take the appeal and argue everything you've argued to us.

[00:07:20] Speaker 05:
Brightline rule, one gather only, immediate means immediate, and all of those issues are teed up for us later.

[00:07:29] Speaker 00:
One thing I'd like to point out is that the district court said this was a final, appealable order.

[00:07:34] Speaker 00:
BLM doesn't dispute that.

[00:07:36] Speaker 05:
You have the formality of the order in your favor, but he doesn't have final say on what satisfies 1291.

[00:07:47] Speaker 00:
And the practical implication here is that BLM doesn't issue a new decision in remand.

[00:07:53] Speaker 00:
It lets the course of 10 years run, and Friends of Animals is stuck never being able to appeal these decisions.

[00:08:00] Speaker 06:
And it's every indication which- What decision is that to, I don't know what you're talking about.

[00:08:06] Speaker 06:
If they let it run, you're talking about the 10 years.

[00:08:09] Speaker 00:
Yes.

[00:08:10] Speaker 06:
Yeah.

[00:08:11] Speaker 00:
So then the decisions,

[00:08:14] Speaker 00:
Friends of animals can't challenge the decision.

[00:08:18] Speaker 00:
The fact that BLM can continually round up and remove horses in these four HMAs.

[00:08:23] Speaker 06:
They're going to have to do a new plan at that point if the 10 years run.

[00:08:28] Speaker 06:
And that's going to be subject to review.

[00:08:30] Speaker 06:
That's what's so odd about this case.

[00:08:32] Speaker 06:
I mean, the 10 years is almost done.

[00:08:34] Speaker 06:
Well, I think I'm not sure what is it that you want that anytime they think about a gather and reduction that has to be subject to full process?

[00:08:45] Speaker 06:
Is that what you're saying?

[00:08:47] Speaker 00:
Anytime they actually remove horses.

[00:08:49] Speaker 00:
So right now what could happen is next year they're going to say, we're going to remove a thousand horses with no notice to friends of animals, no consultation.

[00:08:58] Speaker 00:
We try to go to the district court and they say, this decision has already been decided and we have no relief.

[00:09:05] Speaker 06:
That would be subject, you could go back to the district court.

[00:09:08] Speaker 00:
Your honor, we can't because they're not going to issue a new decision.

[00:09:11] Speaker 00:
They're relying on the decision.

[00:09:13] Speaker 06:
They're going to make a statement.

[00:09:14] Speaker 06:
It's not going to be in hidden.

[00:09:16] Speaker 06:
Someone is going to know they've made a decision to round up and reduce.

[00:09:21] Speaker 00:
Well, according to BLM, they could make that decision.

[00:09:23] Speaker 06:
It's not about what BLM says.

[00:09:25] Speaker 06:
I'm saying what the district court was suggesting.

[00:09:28] Speaker 06:
There's some guidelines.

[00:09:30] Speaker 06:
You can't take a full decade.

[00:09:33] Speaker 06:
Do it promptly as reasonably possible.

[00:09:36] Speaker 06:
Don't ignore material new information.

[00:09:41] Speaker 06:
Then available inventory and other information.

[00:09:44] Speaker 06:
So using those considerations,

[00:09:47] Speaker 06:
You could come back in and say, no, they are now suggesting they're going to do a gathering reduction.

[00:09:53] Speaker 06:
And they have not followed what the district court suggested they needed to consider.

[00:09:59] Speaker 06:
So we're challenging it now.

[00:10:00] Speaker 06:
And they cannot pursue this gathering reduction.

[00:10:04] Speaker 06:
because they're not doing what the district court said they had to do.

[00:10:08] Speaker 06:
They can't just rely on the 10 years.

[00:10:10] Speaker 06:
They have to take the information that's available to them at the moment that they're proposing to do something.

[00:10:15] Speaker 06:
District court's very clear on that.

[00:10:18] Speaker 06:
And you clearly could come back in.

[00:10:21] Speaker 00:
Well, Your Honor, respectfully, we don't agree with the standards that the district court set.

[00:10:26] Speaker 00:
That's what we're here appealing.

[00:10:28] Speaker 06:
What standard is that?

[00:10:30] Speaker 00:
So we, according to the wild horse and burrow act, BLM has to make a determination based on an existing population that removal of excess horses is necessary and it must consult with independent parties when doing so.

[00:10:45] Speaker 00:
So we think that standard laid out in the law is what should apply, not what the district court set.

[00:10:52] Speaker 00:
Because these decisions on their face exceed that.

[00:10:56] Speaker 00:
They're not limited to an existing overpopulation.

[00:10:59] Speaker 00:
And they're not consulting with independent parties when they're making them.

[00:11:03] Speaker 00:
That is our concern.

[00:11:05] Speaker 00:
And that is what we're asking this Court of Appeals to decide.

[00:11:09] Speaker 00:
And as a practical matter, which is a consideration in jurisdiction, when BLM says we're going to remove 1,000 horses next week, Friends of Animals

[00:11:19] Speaker 00:
doesn't have time to challenge that decision and arguably we wouldn't have jurisdiction because our concerns are that the standards set out in the act should apply and not the standards set out by the district court.

[00:11:32] Speaker 05:
If you were right, wouldn't any district court order in an APA case remanding without vacatur be immediately appealable?

[00:11:45] Speaker 05:
Well, your honor, if the dish party that's established the need for a remand, but not getting vacature can say, well, gosh, the order is still in effect and bad things might happen to me in the interim until the agency cleans up the remand.

[00:12:02] Speaker 00:
It kind of depends on sort of what the remand is.

[00:12:06] Speaker 00:
And if it's clear that the judge is saying you have to meet these certain requirements and the plaintiff doesn't dispute those specific requirements, then it's possible that the remand order is not immediately appealable.

[00:12:21] Speaker 00:
But here, where we're friends of animals, does dispute the standards set forth for remand.

[00:12:28] Speaker 00:
then it is immediately appealable, especially when we would not have an opportunity to litigate those on remand because the district court set different standards.

[00:12:40] Speaker 00:
So we can't go back to the district court and say, we disagree with this because of our concerns with the Wild Horse and Borough Act because the district court would say, I already said

[00:12:50] Speaker 00:
that was okay that they have some like discretion in the middle where friends of animals is appealing that oh in fact the act doesn't give them that discretion.

[00:13:00] Speaker 06:
What is the legal standard that you feel must be overturned?

[00:13:06] Speaker 00:
We believe that on their face, if the decisions go beyond an existing overpopulation and what was necessary at the time of the decision, then those on their face violate the Wild Tree Roaming Horses and Burrows Act.

[00:13:18] Speaker 06:
Are you talking the decision with respect to the original plan?

[00:13:22] Speaker 06:
Because we're not talking about the appropriate management levels.

[00:13:26] Speaker 06:
Those are fixed, right?

[00:13:27] Speaker 06:
So you have lots of variables after the appropriate management level is fixed, then you have plans.

[00:13:33] Speaker 06:
And are you suggesting

[00:13:36] Speaker 06:
Process is required when the initial plan is established pursuant to the management level.

[00:13:44] Speaker 06:
And they can reduce.

[00:13:47] Speaker 06:
You've got notice.

[00:13:49] Speaker 06:
You've participated in that process in determining what should be in the plan.

[00:13:53] Speaker 06:
And then they act.

[00:13:55] Speaker 06:
Now, you know as well as I do, you can't always achieve it fully just given the wilderness and the problems out there.

[00:14:03] Speaker 06:
You don't always

[00:14:05] Speaker 06:
meet the mark right so they're going to be follow-ups and indeed that's clear from the record so you may have you may want to reduce by a hundred horses but because of a lot of variables everyone realized it was not possible to get a hundred horses so we're going to continue that a little bit later now are you saying when they continue the district court what are you saying you surely contemplate that possibility right

[00:14:33] Speaker 00:
Yes sir.

[00:14:33] Speaker 06:
Are you saying there has to be a new process to go through the whole thing again?

[00:14:38] Speaker 06:
We couldn't get the original hundred.

[00:14:43] Speaker 00:
Your honor, so what BLM did for nearly 50 years is each time.

[00:14:48] Speaker 00:
Tell me what you're objecting.

[00:14:49] Speaker 06:
I don't care what they did before.

[00:14:51] Speaker 06:
What we have now, I'm sorry, I don't mean to be impatient, but I really am impatient on this one because I'm not getting it.

[00:14:57] Speaker 06:
What is it you're concerned about?

[00:14:59] Speaker 06:
You have an original, the AML, you have the plan.

[00:15:04] Speaker 06:
and then they act pursuant to the plan and process was clearly given you participated and everyone agreed we're going to try and reduce and and eliminate 100 horses it doesn't work out for perfectly reasonable reasons it doesn't happen so that plan to get rid of those hundred is going to be delayed it's going to happen a little bit later and they come back and say okay we're going to do it now we're going to get the additional 75 you're saying it has to be new process now

[00:15:33] Speaker 00:
Well, your honor, these decisions don't say we're going to remove 100 horses.

[00:15:37] Speaker 00:
They're going to say we remove horses to a set target.

[00:15:41] Speaker 00:
So the decision is kind of open ended.

[00:15:44] Speaker 00:
So maybe initially they said, we think there's 100 excess horses.

[00:15:49] Speaker 00:
And then five years later, they're going to say, actually, we're going to remove 500 horses.

[00:15:55] Speaker 00:
And the public doesn't get any input in that.

[00:15:57] Speaker 04:
And Congress foresaw this.

[00:15:59] Speaker 04:
There's currently available information at that time because it doesn't seem like there's a specific mark, you know, like quarterly or annually or.

[00:16:09] Speaker 00:
Right, so Congress, if you look at legislative history, they expected that these would be annual determinations.

[00:16:15] Speaker 00:
And they are supposed to look at currently available information, but they're also supposed to consult with independent parties.

[00:16:21] Speaker 00:
So five years down the road, if they decide, oh, now we think there's 500 excess horses, that should be reviewable.

[00:16:28] Speaker 00:
And the public should be able to get input in that.

[00:16:31] Speaker 06:
Under these decisions, they don't.

[00:16:33] Speaker 06:
Public involvement is going to take a year and a half, and now they're ready to act after the year and a half.

[00:16:37] Speaker 06:
You're going to come back and say, no, no, no, you cannot, because you have to do it again, because circumstances have changed over the year and a half when you were consulting with the public.

[00:16:46] Speaker 06:
Is that what your argument is?

[00:16:48] Speaker 06:
So a year and a half, you're saying they're getting what they want to reduce now, after the original plan was played out as well as it could be.

[00:16:56] Speaker 06:
Now time goes by and they say, we want to continue now with a reduction.

[00:17:01] Speaker 06:
You say, no, no, no, you have to have process and we have to be involved.

[00:17:05] Speaker 06:
Okay, you have it.

[00:17:07] Speaker 06:
And you fight over how many more?

[00:17:09] Speaker 06:
What circumstances have changed?

[00:17:11] Speaker 06:
You finish a year and a half later, because that's how long these things may take.

[00:17:15] Speaker 06:
And then at the end of the year and a half, you're going to say, when they say, okay, we're going to now move, you say, no, you can't because circumstances have changed during the year and a half.

[00:17:23] Speaker 06:
So we have to do it again.

[00:17:24] Speaker 06:
When does it end?

[00:17:27] Speaker 00:
No, your honor, I think you see what I'm saying.

[00:17:30] Speaker 00:
When does it end?

[00:17:31] Speaker 00:
I see what you're saying.

[00:17:32] Speaker 00:
But I think one thing that you're misunderstanding is that the Bureau of Land Management is changing its decisions, not Friends of Animals.

[00:17:39] Speaker 00:
The Bureau of Land Management is saying five years down the road, we now think there's a different excess number.

[00:17:45] Speaker 00:
So our concern is that when it makes that new decision, I totally understand that when they make the

[00:17:53] Speaker 06:
second decision after the original plan and they're acting on the original plan then they make it and You want to be a part of that and I'm saying you're a part of it But it takes a year and a half to be a part of it

[00:18:05] Speaker 06:
And now they're getting ready to act again.

[00:18:07] Speaker 06:
And you say, but wait, there was a bad winter during that year and a half when we had notice and comment and things have changed and a number of horses have passed away and fertility is different.

[00:18:19] Speaker 06:
So you still can't act because we have to participate again with you.

[00:18:22] Speaker 06:
When does that end?

[00:18:25] Speaker 00:
Well, Your Honor, that is not the situation here, but I think all that I would say it ends, you know, once one place to draw the line is BLM says it needs to remove 100 horses.

[00:18:39] Speaker 00:
Once it's removed 100 horses, it can't go back and then say we need to remove more without that process.

[00:18:47] Speaker 00:
No, respectfully, Your Honor,

[00:18:52] Speaker 00:
The district court had tied the decisions to the appropriate management level rather than an existing overpopulation.

[00:19:00] Speaker 00:
So that is what Friends of Animals disputes is that.

[00:19:05] Speaker 00:
BLM can't go back and remove horses merely based on appropriate management level.

[00:19:10] Speaker 00:
And BLM concedes this in the 10th Circuit and has said just because a population is over the set target doesn't mean they can remove them.

[00:19:21] Speaker 00:
But under these decisions and under the district court's opinion, BLM could go back and continually remove more horses than originally proposed in its decisions.

[00:19:32] Speaker 06:
The district court says they can do that after making it necessary to remove excess animals determination.

[00:19:39] Speaker 06:
They can't just do it on a whim.

[00:19:41] Speaker 06:
They have to make the determination.

[00:19:45] Speaker 06:
I'm just reading from the district court.

[00:19:47] Speaker 06:
They can't just on a whim say, well, let's remove some now.

[00:19:50] Speaker 06:
They have to make it necessary to remove excess animals determination.

[00:19:56] Speaker 00:
Well, right.

[00:19:58] Speaker 06:
And they say you have to consider new information that is now before you in doing all of this.

[00:20:05] Speaker 06:
And you may have to have real process depending upon what's going on, what the issues are, which means you would be involved again.

[00:20:14] Speaker 06:
It depends on the situation.

[00:20:16] Speaker 00:
well respectfully your honor the court is the district court kind of said yes blm can decide when there's new process what we think the act requires is that once it's completed one round up then it needs to have additional process even if it didn't achieve you know even if it's the

[00:20:37] Speaker 00:
target level it claims it hasn't achieved.

[00:20:39] Speaker 00:
If it removes the horses that it identified as excess in the original decision, then it should have to do that new process.

[00:20:47] Speaker 00:
The problem with these decisions is on their face, they're not limited to an existing overpopulation.

[00:20:53] Speaker 00:
On their face, they allow BLM to adjust the target removal numbers as the years go by.

[00:21:00] Speaker 00:
And that adjustment is what Friends of Animals concerned of because that's what Congress required, you know, certain safeguards for.

[00:21:09] Speaker 00:
Congress required that BLM consult independent parties.

[00:21:12] Speaker 00:
Congress required that it make the determination that the overpopulation exists and that removal is necessary.

[00:21:20] Speaker 06:
And the Ditcher Court said that the agency cannot ignore material new information that comes to its attention over time.

[00:21:27] Speaker 06:
yes your honor but not ignoring material information and consulting with independent parties and they may be required to have process depending upon what it is they're looking at at any given moment and that's where you can come back to the district court because you may be at a place where

[00:21:43] Speaker 06:
They're saying, we want to have a reduction.

[00:21:46] Speaker 06:
We want to have a gather and a reduction.

[00:21:48] Speaker 06:
And we think because of X or Y. And you're saying, no, no, no, you have to have process.

[00:21:52] Speaker 06:
This is one of these situations where process is required.

[00:21:56] Speaker 06:
They say not happening.

[00:21:57] Speaker 06:
District court clearly invites you to come back and you can make that challenge.

[00:22:02] Speaker 00:
Well, can I point out one other thing that the Supreme Court has said in guidance on this in the Department of Homeland Security versus Regents of Southern California is that when an agency makes a new decision, it's a fundamental principle

[00:22:19] Speaker 00:
of administrative law that they have to explain their reasons for doing so and they have to issue a new decision.

[00:22:27] Speaker 00:
That gets taken away under the district court's order and opinion because now the burden is not on BLM to defend its decision, it's on Friends of Animals to say things have materially changed and to bring this appeal, you know,

[00:22:43] Speaker 00:
in a matter of days because BLM doesn't commit to providing any notice to the public, essentially forcing litigants and the courts to chase a moving target.

[00:22:54] Speaker 00:
That violates the Administrative Procedure Act and that violates what Congress intended when it put these safeguards in the Wild Tree Roaming Horses and Burrows Act.

[00:23:02] Speaker 00:
It wanted the agency to provide this information to consult with other parties.

[00:23:09] Speaker 00:
And I noticed that my time has passed, so I'm happy to answer more questions.

[00:23:16] Speaker 05:
We'll give you some time.

[00:23:18] Speaker 00:
Thank you, Your Honors.

[00:23:27] Speaker 05:
Mr. Peterson.

[00:23:32] Speaker 04:
Good morning, Your Honor.

[00:23:41] Speaker 05:
Could you give us the federal government's view on finality?

[00:23:45] Speaker 03:
Yes, Your Honor.

[00:23:46] Speaker 03:
That's what I was going to start with.

[00:23:48] Speaker 03:
May it please the court, my name is Ezekiel Peterson.

[00:23:50] Speaker 03:
With me at council table is Steve Geary, representing the state of Utah.

[00:23:53] Speaker 03:
My plan is to speak for eight minutes before turning it over to Mr. Geary.

[00:23:57] Speaker 03:
I'm hesitant to get too far out over my skis on jurisdiction just because we didn't brief it and we didn't contest it.

[00:24:04] Speaker 03:
What I think might- We have to decide.

[00:24:06] Speaker 05:
I'm aware- It would be nice to have the federal government's

[00:24:10] Speaker 03:
views.

[00:24:13] Speaker 03:
Let me start with how BLM construes the district court order because I think that shades the jurisdictional discussion a little bit.

[00:24:20] Speaker 03:
Our understanding of the district court order and I think this is consistent with what the plaintiffs have said is that

[00:24:27] Speaker 03:
the other plans are still left in place in so far as they allow BLM to remove wild horses down to AML in these herd management areas.

[00:24:39] Speaker 03:
So that is is still in place.

[00:24:41] Speaker 03:
BLM did some of that work I believe after this decision came out and that's of course subject to the limitations that the district court put on those

[00:24:52] Speaker 03:
gather decisions at the order of pages 50 to 51, saying they still have to be conducted as promptly as reasonably possible subject to the statute.

[00:25:00] Speaker 03:
They can't be based on information or consultation that's materially out of date.

[00:25:05] Speaker 03:
But the government can still go forward and remove wild horses down to AML.

[00:25:11] Speaker 03:
They can't do maintenance after that, of course.

[00:25:13] Speaker 03:
And we don't contest that.

[00:25:14] Speaker 03:
But we can gather down to AML.

[00:25:18] Speaker 05:
Uh, so with that, I mean, I'd like to focus on the government have any obligation under the remand order to amend the plans.

[00:25:31] Speaker 03:
I think in so far as the government.

[00:25:35] Speaker 03:
I think our understanding of the remand order is that we have to amend the plans if there are some sort of material changes in condition or changes in consultation or if the government wants to do anything beyond gathering down pay email.

[00:25:50] Speaker 05:
But other than that, no, I'm not sure it is critical for jurisdictional purposes, but I had read it to require you to.

[00:26:01] Speaker 05:
clean up the plants insofar as he found them essentially overbroad.

[00:26:07] Speaker 03:
I think our position has been that that is confined to the portions of the plans that I discussed, not the portion of the plan that is just a straightforward gather down to AML as reasonably fast as possible.

[00:26:21] Speaker 05:
No, but after he knocks out the maintenance part, he says separate and apart from that,

[00:26:30] Speaker 05:
No cart launch to conduct gathers years from now.

[00:26:34] Speaker 05:
Yes.

[00:26:36] Speaker 05:
But because the Bureau is better situated to draw those lines in the first instance, the court will remand to the Bureau, which can revise the decisions to clarify which future gathers will require further process.

[00:26:52] Speaker 03:
Understood your heart.

[00:26:53] Speaker 03:
And I can discuss that with my client.

[00:26:56] Speaker 06:
You can't ignore material new information that comes to your attention over time.

[00:27:01] Speaker 03:
That's correct.

[00:27:01] Speaker 03:
And we don't dispute that, that if material new information comes into play, BLM is not allowed to conduct further gathers without considering that material of new information.

[00:27:11] Speaker 03:
That's not an issue on appeal.

[00:27:12] Speaker 06:
Neither BLM nor Utah have to make the necessary to remove excess animal determinations.

[00:27:18] Speaker 03:
That's correct.

[00:27:19] Speaker 06:
I thought the district court also said in some situations,

[00:27:23] Speaker 06:
Given the circumstances, you may have to have new process.

[00:27:26] Speaker 03:
That's correct.

[00:27:26] Speaker 03:
When material new information comes into play.

[00:27:29] Speaker 03:
And we don't dispute that.

[00:27:30] Speaker 03:
That's not an issue in this appeal.

[00:27:31] Speaker 05:
Or when there's very substantial delay.

[00:27:34] Speaker 03:
That's also correct.

[00:27:35] Speaker 03:
And that goes to the statute's requirement that

[00:27:40] Speaker 06:
And that they can come back to court if they disagree with what you're proposing to do, and they're making a claim there's new material information, which they've totally ignored, ignored.

[00:27:49] Speaker 06:
The necessary to remove determination makes no sense.

[00:27:52] Speaker 06:
They can challenge you.

[00:27:53] Speaker 03:
That's correct, Your Honor.

[00:27:54] Speaker 03:
I think they would have both administrative and judicial remedies insofar as they allege there's some sort of new material, new information.

[00:28:03] Speaker 06:
Now, let me just make it clear.

[00:28:05] Speaker 06:
Go ahead.

[00:28:06] Speaker 06:
I didn't think this was the case.

[00:28:08] Speaker 06:
I don't mean to sound frivolous with this, but this doesn't happen that someone out there says,

[00:28:17] Speaker 06:
let's reduce, let's get rid of 100 horses.

[00:28:21] Speaker 06:
It's Sunday and they say, well, let's do it Tuesday.

[00:28:23] Speaker 06:
Don't tell anybody anything, move quickly.

[00:28:25] Speaker 03:
No, your honor.

[00:28:26] Speaker 06:
That isn't what's going on, is it?

[00:28:28] Speaker 03:
No, your honor.

[00:28:28] Speaker 03:
In fact, my understanding is there's a lot of opportunity for the public to come out and observe these gathers.

[00:28:34] Speaker 03:
These gathers are planned months in advance because of course they're subject to significant constraints around on the ground conditions, around the agency's funding.

[00:28:43] Speaker 03:
So the agency has a

[00:28:44] Speaker 03:
schedule of gathers that are scheduled to happen.

[00:28:48] Speaker 06:
The only reason I'm raising it is because they're concerned about not being able to object or raise challenges

[00:28:54] Speaker 06:
to raise questions that the district court has raised can't be met because there's no time.

[00:28:59] Speaker 06:
That's not the picture I'm looking at.

[00:29:01] Speaker 06:
I think that's not correct.

[00:29:02] Speaker 06:
Is that right?

[00:29:03] Speaker 03:
Yes, Your Honor.

[00:29:04] Speaker 03:
We would agree with you that just the practicalities of how these get their decisions are implemented means that there would be time for friends of animals to raise objections insofar as they think there's some sort of new material information that the agency needs to consider.

[00:29:20] Speaker 05:
So I had thought you had to amend the plans, but I see how you're reading this.

[00:29:28] Speaker 05:
So let's assume you're right.

[00:29:30] Speaker 05:
Then the way judicial review would work is the plans are what they are, and there may be as applied issues in the future.

[00:29:46] Speaker 05:
And when you do a subsequent gather pursuant to a plan, that is separate agency action and someone like friends of animals can go to court and say that it is either

[00:30:04] Speaker 05:
unlawful or inconsistent with the district court remand order?

[00:30:09] Speaker 03:
I don't want to get in trouble by stating for the government that follow-up gather is necessarily an agency action that is is challengeable under the APA.

[00:30:19] Speaker 05:
If you don't say that, you're making your jurisdictional case harder.

[00:30:26] Speaker 05:
Because if you have neither a plan amendment nor a later agency action, then it sort of looks like they're going to have a tough time getting into court later.

[00:30:36] Speaker 03:
The way that I was thinking about it, that the government was thinking about it, was that if there's some sort of material change in condition or change in information, or if Friends of Animals or a plaintiff group believes that there's some sort of unreasonable delay under statute,

[00:30:54] Speaker 03:
they would have the opportunity to petition the agency under the APA, and then that decision would be reviewable judicially.

[00:31:02] Speaker 05:
For unreasonable delay?

[00:31:06] Speaker 03:
For the agency's response to that petition would be reviewable under the arbitrary and capricious standard.

[00:31:16] Speaker 05:
And sorry, what's the petition?

[00:31:18] Speaker 03:
They petition not to do the... Saying either there's this new information that BLM has not considered.

[00:31:24] Speaker 06:
It's the precipitating event.

[00:31:26] Speaker 06:
That's what my colleague's asking.

[00:31:27] Speaker 06:
Is it the proposal to gather or is it the necessary to remove decision, which would, I think, follow the gather, right?

[00:31:36] Speaker 06:
The necessary to remove?

[00:31:38] Speaker 06:
I think the gather before you make the necessary, I'm asking you gather before you make the necessary to remove decision, right?

[00:31:47] Speaker 03:
You, you make the necessary to remove decision before you gather.

[00:31:52] Speaker 03:
Okay.

[00:31:53] Speaker 03:
Yeah.

[00:31:53] Speaker 03:
There's an excess determination.

[00:31:55] Speaker 03:
Right.

[00:31:55] Speaker 03:
Yes.

[00:31:56] Speaker 06:
And then what's the starting point is what

[00:32:00] Speaker 03:
my colleague is asking what is it that they can first object to the necessary to remove decision or the gather decision or what I think in this hypothetical we're assuming that there's a gather plan like the one at issue here that kind of authorizes some sort of actions in the future not just one individual gather so I suppose it would be the

[00:32:25] Speaker 03:
schedule gather that is coming up, the BLM's decision that they're going to institute a gather.

[00:32:32] Speaker 06:
That is premised on and necessary to remove decision.

[00:32:37] Speaker 05:
Yes.

[00:32:38] Speaker 05:
Premised on the one that's already been made that on your view, you don't need to reconsider.

[00:32:46] Speaker 03:
That's correct.

[00:32:47] Speaker 03:
Our view, we don't need to reconsider absent some sort of material change in circumstances or new information.

[00:32:53] Speaker 03:
Yes.

[00:32:55] Speaker 04:
So you've got the Gutierrez decision that basically said remand order is not final, but what about Linnea?

[00:33:01] Speaker 04:
How do you interplay those two?

[00:33:03] Speaker 03:
Yeah, and again, we didn't brief this, but my understanding is this is more in the Limnea category than the North Carolina fisheries v. Gutierrez category.

[00:33:16] Speaker 03:
The district court's order here, and I think the way we've been reading the order, Friends of Animals has been reading the order, is it still authorizes BLM to continue taking this action in a way that they disagree with.

[00:33:28] Speaker 04:
And has DLM ever achieved these appropriate management levels?

[00:33:34] Speaker 03:
My understanding based on the most recent data I've seen from the agency is that in some of these HMAs they have, but in say the Eagle Complex HMA, the appropriate management level is 145 to 265.

[00:33:47] Speaker 03:
And as of March, there were still 2,300 wild horses on the ranch.

[00:33:53] Speaker 04:
So are these gathers still ongoing?

[00:33:57] Speaker 03:
Um... One moment.

[00:34:03] Speaker 03:
I don't believe that the gathers are ongoing under these specific plans, but I would have to check with the agency.

[00:34:10] Speaker 03:
I see that I'm out of time.

[00:34:14] Speaker 03:
I can speak briefly about the merits of this case if the court would like me to or answer any questions.

[00:34:20] Speaker 04:
BLM suggests that these appropriate management levels don't have to be based on current information.

[00:34:26] Speaker 04:
You want to speak to that?

[00:34:27] Speaker 03:
BLM agrees that when the agency makes the overpopulation decision, it has to do that based on current information and it did that here.

[00:34:38] Speaker 03:
If you look at as is available to the agency when it makes the determination.

[00:34:44] Speaker 03:
It's crucial to see these decisions at JA 851.

[00:34:48] Speaker 03:
It says, without action, this extreme overpopulation of wild horses on the range will result in deterioration of rangeland resources, destroying native vegetation.

[00:34:57] Speaker 03:
Plant communities could result in danger of human safety as horses expand in range.

[00:35:03] Speaker 04:
Public which the information doesn't seem current, so to speak, like you have a time period of which you're acting on currently available information, but then the removal of the excess had come way later.

[00:35:16] Speaker 04:
And so is there a sense of that?

[00:35:20] Speaker 04:
You're not technically acting on currently available information.

[00:35:23] Speaker 03:
I mean, I think that goes to what the district court said as far as whether there's a material change in circumstances.

[00:35:29] Speaker 03:
And here, no one has alleged that that's been the case.

[00:35:32] Speaker 03:
I think these ranges are still in a drought condition.

[00:35:35] Speaker 03:
It's still a case that they're drastically overpopulated with wild horses, and some action needs to be taken.

[00:35:40] Speaker 05:
My biggest problem with your merits position

[00:35:46] Speaker 05:
is the requirement right in the statute that the removal happen immediately.

[00:35:52] Speaker 05:
Yes.

[00:35:53] Speaker 05:
That's a strong word.

[00:35:54] Speaker 05:
I agree with you.

[00:35:56] Speaker 05:
You've made a great case that there are all sorts of exigencies and maybe we need a degree of wiggle room in how immediate is immediate.

[00:36:08] Speaker 05:
Yeah.

[00:36:08] Speaker 05:
But is there any

[00:36:13] Speaker 05:
rational view of the world under which immediately means a decade.

[00:36:17] Speaker 03:
So I would have two responses to that.

[00:36:20] Speaker 03:
One, a textual response about another bird in the statute and one- Yeah, give me the textual one.

[00:36:25] Speaker 03:
Yeah, one is a blush on the word immediately.

[00:36:27] Speaker 03:
The textual one is that in that same subsection, section 1333B2, it seems to contemplate that gathers to achieve AML will not happen all at once.

[00:36:38] Speaker 03:
So once BLM

[00:36:39] Speaker 05:
Yeah, fair enough.

[00:36:40] Speaker 05:
That's right.

[00:36:42] Speaker 03:
It states that action shall be taken, quote, until all excess animals have been removed.

[00:36:48] Speaker 03:
So I think that necessarily recognizes, in a case where you're removing 2,000 wild horses, and Judge Edwards alluded to this, the geography of the Basin and Range in Nevada and Utah means that you just can't do that all in one gather.

[00:37:01] Speaker 03:
You can't do that with one helicopter.

[00:37:03] Speaker 06:
It also says

[00:37:05] Speaker 06:
BLM is to proceed in a specific order and priority, assuming step by step.

[00:37:10] Speaker 03:
That's correct.

[00:37:10] Speaker 06:
Those A through C procedural requirements also contemplate that there's... Assuming that step by step is over a period of time, and it's certain not going to meet any reasonable standard of immediately.

[00:37:21] Speaker 03:
Precisely, your honor.

[00:37:22] Speaker 03:
And then the second, the blush on the word immediately is that the fact that an agency must start acting immediately doesn't mean that they have to complete their action immediately.

[00:37:33] Speaker 03:
I think the district of Utah recognized this in the Western Rangeland Conservation Association, where they said that the physical removal of wild animals just can't happen instantly.

[00:37:43] Speaker 03:
It can't happen at once.

[00:37:44] Speaker 03:
There's necessarily some sort of delay in doing that.

[00:37:47] Speaker 03:
And we agree that the BLM, according to the statute and according to the amendments that Congress passed in 1978, can't wait forever to remove excess wild animals from the range that are causing damage and aren't in a thriving natural ecological balance.

[00:38:02] Speaker 03:
But it can't happen all at once, even though the statute says immediately.

[00:38:06] Speaker 05:
No doubt about that.

[00:38:07] Speaker 05:
But I'm not sure that gets you a decade.

[00:38:10] Speaker 05:
Fair enough, Your Honor.

[00:38:13] Speaker 05:
And sorry, you said you had two points.

[00:38:15] Speaker 05:
Do you give me your second one?

[00:38:16] Speaker 03:
The second one was the blush on the word immediately that I just discussed.

[00:38:19] Speaker 03:
I think just briefly touch on what you mentioned the decade.

[00:38:24] Speaker 03:
These decisions are not saying that BLM is going to wait 10 years and then is going to start implementing them.

[00:38:31] Speaker 03:
They're simply recognizing because of practical considerations.

[00:38:35] Speaker 03:
could take a while.

[00:38:37] Speaker 03:
And I will grant you, it does say 10 years, it could take up to 10 years, it authorizes up to 10 years in the decision.

[00:38:43] Speaker 03:
But BLM is still expected to start achieving that as expeditiously as reasonably possible.

[00:38:50] Speaker 05:
Judge Childs, any other questions?

[00:38:54] Speaker 03:
Thank you, Your Honours.

[00:39:00] Speaker 05:
You're from Utah.

[00:39:02] Speaker 05:
Mr. Geary.

[00:39:10] Speaker 01:
Thank you.

[00:39:10] Speaker 01:
May it please the court, Steve Geary, on behalf of the state of Utah.

[00:39:14] Speaker 01:
I do want to be clear at the outset, the state of Utah does join the Bureau's arguments, both in briefs and oral argument here today.

[00:39:23] Speaker 01:
Utah takes its brief time to address a couple of issues that were unique to the Utah brief.

[00:39:30] Speaker 01:
The first of those was Utah's standing, which I did clarify with counsel before this oral argument.

[00:39:38] Speaker 01:
The Prince of Annals has not abandoned their challenge to Utah's standing, but I think they were inclined to submit that on the arguments in the opening brief.

[00:39:49] Speaker 01:
Unless the panel has questions specific to that, Utah would do that as well and submit on our brief on that.

[00:39:56] Speaker 01:
The other issue that was unique to Utah's brief was the issue that the panel is quite interested in, apparently, which is the mootness

[00:40:03] Speaker 01:
and the jurisdictional question.

[00:40:06] Speaker 01:
Finality.

[00:40:09] Speaker 01:
Thank you, Your Honor.

[00:40:10] Speaker 05:
I think your position seems to me pretty strong, to be honest, but one possible fly in the ointment, I thought the best case on the other side was American Great Lakes.

[00:40:23] Speaker 01:
So, can you just give me your… Well, and we discussed that somewhat in the brief.

[00:40:30] Speaker 05:
One point that I wanted to make out to this panel as well, though… I mean, it's a remand without vacatur where the rationale for the immediate appeal is that the party that secured the remand

[00:40:47] Speaker 05:
didn't get the vacatur and is going to be subject to harm.

[00:40:51] Speaker 01:
Well, and the party in that case is harmed by the remand itself.

[00:40:58] Speaker 01:
So in Great Lakes, they're very much, as I think we explained in our brief, they're in the same sort of situation that the federal government would be in.

[00:41:08] Speaker 01:
in challenging the remand.

[00:41:11] Speaker 01:
Look, the remand itself is what is going to cause the harm to us.

[00:41:16] Speaker 01:
If we cannot have that heard now, then we never get the relief.

[00:41:26] Speaker 01:
Friends of Animals actually had three other claims in this litigation that the district court finally disposed of.

[00:41:35] Speaker 01:
Those are their claims number one.

[00:41:38] Speaker 05:
Sure, but let's just focus on the remanded claim.

[00:41:41] Speaker 05:
They're saying, as of right now, the situation on the ground is BLM can continue to gather.

[00:41:52] Speaker 01:
BLM can continue to gather, subject to the provisions that the panel is already well aware of.

[00:42:01] Speaker 05:
Fair enough, but their legal position is no future gathers without full process, period, full stop.

[00:42:09] Speaker 01:
But no one knows what BLM will actually do until after the remand and the plans are

[00:42:19] Speaker 01:
revised according to the court's order.

[00:42:24] Speaker 01:
What we have here is not a complete agency action anymore.

[00:42:29] Speaker 01:
We have an agency action in which the district court has poked some rather significant holes in it.

[00:42:35] Speaker 01:
And although parts of it have been left intact, nobody knows at this point what BLM will retain of that after it remands and reconsider.

[00:42:47] Speaker 05:
Even though they've just represented that they don't have to formally amend the order at all and they can just keep going and maybe eight years from now they'll hit the speed bump on immediately.

[00:43:06] Speaker 01:
except these are 10-year plans that were passed in 2017 and 2018 and as Judge Edwards noted, we're coming up and this is not an immediate process, notwithstanding the immediacy of the statute to implement it, there's still notice for an individual gather and these are published on the BLM's website.

[00:43:30] Speaker 01:
The public and Friends of Animals does have the opportunity to address specific

[00:43:35] Speaker 01:
uh attempts at harvesting the horses and and challenging those in in the court and they can still raise those claims in in regard to that but the the reason i brought up the other claims that that the court finally disposed of is those claims that the nipa challenge the the unalk we round up and and whether or not the the bureau is complying with its its past regulations

[00:43:58] Speaker 01:
or not, those have all been abandoned on this appeal.

[00:44:03] Speaker 01:
They're referenced nowhere in that, though.

[00:44:05] Speaker 01:
So those points, they are final decisions.

[00:44:09] Speaker 01:
The court would have jurisdiction to do them.

[00:44:12] Speaker 01:
But Friends of Animals has not brought them to this court.

[00:44:18] Speaker 01:
What it has brought is a challenge to the Wild Horse Act.

[00:44:22] Speaker 05:
I'm not sure how that helps you, but I don't think it hurts you.

[00:44:27] Speaker 01:
Um, so questions, other than that, we submit and, and, and ask that the court affirm.

[00:44:35] Speaker 01:
Thank you.

[00:44:42] Speaker 05:
Ms.

[00:44:42] Speaker 05:
best, we'll give you some minutes.

[00:44:51] Speaker 00:
Thank you, Your Honors.

[00:44:53] Speaker 00:
The one thing I wanted to emphasize real quick is the Supreme Court said in Lumnea that the final finality requirement should be evaluated based on the practical effects of the district court.

[00:45:04] Speaker 00:
And in practice, what can happen right now is next year BLM decides to round up and remove 1,000 horses from the Eagle Complex herd management area.

[00:45:16] Speaker 00:
Horses will die in this roundup.

[00:45:18] Speaker 00:
Horses will lose their freedom forever.

[00:45:20] Speaker 00:
BLM is not going to issue a new decision.

[00:45:24] Speaker 00:
BLM has not committed to provide any specific public notice.

[00:45:31] Speaker 00:
BLM has not committed to consult with independent parties.

[00:45:35] Speaker 00:
We think all of these requirements should apply.

[00:45:39] Speaker 00:
But BLM instead is going to rely on the decisions issued in 2017 and 2018 that are at issue right now.

[00:45:48] Speaker 00:
So as a practical matter, Friends of Animals can't go back and challenge those decisions.

[00:45:54] Speaker 00:
And BLM will argue there is no new final agency action.

[00:45:58] Speaker 00:
And because this didn't come up... You're not going to act pursuant to the original plan.

[00:46:03] Speaker 00:
They will act pursuant to the original plan correct, your honor.

[00:46:06] Speaker 00:
And because VLM didn't dispute this, I don't believe it's part of the joint appendix, but it is a part of the record.

[00:46:12] Speaker 00:
There was some discovery done in the district court because the district court also had questions about jurisdiction.

[00:46:19] Speaker 00:
And in response to interrogators, VLM admitted that it finds that

[00:46:23] Speaker 00:
The notice that was required happened back in 2017 and 2018.

[00:46:29] Speaker 00:
Any public comment happened back in 2017, 2018.

[00:46:32] Speaker 00:
Therefore, it doesn't think it's required to do that when it does a roundup in 2026.

[00:46:38] Speaker 00:
Friends of animals.

[00:46:40] Speaker 05:
Is it remotely?

[00:46:43] Speaker 05:
realistic that they can engineer a roundup, which seems to require lots of planning and lots of logistics and lots of people involved without your knowing about it.

[00:47:00] Speaker 00:
Yes, Your Honor, they can contact contractors.

[00:47:06] Speaker 00:
They can request funding.

[00:47:08] Speaker 00:
And in fact, this happened with past roundups all internally without notifying the public.

[00:47:14] Speaker 00:
And because these are separate distinct roundups where BLM has to request funding every year, it has to get approval, it has to get a contractor.

[00:47:23] Speaker 00:
It's for those distinct roundups where friends of animals saying, hey,

[00:47:28] Speaker 00:
This is where the law applies and where you have to get public input, too.

[00:47:32] Speaker 00:
So it's these distinct roundups that Friends of Animals says the requirements of the Wild Horse and Borough Act apply.

[00:47:39] Speaker 00:
We know BLM has an extensive internal process, so why can't it also comply with the Wild Horse and Borough Act each time it's determining to round up and remove horses?

[00:47:50] Speaker 06:
Are they proposing, as far as you understand, to round up and reduce pursuant to the original planned numbers?

[00:47:58] Speaker 00:
Your honor, so the original plan, this is another concern, doesn't have specific excess numbers that they're going to round up and remove.

[00:48:06] Speaker 00:
It leaves that open-ended so it can decide in 2026.

[00:48:09] Speaker 00:
Now we want to remove 1,000 horses.

[00:48:12] Speaker 00:
And it didn't disclose that back when it issued the original decision.

[00:48:17] Speaker 00:
So clearly that harms friends of animals because we have no opportunity to say this amount of horses shouldn't be rounded up.

[00:48:24] Speaker 06:
I mean, you're making an argument, you're doing it implicitly, but I think it's pretty clear to me.

[00:48:29] Speaker 06:
If you're suggesting that this could happen and you would not have notice to get back, enough notice to get into the district court to challenge it, that just seems implausible.

[00:48:43] Speaker 06:
I mean, you've got to say or do more.

[00:48:46] Speaker 06:
Tell me something or point me to something to convince me.

[00:48:49] Speaker 06:
There's no conceivable way that I'm going to know that they're about to do a roundup and reduction involving 1,000 horses, and they'll have it done before I can get back to district court and say they're violating the mandates of what the district court addressed in this case.

[00:49:08] Speaker 06:
That just seems, being very honest with you, that seems implausible to me, that you would have no opportunity to raise that in district court.

[00:49:17] Speaker 00:
Well, I think there's two issues that I'd like to address about that question.

[00:49:22] Speaker 00:
First of all, we disagree with the district court standard.

[00:49:28] Speaker 06:
I hear you, but let's assume it's there, all right?

[00:49:31] Speaker 06:
Would you just do me a favor and answer the question on implausibility?

[00:49:37] Speaker 06:
facially buying it when you suggest there's no way we could get to the district court in time to raise this concern.

[00:49:45] Speaker 06:
block it if we had a legitimate claim yes and your honor i think you know if it'd be helpful i can submit additional material from the district court record that where blm says we don't have we're not required to provide any notice so you know you're missing my point we're looking at the district court's decision so whatever interactions went on they're fine but we're looking at the decision the district court said

[00:50:13] Speaker 06:
You have to take into account new information, prompt and reasonable.

[00:50:17] Speaker 06:
There may be times when you need process, you can't ignore material new information.

[00:50:22] Speaker 06:
You're hypothesizing they're about to do something that's gonna violate those standards.

[00:50:27] Speaker 06:
And I'm saying to you, you go back to the district court and say they can't.

[00:50:32] Speaker 00:
So, Your Honor, if there's no requirement—they don't perceive any requirement from public notice— I understand.

[00:50:37] Speaker 06:
That's the fight.

[00:50:39] Speaker 06:
You're going to go back.

[00:50:40] Speaker 06:
You would make the argument, this is totally unreasonable, it's not justified, they haven't considered new information, and they haven't talked to the people who might know something.

[00:50:49] Speaker 06:
You may not win it, but you're certainly not foreclosed.

[00:50:52] Speaker 06:
And more importantly, you're not going to be out of time.

[00:50:56] Speaker 00:
Your Honor, there's nothing precluding them from telling the public on Friday afternoon, we're going to start this roundup, a helicopter roundup on Monday.

[00:51:07] Speaker 06:
Okay.

[00:51:07] Speaker 06:
And you think that will plausibly, that could plausibly happen?

[00:51:10] Speaker 00:
Yes, Your Honor, I do think that could plausibly happen.

[00:51:13] Speaker 00:
And maybe if it's not Monday, okay, we'll do it Tuesday or Wednesday.

[00:51:18] Speaker 00:
How is Friends of Animals like, yes, as a practical matter to talk to our members on the ground to say, what are the conditions here?

[00:51:26] Speaker 00:
What did BLM get wrong when we don't even have a record of their decision?

[00:51:32] Speaker 00:
But we need to brief this before the district court.

[00:51:36] Speaker 00:
As a practical matter, we can't do that.

[00:51:40] Speaker 00:
And especially when BLM is going to say, look, we're relying on the decisions in 2017 and 2018.

[00:51:46] Speaker 00:
We don't need a new record.

[00:51:47] Speaker 00:
We don't need a final agency action.

[00:51:49] Speaker 00:
So as a practical matter, Friends of Animals can't get to the court.

[00:51:54] Speaker 05:
Thank you, counsel.

[00:51:55] Speaker 00:
Thank you, Your Honors.

[00:51:56] Speaker 05:
Mr. Peterson, would you come to the podium for a moment?

[00:52:01] Speaker 06:
You've heard my question is.

[00:52:05] Speaker 06:
Is my concern well taken?

[00:52:06] Speaker 06:
Is it possible that BLM on Friday after them doing everything behind the scenes secretly?

[00:52:15] Speaker 06:
could announce Friday at five o'clock.

[00:52:17] Speaker 06:
Oh, incidentally, Monday at nine a.m.

[00:52:19] Speaker 06:
we're starting a round up and go.

[00:52:21] Speaker 03:
I'm going to qualify my answer, but I don't think that would happen.

[00:52:26] Speaker 03:
I can certainly talk with my client and submit a 28 J letter if the panel would find that helpful.

[00:52:34] Speaker 03:
But based on my understanding of just the practicalities of organizing as well as how far in the future these things have to be planned and are made available to the public, there is a public gather schedule that would

[00:52:45] Speaker 03:
not happen.

[00:52:46] Speaker 05:
Okay.

[00:52:48] Speaker 05:
Thank you.

[00:52:48] Speaker 03:
Thank you guys.

[00:52:49] Speaker 05:
The case is submitted.