ML23310A029

Petitioners Opposition to Motion for a Temporary Stay of Proceedings or in the Alternative for a 30 Day Extension of Time to File Response Brief

ML23310A029
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	11/03/2023
From:	Kanner A, Tennis A Fasken Land & Minerals, Ltd, Kanner & Whiteley, Permian Basin Land and Royalty Owners
To:	NRC/OGC, US Federal Judiciary, Court of Appeals, 5th Circuit
References
Document Number: 60, Litigation Case Number: 23-60377
Download: ML23310A029 (1)

Text

Case: 23-60377 Document: 60 Page: 1 Date Filed: 11/03/2023

United States Court of Appeals For the Fifth Circuit

No. 23 -60377

FASKEN LAND AND MINERALS, LIMITED ; and PERMIAN BASIN LAND AND ROYAL TY OWNERS, Petitioners-Appellants, v.

UNITED STATES NUCLEAR REGULATORY COMMISSION ; and UNITED STATES OF AMERICA, Respondents-Appellees.

PETITIONERS OPPOSITION TO MOTION FOR A TEMPORARY STAY OF PROCEEDINGS OR IN THE ALTERNATIVE FOR A 30 DAY EXTENSION OF TIME TO FILE RESPONSE BRIEF

ALLAN KANNER Attorney ANNEMIEKE M. TENNIS Attorney Kanner & Whiteley, L.L.C.

701 Camp Street New Orleans, LA. 70130 a.kanner@kanner -law.com a.tennis@kanner-law.com (504) 524-5777

Case: 23-60377 Document: 60 Page: 2 Date Filed: 11/03/2023

CERTIFICATE OF INTERESTED PERSONS No. 23 -60377 FASKEN LAND AND MINERALS, LIMITED ; and PERMIAN BASIN LAND AND ROYAL TY OWNERS, Petitioners-Appellants, v.

UNITED STATES NUCLEAR REGULATORY COMMISSION ; and UNITED STATES OF AMERICA, Respondents-Appellees.

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Fifth Circuit Rule 28.2.1 have an

interest in the outcome of this case. These representations are made in order that

the judges of this court may evaluate possible disqualification or recusal.

1. Petitioners

a. Fasken Land and Minerals, Ltd.

Petitioner Fasken Land and Minerals, Ltd. is a non -governmental corporate

party with no parent corporations. Fasken Land and Minerals, Ltd. is a limited

partnership organization existing under the laws of Texas. Fasken Land and

Minerals, Ltd. is a for -profit organization engaged in oil and gas extraction and

production activities. Fasken Land and Minerals, Ltd. is a founding member of the

Permian Basin Coalition of Land and Royalty Owners and Operators.

i Case: 23-60377 Document: 60 Page: 3 Date Filed: 11/03/2023

b. Permian Basin Land and Royalty Owners

Petitioner Permian Basin Land and Royalty Owners is a non-governmental

corporate party with no parent corporations. Permian Basin Land and Royalty

Owners is a registered 501(c)(4) non-profit, organized and existing under the laws

of the State of Texas and based in Midland, Texas. Permian Basin Land and

Royalty Owners is a public welfare organization dedicated to protecting the

interests of the Permian Basin and informing the public about threats and risks of

spent nuclear fuel in regions ill-suited to the activity.

2. Counsel for Petitioners

a. Allan Kanner, Kanner & Whiteley, L.L.C.

b. Annemieke M. Tennis, Kanner & Whiteley, L.L.C.

3. Respondents

a. United States Nuclear Regulatory Commission

b. United States of America

4. Counsel for Respondents

a. Andrew P. Averbach, U.S. Nuclear Regulatory Commission

b. Marian L. Zobler, U.S. Nuclear Regulatory Commission

c. Brooke P. Clark, U.S. Nuclear Regulatory Commission

d. Todd Kim, Assistant Attorney General

e. Jennifer Scheller Newmann, U.S. Department of Justice

ii Case: 23-60377 Document: 60 Page: 4 Date Filed: 11/03/2023

f. Justin Heminger, U.S. Department of Justice

5. Respondent-Intervenor

a. Holtec International

6. Counsel for Respondent -Intervenor

a. Benjamin L. Bernell, Pil lsbury Winthrop Shaw Pittman, LLP

b. Jay E. Silberg, Pill sbury Winthrop Shaw Pittman, LLP

c. Anne R. Leidich, Pillsbury Winthrop Shaw Pittman, LLP

Respectfully submitted,

/s/ Allan Kanner Allan Kanner

Counsel for Petitioners Fasken Land & Minerals, Ltd. and Permian Basin Land and Royalty Owners

iii Case: 23-60377 Document: 60 Page: 5 Date Filed: 11/03/2023

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS........................................................ i TABLE OF CONTENTS......................................................................................... iv TABLE OF AUTHORITIES..................................................................................... v INTRODUCTION..................................................................................................... 1 ARGUMENT............................................................................................................. 2 I. RESPONDENTS HAVE NOT MET THEIR HEAVY BURDEN IN SEEKING THE EXTRAORDINARY REMEDY OF A STAY........................ 2 A. Respondents Have Little Likelihood of Success on the Merits.................... 3 B. The Remaining Stay Factors Weigh in Favor of Denying the Requested Stay.............................................................................................. 5 C. Respondents Reliance on Distinguishable Patent Case Law and Arguments of Efficiency are Unavailing and Unpersuasive in Supporting a Stay in This Case..................................................................... 8 II. RESPONDENTS HAVE NOT PROVIDED REASONABLE JUSTIFICATION FOR A 30- DAY EXTENSION OF TIME TO FILE THEIR RESPONSE BRIEF....................................................................10 CONCLUSION........................................................................................................12 CERTIFICATE OF SERVICE................................................................................13 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT..................14

iv Case: 23-60377 Document: 60 Page: 6 Date Filed: 11/03/2023

TABLE OF AUTHORITIES Page(s)

Cases ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir. 1967)................................................................................8, 9 Landis v. NorthAmerican Co.,

299 U.S. 248 (1936)................................................................................................ 8 League of Women Voters of United States v. Newby,

838 F.3d 1 (D.C. Cir. 2016).................................................................................... 6 Nken v. Holder, 556 U.S. 418 (2009)................................................................................................ 2 Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir. 2013).................................................................................. 6 Plaquemines Par. v. Chevron USA, Inc.,

84 F.4th 362 (5th Cir. 2023)................................................................................... 2 State v. Biden, 10 F.4th 538 (5th Cir. 2021)...............................................................................5, 6 Texas v. NRC, 78 F.4th 827 (5th Cir. 2023)......................................................................... passim Texas v. United States, 40 F.4th 205 (5th Cir. 2022)...............................................................................2, 3 Texas v. United States, 787 F.3d 733 (5th Cir. 2015).................................................................................. 6 Thomas v. Bryant, 919 F.3d 298 (5th Cir. 2019).................................................................................. 2 U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336 (5th Cir. 2022)................................................................................... 2 United States v. Setser, 607 F.3d 128 (5th Cir. 2010).................................................................................. 5

v Case: 23-60377 Document: 60 Page: 7 Date Filed: 11/03/2023

VanDerStok v. Garland, No. 23-10718, 2023 WL 4945360 (5th Cir. July 24, 2023)................................... 7 Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014).................................................................................. 2 Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994).................................................................................. 6

vi Case: 23-60377 Document: 60 Page: 8 Date Filed: 11/03/2023

INTRODUCTION There is no logical reason to stay this proceeding, which would allow the

unlawfully issued Holtec License to stand. This Courts thoughtfully reasoned and

sound opinion in Texas v. Nuclear Regulatory Commission made it crystal clear

that the Nuclear Regulatory Commission (NRC) lacks the authority under the

Atomic Energy Act to issue licenses for private parties to store spent nuclear fuel

away-from -the-reactor and that the carefully constructed Congressional

framework of the Nuclear Waste Policy Act outright doesnt permit it. 78 F.4th

827, 831, 844 (5th Cir. 2023) (emphasis added). As such, the NRCs issuance of

the Holtec License is unlawful. Over the past five years, Petitioners have expended

substantial time and effort challenging such licenses for consolidated interim

storage facilities (CISFs) in a region where they have substantial mineral

interests and extensive agricultural operations, and Petitioners will be unfairly

prejudiced by any further delays in judicial review of the unlawful agency action

here.

Furthermore, Respondents have not satisfied the four stay factors and have

not met their heavy burden in seeking the extraordinary remedy of a stay. There is

little likelihood of success on the merits for the petition for rehearing en banc of

Texas v. NRC, which Respondents themselves characterize as a controlling case

decided by this Court. Motion at 1. Nor can Respondents demonstrate any actual

1 Case: 23-60377 Document: 60 Page: 9 Date Filed: 11/03/2023

or imminent irreparable harm from proceeding with this petition for review, and it

is in the publics interest for unlawful agency action to be set aside.

ARGUMENT I. RESPONDENTS HAVE NOT MET THEIR HEAVY BURDEN IN SEEKING THE EXTRAORDINARY REMEDY OF A STAY Respondents have not satisfied the four factors 1 that the Fifth Circuit

considers in deciding whether or not to grant the extraordinary relief of a stay

pending appeal:

(1) Whether the applicant has made a strong showing of likelihood to success on the merits; (2) whether the movant will be irreparably injured absent a stay; (3) whether issuance of a stay will substantially injure other interested parties; and (4) where the public interest lies.

Texas v. United States, 40 F.4th 205, 215 (5th Cir. 2022) (denying Department of

Homeland Securitys motion for stay pending appeal) (quoting Thomas v. Bryant,

919 F.3d 298, 303 (5th Cir. 2019)). The first two factors, likelihood of success and

irreparable harm to the movant, are emphasized as the most critical factors. E.g.,

Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (quoting Nken v. Holder, 556

U.S. 418, 434 (2009)). 2 It is Respondents burden to establish that these factors

1 Respondents failed to address the four stay factors in their Motion. For this reason alone, the Court should deny the ir request for a stay.

2 See also, Plaquemines Par. v. Chevron USA, Inc., 84 F.4th 362, 373 -78 (5th Cir.

2023) (vacating stay granted by district court regarding judgment remanding action against oil and gas companies to state court finding lack of a strong showing of likelihood of success on the merits or irreparable harm); U.S. Navy Seals 1 -26 v.

Biden, 27 F.4th 336, 351-53 (5th Cir. 2022) (finding the government failed to 2

Case: 23-60377 Document: 60 Page: 10 Date Filed: 11/03/2023

weigh in favor of the extraordinary remedy of a stay and this decision is an

equitable one committed to this courts discretion. Texas, 40 F.4th at 215.

Respondents petition for rehearing en banc of Texas v. NRC on the merits

is sufficiently weak to justify denying a stay on that basis alone. See Texas, 40

F.4th at 229. T he NRCs issuance of the Holtec License in excess of any statutory

authority and its refusal to revoke the Holtec License after this Courts ruling in

Texas v. NRC are abuses of discretion that further disfavor a stay. See id. (finding

prevention of agency abuse overcomes other [stay] factors). Indeed, it is in the

publics best interest and the interests of justice to expeditiously set aside the

unlawfully issued Holtec License.

A. Respondents Have Little Likelihood of Success on the Merits Respondents failed to address this factor in their Motion; thus, they have

made no showing of likelihood of success on the merits with respect to their

petition for rehearing en banc of Texas v. NRC. Because Respondents have not

presented any new or material information, superseding authority, or further

analysis to support overturning Texas v. NRC or to justify the NRCs unlawful

issuance of a license to a private company to store DOE -titled waste or

demonstrate likelihood of success on the merits and denying stay of judgment enjoining mandatory military COVID-19 vaccination); Texas v. United States, 40 F.4th 205 (5th Cir. 2022) (finding the Department of Homeland Security had failed to make showing of likelihood of success on the merits and denying stay of judgment vacating a Department memorandum setting enforcement priorities).

3 Case: 23-60377 Document: 60 Page: 11 Date Filed: 11/03/2023

consolidated commercial spent nuclear fuel away from the reactor where it was

generated, there is no basis to conclude that a rehearing is warranted. The

controlling core issues of Texas v. NRC fall squarely within this Courts

jurisprudence, and with little likelihood of success on the merits of the petition for

rehearing of Texas v. NRC, there is no reason why the proceedings in Petitioners

petition for review in this matter should not proceed, which should ultimately

result in vacating and setting aside the Holtec License.

Indeed, Respondents concede that this case should be able to expeditiously

conclude [] by applying [] Texas. Motion at 6. Petitioners agree and believe that

timely judicial review by this Court, as opposed to needless delays, can accomplish

this efficiently. Respondents, on the other hand, would like to employ a wait and

see approach with a temporary stay, speculating as to a re-evaluation of that stay

pending future appeals and the possibility of a yet-unknown superseding decision

that might overturn existing Fifth Circuit precedent. See Motion at 6-7

(Respondents urge this Court to issue a stay in this case now that could be re -

evaluated if a party chooses to seek certiorari in Texas ).

Texas v. NRC is existing binding precedent in the Fifth Circuit and until this

Court sitting en banc issues a superseding decision or until Respondents file for a

writ of certiorari and the Supreme Court accepts it for review and until the

Supreme Court issues an intervening decision, Texas v. NRC should be applied in

4 Case: 23-60377 Document: 60 Page: 12 Date Filed: 11/03/2023

this matter and Petitioners relief vacatur of the unlawfully issued Holtec

Licenseshould be granted. See United States v. Setser, 607 F.3d 128, 131 (5th

Cir. 2010) (noting only two ways that binding precedent can change). Issuing a

stay will only delay the inevitable vacatur of the unlawfully issued Holtec License

and continue to stigmatize and lessen Petitioners property interests in the region in

the interim. Given the NRCs refusal to revoke or stay the Holtec License in light

of this Courts finding that the NRC lacks the statutory authority to issue this type

of CISF away-from -reactor license, timely judicial review of Petitioners case is

the only adequate remedy to vacate the unlawfully issued Holtec License.

Because Respondents have little likelihood of success on the merits in their

petition for rehearing of Texas v. NRC, this most significant stay factor supports

denying Respondents request for a stay.

B. The Remaining Stay Factors Weigh in Favor of Denying the Requested Stay There are no assertions of irreparable harm here. Respondents complaints of

inconvenient briefing schedules and complicated briefing in this litigation given

the posture of Texas v. NRC do not qualify as irreparable harm during the

pendency of an appeal. Motion at 7. See State v. Biden, 10 F.4th 538, 559 (5th Cir.

2021) (the relevant question is whether the Government will be irreparably

harmed during the pendency of the appeal) (emphasis in original). And even if

Respondents were harmed, [a] stay is not a matter of right, even if irreparable

5 Case: 23-60377 Document: 60 Page: 13 Date Filed: 11/03/2023

injury might otherwise result.... Texas v. United States, 787 F.3d 733, 746-47

(5th Cir. 2015) (quoting Planned Parenthood of Greater Texas Surgical Health

Servs. v. Abbott, 734 F.3d 406, 427 (5th Cir. 2013)) (cleaned up). Because

Respondents have not shown irreparable harm will result if th is matter proceeds,

this factor weighs in favoring of denying the stay.

Despite any potential administrative inconvenience that may be caused by

this litigation, there is no worthy public interest in the perpetuation of unlawful

agency action. State v. Biden, 10 F.4th at 560 (quoting League of Women Voters

of United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) ). To the contrary, there

is a substantial public interest in having governmental agencies abide by the

federal laws that govern their existence and operations. League of Women Voters,

838 F.3d at 12 (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994)).

Because Respondents have failed to show their conduct comports with the law, as

this Court has concluded that the NRC does not have the delegated authority under

the Atomic Energy Act to issue a CISF away -from -reactor license and the

Nuclear Waste Policy Act belies the [NRCs] arguments to the contrary, there is

no legitimate public interest in perpetuating the NRCs unlawful actions in issuing

the Holtec License here. See Texas v. NRC, 78 F.4th at 844. Rather, the public

interest lies in proceeding with judicial review and invalidating the unlawful

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Holtec License. As such, the public interest stay factor weighs in favor of denying

Respondents request for a stay.

Respondents further argue that Petitioners interests in efficient resolution

and closure on the litigated issues are inchoate and inherent in the judicial

process. Motion at 6. But this glosses over the extraordinary nature of the

equitable discretionary remedy requested by Respondents here (i.e. a stay in this

litigation pending a petition for rehearing en banc in a separate appeal and in the

context of an exceedance of statutory authority) without a showing of likelihood of

success on the merits or irreparable harm. See, e.g., VanDerStok v. Garland, No.

23-10718, 2023 WL 4945360 (5th Cir. July 24, 2023) (denying a motion for stay

of a judgment vacating a Bureau of Alcohol, Tobacco, Firearms and Explosives

rule which exceeded statutory jurisdiction and its authority where it had not shown

a strong likelihood of success on the merits or irreparable harm) (unpublished

order). Petitioners will be prejudiced by additional countless delays in the judicial

review of a case that Respondents agree raises the same core issues addressed in

Texas v. NRC (Motion at 4) and that should be able to expeditiously conclude...

by applying... Texas. Id. at 6. Whether Petitioners injuries rise to the level of

substantial under the third stay factor here is uncertain. However, given that the

other stay factors, including the two most significant factors, are clearly not met

here, Respondents request should be denied.

7 Case: 23-60377 Document: 60 Page: 15 Date Filed: 11/03/2023

C. Respondents Reliance on Distinguishable Patent Case Law and Arguments of Efficiency are Unavailing and Unpersuasive in Supporting a Stay in This Case Instead of addressing the factors for a stay pending an appeal, Respondents

rely on distinguishable patent case law discussing stays in the context of litigation

between the same parties involving the same or controlling issues.... Motion at

4-5. In ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir. 1967), this Court

considered a petition for mandamus to review a contemplated stay issued by a

district court judge to avoid the potential race between two district courts reaching

a decision considering a patent dispute. In that case one company filed a patent

infringement suit in a Texas district court and 11 days later, the alleged infringer

filed suit in a Kansas district court seeking a declaratory judgment that the patent

was invalid. Id. at 17. This Court found that it made perfect sense to first decide

whether the patent was valid before deciding if the patent was infringed,

concluding that a stay of proceedings between the same parties involving patent

disputes was warranted as an acceptable means of avoiding unnecessary

duplication of judicial machinery. Id. at 19 & n.12 (citing Landis v.

NorthAmerican Co., 299 U.S. 248 (1936)). The Court took into account the

proximity of relevant witnesses and evidence in the Kansas patent validity case and

that determination of the validity of the patent proceeding would likely conclude

before the infringement proceeding. Id. at 19.

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This is a stark contrast from the posture of litigation and claims at issue here.

Unlike in ACF Industries, where the sequencing of the judicial review of patent

validity before patent infringement claims would avoid conflicting district court

decisions on patent disputes, here there is no potential race for conflicting district

court decisions that warrants such a stay. T his case involves the same Circuit Court

addressing the NRCs invalid lack of authority to issue an away-from -reactor

license for the storage of spent nuclear fuel, which it has already decided with

respect to a different private entity.

Respondents purported push for this Court to enter an equitable stay to

conserve party and judicial resources (Motion at 5) is undermined by the NRCs

own inaction in failing to revoke or stay the Holtec License following the vacatur

of a similar license in Texas v. NRC, which would have conserved exceedingly

greater resources. In the absence of the NRC revoking or staying the Holtec

License (a similarly unlawfully issued license ) and instead of timely responding to

Petitioners opening brief filed on October 2, 2023, 3 Respondents filed a motion

requesting a stay pending the issuance of the mandate in Texas v. NRC and in the

alternative an extension of time to file their response brief in this matter. In doing

so, Respondents caused Petitioners to draft additional briefing opposing the stay

3 By notice of the Court on October 3, 2023, Respondents brief in response to Petitioners opening brief was to be filed on or before November 1, 2023. See Motion at 7-8. Respondents have not yet filed their brief.

9 Case: 23-60377 Document: 60 Page: 17 Date Filed: 11/03/2023

for this Courts consideration and further forced a re-working of the previously

Court-ordered briefing deadlines. Additionally, if Respondents request is granted,

it will require a future hypothetical re-evaluation of any potential stay (i.e.

additional delay and resources) with a subsequent submission of position

statements to the Court on how the parties feel is the best way to proceed in this

case after issuance of the mandate in Texas v. NRC. See Motion at 6-8.

Contrary to Respondents claims of duplicative litigation and that a stay

would conserve resources (Motion at 5-6), Respondents have merely laid out a

convoluted and uncertain path to judicial review that is peppered with uncertainties

and unaddressed issues that will likely require more and not less briefing and

consideration by the Court. See, e.g., Motion at 6 (the parties in this case will be

able to advise this Court on how to efficiently resolve this case). Respondents

unconventional request robs Petitioners of their right to timely judicial review of

unlawful agency action in a separate case, against a separate license, involving a

separate intervenor, and Respondents request for a stay has no guarantee of the

parties expending less time and resources. In sum, Respondents pleas of judicial

efficiency and conserving resources is pure speculation and cannot support the

extraordinary request for remedy of a stay here.

II. RESPONDENTS HAVE NOT PROVIDED REASONABLE JUSTIFICATION FOR A 30- DAY EXTENSION OF TIME TO FILE THEIR RESPONSE BRIEF

10 Case: 23-60377 Document: 60 Page: 18 Date Filed: 11/03/2023

Approximately one week before Respondents response brief deadline, they

filed for a stay and in the alternative for a 30 -day of extension of time to file their

response brief. See Motion generally. Because Respondents did not provide any

adequate justification for a 30 -day extension and because Respondents request for

a 30-day extension would knowingly result in forcing Petitioners to file two

appellate briefs on the same day, Petitioners object ed to same. Respondents

request for a 30-day extension disproportionately burdens Petitioners schedule and

workload, but Petitioners are amenable to a 21 -day extension should the Court feel

compelled to grant an extension.

Respondents erroneously maintain that the briefing here will be difficult

because Texas addresses the same issues as this case. Motion at 7. To the

contrary, common sense would dictate the briefing of substantially similar issues

would be streamlined and require less time, not more. Furthermore, under these

circumstances, Respondents argue that drafting of the brief will require additional

coordination and review by counsel for the NRC and the Justice Department.

Motion at 7-8. But this too should require less time because that coordination

involves substantially the same issues previously addressed in Texas v. NRC.

While Petitioners do not believe an extension is necessary, Petitioners

acknowledge that Respondents failure to file their response brief on the Court

ordered deadline will require a re -working of the briefing schedule moving

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forward. As such, Petitioners do not oppose an extension of 21-days with

Respondents filing their response brief on November 22, 2023.

CONCLUSION For the foregoing reasons as stated herein, Petitioners respectfully request

that this Court deny Respondents request for a stay of the above -captioned

proceeding and not permit lengthy extensions of time for the future briefing

schedule to avoid further delay s in the setting aside of unlawful agency action.

Dated: November 3, 2023. Respectfully submitted by:

KANNER & WHITELEY, LLC

/s/ Allan Kanner Allan Kanner, Esq.

Annemieke M. Tennis, Esq.

701 Camp Street New Orleans, Louisiana 70130 (504) 524 - 5777 a.kanner@kanner -law.com a.tennis@kanner-law.com

Counsel for Petitioners Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners

12 Case: 23-60377 Document: 60 Page: 20 Date Filed: 11/03/2023

CERTIFICATE OF SERVICE

I certify that on 3rd day of November 2023, I electronically filed the

foregoing Opposition in Response to Respondents Motion for a Temporary Stay

of Proceedings or in the Alternative for a 30 Day Extension of Time to File

Response Brief by Petitioners Fasken Land and Minerals, Ltd.; and Permian Basin

Land and Royalty Owners upon counsel for the parties in this action by filing the

document electronically through the CM/ECF system. This method of service is

calculated to serve counsel at the following e -mail addresses:

Andrew P. Averbach Andrew.averbach@nrc.gov

Justin Heminger justin.heminger@usdoj.gov, efile_app.enrd@usdoj.gov

Benjamin L. Bernell ben.bernell@pillsburylaw.com, docket@pillsburylaw.com

/s/ Allan Kanner Allan Kanner

13 Case: 23-60377 Document: 60 Page: 21 Date Filed: 11/03/2023

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT I certify that this document complies with the type -volume limit of Fed. R.

App. P. 32(a)(7)(B) because it contains 2,823 words, excluding the parts of the

document exempted under Fed. R. App. P. 32(f).

I certify that this document complies with the typeface requirements of Fed.

R. App. P. 32(a)(5) because it has been prepared in 14 -point Time New Roman, a

proportionally spaced font.

Dated: November 3, 2023 /s/Allan Kanner Allan Kanner Counsel for Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners

14