[00:00:01] Speaker 00:
Case 124-6193, Narragansett Indian Pride, acting by and through the Narragansett Indian Tribal Historic Preservation Office, the balance, Mr. Sean McMaster, Administrator, Federal Highway Administration, et al.

[00:00:15] Speaker 00:
Ms.

[00:00:16] Speaker 00:
Walker for the balance, Mr. Georgie for the appellates.

[00:00:21] Speaker 04:
Good morning, Ms.

[00:00:22] Speaker 04:
Walker.

[00:00:24] Speaker 05:
May it please the court?

[00:00:27] Speaker 05:
This case is the application of the National Historic Preservation Act through what is referred to as the Section 106 process to protect tribal historic properties from harms caused by federal undertakings.

[00:00:42] Speaker 05:
In this case, it was an expansion of a highway bridge in Providence, Rhode Island over a very significant historic property of the appellant, the Narragansett Indian Tribe.

[00:00:53] Speaker 05:
I'm going to skip some of the background because you've been here a long time.

[00:00:58] Speaker 03:
That reminds me of one question from the record.

[00:01:01] Speaker 03:
The land is not tribal land, right?

[00:01:03] Speaker 05:
No, it's not in trust.

[00:01:06] Speaker 05:
It was.

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very significant tribal property, historic property, just some history, because when you study Indian law, you read a lot of history.

[00:01:18] Speaker 05:
That land in 1639 was a gift of the Narragansett tribe to Roger Williams, who established Providence settlement.

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Roger Williams was very friendly to the tribe.

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The state leaders today are not.

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just different time.

[00:01:37] Speaker 05:
Um the tribe's position is the lower court aired in finding that tribes have no role under the National Historic Preservation Act section 106 process and the mitigation of adverse effects on significant tribal historic properties off reservation lands or lands not held in trust.

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Um

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I wish I could describe the 106 process as simple.

[00:02:02] Speaker 05:
It's not.

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It takes expertise and some understanding of the development of the tribal program under the National Historic Preservation Act to have the lights come on, so to speak, and see the distinction in the tribe's roles in different aspects of the process of determining the impact on federal undertakings on historic sites.

[00:02:23] Speaker 05:
break it down first on Tribal Trust Lands, the Tribes Historic Preservation Office.

[00:02:29] Speaker 03:
You're jumping a little to the merits.

[00:02:31] Speaker 03:
Could you start with the issue of preclusion question?

[00:02:38] Speaker 05:
uh that this was already lit litigated the park that argument.

[00:02:43] Speaker 05:
Yeah.

[00:02:43] Speaker 05:
Um on appeal, what happened below was the court dismissed the claims uh against the government under the first programmatic agreement on the grounds that the government uh the federal government uh couldn't carry out the execution of that agreement because the state

[00:03:07] Speaker 05:
is not subject to issue preclusion because it's about on the initiation of a new 106 process, should the tribe have been excluded.

[00:03:18] Speaker 03:
This appeal was about the second programmatic.

[00:03:19] Speaker 03:
Exactly.

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And the decision below said there was standing for the second.

[00:03:24] Speaker 03:
Exactly.

[00:03:24] Speaker 03:
But there was a suit before that where the district court said there's not standing for the second programmatic agreement.

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Right?

[00:03:32] Speaker 03:
So why does that decision not preclude

[00:03:37] Speaker 05:
No, the decision before that said not standing as to the first programmatic agreement, not the second.

[00:03:44] Speaker 03:
The first suit didn't have anything to do with the second programmatic agreement.

[00:03:49] Speaker 05:
Well, it does in the sense that they terminated the first programmatic agreement and initiated the second, but the state didn't interfere with the second because the state had been dismissed.

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and state had been dismissed because there were mitigation.

[00:04:08] Speaker 03:
I guess what I'll say is when your friend from the attorney's office is there, I'm going to ask him to look at the complaint in the first case and point to where the complaint

[00:04:21] Speaker 03:
raised issues related to the second programmatic agreement.

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And if you can do that, I'm going to ask you why you still think that first case didn't have anything to do with the second programmatic agreement.

[00:04:34] Speaker 05:
Well, yeah.

[00:04:34] Speaker 05:
The first case involved mitigation properties that the state had control over.

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as part of the mitigation of the project.

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And all parties, the state of Rhode Island Department of Transportation, the federal highways, and the tribe signed off that those properties that the state controlled would be mitigation measures, right?

[00:04:55] Speaker 05:
And then those properties weren't.

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And so the second agreement didn't involve those properties.

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And so the second agreement was about

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between federal highways and the tribe.

[00:05:06] Speaker 03:
And I'm happy to be correct.

[00:05:09] Speaker 03:
I thought that part of the government's argument was that your first suit said the second programmatic agreement was arbitrary and capricious.

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And this district court said you don't have standing to raise that.

[00:05:21] Speaker 02:
I thought the nature of the discrepancy was that in the first case it was about the second programmatic agreement, but there was no standing as to substantive injuries, harm to particular land or the loss of benefits of the land transfers.

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But the court explicitly carved out and said, I'm not talking about procedural claims and this current

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case is about procedural injury, failure to consult.

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Exactly.

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And that's the difference between the two.

[00:05:53] Speaker 05:
Yeah.

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Well, when he gave us, he dismissed without prejudice and allowed us to re-argue the standing part.

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We argued procedural injury, so you're correct.

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So that's why it's not precluded by the first ruling.

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This is addressing a different thing.

[00:06:11] Speaker 03:
You did not argue procedural standing in the first one?

[00:06:15] Speaker 03:
No.

[00:06:16] Speaker 03:
Well, if he can show me where he thinks you did, then you can respond.

[00:06:21] Speaker 03:
Yeah.

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And this solution even apply to a case that's dismissed without prejudice?

[00:06:27] Speaker 04:
We don't think it does.

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Is it dismissal without prejudice and adjudication on the merits?

[00:06:33] Speaker 05:
No, they're allowing us.

[00:06:38] Speaker 05:
That answers your question.

[00:06:40] Speaker 03:
Well, I'm not sure that all of our precedents

[00:06:44] Speaker 05:
Yeah, I know.

[00:06:45] Speaker 05:
This is a long history on this case.

[00:06:47] Speaker 05:
I know I'm growing old.

[00:06:48] Speaker 02:
I have a factual question about the history.

[00:06:51] Speaker 02:
I understand that the tribes were happy with the first programmatic agreement, which gave them control over a certain land, et cetera.

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And then there was a change where you still could have had the land, but the deal was they wanted you to give up sovereign immunity with respect to deeds or something.

[00:07:09] Speaker 02:
And I'm wondering why didn't you take that deal?

[00:07:11] Speaker 02:
I guess you had two opportunities to take that deal.

[00:07:14] Speaker 05:
right?

[00:07:15] Speaker 05:
And it can look like the tribe was being, you know, sovereign.

[00:07:21] Speaker 05:
But what happened was when they negotiated that the tribes would be the conservators of these two properties and land would not be in trust.

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And it had environmental, I mean, protection covenants

[00:07:34] Speaker 05:
in the agreement and everybody signed off and there was no need to have a waiver of sovereign immunity because in the agreement, if the tribe reached those conservation covenants, the plan would revert to the federal government not in trust for the tribe.

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So, the tribe would lose all rights and I think the state believed that if they didn't waive their sovereign immunity, the tribe somehow would get those lands in trust.

[00:08:00] Speaker 05:
Indian trust, but the Bureau of Indian Affairs, and you don't take my testimony on it, they won't take land and trust that have those kind of covenants on it.

[00:08:09] Speaker 02:
So it wouldn't have cost the tribes anything to just to agree to waive the sovereign immunity because they didn't think they had a right to that land anyway.

[00:08:15] Speaker 05:
So why did they... No, no, the sovereign immunity, there was...

[00:08:21] Speaker 05:
a waiver of their standing as a national recognized tribe that they have their immunity is to protect their tribal assets.

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So they don't get arbitrary.

[00:08:33] Speaker 02:
But I thought this was a waiver only with respect to this agreement and the covenants within the agreement.

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Right.

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And it sounds like they didn't think

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They were entitled to that land anyway, so I don't understand why they were entitled to be the conservatives over that land.

[00:08:47] Speaker 05:
So they felt that the state was being unreasonable.

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See, they already execute agreement where the waiver was not part of the agreement and the.

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the general council for federal highways argued with the state and said, that waiver's not needed.

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The uh board of advisory council on historic preservation said to the state, that waiver's not needed.

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And so, I think the tribe felt the state was way overreaching.

[00:09:13] Speaker 05:
Uh and so, then later, just so you know, the history is when they got into the arguments over the second program at agreement, the tribe offered that.

[00:09:22] Speaker 05:
So, well, let's get back to those covenants.

[00:09:24] Speaker 05:
Maybe we can do that rejected by federal

[00:09:26] Speaker 05:
But I read that it was offered to them again, and the tribe came forward and said, we will talk about that.

[00:09:32] Speaker 05:
We will put that in.

[00:09:33] Speaker 05:
And by that point, the federal government had excluded the tribe as a consulting party and refused to consider it.

[00:09:40] Speaker 05:
That's the record.

[00:09:45] Speaker 05:
But at that point, see, the reason they refused it is because they weren't going to go back to those mitigation properties because the state was refusing to do it regardless.

[00:09:58] Speaker 05:
The state refused.

[00:10:00] Speaker 05:
But the state wanted at that point of the negotiation, it was a negotiation between federal highways and the state is all they were willing to do was to give the tribe a video of its history, a documentary history, and uh training in one oh six process which the

[00:10:18] Speaker 05:
person that taught me all of this, the Tribal Historic Preservation Officer, was there at the beginning of the National Historic Preservation Act, at the beginning of the tribal program, and he really didn't need 106 training.

[00:10:31] Speaker 04:
So, it was not... That was where they started and maybe an unfortunate starting point, but then the Highway Administration did offer some other things and did, I thought, offered two of the pieces of land or at least guarantees of access for the tribe.

[00:10:45] Speaker 05:
They still don't have access to that land.

[00:10:48] Speaker 04:
There is a tribe didn't agree to the offer.

[00:10:50] Speaker 04:
Well, I don't think that the tribe was offered and then to protect your rights of access and the tribe rejected that.

[00:10:56] Speaker 04:
Am I correct?

[00:10:57] Speaker 05:
No, they never they were supposed to have the management agreement of those properties when they first offered it.

[00:11:05] Speaker 04:
If you're talking about the first program.

[00:11:07] Speaker 05:
Yeah, but those properties that you're talking about.

[00:11:12] Speaker 04:
So let's forget everything that happened under the first programmatic agreement.

[00:11:15] Speaker 04:
Pretend time started when they made the first offer under the second programmatic agreement, the proposed terms for a programmatic agreement.

[00:11:23] Speaker 04:
And the first thing they offered for mitigation was the stuff you talked about, the training and stuff and the tribe.

[00:11:29] Speaker 04:
understandably said no.

[00:11:31] Speaker 04:
And then my understanding is that they came back and were offering, was it joint ownership or joint control over at least maybe two of the territories, two properties?

[00:11:43] Speaker 05:
One property was going to be joined on, but in the second

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agreement is what happened when they got to that point of the second agreement.

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The tribe was not a consulting party.

[00:11:55] Speaker 04:
I'm just going to ask you what the first mitigation proposal was rejected by the tribe and then the highway administration came back with another one and that one involved the properties.

[00:12:06] Speaker 04:
I can't remember if it was

[00:12:08] Speaker 04:
joint, maybe not joint ownership, but there was certainly a guarantees of access for the tribe.

[00:12:14] Speaker 04:
And it also was rejected.

[00:12:15] Speaker 05:
Well, correct?

[00:12:17] Speaker 05:
No, when they came back, what did they come back with?

[00:12:19] Speaker 05:
They came back with no properties because the state controlled the properties.

[00:12:23] Speaker 05:
They're not going to be able to property.

[00:12:25] Speaker 05:
What did they come back with?

[00:12:26] Speaker 05:
Not what they came back with.

[00:12:28] Speaker 05:
They would mitigate this with a video of the tribe's history, an academic.

[00:12:33] Speaker 04:
No, we rejected that when they came back with other offers after that.

[00:12:36] Speaker 05:
No, that's what they got.

[00:12:38] Speaker 05:
That was the agreement that was signed, the second programmatic agreement.

[00:12:41] Speaker 05:
I'm not making this up.

[00:12:43] Speaker 05:
What was signed by the state of Rhode Island and Federal Highways on the second programmatic agreement was, nope, the state was the conservator over the properties.

[00:12:54] Speaker 05:
The tribe had no role in it.

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And they got a video.

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This is in the court's opinion.

[00:13:00] Speaker 05:
They got a video.

[00:13:01] Speaker 05:
They got a documentary history.

[00:13:03] Speaker 05:
And they got 106 process training.

[00:13:07] Speaker 05:
They didn't get anything else.

[00:13:17] Speaker 04:
So I understand that the state offered a compromise of all three parcels in joint ownership.

[00:13:28] Speaker 04:
Not on the second program.

[00:13:30] Speaker 04:
Spring of 2019.

[00:13:36] Speaker 05:
I have to see that.

[00:13:36] Speaker 05:
Well, anyhow, you can look at that.

[00:13:39] Speaker 05:
The state never came back and said that they could be the conservators of those properties.

[00:13:44] Speaker 04:
I'm not saying what they said.

[00:13:44] Speaker 04:
They offered joint ownership.

[00:13:47] Speaker 04:
No, no, that was not.

[00:13:50] Speaker 04:
No, look at the record.

[00:13:51] Speaker 04:
It's not going to be there.

[00:13:52] Speaker 04:
No, I can.

[00:13:55] Speaker 03:
Yeah, the district court dismisses for lack of standing.

[00:14:00] Speaker 03:
and doesn't expressly say whether the dismissal is with prejudice or without prejudice, what is it?

[00:14:08] Speaker 05:
No, no.

[00:14:12] Speaker 03:
The district court dismissed without prejudice, so the plaintiffs... I'm saying in general, if a district court dismisses for lack of standing and it doesn't expressly say with prejudice or without prejudice, what's the default?

[00:14:30] Speaker 05:
Well, the default here was here in general.

[00:14:36] Speaker 05:
Well, I don't know if I can answer that because I think it's kind of has to be in context.

[00:14:41] Speaker 05:
I'm not trying to be difficult.

[00:14:43] Speaker 02:
Isn't the default rule that if something is dismissed and they don't specify with or without prejudice that it's with prejudice?

[00:14:49] Speaker 02:
I think that's the default rule.

[00:14:51] Speaker 02:
Yeah.

[00:14:51] Speaker 02:
Um, I guess theoretically, if you're dismissed without standing, you could come back with additional affidavits or something if it were without prejudice.

[00:14:59] Speaker 05:
But here the court was the opinion when they dismissed without prejudice, they were very specific that the plaintiffs could go forward with the procedural in this case.

[00:15:10] Speaker 05:
I understand.

[00:15:12] Speaker 05:
Does that answer you?

[00:15:13] Speaker 05:
I don't want to.

[00:15:14] Speaker 03:
It does.

[00:15:14] Speaker 03:
I mean, we have precedents where the district court dismisses for lack of standing.

[00:15:19] Speaker 03:
Then that same party brings same suit.

[00:15:24] Speaker 03:
And the district court says, issue preclusion prevents me from finding that you have standing here.

[00:15:33] Speaker 03:
And your argument for the beginning of our conversation was,

[00:15:39] Speaker 03:
that if it's dismissed for standing, it's just always dismissed without rather your argument.

[00:15:44] Speaker 05:
No, no, no.

[00:15:45] Speaker 05:
What I'm saying is from our perspective, when it was dismissed without prejudice for the second programmatic agreement, it made things easier for us.

[00:15:55] Speaker 05:
because we could go forward on the second which was a totally new initiation of a whole new one oh six process.

[00:16:02] Speaker 05:
It wasn't a continuation of the first one oh six process.

[00:16:05] Speaker 05:
It was a whole new initiation of a new process made it easier for us to go forward on that and and we did I inherited that complaint.

[00:16:14] Speaker 05:
I don't wanna give excuses but there's a complaint in the lower in the courts in Rhode Island that came forward.

[00:16:20] Speaker 05:
And the court, when they granted removal of the case into DC, they said it's ripe for summary judgment.

[00:16:26] Speaker 05:
I thought he had found standing.

[00:16:27] Speaker 05:
I was wrong.

[00:16:28] Speaker 05:
And so then when he dismissed for not having elaborated on our grounds for standing enough and putting in enough factual, we repled it to go after the new 106 process on the second programmatic agreement.

[00:16:43] Speaker 05:
And that made it much easier for us because that's what we are.

[00:16:47] Speaker 04:
He's on a different legal theory about consultation.

[00:16:49] Speaker 05:
Yeah.

[00:16:50] Speaker 05:
Yeah, I know it's complicated.

[00:16:53] Speaker 05:
I was trying not to get you in the weeds too deeply because we've briefed a lot of this, but I wanted to.

[00:16:59] Speaker 04:
So you're way over your time here.

[00:17:03] Speaker 05:
Yeah, no, I want to get into the key issue, which is did we feel the judge aired and failing to make the

[00:17:12] Speaker 05:
um tribe, a consulting party because this was off reservation land.

[00:17:18] Speaker 05:
That's a misinterpretation of the rules.

[00:17:20] Speaker 04:
That's the argument I want to get to and I can do it quick.

[00:17:22] Speaker 04:
Do you have any, excuse me, you're you're over your time here.

[00:17:26] Speaker 04:
Um and so.

[00:17:28] Speaker 04:
Seven minutes.

[00:17:29] Speaker 04:
It's going up now.

[00:17:30] Speaker 04:
The red means you're over your time.

[00:17:32] Speaker 05:
Oh, I'm sorry.

[00:17:33] Speaker 05:
I'm sitting there.

[00:17:35] Speaker 04:
I was not following you.

[00:17:37] Speaker 04:
Um um I you don't want me to get to the one of

[00:17:41] Speaker 04:
If you let me finish talking here, do you have, I will give you 2 minutes, but we have your argument from your briefs.

[00:17:49] Speaker 04:
So if there's something more you want to add on from your briefs, and please, I'll give you 2 minutes on on this.

[00:17:55] Speaker 04:
This marriage after they also give you rebuttal to, but just right now, you can take 2 minutes to make this your key point.

[00:18:02] Speaker 04:
But again, we do have your briefs.

[00:18:03] Speaker 04:
So there's no reason to repeat that.

[00:18:04] Speaker 04:
I know, but.

[00:18:05] Speaker 05:
just let me just summarize it and I appreciate the time but um again I understand why the court below got caught up in the in the regulations and trying to understand this consulting party distinction.

[00:18:18] Speaker 05:
I think the government confused the court talking

[00:18:21] Speaker 05:
equating consultation as equivalent to being in the consulting party role and in the rules and this is in uh 800 uh point two and they have what is a consulting party and when it's a tribe, what is the consulting party and they said there's two

[00:18:39] Speaker 05:
tribes of consulting party.

[00:18:41] Speaker 05:
One when it's on tribal land and then they talk about when it's on land significant historically significant to the tribe and then it refers when they and this comes about not in every stage of the consultation.

[00:18:54] Speaker 05:
It comes about once the parties agree that there's been adverse

[00:19:00] Speaker 05:
and if there's adverse effects, do there need to be mitigation of those adverse effects and once it's agreed by the party, there needs to be mitigation.

[00:19:08] Speaker 05:
That's when off tribal land, the the tribe comes into a consulting party rule and they apply the MOU rules of section one

[00:19:18] Speaker 05:
that says the the consulting party, the tribal consulting party is a signatory and proof in the pudding is Federal Highways has done this with this tribe before on other mitigation agreements.

[00:19:33] Speaker 05:
I have that as my exhibit a one in the city of work and once on the same highway project and they mitigated it by, you know, one was improving the roof on a tribal longhouse.

[00:19:45] Speaker 05:
And another, you know, they actually gave them properties to conserve like they were doing here.

[00:19:51] Speaker 05:
So that's the, I don't want to wear you out, but we feel that court- We're not getting worn out here.

[00:19:56] Speaker 05:
Yes, I know.

[00:19:59] Speaker 05:
Well, I'm just saying that's where the court misinterpreted the rules.

[00:20:02] Speaker 04:
Yeah, I think we understand.

[00:20:03] Speaker 04:
You made the legal argument in your- Yay, I appreciate your time.

[00:20:06] Speaker 04:
And we'll give you some time for rebuttal.

[00:20:08] Speaker 04:
Yeah, thank you.

[00:20:28] Speaker 04:
After you.

[00:20:30] Speaker 01:
Good afternoon, your honors may please the court, Dimitar, Georgia for the United States.

[00:20:35] Speaker 01:
Judge Walker, I'll jump right into answering your original question about the differences between or like there off rather between the previous.

[00:20:47] Speaker 01:
judgment decision to dismiss the previous case from the district court and the opinion below that is before this court.

[00:20:53] Speaker 01:
The way that the district court phrased its understanding of the complaint in the previous case appears, and we actually cite this on page 15 in our brief, and it states that the Narragansett claim that terminating the original programmatic agreement, that is the 2011 programmatic agreement,

[00:21:13] Speaker 01:
and dictating new proposed mitigation items, items that the tribe was never consulted about, is arbitrary and capricious.

[00:21:20] Speaker 01:
That is from the original case.

[00:21:22] Speaker 01:
So those in that case, the district court found it does not have subject under jurisdiction.

[00:21:29] Speaker 01:
We submit that the

[00:21:31] Speaker 03:
Twenty nineteen programmatic agreement was squarely before the court because the tribe raised it and the court found that the black subject matter jurisdiction and therefore it was Walker's argument in response is that that first district court decision was a dismissal for lack of standing.

[00:21:51] Speaker 03:
It was a dismissal without prejudice and that there's a

[00:21:56] Speaker 03:
going to bright line rule that dismissals without prejudice don't have preclusive effect.

[00:22:04] Speaker 01:
Two responses to your honor.

[00:22:05] Speaker 01:
First, that dismissal actually invited the tribe to amend its complaint.

[00:22:12] Speaker 01:
And so it could have done so to address the concerns that the district court had about service matter jurisdiction.

[00:22:19] Speaker 01:
The tribe did not decide to do that.

[00:22:22] Speaker 01:
Rather, the tribe decided to file a new complaint, file a new case.

[00:22:26] Speaker 01:
And so we think that that's a lot.

[00:22:29] Speaker 01:
It amended it a lot.

[00:22:31] Speaker 01:
It amended it to the extent that it addressed some of the concerns that the district court had.

[00:22:37] Speaker 01:
However, under this court's precedence under home builders, it doesn't satisfy the curable defect exception in the sense that the new facts that it brought into the complaint already existed at the time that the original.

[00:22:50] Speaker 03:
Home builders, I just went back to double check the first

[00:22:54] Speaker 03:
The district court's first decision to dismiss for lack of standing in home builders did not specify with or without prejudice.

[00:23:01] Speaker 03:
Correct.

[00:23:01] Speaker 03:
And so Judge Pan suggested that that implies it was dismissed with prejudice.

[00:23:09] Speaker 03:
That would be my understanding of this court's precedent.

[00:23:11] Speaker 03:
Whereas here the district court's first dismissal was a dismissal without prejudice.

[00:23:17] Speaker 03:
So I guess, do you have any precedent where a court found issue preclusion in the case before the court based on a previous decision where the dismissal was for lack of standing and the dismissal was without prejudice?

[00:23:36] Speaker 01:
The question of issue preclusion was actually not before the court in this case below.

[00:23:41] Speaker 03:
So this is... I'm saying, do you have a, do you have a, preferably a DC Circuit case where you say, yes, there's issue preclusion here based on a previous suit that was dismissed without prejudice?

[00:23:58] Speaker 01:
where that specific fact was what was outcome-determinative.

[00:24:02] Speaker 01:
I don't have a specific site.

[00:24:04] Speaker 04:
However, under these courts... Do you have any case where we applied race judicata or racial preclusion to a jurisdictional dismissal without prejudice?

[00:24:16] Speaker 01:
So that begins with Dozier v. Ford Motor Company, and it continues with Gap Company, as well as most recently... Those were dismissals?

[00:24:26] Speaker 04:
Okay.

[00:24:28] Speaker 04:
Sorry, maybe I didn't say it right.

[00:24:30] Speaker 04:
A dismissal for lack of jurisdiction without prejudice.

[00:24:35] Speaker 04:
Now, you just said Home Builders was with prejudice or the court was silent.

[00:24:40] Speaker 01:
I'm actually not sure whether the original dismissal in Home Builders was with or without prejudice.

[00:24:46] Speaker 01:
OK, so then I'm telling you it was unspecified.

[00:24:49] Speaker 03:
It was unspecified.

[00:24:53] Speaker 03:
OK.

[00:24:53] Speaker 03:
Judge Payne said that means with prejudice.

[00:24:56] Speaker 02:
Yes.

[00:24:57] Speaker 02:
And do we even need to reach this issue?

[00:24:58] Speaker 02:
Because even if we assume that you could assert issue preclusion, it wouldn't be precluded in this case because the previous dismissal, whether it was or without prejudice, was for a different reason.

[00:25:15] Speaker 02:
So in that case, even if you assume that you could theoretically or not

[00:25:24] Speaker 02:
assert issue preclusion for something that was dismissed without prejudice.

[00:25:30] Speaker 02:
In this case, if we assume it were true, it wouldn't apply because on the merits.

[00:25:34] Speaker 02:
doesn't meet the test because the first dismissal was for a different reason.

[00:25:38] Speaker 02:
It was because of alleged substantive injuries, whereas, and it expressly left open the idea that you could amend to cert procedural claims, and instead of amending, they just file a new case that assert procedural claims.

[00:25:52] Speaker 02:
It just seems like under the particular facts of this case, maybe we don't need to reach that technical question about whether the first dismissal was with or without prejudice.

[00:26:01] Speaker 01:
I think that's right, Judge Pan.

[00:26:03] Speaker 01:
And moreover, I think the case would be different if there were facts alleged that occurred subsequent to the dismissal.

[00:26:11] Speaker 01:
That is not the case here.

[00:26:12] Speaker 01:
The only thing that the new complaint did was reassert new facts or elaborate on facts that already existed at the time of the original dismissal, which under homebuilder puts it squarely within homebuilders.

[00:26:24] Speaker 01:
And therefore, the court can rely on homebuilders and apply issue.

[00:26:29] Speaker 04:
What we're trying to ask is you're invoking

[00:26:32] Speaker 04:
not issue preclusion, but a curable defect doctrine.

[00:26:36] Speaker 04:
And I'm not aware of that being applied in cases that are dismissed for jurisdictional reasons without prejudice.

[00:26:42] Speaker 04:
And it didn't sound like you were either.

[00:26:48] Speaker 04:
If someone keeps finding the exact same complaint with the same allegations, the same standing argument, and it gets dismissed, and then they add one new fact each time or something, that's a different story from what was going on here.

[00:27:02] Speaker 01:
I guess I don't understand your question.

[00:27:04] Speaker 01:
Okay.

[00:27:04] Speaker 04:
My first question is, it sounds like you don't have any authority for this principle that you have a jurisdictional dismissal without prejudice, that the party can only replete brand new facts.

[00:27:18] Speaker 04:
That comes from a different doctrine, the curable defect doctrine.

[00:27:22] Speaker 01:
Correct.

[00:27:23] Speaker 01:
And that is homebuilders dozier and then the progeny of dozier.

[00:27:26] Speaker 01:
Right.

[00:27:27] Speaker 04:
Yes.

[00:27:27] Speaker 04:
Okay.

[00:27:27] Speaker 04:
But that's a different doctrine.

[00:27:30] Speaker 04:
You don't have any application of that doctrine to a dismissal for jurisdictional reasons without prejudice.

[00:27:41] Speaker 04:
People replete to add facts, like a diversity case and they got the amount of money wrong and then they can replete it with the right amount of money.

[00:27:49] Speaker 01:
Actually, that's dozier and that's precluded under dozier.

[00:27:52] Speaker 04:
If they knew it, or you could have a change in law, right?

[00:27:57] Speaker 04:
And someone has to add new facts because of a change in law.

[00:28:01] Speaker 04:
But again, I'm talking about a dismissal without prejudice, which is not cases you're citing.

[00:28:06] Speaker 01:
Even if the court declines to apply issue of preclusion and looks at standing directly, the tribe doesn't have standing to bring this particular case.

[00:28:18] Speaker 04:
Did you raise issue of preclusion before the district court?

[00:28:22] Speaker 01:
It was not argued before the district court.

[00:28:25] Speaker 01:
It was included in the answer.

[00:28:26] Speaker 01:
Right.

[00:28:27] Speaker ?:
OK.

[00:28:27] Speaker 01:
That's what I remember that.

[00:28:29] Speaker 01:
Thank you.

[00:28:30] Speaker 01:
And even if the court doesn't apply issue, preclusion, but reviews, the, the trap still lacks standing.

[00:28:38] Speaker 01:
Particularly what the trap has asserted is that that could share of the 2019 programmatic agreements would lead.

[00:28:46] Speaker 01:
to a new process that would necessarily would lead to some alternative measures.

[00:28:51] Speaker 01:
The only three alternative measures that the tribe has put forward relate to the acts of a third party that is not before the court, and that is the state of Rhode Island.

[00:29:00] Speaker 01:
They've asserted that the state of Rhode Island can still transfer the properties to the tribe.

[00:29:06] Speaker 04:
I'm very much objecting to the amount of consultation process received from the Federal Highway Administration.

[00:29:15] Speaker 04:
They're very much in check into that.

[00:29:17] Speaker 04:
That's not something Rhode Island is in charge of delivering.

[00:29:21] Speaker 04:
That's something the Federal Highway Administration is in charge of delivering.

[00:29:25] Speaker 01:
The act is an act that guarantees process.

[00:29:29] Speaker 01:
It doesn't guarantee outcome.

[00:29:35] Speaker 01:
The tribe has identified as three possible outcomes of that consultative process is that they can obtain the three properties that were at issue in the 2011 programmatic agreement, that the federal government can essentially write a check, provide them with funds, and for the tribe to come with some sort of mitigation on its own or some other unspecified mitigation.

[00:30:01] Speaker 01:
For the Rhode Island to transfer properties, necessarily that is an act of Rhode Island.

[00:30:07] Speaker 01:
And the federal government has attempted numerous times to compel Rhode Island to adhere by the 2011 programmatic agreement.

[00:30:16] Speaker 01:
However, Rhode Island refused to do so.

[00:30:18] Speaker 01:
And there's no evidence in the record that the tribe in Rhode Island can come to some sort of mutual agreement to transfer properties from Rhode Island to the tribe.

[00:30:27] Speaker 04:
So the Highway Administration here,

[00:30:32] Speaker 04:
put aside the whole first programmatic agreement.

[00:30:34] Speaker 04:
So it was going back to the drawing board and starting now with the second programmatic agreement.

[00:30:39] Speaker 04:
It opened by sending an email to the tribe that says, here's what we propose for mitigation.

[00:30:53] Speaker 04:
And it was, you all need training.

[00:30:56] Speaker 04:
We'll have a little historic program.

[00:31:01] Speaker 04:
Pretty pathetic.

[00:31:02] Speaker 04:
And the tribe felt insulting.

[00:31:06] Speaker 04:
Not an unreasonable response.

[00:31:10] Speaker 04:
Why did you not have an obligation before throwing out to them, here's what we're going to do for mitigation?

[00:31:16] Speaker 04:
Talk to them before you made any mitigation proposal.

[00:31:20] Speaker 04:
Isn't that what the consultation?

[00:31:21] Speaker 04:
I'm not saying whether you had to agree with what they're proposing or not.

[00:31:25] Speaker 04:
But it seems like you sort of set them out, here's what we're offering.

[00:31:30] Speaker 04:
before talking to them.

[00:31:32] Speaker 04:
And then you said, react to what we're proposing.

[00:31:35] Speaker 04:
Does a consultation process require you to talk to them first?

[00:31:39] Speaker 01:
The consultation process requires the solicitation of the tribes' views.

[00:31:44] Speaker 01:
At what stage?

[00:31:46] Speaker 01:
There are actually four stages throughout the process that are outlined in the regulations.

[00:31:50] Speaker 01:
Here, we're only talking about mitigations.

[00:31:52] Speaker 04:
This was in initial... Before you proposed mitigations?

[00:31:55] Speaker 01:
It is whether the agency or the state or the tribe first proposes mitigations, that is an initial proposal.

[00:32:03] Speaker 04:
And that's actually what happened, and I would like to... Sorry, I'm trying to get a clear answer to a very specific question.

[00:32:10] Speaker 04:
Before the June 28, 2018 email that said, we're starting over, we're starting from scratch, new agreement, here's what we propose for mitigation, was the tribe consulted before you formulated those proposals for mitigation?

[00:32:25] Speaker 01:
So the tribe had been engaged continuously for numerous years.

[00:32:29] Speaker 04:
I understand that was all under the first programmatic agreement.

[00:32:32] Speaker 04:
Did you consult with them about the mitigation that was proposed in the June 2018 email?

[00:32:41] Speaker 01:
The record doesn't indicate whether the agency directly engaged with the tribe on those specific proposals before June 2018.

[00:32:51] Speaker 01:
However, the agency did engage with the tribe and listen to the tribe's inputs afterwards.

[00:32:56] Speaker 04:
I'm just asking.

[00:32:57] Speaker 04:
So, okay, so let's take so the record doesn't no evidence that you consulted with them before the June 2018 email.

[00:33:05] Speaker 04:
Correct.

[00:33:05] Speaker 04:
Which was the, here's what we're going to do for mitigation now.

[00:33:09] Speaker 04:
Does the consultation requirement at this stage, the mitigation stage, require you to talk to them before you start putting pen to paper and settling yourselves on particular ideas about what you think the mitigation should be?

[00:33:30] Speaker 01:
The regulations do not specify exactly at which point in which email before which email.

[00:33:37] Speaker 04:
You can just tell me if this is a practice.

[00:33:38] Speaker 04:
I don't know.

[00:33:40] Speaker 04:
Do you routinely do this?

[00:33:41] Speaker 04:
Do you say, here's what we think is good mitigation, react?

[00:33:45] Speaker 04:
Or do you usually, I had thought the government usually talked to the tribe, and maybe other interested parties too, but we'll just talk about tribe here for this.

[00:33:57] Speaker 04:
Talk to the tribe before proposing mitigation efforts.

[00:34:01] Speaker 04:
That was the usual practice.

[00:34:03] Speaker 04:
So is that the usual practice?

[00:34:06] Speaker 04:
I am not familiar with every single instance.

[00:34:08] Speaker 04:
However, I'm not asking every single interest.

[00:34:10] Speaker 04:
I'm asking usual practice, which could be exceptions.

[00:34:13] Speaker 04:
But is that the usual practice?

[00:34:16] Speaker 01:
You don't know the usual practice.

[00:34:19] Speaker 01:
I'm not sure it's exactly at what point, whether it's before.

[00:34:23] Speaker 04:
Isn't that kind of important here?

[00:34:25] Speaker 04:
I mean, if it's a consultation, right, and at least it sounds to me, or I might be misreading the regulations here, that maybe the most important stage is to talk to them before people start locking into certain ideas of mitigation.

[00:34:38] Speaker 01:
I think what Your Honor is assuming that that proposal is what ended up in the final agreement, which is what my- No, no, no.

[00:34:46] Speaker 04:
That's not my assumption.

[00:34:48] Speaker 04:
My assumption is that, and none of this is criticizing what the Heimer Institution did with respect to the first programmatic agreement.

[00:34:57] Speaker 04:
Sounds very frustrating, pulling out hair, very unfortunate developments, but put that all aside.

[00:35:02] Speaker 04:
And now at some point someone said, let's start this process over because we've got to fix this bridge.

[00:35:11] Speaker 04:
What on what authority was the highway administration relying when it said, fine, we're going to, we're going to, we're going to have this list of three mitigation.

[00:35:21] Speaker 04:
I think it was three mitigation things.

[00:35:23] Speaker 04:
And we're going to put it out there and say, react without talking to them first.

[00:35:32] Speaker 04:
First talking and then.

[00:35:35] Speaker 04:
Factoring that information in not bound by it, but factoring that into decision making in formulating the initial proposal of mitigation efforts, the starting point of the discussion.

[00:35:45] Speaker 04:
Why I just I'm asking you explain to me why that isn't how it happened.

[00:35:52] Speaker 01:
I think what is driving this specific case is the fact that there was so much discussions prior to that.

[00:36:00] Speaker 04:
It's just a different thing.

[00:36:01] Speaker 04:
It ended up being something that just seemed very promising at the beginning and then Rhode Island, you know, pulled the legs out from under the table, but.

[00:36:10] Speaker 04:
Tell me on the first programmatic agreement, did the highway administration consult with the tribe and maybe also with Rhode Island?

[00:36:17] Speaker 04:
Again, this is not to the exclusion of others, but to consult with the tribe before coming up with mitigation proposals, even as a starting point.

[00:36:27] Speaker 01:
The record doesn't indicate one or the other.

[00:36:30] Speaker 01:
In the joint appendix, there is no evidence when the exact contrast of the highway administration would know what it did, but.

[00:36:40] Speaker 01:
All right.

[00:36:41] Speaker 01:
I think what's important, even assuming that there was an obligation to consult with the tribe before that initial proposal was made, the evidence clearly shows that the tribe was invited to and provided input.

[00:36:57] Speaker 01:
And actually, to those specific proposals that the tribe found were insulting, those did not end up in the final programmatic agreement.

[00:37:06] Speaker 04:
It's just a whole different thing when you start from a point of insult.

[00:37:09] Speaker 04:
and then work from there, as opposed to start from a point of discussion and work from there.

[00:37:16] Speaker 04:
And then we thought the point of the statute was the latter.

[00:37:20] Speaker 01:
The point of the statute is to solicit the tribe's views.

[00:37:23] Speaker 04:
Exactly.

[00:37:24] Speaker 04:
Before the administration makes a decision.

[00:37:29] Speaker 04:
And a proposal is a decision.

[00:37:31] Speaker 04:
It's not locked in, but it's a decisional stage.

[00:37:34] Speaker 01:
And the unfortunate reality of this specific case is that there was a programmatic agreement in 2011 that everybody agreed to and that we're dying.

[00:37:41] Speaker 04:
I think we all know that history.

[00:37:42] Speaker 04:
That's not the question.

[00:37:43] Speaker 04:
I'm asking a legal question about your obligations.

[00:37:47] Speaker 04:
Nothing in the regulations nothing your obligations in this case.

[00:37:50] Speaker 01:
Nothing in the regulations, nothing in this court's precedence requires the agency to engage with the tribe before putting forth a proposal that invites... Is there anything that says you don't have to?

[00:38:03] Speaker 04:
Or are you just telling me there's just a vacuum of information on this?

[00:38:06] Speaker 01:
It leaves it purposely vague to allow the agencies and the tribes and all interested parties to engage... What's your best case for it's purposely vague and you get to choose

[00:38:16] Speaker 04:
when you're going to start consulting.

[00:38:19] Speaker 04:
What's your best case for that?

[00:38:21] Speaker 02:
So the um Eagle County actually in this from a couple years ago from this court uh actually specifically stated that there's doesn't the regular regulations say whenever an agency official proposes a programmatic agreement the agency officials shall ensure that development oh development of the agreement includes appropriate government to government consultation

[00:38:46] Speaker 02:
So it seems like you do have to consult before you propose.

[00:38:51] Speaker 02:
It is the development of the agreement.

[00:38:53] Speaker 01:
It is the development of the agreement.

[00:38:55] Speaker 01:
Exactly.

[00:38:55] Speaker 01:
It is after there is a proposal that isn't part of developing an agreement.

[00:39:01] Speaker 04:
Sorry, your proposal is not part of developing an agreement.

[00:39:04] Speaker 04:
I would have thought it would be maybe one of, I guess, propose the starting point.

[00:39:07] Speaker 04:
The ending point would be the two most important ones.

[00:39:10] Speaker 01:
And that will be the beginning point.

[00:39:11] Speaker 01:
And that is when the consultations begin.

[00:39:14] Speaker 01:
That's when the tribes' views are solicited.

[00:39:18] Speaker 01:
The tribes' views here were solicited, and they were listened to.

[00:39:21] Speaker 01:
And those initial proposals were rejected, and they were not included in the ultimate programmatic agreement that was signed.

[00:39:28] Speaker 01:
And that is the Joint Appendix 396.

[00:39:31] Speaker 01:
That programmatic agreement,

[00:39:33] Speaker 01:
programmatic agreement provided that the three properties the tribe was most concerned with and that were subject to the 2019 programmatic agreement would be preserved by the state and that we managed by the state and the tribe would be permitted access to those properties.

[00:39:53] Speaker 04:
I think my colleagues don't have we haven't done good with our time with both of you.

[00:39:57] Speaker 04:
We keep going to keeping you up here longer than we promised.

[00:39:59] Speaker 04:
Do you have any more questions there?

[00:40:01] Speaker 04:
Thank you very much, Council.

[00:40:02] Speaker 04:
Thank you.

[00:40:04] Speaker 01:
We ask that you affirm.

[00:40:06] Speaker 04:
Ms.

[00:40:06] Speaker 04:
Walker, we will give you two minutes.

[00:40:11] Speaker 05:
going to refer you to the JA eighty uh which is the handbook that A chip puts together trying to help with the consultation process.

[00:40:21] Speaker 05:
Now, if you know the consultation process of the whole historic preservation program, this is this handbook helps you but they don't cite to code sections in the handbook but on uh page eight, it says tribal consultation

[00:40:35] Speaker 05:
should commence early in the planning process in order to identify and discuss.

[00:40:39] Speaker 05:
This is all through the regulations they they're recommending when they start consultation.

[00:40:44] Speaker 05:
This is on JA eighty and it's a bullet.

[00:40:48] Speaker 05:
It's on page eight.

[00:40:50] Speaker 05:
Yeah.

[00:40:50] Speaker 05:
tribal consultation shall commence early in the planning process.

[00:40:54] Speaker 05:
So again, I wish this were simple, but there's a lot of places where the tribe is important to the consultation.

[00:41:02] Speaker 05:
And one is when they are starting an undertaking and they're trying to identify if there's historical properties.

[00:41:10] Speaker 05:
They get the tribe, if it's going to be, if they believe there may be a tribal historic process, the tribe is to get in the process of consultation early with the agency.

[00:41:20] Speaker 05:
then the tribe is in consultation when they decide well okay the undertaking may impact but does it have adverse impacts to the store property tribe is supposed to be in that part early and then when they also are supposed to be early when the

[00:41:37] Speaker 05:
agency, the undertaking, they're looking at what the construction of the project would be.

[00:41:43] Speaker 05:
All of those stages, the tribe is to be in.

[00:41:46] Speaker 05:
Now, when it's on tribal reservation land, it's very easy to understand the tribe's going to have a primary role.

[00:41:52] Speaker 05:
But considering how little property Indians in this country have, how much they've lost, you know, there's a lot of historic sites, Indian sites off reservation lands.

[00:42:02] Speaker 05:
When a tribe has a significant role in mitigating and negotiating those measures, that's when all the parties agree that there has to be mitigation of these adverse effects.

[00:42:18] Speaker 05:
An agency can come in and say, well, there's adverse effects, but there's no harm done.

[00:42:26] Speaker 05:
But when they all agree, there is, sir.

[00:42:28] Speaker 03:
If we think of the planning process as ending when a final decision has been made, how long was the planning process here?

[00:42:39] Speaker 05:
Well, this highway project, the first agreement was negotiated in 2013.

[00:42:44] Speaker 05:
The project had started 2011 when the consultation.

[00:42:50] Speaker 03:
Sorry, I could have been more precise with the question.

[00:42:52] Speaker 03:
If we think of the final decision as the second programmatic agreement, when did that

[00:42:58] Speaker 03:
How long was that plan?

[00:42:59] Speaker 05:
Well, they terminated the first agreement.

[00:43:02] Speaker 05:
I think it was officially terminated in like January of that year.

[00:43:06] Speaker 05:
You're talking about 2018 or the end of June 20th, but that 19 when it was signed.

[00:43:14] Speaker 05:
So it was December is when that November is when they things broke down.

[00:43:18] Speaker 05:
They terminated.

[00:43:19] Speaker 05:
So what happened in the answer to Judge Millett's question is the tribe was the state and the feds were consulting on what the mitigation measures would be and then just presenting it to the tribe as if that were consultation.

[00:43:35] Speaker 05:
But in this role,

[00:43:36] Speaker 05:
where it was a programmatic agreement over a complex project because they decided they had to go into subpart C of the act because this was a bridge that had long impacted this property.

[00:43:49] Speaker 05:
It would cost too much to do all the excavation and evaluation of damages.

[00:43:53] Speaker 05:
So, they had a very complex agreement.

[00:43:56] Speaker 05:
They went to the programmatic agreement and in that stage,

[00:44:00] Speaker 05:
where they all agree and I'll read it from this is part of the uh the JA at this is on um page twenty-six of this uh handbook which is uh let me see JA um ninety-nine ninety-eight but it says in agreement this has reached the agency and Shippo and consulting parties including Indian tribes

[00:44:23] Speaker 05:
uh to develop a uh section one memorandum agreement or program agreement outlining how will the adverse effects will be addressed and so what it goes to is that it on uh this is on page twenty-seven uh it uh I'm losing myself here uh

[00:44:44] Speaker 05:
then that's when the tribe becomes a consulting party.

[00:44:50] Speaker 05:
So the tribe is not just being consulted, it is a negotiator in the mitigation agreements.

[00:44:57] Speaker 05:
You can't exclude them from that.

[00:44:59] Speaker 05:
That's not what the rules say.

[00:45:03] Speaker 02:
That's what happened here.

[00:45:04] Speaker 02:
I think there is some support in this regulation 36 CFR section 800.14 F for Judge Millett's

[00:45:14] Speaker 02:
suggestion that maybe you have to consult before you propose.

[00:45:21] Speaker 02:
Oh, yeah, absolutely.

[00:45:22] Speaker 02:
Consultation with Indian tribes and Native Hawaiian organizations when developing program alternatives.

[00:45:28] Speaker 02:
That's what it's called.

[00:45:29] Speaker 02:
Whenever an agency official proposes a program alternative pursuant to Paragraphs A through E, the agency official shall ensure that development of the program alternative includes appropriate government-to-government consultation with affected Indian tribes in consultation.

[00:45:45] Speaker 02:
So that suggests that before it's proposed, when you're developing it, you have to consult.

[00:45:50] Speaker 05:
Exactly.

[00:45:51] Speaker 05:
That's what I'm trying to say is that when they identify that they're going to like here, expand this bridge project.

[00:45:59] Speaker 02:
But I guess the question is whether it's adequate to.

[00:46:02] Speaker 02:
the whole prior discussion that they had, is that adequate to satisfy?

[00:46:07] Speaker 05:
No, that was the consultation on the first programmatic agreement.

[00:46:11] Speaker 02:
The second programmatic agreement, when they re-initiated the 106 process, I think it's like a factual issue, like whether that didn't count, like everything you did for the first.

[00:46:20] Speaker 05:
Well, that's what the government wants to say, that, oh, they consulted and the tribe was a party, but that was the first agreement, not the second agreement.

[00:46:27] Speaker 05:
The both agreements were about the same bridge.

[00:46:29] Speaker 05:
same bridge, and an expansion of the bridge in Providence.

[00:46:33] Speaker 05:
The original bridge was over this covalence property that had caused all this, 30 million or something, they think, in damages.

[00:46:40] Speaker 05:
And they were expanding it.

[00:46:41] Speaker 05:
So under subpart B of the process, you have to do all this architectural review and evaluation, and the tribe's all a part of that.

[00:46:50] Speaker 05:
But they didn't do it because they all knew the damage.

[00:46:53] Speaker 03:
About what year did the government, the agency, become aware that

[00:46:57] Speaker 03:
The land was special to the tribe, and the tribe would like other land kind of as well.

[00:47:05] Speaker 05:
Well, this bridge expansion project started in 2011, resulted in a programmatic agreement in 2013.

[00:47:11] Speaker 03:
Can you just please answer the question?

[00:47:14] Speaker 03:
That's when it started.

[00:47:15] Speaker 03:
What is the year when the agency?

[00:47:16] Speaker 03:
2011.

[00:47:16] Speaker 03:
In 2011, the agency was aware because the tribe told them this land is special and we would like other land in exchange for it.

[00:47:25] Speaker 05:
Well, actually, the feds in the state came to the tribe with that proposal, which was agreed to by the state of Rhode Island, the tribe in federal highways, the tribe in the first programmatic... By 2011, the federal agency knew the land was special to the tribe and the tribe would like other land as mitigation.

[00:47:44] Speaker 05:
Yeah, they offered that.

[00:47:45] Speaker 03:
So, since 2011 is well before the proposal for the second programmatic agreement,

[00:47:52] Speaker 03:
It seems to me that the government, the federal agency consulted with the tribe well before the proposal for the second programmatic agreement.

[00:48:00] Speaker 05:
Yeah, but you can't collapse that.

[00:48:03] Speaker 05:
When they started the second, they terminated the first.

[00:48:07] Speaker 05:
When you terminate, then the agency has to reinitiate the section 106 process, which reinitiates the consultation.

[00:48:16] Speaker 05:
So they knew, and the tribe's not arguing, I'm not arguing with you that they didn't get consulted.

[00:48:22] Speaker 03:
I mean, they continued to consult with the tribe after they proposed the second programmatic agreement.

[00:48:29] Speaker 03:
We all agree with that, correct?

[00:48:30] Speaker 03:
Yeah.

[00:48:30] Speaker 03:
And then the question is, did they need to consult with the tribe before the proposal for the second programmatic agreement?

[00:48:36] Speaker 03:
You say they did need to do that.

[00:48:38] Speaker 03:
Yes.

[00:48:39] Speaker 03:
And I think part of the government's argument is they did consult with the tribe before the second programmatic agreement's proposal because they had been consulting with the tribe since 2011.

[00:48:48] Speaker 03:
Oh, yeah.

[00:48:49] Speaker 05:
But Judge Walker, this is the distinction I want to make is the

[00:48:53] Speaker 05:
Tribe was not a signatory or a party to the negotiation of those alternative measures for the second programmatic agreement.

[00:49:04] Speaker 05:
The first programmatic agreement, they were signatories and consulting parties because that's what the rules require.

[00:49:10] Speaker 03:
You're stating facts from the record that I know.

[00:49:13] Speaker 03:
I know.

[00:49:14] Speaker 03:
I know.

[00:49:15] Speaker 03:
But this is significant.

[00:49:16] Speaker 03:
I don't even hear you arguing here that they

[00:49:17] Speaker 03:
today and that they needed to be a signatory to the second program.

[00:49:22] Speaker 03:
You argued that in the brief, that they needed to be a signatory.

[00:49:24] Speaker 05:
Well, that's what I was trying to get to.

[00:49:25] Speaker 03:
But the question that we've been discussing is, regardless of whether they needed to be a signatory to the second programmatic agreement, had the tribe been consulted before the second programmatic agreement was proposed?

[00:49:36] Speaker 03:
And it seems to me they had been consulted for years before the second programmatic agreement.

[00:49:41] Speaker 05:
No, I disagree.

[00:49:43] Speaker 05:
And I'm not trying to be

[00:49:45] Speaker 03:
argumentative.

[00:49:47] Speaker 05:
No, I disagree.

[00:49:48] Speaker 05:
You can be argumentative.

[00:49:49] Speaker 05:
I know, but I'm not trying to be contrary.

[00:49:51] Speaker 05:
I guess this will work.

[00:49:52] Speaker 05:
But what I'm saying is where the tribe consistently complained was because they weren't consulting parties, the state and the feds were deciding what the mitigation measures would be.

[00:50:07] Speaker 05:
And the tribe was complaining.

[00:50:10] Speaker 05:
We would never accept that.

[00:50:11] Speaker 03:
uh but they're they weren't brought in as a negotiator as a party to execute the they were complaining before this the second program yeah because they were just being they were complaining before the second program agreement was proposed yes the records they would not they were complaining they would they would not accept what ended up being proposed

[00:50:34] Speaker 03:
Yeah, they complained that they wouldn't accept it.

[00:50:37] Speaker 03:
That seems like the federal agency heard loud and clear from the tribe.

[00:50:39] Speaker 05:
We're not saying they weren't giving the tribe information about what the state and the feds agreed to as mitigation measures.

[00:50:47] Speaker 05:
The difference is if you are a party

[00:50:51] Speaker 05:
brought in to be a negotiator on those.

[00:50:53] Speaker 05:
They can't sign off on that agreement if the tribe doesn't agree.

[00:50:57] Speaker 05:
Also, they all agreed on the first program agreement.

[00:51:01] Speaker 05:
The state reneged and that was over.

[00:51:03] Speaker 05:
The second program agreement, this is so important.

[00:51:06] Speaker 03:
The tribe was not a signatory for the second program agreement.

[00:51:08] Speaker 03:
You say in your brief that the tribe had to be a signatory for the second program agreement.

[00:51:11] Speaker 03:
I get that you think that's important, and I get that that's an argument that's been briefed.

[00:51:16] Speaker 03:
But I think we've been talking for quite a while about a different legal issue, which is not about whether the tribe needed to be a signatory for the second program agreement, but whether the tribe needed to be consulted before

[00:51:27] Speaker 03:
for the proposal for the second programmatic agreement and whether they were consulted before the proposal for the second programmatic agreement and whether the discussion between the tribe and the agency during the first programmatic agreement would count as consultation with the tribe before the second programmatic agreement was proposed, right?

[00:51:47] Speaker 03:
Right.

[00:51:48] Speaker ?:
Okay.

[00:51:48] Speaker 05:
My view, our view, I think the tribe's view would be the consultation had to start anew.

[00:51:55] Speaker 05:
The agency can't collapse the consultation before onto the second agreement.

[00:52:01] Speaker 02:
I think we should look at what the district court found.

[00:52:03] Speaker 02:
The district court found that the consultation was adequate, and apparently it didn't rely on the consultations with respect to the first programmatic agreement, because it starts the discussion by saying,

[00:52:16] Speaker 02:
As early as June 28th, 2018, the agency informed the tribe it was initiating a new programmatic agreement.

[00:52:21] Speaker 02:
And then the tribe responds September 10th, 2018, that it was inadequate.

[00:52:27] Speaker 02:
When was the proposal actually made?

[00:52:29] Speaker 05:
Well, the proposal was between, they gave, they beat around the bush several different proposals.

[00:52:36] Speaker 05:
June 2018, was it?

[00:52:37] Speaker 05:
Yeah, June 2018.

[00:52:38] Speaker 02:
So that was the proposal.

[00:52:39] Speaker 02:
That was the final decision.

[00:52:40] Speaker 02:
According to the district court's findings, the district court found the constitutions were adequate, but didn't rely.

[00:52:46] Speaker 02:
on prior consultations with respect to the first programmatic agreement.

[00:52:50] Speaker 04:
I'm not disagreeing with what they found.

[00:52:53] Speaker 04:
This court didn't find any consultations with the tribe prior, once the first programmatic agreement was terminated before the June 2018.

[00:53:04] Speaker 04:
The tribe did not participate

[00:53:07] Speaker 04:
in the formulation of the June 2018 proposal.

[00:53:11] Speaker 04:
Exactly.

[00:53:11] Speaker 04:
That's factually accurate?

[00:53:12] Speaker 04:
That's accurate.

[00:53:13] Speaker 04:
And the district court did not rely on that?

[00:53:15] Speaker 04:
No.

[00:53:15] Speaker 03:
Were they offered the opportunity to participate?

[00:53:18] Speaker 05:
They were only presented what the state and the feds agreed to, as this is what we want to do.

[00:53:23] Speaker 04:
And the feds were talking first.

[00:53:25] Speaker 04:
And then, OK.

[00:53:26] Speaker 04:
Yeah.

[00:53:27] Speaker 04:
Any other questions?

[00:53:28] Speaker 05:
I know.

[00:53:28] Speaker 05:
I don't want to keep repeating myself.

[00:53:30] Speaker 04:
No, no.

[00:53:30] Speaker 04:
I think we've been able to clarify it now.

[00:53:33] Speaker 05:
But it is significant what the tribe is standing for and what the 33 other federally recognized tribes that filed an amicus on this brief are standing for.

[00:53:41] Speaker 04:
Yes.

[00:53:42] Speaker 04:
I think, sorry.

[00:53:43] Speaker 04:
So we got their amicus brief.

[00:53:45] Speaker 04:
We have your brief.

[00:53:46] Speaker 05:
They're standing for the, but they're standing for the fact they're required to be a signatory.

[00:53:52] Speaker 05:
Okay.

[00:53:52] Speaker 05:
Yeah, thank you.

[00:53:53] Speaker 04:
With that, the case is submitted.

[00:53:54] Speaker 04:
Thanks.