Listen to the arguments made to the U.S. Court of Appeals for the Ninth Circuit in Prutehi Litekyan : Save Ritidian v. U.S. Department of the Air Force

Good morning, your honors. And may it please the court, David Henkin, appearing on behalf of appellant for Latexian, say, Bertidien. I'd like to reserve five minutes for rebuttal. We are here today because the district court dismissed Patel with Texan's challenge to the Air Force's failure to comply with the National Environmental Policy Act before making its decision in 2021 to continue the practice of disposing of expired bombs and other munitions by blowing them up on Torague Beach which protect the Texans members use for cultural, recreational and other purposes. I will first discuss why the district court erred in concluding it lacks subject matter jurisdiction and then we'll turn to its holding that proteolyticcin failed to state a claim.

For subject matter jurisdiction, the elephant in the room which the district court ignored is that defendant's decision is already inflicting on the ground harm to protect latexin which easily establishes standing, ripeness, and finality.

So if I can ask you to turn for a moment to the the other jurisdictional question which is whether there's a final agency action, that you've identified. What is, in your view, the final agency action that's subject to challenge here?

The final agency action is defendant's decision in 2021 that for the next permit term, they would conduct open burning and open detonation to manage their their waste munitions at Anderson Air Force Base. The status

And why is that appropriately characterized as a decision rather than the sort of non non decision to just keep on doing what they've been doing for a long time?

Well, the status quo in 2021 is that defendants were holding a permit from the Guam EPA for hazardous waste disposal. So this activity is regulated by permit was expiring on 09/03/2021. And so prior to the expiration of the permit, they needed to make a decision about how they were gonna manage the waste waste because the status quo again is that after 09/03/2021, they would have to

stop that.

Well, I guess they say, well, we didn't really make a decision. We simply continue to do what we were doing. But they did have to make a decision to fill out this piece of paper.

Well, yes, that is their position. However, applying for renewal of a of a RCRA permit is not like auto paying your cell phone bill. It requires deliberation. It requires consideration particularly because in this case, the defendants are using a particular method.

I don't think you're the answer to judge Miller's question, you're not challenging the application itself as the final agency action?

The application itself is the memorialization of the plan that defendants presented to Guam EPA for managing hazardous permit term, which is three years. And so particularly We would

agree that if you wanna challenge that, you need to wait until after the decision is made by Guam EPA and then I mean, you can you I think you have challenged or you can challenge it before Guam EPA now, but you can't challenge it for the agency until after until they actually have an answer back on that on that application.

If if we were you know, this is not a a case like Stone Manning where the plaintiffs were trying to anticipate what the regulator would do. We're not challenging any regulatory decision. What, the we're we're not challenging the outcome of the application. The application rather is the the document that you look to to see what their plan was. So that's very similar detonated on Monday, Tuesday, and Wednesday and they had a Under under that

theory, why couldn't let's say, a memo was leaked that says, we're going to, we're going to apply for another, you know, we're going to apply for another ten years on some ten year every and then you say, well, they've made the decision and we know that this memo has been leaked, and they haven't actually applied an an an update, but the decision has been made, and we know that, and so we can challenge that as a final agency action.

Yes, your honor. If they had reached the confirmation of their decision making process and they they were going to apply for the permit, we could we could challenge that. In this and that's often the case.

So you actually so so in the hypothetical scale, do you think you actually that would be final agency action?

If they if they memorialize their decision, and and made a decision without the benefit of the of the hard look at impacts and alternatives and public input.

And I mean, every decision in an in an agency, the government is not one person. Right? So it's not like I'm gonna have tacos for breakfast this morning. You know, it's not like if the government wants to have tacos for breakfast, it's got like 14 steps it has to go through to have tacos for breakfast. Right?

And so it seems to me like that memo, I I thought our case law was kind of, at some point, it's final agency action, but not necessarily when some when there's some memo memo that says we're gonna have tacos for breakfast, we gotta go through the six more steps in order to have tacos for breakfast.

Well, perhaps I misunderstood your honor's question. I I I understood it to be that the memo reflected the decision that was made, that it was a final decision. No.

I was asking you whether that kind of memo would, would be a fun because that memo wouldn't actually mean that you could do it because you actually have to get other, you have to get approvals and such, right? Like that memo?

Approvals within the government?

No. Approvals from outside the government. You actually have to get a license to do it.

Well, in this case, they they made a decision, they submitted an application and under operation of law, the the the regulation under RCRA 40 CFR CFR two seventy fifty one d, just submitting the application itself triggered an extension of the twenty eighteen.

That's your

argument. That's right. I understand that's your argument. So if that's your argument, let me give you a hypothetical that I wanna let's say, let's say that they a ten year, you, you get a permit for ten years to do the, but part of that ten year permit says that if you don't conduct some activity every two years that you, that the permit will just expire or go away. Right?

And, and so would your position then be that, you know, when they go out and every time they go out and conduct some activity, because that activity has the effect of extending, of, of ensuring that it's actually a ten year permit and not a two year permit, or a four year permit, or a six year permit, that that is a final agency action subject to being, that, that, that going out and setting off, whatever they do, going off and setting up bombs is, is a, final agency action. So instead of challenging it every 10, you'd agency action. So instead of challenging it every ten years, you now get to challenge it every two years because every time they set or actually more often than that because any time during that two years, them setting off something is kind of resetting that two year, that two year clock. Because that's what this is. The reason I'm asking you is because that's what this is except for instead of a determinant two year clock, and really you could characterize this as a three year permit, as a three year permit, or you could characterize this as an indeterminate amount of time permit that expires in three that, that, that will terminate in three years unless you take some action which is applying for another permit.

Your time, your, what I'm asking is why we should look, why we should look at what happened recently in applying for a new permit instead of thinking that the reason I have a three year plus some intermediate amount of time is what they did three years ago which you acknowledge are not challenging.

Thank you for clarifying your honor. Now I understand the hypothetical better. So the difference between

clarifying, your honor. Now I understand the hypothetical better. So the difference between what you're proposing and the situation here is that the Air Force has no unilateral right to extend its permit indefinitely, under the

2018 permit. So under the 2018

permit, they need under the 2018 permit. So under the 2018 permit, they need to, and this is not actually not just under the permit, it's under the RIPA regulations. They need to take an affirmative act, decide that we're gonna continue, to do open detonation. That needs to be a deliberative process. So this is very different than ONRC action versus BLM where the agency never entered into, any type of evaluative process.

But because it's open detonation, under the regulations, they need to evaluate at every renewal, specifically at every renewal, whether there's any safer way, alternate technology that they can use. And so they do a deliberative process. You're and and at the end of that, they make a decision, they apply. Yes. They get a short term automatic extension until the agency, the Guam BPA makes a decision on it, but but then it ends.

And in in your example, where they where every two years they need to do some activity, it is solely up to them whether it continues for the entire term of that permit. So, you know, in this case, we have, both on the ground harm that is

ongoing due to this deliberative process decision

that they made.

At distinguishing between the two on that in my hypothetical, it's solely up to them. I mean, it's solely up to them. You're right. In my hypothetical, they go out, you know, at at the 1.5 mark and they do a demolition. Maybe they, maybe they do it because they're actually trying to get the two more years, or maybe they're doing it just because they need to blow some stuff up, right?

And so then they, in in that example, they're, they go out and they do it, and that is up to them. But the effect of that is that they get an extension and that relates back to what they got two years earlier. I don't see how that's different than the fact that they go out and in three years they say we're going to, we're going to, like we always do, we're going to extend this thing. And they go and they do all that work and the effect of that is they get an extension for some indeterminate amount of time, and, and that's up to them. In, in both cases it's totally up to them whether they ask for an extension.

I'm, I'm not seeing how that is actually a distinction between what we're dealing with here and my hypothetical.

Okay. Well, the the difference would be that at the, in, you know, under your hypothetical for the term of the permit, they could keep extending it. And in this situation, they have made a deliberative decision to to seek a new permit term, to seek a different permit. So in the first one,

they're just not Isn't one if I understand the hypothetical which I'm not sure I do, that under these circum under the actual circumstances, they don't do anything, then they can't continue to do the, detonations that they were doing. In other words, they don't have any authority. There's a stop.

Yes.

You are, and therefore and your complaint alleges that they made a decision. Now, they seem to be saying we didn't actually make a decision and that would be a defense maybe. But why isn't the fact that, and your, that although the, the government maintains that you switch gears as to what you were saying was the decision. As far as I can tell the complaint says that the, decision is, deciding to submit an application, which you say necessarily entails the decision to continue to, to, to, that in the next three years they want to detonate. So I don't understand any contradiction and I don't, I'm not sure about why Judge Van Dyke's hypothetical doesn't leave out the stop.

In other words, isn't that stop the critical thing, the fact that if they don't do it Absolutely. They're not gonna be able to to to do this thing.

Yes. That's absolutely correct.

Blow something

up in my hypothetical in two years. They won't be so that's why I use that hypothetical because if, you know, it's it's it's just say you're three days from two years. And if you don't blow something up, you will not be able to continue on your on your what you could call a ten year permit, but what you could also call a two year permit plus the ability to get two year extensions, automatically when you take an action.

Understood, your honor. But the difference the difference is that, under your hypothetical, they can do that up until the end of the permit and then they're then they're done at the end of the ten years. No. They can do it for

if you actually read the fine print in my hypothetical, they can only do it for two years if you don't do something. Right. You don't take a specific action.

Right. So if they keep taking actions, they can keep operating under the permits, so they make that decision. If they don't do anything for two years, it stops. But but at the end of that, the the permit stops. So this is just the terms of the permit.

In this situation

End of the two years or the end of the

I I think the reason that this feels like a strange final agency action is because even when they make the decision, they can't necessarily do it.

They well, they they let's start

They're making a decision to ask to do it.

Well, they there there

are two different bases for for, let's say, standing and and ripeness.

And different bases for for, let's say, standing and and ripeness in this case. So, because they submitted an application, just submitting the application, there's an automatic extension. But they have also, for the purposes of procedural injury, they have created the circumstances under which there is a threat of another permit. If they had never applied, the permit would come to an end, and they've created that threat. And so under Idaho Conservation League, this court has made it clear that prestige when you have a procedural injury, which is the injury that comes when defendants make a decision uninformed by NEPA, we don't need to prove that there's gonna be actual threat.

It can be threatened or actual injury. It can be threatened. It can be contingent. Let me ask you

about that a second because it's actually because that alternative theory, let's say they weren't blowing stuff up because they didn't have a permit from Guam. They they were they just decided they're gonna start doing this. And so they make a decision they wanna do it and they apply for the permit, but they can't do it until they finally get an answer back on the permit. You're saying that you would be able to challenge that now and you wouldn't have to wait to see whether or not that permit would get that whether or not that permit would be approved?

Yes. That's indistinguishable from the situation at Idaho Conservation League and the situation Citizens for Better Forestry where there was no site specific on the ground action even contemplated at that point. There's a long chain of causation. And this court said for procedural injury, the question is whether defendant's action creates the risk, through their uninformed decision making that a better decision wouldn't. And and I'd like to

just point It's probably not unusual that the government, makes a decision to do something but never actually does it. Money doesn't come or who knows why.

I'm not sure I understand the question.

In other words, the decision to do something, always requires, after it's made and after the NEPA procedures are gone through, through is always in some sense contingent. I mean, there were often, I. E. There's there's you have to get the money and you have to buy the, the land, and so on.

That's correct. So in in Idaho Conservation League, order for there to eventually be on the ground harm was no barred standing or ripeness. In freed Friedland Brothers, the fact that the agency had made an initial decision, to to fund something but hadn't yet decided definitively to do it was a trigger for NEPA. And it's important to remember that NEPA applies to continuing activities. So the the at 40 CFR 15 o 8.1 q two, NEPA expressly applies to continuing activities.

And the only question is for a NEPA trigger is whether there is a decision subject to federal control and responsibility. That so so in this case, that is precisely the way of happening. You know, respectfully, judge Van Dyke, applying for a new applying for a new new permit, going through making a decision making process that you need to justify at each permit renewal whether open detonation is justified, that that is an agency decision. The the another interpretation

On that point, can can I ask you to go back to to ONRC which you brought

us a

little while ago? And I wasn't sure I got your distinction for for what why this is different from, from a decision not to change the status quo.

Well, because the status quo in so ONRC involved the situation in which, the Bureau of Land Management was petitioned to take an action and they said, we're not even gonna think about it. We want you to wait till site specific action. So they didn't change the status quo and the court, found it significant on page eleven thirty six of that decision that they didn't enter into an evaluative process. Here, there's no question, but the defendants, entered into an evaluative process particularly because they're dealing with open detonation. And, my friend in in his brief, claims that they did an evaluative process about alternate technologies.

And so that's very different than doing that.

And that you think that that was required to get the RCRA permit? Yes. And and is that that's a statutory requirement that in applying for a permit you have

to It's a it's a regulatory requirement because EPA generally banned this practice in 1980, because it's so dangerous to the environment and human health. And they made a narrow exemption for waste munitions, which are defined as ones that can't be treated any other way. So that's the, EPA memo that we referenced in our reply brief, where they said under existing law, an applicant needs to continually be re advised needs to evaluate that at permit issuance and renewal.

Can I ask you this is a somewhat different hypothetical? So, you know, the forest service has lots of roads in in the forest, many of them, you know, unpaved, and so they require So if they have a program that, you know, every few years they contract with somebody to come and regrade the road and cut clear away the brush, is the issuance of that contract, the issuance of that contract, is that a challengeable final agency action in your view?

Well, it it would be if so for for things like that, those are not decisions. Those are decisions made by the federal government, and it's very broad underneath of what a decision is. The way that agencies deal with that is through the issuance of categorical exclusions for things that are relatively insignificant and repeat. And they need to actually make a finding that as a collective, these

road maintenance

activities or other things are maintenance activities or other things are are not gonna be an environmental problem. But if it it contrast that with, I mean, where's the bright lion?

So that's the the NEPA right okay. The the categorical exclusion takes care of the NEPA question. But but you think it's a final agency action when all all you're doing is, just sort of a implementation of a of a you know, the plan was decided years ago where we're, you know, we're gonna maintain the roads as necessary. And each time you do something to implement that plan, you think that's a final action?

I mean, each time you do something to implement the plan, no. The creation of the plan, yes. So here, they have created a plan for what they're gonna do with munitions for the next three years in Anderson Air Force Base, and they have to make a plan under the substance statute that they fall under, which is RCRA. And and I I'd like to direct the court to, the Air Force's, cap categorical exemption list, which is referenced in our brief. And that's 32 CFR, part nine eight nine appendix b a to the point 3.7.

And, you know, it deals with the situation, your honor. When you have a pre existing activity and you have a decision to continue with the pre existing activity, it falls under NEPA. It's an agency action. It's defined as an action that fall major federal action. And then, if they've already done an an adequate environmental review, they don't need to do another one.

But they do need to consider that. And they also need to consider whether there are any changes to their operation, in which case, they would have to do at least an environmental assessment. So, you know, under the hypothetical from Judge Van Dyke, NEPA just wouldn't function if agencies could make these types of decisions, you know, without having to go through the process. And if you look at the Air Force's categorical exclusion list, it does include things

like routine maintenance My hypothetical, you

would you would NEPA would apply at the of

My hypothetical, you would you would NEPA would apply at the beginning of the ten year process, at each ten year process. But my question was whether it would apply at every every two years. And I think I thought your answer you're trying to distinguish it. So I think I assume your answer is that it wouldn't apply every

It would not apply because of the and thank you for recognizing it would apply at the beginning of the ten year process because here the Air Force has never done it at the beginning of any three year process. We're just challenging the 2021 decision. But but the, you know, so the the the the important thing to realize here is that, it applies at the beginning of the ten year per, process because they are making a plan for what they're can do during the next ten years. And so that in the next

When you this application, which is extremely long, I presume it's not exactly the same as the last one.

It is, in all material respects, the same as the last one.

Word for word? I mean, it doesn't have different they they don't need to respond to any changes, for example, in the environment or, different mitigation or there's there's nothing in it that has to change or should change or could change?

They they are obliged to, your honor, including they were required to evaluate their use of open detonation in light of the studies that came out since their last permit in 2019 of the US EPA and the National Institute of Science that the vast majority of their munitions should be treatable by alternate processes. We don't believe that they did that. That would be a challenge that would be a RCRA challenge at the end of that permitting process. So that's premature. But for purposes of NEPA, they did not do that now.

My position is exactly whether they can simply say, Okay, we're just going to do this because we did it before or whether they are required even by the application process itself to rethink whether they're going to do it again and under what circumstances.

They are. And I I see that I'm well over my time. Thank you.

You are. We've, taken you past your time, but we'll give you three minutes, for rebuttal. Thank you, your honor. Mister Stockland.

May it please the court? My name is Robert Stockland, here on behalf of the federal defendants. We ask this court to affirm the district court's decision, and I'll start with finality because that was the focus at the beginning of the argument. I think one of the challenges with plaintiff's argument is that they do shift back and forth on what they are

talking about. I don't I don't see the shift.

So so

It seems to me the complaint was clear that what they're challenging is the decision to file the application, not the application. So go ahead.

So they let's There's multiple reasons they couldn't challenge that decision. First, we we don't think it happened in the sense that Alright.

Is that but that's But but but There's a there's a complaint. This is a motion to dismiss. They say it happened. But let's Sort of logical that it had happened. But if you can prove it didn't happen, go prove it.

So I part of this is the lack of clarity about what they mean by a decision to submit the application. So there was a decision to submit the application. The application was submitted. They filled out the application, but that is the application. You can challenge the app or you can't challenge the application, but that would be challenging the application.

So the question is, can you challenge some indeterminate thing,

detonation.

So so there's several reasons It

had to be a decision to do that or you wouldn't fill out the application.

Well, I think the decision to do the detonations has been going on for decades.

Well, the detonation's been going on for decades, but I would hate to think that the government, because it decided something twenty years ago, never thinks about it again.

No. But every time the government thinks about a thing, that's not a new final agency action.

And that it did something.

So so so but the thing they did was the application. Right? So so but let's let's think about the law here for a second. The decision, imagine there was one, would be under the text of the APA, the kind of procedural or intermediate or preliminary thing What? That's subsumed in the application process.

Right?

I mean But the application is not to its I mean, this is very different than the kinds of cases in which the agency itself is issuing the permit. And somebody is trying to determine, to challenge as a final agency action some preliminary to issuing the permit. That's not what's going on here. The agency itself is not issuing the permit, it's not empowered to.

So, here I would recommend the court look court look at industrial customers, which is a court by decision by this court, where Bonneville Power made a record of decision deciding to change its rate request to FERC. That was much more formalized than the ambiguous thing being challenged being challenged here. FERC was actually not allowed to reconsider the details of what Bonifield Power asked for in that process. FERC had its own process. But still, the court recognized that Bonifield Power's submission was not a final agency action.

I mean, that was under the Bonifield Power, specific review process, but the court said this is this is like final agency action. This is a finality inquiry.

Well, I it's almost like it's almost like they understand that that they understand that they need to be doing something more than just challenging a decision to submit a permit because they really emphasized the fact that you get to keep blowing stuff up because you, submitted this permit, which was what led me to my hypothetical. That can't just be the fact that something causes you to keep blowing stuff, that you get to challenge that thing, instead of the thing that the instead of the thing that the decision that was made years ago. So I I mean, I I I maybe I do see it differently than than my colleague in that it does seem like they're kind of making two different arguments. One is that they kind of seem to be saying they get to just challenge this decision, sort of ignoring that you get to keep blowing stuff up. But then they they rush to saying, yeah, but to get in order to so it's a it is a little bit of a moving target, I feel like.

And I I I think that's very important because to the extent they've tried to argue there are legal consequences here, which is a requirement of finality, they always point to, well, they can continue the operations because they submitted the permanent application. Right? So to the extent they're saying we did something that has any consequence here, it's the application.

Well, that's one of the things they say, but they also say that the the, legal implication is, the legal right right is the right essentially to have, a NEPA, study done at that point.

So I think Summers does not allow that line of argument anymore. Right? I mean, the Supreme Court has said in Summers and Spokeo and other cases that just having a right to a procedure, is not enough to establish standing. Right?

Well, I I don't Spokeo was not about procedures as I recall. And NIPA is a somewhat unique case in that regard.

So Summers is definitely on point. And it it there, the plaintiffs made these types of arguments. Right? The plaintiff said they're gonna overlook environmental consequences and the court said that is not enough to establish standing. Right?

And this court in Ray applied that Summers and said, you know, it's not enough to say we're not gonna do, they're not gonna do this procedure. You have to actually identify the injury that is caused by the action. And the problem for them is that the the thing they're trying to challenge doesn't cause that injury. So, boss, step back for a second. Imagine the federal defendants had decided to continue, and they filled out the application, but then they didn't send it in.

I don't I don't think our argument would be the the Ricker application remained in force, and I don't think Guam EPA would think it did. Right? I mean, so that that that nebulous decision that was allegedly made wouldn't have wouldn't be having these effects that they are arguing So is there are the effects?

There's never a final agency action after the first decision that was made thirty years ago or forty years ago to do this? There's never one? Or that after the application is approved, there'll be one or what?

So first, they should raise all their concerns in the application process before Guam EPA. And then there is a specific judicial recourse there.

But

but but I I will return to your I I think the question is, each case is, of course, factual and contextual. I'm not saying no final agency action will

ever occur. In occur. This case, when would the final agency actions be or have been?

Well, so there isn't currently any broad process reevaluating this. The decision to engage in these activities

my understanding underneath it in general that is that those kinds of reconsiderations are final agency actions. I mean, forest plans and determinations to cut these trees and or those trees under the forest plan.

So it varies depending on what the agency was doing. So in this context, the agency has often done its environmental analysis in the context of the RCRA permitting process. But it also did consult with wildlife agents.

But it's I mean, this quote gets into the other issue but the the those decisions, they've the RCRA process is after they've made

the decision. They're essentially justifying their decision.

It's not an open, process is after they've made the decision. They are

essentially justifying their decision

and it's not an open, process prior to their making decision the way NEPA is where they're supposed to be considering a set of alternatives prior to making the decision and not having public, participation before they make the decision.

So so I think the issue with it should have been considered they they often say that go or no go, that was decades ago. This is happening. It's been happening. It's crucial.

But as you said, they've made changes. They're not doing exactly the same thing. And they originally were were doing two different things. Now they're only doing one If and so on.

So if plaintiffs want to challenge one of those and establish that a final agency action occurred, that is plaintiff's burden. I do not know of a final action agency action that has occurred within the statute of limitations or that is going to occur shortly. But there is the Rick work process.

But why isn't the,

I mean, your friend on the other side says that in order to apply for the permit, RCRA require the RCRA regulations require them to sort of undertake a deliberation about, possible alternatives. So it's not just, you know, continuing what we've been doing all along. They they were required to think about

So in our view, that's subsumed within the RCRA process. Right? The the process the agency went through was the RCRA process. So the question has to be, can they challenge the RCRA permit, which they now have said they aren't and we think they can't. They can't

The RCRA permit application, you mean?

Yes. The application. I I don't think I'm not aware of any precedent where a court says the agency issued this document. Plaintiffs can't challenge that document, but they can tear out or infer that decisions were made in reaching that outcome and we're gonna review that. And from an APA perspective, that'll be very difficult.

But but what about the pleading problem here? They have alleged that a decision was made. It certainly seems fairly plausible that a decision had to be made. It is what's certainly possible for the agency, for the Air Force to decide they weren't going to do this anymore. So I would hope that somebody before filling out this application, made a decision that we are gonna continue to do this.

And it's so it's at least a plausible, allocation in a complaint. So and and and you can defend it, but and prove that there was no decision. You just went blindly forward. But I wanna be clear.

To the extent the argument is the agency decided to submit the application, that is not, you know, that's not

But you decided to continue doing what you were doing. That's You and you could you you're free to prove, that you as I say, you you never sat down and did that. You just blindly decided to continue. So but but the it's in the complaint that there was a decision. The complaint Right.

And that doesn't include deciding to continue to do it?

So that is true, but that is subsumed within the application, and that is not a final agency action. Right? A decision to fill out an application is not a final agency action because the Air Force doesn't have any power over the RCRA permitting process. Right? That didn't extend the RCRA permit.

There's no consequence that flows from an ambient decision Out

of fair inference from the fact that there was a decision to fill out the application and that there was a decision to continue to do this the thing that you're filling out the application to do that you want to do the thing that you're filling out the application to let you do?

That gets us to a different line of argument, which is the ongoing activities argument. And there, I think this court's decision in ONRC, which we Well,

actually, I actually, I don't understand how it's different. I think this ongoing activities argument is is the only argument you have as to why there isn't a final agency action. You're saying that it's not this this decision. It was the decision twenty years ago and everything since then is just the every

ongoing activity the government engages in involves numerous steps in implementation and compliance with a wide variety of federal statutes. Right? Here, it's RCRA, but there's a numerous federal statutes. It I am not aware of any precedent that every time an agency in implementing a broader thing goes and complies with each step, that reopens the whole

we want to do X. We have decided to to fill out an application saying for the next three years, we want to do X, which means you must have made a decision after the next three years, you do wanna do x.

I I think that I I think the the but the legal consequences don't flow from the ambient decision. And also, I don't know what we'd be reviewing. What's the administrative record we submit for an unidentified nebulous decision? What what would the court review as the rationale?

I mean, the

the the challenge is is that when the government makes decisions, it is my my thing about the breakfast tacos in this way. You you any government decision of any consequence requires a bunch of steps. And so the challenge is if you wanna allow people to challenge that, you they you can't just let them challenge it at any given. So you have to decide and I my understanding was that was the reason why we require that a legal consequence flow from it so that you don't just, you know, at step two, when you still have seven steps to go through, you just get to challenge at that step. And here, I I I don't I can't see any legal consequence flowing from this yet until after the permit is approved except for the the their argument that you can keep blowing stuff up.

But then the question then then the the core question becomes, is that a legal consequence flowing from this decision now? Or is that a legal consequence flowing from the decision now, I guess, four years ago through? What

We see that consequences flowing, first of all, from the permit from 2018. Right? Which is what still

No. No. Because if they hadn't filed the application, they wouldn't have been able to do it.

But but also, in combination with Guam EPA's regulations, and then the application triggers it. But also, that kind of practical consequence to allow an administrative process, if that were enough to trigger finality, huge numbers of licensing processes would themselves be final at the beginning. Right? Because when people renew licenses, the general rule under the APA and under under many federal schemes is they get to continue to operate under the old license until the new one has been ruled on. And if it were the case that the application was then considered to because it has a legal consequence under that theory.

Right? They'd all all be final agency action. So I

Well, if if you file if you seek a a permit, say a a water permit from a federal agency, then the issuance of the permit is a final agency action, right? Okay. And the reason this is an oddity is because it's not the federal government that's providing the license. Yes. So the way you're constructing things, although ordinarily there would be a set eventually a final agency action that could be challenged under NEPA if if there wasn't a NEPA, process, you're essentially saying there's never a final agency action and there's never a NEPA requirement because of the fact that it isn't the federal government that's issuing the, license even though they have to make a decision to do it and to seek the license.

So

And so the environmental decision making at the agent at the Air Force

precedent where that has been

Well, fine. But logically, logically. Alright. Because you're you're you're you're you're setting the I I I don't know if there's an exactly analogous situation. I will look, but I don't know.

But what I do know is that the way you're arguing it because of the structure of this thing, while while there would otherwise be a final agency action, now there never is one.

So they should raise their NEPA concerns in the RCRA process. And when the RCRA permit is reviewed, they should brief those concerns.

But except that the the whole point that's being made here by, the, by by your opponents is that the decision has been made and the whole point of NIPA is to have the process before the decision has been made by the federal agency. Guam is not the federal agency. It's not it's definitely not a major, federal action because it's not being made by the federal government.

So the the thing is they I think that that does they would like a NEPA process to occur. Plaintiffs often want a NEPA process to occur. To establish that a NEPA process must have occurred, they have to challenge

a final agency action.

It has to be a major action. We don't believe they've met that burden. And they can't evade that just because because the thing So therefore,

the air force could evade the responsibility or open decision making process that takes into account environmental concerns whether e a or EIS and and public participation and so on ever.

So with ongoing activities,

there's often a question about how often should

it be opened up? Going activities, there's often a question about how often should they be opened up? How often should the agency reconsider them? And it is is a case by case determination, but a plaintiff can't just say, well, we want this decision now. So we're we're finding something else you did, and we're saying that's our hook.

But we're not challenging that. We're challenging the decision you made that's inferred from that, and that's what we're challenging. And therefore, your ongoing

activity opens up. I mean, that I I I don't

think that is a workable

do a They can always result in something that would that would result in a reviewable decision?

So first, they should participate in the RCRA process.

Okay. But but

but also they can't ask the agency to prepare a NEPA analysis. I mean,

there's And if the agency says no, I mean, is that a reviewable?

I I don't know. I apologize, your honor. I I they did they didn't raise that possibility.

What about when the permit if the permit issues, would that be a point where they could say it it yeah. I know your position is that NEPA doesn't apply here, but, like, could could they make the argument that's a final agency action? Now the now there's now there's finally because there's legal consequences to flow because it's been consummate. So does you know, the the air force wanted to do something, but they had to ask for a permit. Now they got the permit.

Now we're at a we're at a final point. What about at that point?

So because Guam is an authorized entity, the state, they would have to pursue that under Guam's procedures. But they could raise the argument. This all was flawed. You should have done they should have done a NEPA analysis and then that would be fully briefed and that would raise a host of questions including our major substantive argument, which is that we think that NEPA does not apply to the RCRA permitting process. And then that would that would be one the things that will be raised in that process.

I I see my time is all almost up. I didn't touch on many of the things I would like to, but if there's anything in particular the court would like to discuss.

Looks like Thank you. Thank you. Thank you.

My friend tries to conflate the separate duties under NEPA for an action agency like the Air Force and a permitting or regulatory agency that would be the US EPA here if they were involved.

And they are separate. NEPA imposes under

on every agency the obligation to comply with the the legislative history that's cited, in the brief, both their brief at the end and our brief, brief, from the congressional record makes it clear that when Congress, chose the term to the fullest extent possible, it expected every agency, to comply with NEPA unless there were other statutes that prevented it from doing so.

Before us at this point. If we agreed with you on all of the points you're arguing, would we conclude that NEPA that there needs to be a NEPA process or would that still be an open question as to whether there was, for example, a a major federal action of the kind that triggers NEPA. That that question doesn't seem to be in this mix right now.

Right.

And since Judge Watson decided that there wasn't any, there wasn't finality and there wasn't, ripen so on. He never addressed it either. So our bottom line here would be not ultimately to conclude whether the NEPA process was required. Is that right?

Oh, that's right. You would remand, for, decision on the merits and that's what we ask you to do. I just wanna make clear that there's a difference between the the permitting agency and the reg and the action agency. So this is kind of like Ramsey v Cantor on its head. In Ramsey v Cantor, this court said that the, permitting agency or or or that that that normally wouldn't need to do any NEPA needed to do NEPA because there's no downstream federal agency to do it.

Here, there's no downstream federal agency, to do it either even if it was okay for what the regulating agency do does under NEPA to substitute for the permitting agency. But more importantly, there's the timing issue. And the timing issue is at 40 CFR 15 o 2.5. And it says for every agency, including the action agency, you need to do NEPA early in the process so it can be an important part of your decision making process rather than justifying a decision already made. So that's the problem, judge Van Dyke, with waiting till the end of the RCRA process to raise a NEPA claim because

There's a there's a distinction between when you need to do NEPA, which obviously you need to do it early and the statute says you need to do it early, versus when you get the challenge. Right? Like, I mean, if if you just took from that that you always get, you know, it's required early. So, you know, as soon as we get a whisper that an agency is even considering something and they haven't started NEPA, then we get the challenge. I mean, that's obviously not correct.

There's there's a distinction between those two questions. Right?

That's

correct. But by the time that it submitted its application, the the Air Force had already made up its mind. With respect to, Summer, in Summer, the reason the Supreme Court said it was a a procedural right in vacuo is that there had been a a settlement. And so the only area of the forest where the plaintiff actually had any demonstrate concern, had already been addressed and that's at page, four ninety four of the decision. And lastly, as far as the record oh, I see I'm over

my time. You may you can wrap up.

It it just as far as the record, there's question, well, what would the record look like here? Well, just look at the Air force's own regulations where they say, if you make a decision about a continuing activity, like here, it is a continuing activity, you need to make sure that that you've done adequate analysis, the analysis that was required, of the project. And if you haven't, you need need to do at least an EA. And that's the regulation that we've already discussed. So unless there are any further questions Looks like there

are not. We

respectfully ask you to, reverse and remand. Thank you for your time.

Thank you. We thank both counsel for their arguments. The case is submitted.