[00:00:04] Speaker 00: Good morning, Your Honors. [00:00:05] Speaker 00: It may please the Court. [00:00:06] Speaker 00: I'm Justin Augustine on behalf of Appellants, and I'd like to try to please reserve two minutes for rebuttal. [00:00:11] Speaker 04: Thank you. [00:00:13] Speaker 00: So the issue before us today is whether 21-inch trees within the Takoya Project area qualify as generally small diameter timber under the Roadless Area Conservation Rule. [00:00:26] Speaker 00: And as a starting point for that discussion, it's essential to keep in mind [00:00:29] Speaker 00: that the roadless rule contains an overall prohibition on timber cutting. [00:00:34] Speaker 00: That's the title of 36CFR 294.13. [00:00:37] Speaker 00: And that matters here because when we're discussing the exception for generally small diameter timber, we need to remember that that needs to be narrowly construed in order to reserve the overall intent of the regulation. [00:00:52] Speaker 00: That said, it's the rules preamble that I want to jump into most today because it's the rules preamble that not only emphasizes why the rules are narrow one, it also really underscores why the Forest Service's approach in this case is unreasonable. [00:01:06] Speaker 00: So specifically, the regular, excuse me, the preamble states that the intent of the rule is to limit cutting of timber to those areas that are overgrown. [00:01:18] Speaker 00: And not only does the preamble state that this circuit [00:01:21] Speaker 00: in the Takoya 1 case in 2022, likewise found that the Forest Service must meet that intent. [00:01:28] Speaker 03: You're not disputing this area is overgrown though, are you? [00:01:31] Speaker 00: I'm sorry? [00:01:32] Speaker 03: You're not really disputing that the area is overgrown. [00:01:34] Speaker 03: I thought you were just disputing how to deal with it. [00:01:38] Speaker 00: If I'm understanding, yes, I am disputing that particular trees are overgrown. [00:01:43] Speaker 00: We don't know. [00:01:44] Speaker 03: Sorry. [00:01:45] Speaker 03: When you were just reading from the preamble, weren't you talking about whether there's like a fire risk because there are too many trees? [00:01:51] Speaker 00: I'm going to get to the fire risk issue, but from my perspective, the first question we have to answer and show is what trees within the project area are actually overgrown. [00:02:01] Speaker 00: All they've done is present data, but they haven't actually provided a technical analysis that shows why particular trees that they're going to cut are actually overgrown. [00:02:09] Speaker 05: I think you're mixing terms up a little bit. [00:02:13] Speaker 05: My understanding of the purpose of the rules [00:02:17] Speaker 05: The exception when they allow cutting is if the forest area is overgrown and I don't see anything in the briefing suggesting or record suggesting that there is a dispute that this area of the forest that there is overgrowth. [00:02:34] Speaker 05: The only thing issue is the services determination that 21 inch DBH is generally small size diameter. [00:02:46] Speaker 05: and can be cut for the purpose of dealing with the overgrowth. [00:02:52] Speaker 05: I mean, how do you define overgrown if you dispute that, my understanding? [00:02:57] Speaker 00: Well, that's, to me, the underlying problem. [00:03:00] Speaker 00: They haven't explained why 21-inch trees in particular [00:03:04] Speaker 00: are overgrown. [00:03:05] Speaker 00: No one disputes that there are some overgrown trees in this area. [00:03:08] Speaker 00: I agree with that. [00:03:09] Speaker 03: I don't think they're talking about overgrown trees. [00:03:11] Speaker 03: I think they're talking about too much density of forest, too many trees in the area that's causing a fire risk. [00:03:17] Speaker 03: So I think you're using overgrowth, and I don't think you did this in your brief, so this is like a weird twist that's happening right now. [00:03:25] Speaker 03: I think you were saying they're dealing with the fire hazard in the wrong way. [00:03:29] Speaker 03: They're cutting trees that are too big. [00:03:30] Speaker 03: That was your argument in your brief. [00:03:32] Speaker 03: Now you just came in and you're saying the preamble is something about whether there's overgrowth at all that has to do, I don't think this is, I'm not sure what you're doing right now. [00:03:40] Speaker 04: So this case was remanded from our court previously by another panel. [00:03:46] Speaker 04: And really with one question, they wanted the Forest Service to explain why [00:03:54] Speaker 04: it reached the conclusion that among this overgrowth, it was permissible to trim trees that were 21 dbh, 21 inch dbh. [00:04:08] Speaker 04: And they came back and they gave a reason. [00:04:11] Speaker 04: So now your challenge is to the reason that they gave. [00:04:15] Speaker 00: Well, there's two things going on there. [00:04:16] Speaker 00: And I'll jump to the fire issue because apparently I didn't explain this well in the briefs. [00:04:21] Speaker 00: But from my perspective, [00:04:24] Speaker 00: The data they presented shows, for example, that there are 1.27 trees per acre in the 21-inch size class. [00:04:29] Speaker 00: That, to me, is obviously not an overgrown. [00:04:32] Speaker 00: We haven't established that those trees are, in fact, overgrown. [00:04:35] Speaker 05: I mean, my understanding of the term overgrowth as it used, and none of this has been presented to us as a disputed issue, but the overgrowth is a tree that has become too [00:04:51] Speaker 05: dense in the area of forest that has become too dense in the number of trees. [00:04:57] Speaker 05: And then some thinning is permitted under the roadless rule to address an overgrowth problem. [00:05:02] Speaker 05: The size of the tree, the DBH of the tree, is not, as I understand it, to be termed overgrown. [00:05:12] Speaker 05: Like a tree is not overgrown when it reaches a certain size diameter. [00:05:17] Speaker 05: A forest is overgrown when there are too many trees. [00:05:20] Speaker 05: So do you, and I didn't see any dispute about that understanding of overgrowth. [00:05:26] Speaker 05: And I think in decoy in one, the court basically said the purpose of this project is validated. [00:05:33] Speaker 05: And so I don't even think that could be a live issue under the law of the case. [00:05:37] Speaker 00: Well, let's jump to the fire issue then, Your Honors. [00:05:40] Speaker 00: To start with, [00:05:41] Speaker 00: The Takoya I decision states that the Forest Service must explain why 21-inch trees in particular are creating the risk of wildfire the project seeks to ameliorate. [00:05:51] Speaker 00: And importantly, when providing that explanation, the Takoya I court said that the Forest Service can't just say it, they must show it with particular technical analysis. [00:05:59] Speaker 00: And that's the real issue before us on the fire issue from my perspective. [00:06:03] Speaker 05: I read the decision and it says, you know, it's because there are too many trees and these trees of this size and the medium range of height are connecting essentially the canopy and producing a risk of wildfire. [00:06:18] Speaker 05: I mean, I don't understand why that's not an explanation. [00:06:24] Speaker 00: There's nothing that this court or myself can look to to say, here's why they chose 21 inches. [00:06:30] Speaker 00: Their explanation is that there's clusters of trees. [00:06:32] Speaker 00: They could have as easily said, these clusters show we need to cut up to 14 inches, or 16 inches, or 18 inches. [00:06:38] Speaker 00: They don't do what the Toa Kua I court said they need to do, which is show specifically the 21-inch trees are a problem, not just say 18-inch or 16-inch. [00:06:47] Speaker 00: That's the problem. [00:06:47] Speaker 03: I think what our court said is the Forest Service failed to explain its determination that 21-inch DBH trees are generally small diameter timber. [00:06:57] Speaker 03: That's what we're here to talk about today, whether they have now explained that. [00:07:01] Speaker 03: You're now jumping to some other thing that, if you can point me to it, I'd be happy to look. [00:07:05] Speaker 03: But I don't think our court remanded to say, is there really a fire risk? [00:07:09] Speaker 03: Explain that or explain something about the relation of the trees and the fire risk. [00:07:13] Speaker 03: I think they said, explain why 21-inch trees are generally small diameter timber. [00:07:19] Speaker 03: And I thought that's what your brief was about, too. [00:07:23] Speaker 00: What is, but there's a whole section about this fire issue as well, because the Tocoya one court very specifically said they hadn't explained why 21 inch trees are a fire. [00:07:31] Speaker 05: I think the court offered some reasons why they wouldn't just accept at face value a bald statement that 21 inches DBH is generally small diameter timber. [00:07:41] Speaker 05: And they said, you know, [00:07:43] Speaker 05: We have some reasons to believe or just to question that. [00:07:47] Speaker 05: And then they said, we're not going to tell the service exactly how they should explain this. [00:07:51] Speaker 05: They don't have to follow any particular methodology for explaining this. [00:07:55] Speaker 05: So they service went providing an explanation. [00:07:59] Speaker 05: And now I think you have to explain why you think that explanation is insufficient, essentially arbitrary and capricious as a matter of law. [00:08:11] Speaker 05: And I'm sorry. [00:08:13] Speaker 00: Going back to the Koya 1 decision, it says, an agency's determination is arbitrary and capricious where it merely provides generic statements to support its conclusion in lieu of evidence that was actually applied and that it actually applied its substantive expertise. [00:08:26] Speaker 00: I don't believe there's anything in the revised memo showing [00:08:31] Speaker 00: that they've exercised or something of expertise. [00:08:33] Speaker 00: They've just stated, we have to go up to 21 to address these clusters of trees. [00:08:36] Speaker 03: Well, they said that these trees have this growth possibility. [00:08:43] Speaker 03: They have the growth potential of, I don't remember the exact number, but much bigger than 21. [00:08:48] Speaker 03: And so given that, 21 is small. [00:08:52] Speaker 03: And I didn't see you challenge, sorry, I should know the exact number, 130 or whatever it is. [00:08:56] Speaker 03: I didn't see anything in your opening brief saying their factual assumption that the growth potential is 130 is factually wrong. [00:09:06] Speaker 00: We did argue, Your Honor, that it's not substantiated. [00:09:08] Speaker 00: They just, again, this is the problem. [00:09:10] Speaker 00: They're just saying that that's a fact without actually saying it. [00:09:13] Speaker 03: But they have expertise, and you didn't, I mean, I think to show that they use their expertise inappropriately, it would help to have you say, actually, these trees only grow half that size or something. [00:09:23] Speaker 03: But I didn't see anything like that that you did. [00:09:26] Speaker 00: Well, I think our point is that growth potential has nothing to do with determining which trees are overgrown in an area. [00:09:31] Speaker 00: That's the essence of the roadless road. [00:09:33] Speaker 05: But my understanding is the whole premise is that when the forest is overgrown, that the trees [00:09:40] Speaker 05: can't meet their growth potential because there are too many of them competing for resources, sunlight, water, nutrients, and then they don't reach their growth potential. [00:09:50] Speaker 05: So one of the purposes of thinning is to enable the trees that remain to actually meet their growth potential. [00:09:57] Speaker 05: But so it seems to me entirely plausible. [00:10:01] Speaker 05: Again, I'm not a tree expert, but it seems the service's explanation that [00:10:07] Speaker 05: considering growth potential for determining what is a small DBH tree versus actual size. [00:10:15] Speaker 05: I mean, this is what they explain in the decision. [00:10:17] Speaker 05: We're not going to consider actual size because actual size has effectively been depressed by the overgrowth. [00:10:24] Speaker 03: And by the logging 40 years ago. [00:10:26] Speaker 05: Right, because we have no old growth, essentially. [00:10:29] Speaker 00: Not sure I follow up, because I feel like I'm repeating myself, so I apologize, but the intent of the rule is to limit logging. [00:10:37] Speaker 00: to those places that are overgrown, and growth potential has nothing to do with that determination. [00:10:41] Speaker 00: It doesn't answer that question. [00:10:43] Speaker 00: Saying that the growth potential. [00:10:44] Speaker 03: So I just think you're mixing up the terms again. [00:10:46] Speaker 03: The Forest Service says this forest is so dense that there is fire hazard. [00:10:51] Speaker 03: If fire comes through and burns this whole thing, it's going to burn all your big trees and all the trees. [00:10:56] Speaker 03: So I don't see why you want that to happen. [00:11:00] Speaker 00: The essential point that I think is not coming across, I apologize, is that [00:11:04] Speaker 00: We have to figure out which of those trees are actually part of the fire problem. [00:11:08] Speaker 00: It's not all of them. [00:11:09] Speaker 00: Obviously these trees go up to 42 inches. [00:11:11] Speaker 00: So if we're saying it's overgrown, why can't we just log all the way up to 42 then? [00:11:15] Speaker 00: So my point is you have to draw the line somewhere and they need to establish [00:11:19] Speaker 00: where they're drawing that line with a technical analysis, and they have not done that anywhere. [00:11:23] Speaker 00: We don't know why they picked 21. [00:11:25] Speaker 03: We know they think- Well, they say, I mean, yes, there's always gonna be some line drawing, but they say we picked 21 because the growth potential is over 100, and 21 is small compared to that. [00:11:36] Speaker 03: And the rule talks about generally small, so they're using an interpretation, and I'm not sure why it's an unreasonable interpretation. [00:11:43] Speaker 03: or has any factual false premise, you haven't shown a factually false premise, or a legal interpretation of the word small that makes it seem like it's wrong. [00:11:52] Speaker 00: How is that not arbitrated? [00:11:54] Speaker 00: Just pick 21 out of a hat. [00:11:55] Speaker 03: Well, you always have to pick something. [00:11:56] Speaker 03: I mean, you want them to pick 12, but they could pick 11.5, or 12.5 is always going to have some question. [00:12:02] Speaker 03: There's always a line. [00:12:04] Speaker 00: What I want them to pick, though, I acknowledge is irrelevant. [00:12:06] Speaker 00: What I want them to do is important here, and that's [00:12:09] Speaker 05: provide a technical analysis of the quay one court said is needed but they provide i mean you say they don't provide an explanation but they say that the majority of the thinning of this project will occur within zero to fourteen inch diameter range this will help accomplish the goal of reducing the ground and ladder fuels so i mean there's a lot of explanation here about how targeting trees in this range will achieve the goal of reducing overgrowth and preventing [00:12:38] Speaker 05: the drastic wildfire. [00:12:40] Speaker 05: So I don't, again, I don't think our job is necessarily to, at this point, question the science behind this explanation. [00:12:52] Speaker 05: They've provided one, it seems, there's pages of reasoning here and explanation as to why they chose trees in this range. [00:13:02] Speaker 05: And they explained, I think, [00:13:04] Speaker 05: in response to the Sequoia 1, why 21-inch DBH constitutes generally small diameter timber? [00:13:13] Speaker 04: Well, this particular location, given the dominant tree species that exists there. [00:13:20] Speaker 04: I mean, they've made it very specific to this particular location. [00:13:24] Speaker 04: Jeffrey Pine. [00:13:24] Speaker 04: Right, the Jeffrey Pine. [00:13:25] Speaker 03: I'm sorry. [00:13:26] Speaker 03: I found the number. [00:13:26] Speaker 03: I guess they said 60 to 90. [00:13:27] Speaker 03: So when I was saying 100, that was a little exaggerated. [00:13:30] Speaker 03: But it's still the point that 60 to 90 is a lot more than 21. [00:13:34] Speaker 00: I agree that 60 or 90 is a lot more than 21, but it doesn't answer the question of what the roadless world wants us to answer is my perspective. [00:13:41] Speaker 05: The roadless world specifically says we're not going to put a number on it because it has to be project-specific, species-specific, all these other things. [00:13:50] Speaker 00: How are their generic statements in this revised memo really any different than the generic statements that Aquia 1 found? [00:13:56] Speaker 05: The statement that Jeffrey Pine grows 60 to 90 inches, potential growth is 60 to 90 inches, how is that a generic statement? [00:14:04] Speaker 00: It doesn't help us answer any aspect of the roadless rule. [00:14:09] Speaker 00: Whether a tree is small compared to its growth potential doesn't tell us whether there's a risk of wildfire. [00:14:14] Speaker 00: It doesn't tell us whether the area is overgrown. [00:14:15] Speaker 00: It tells us literally nothing about the roadless rule from our perspective. [00:14:18] Speaker 04: All right, you have about a minute left. [00:14:21] Speaker 04: Let's hear from the other side first. [00:14:23] Speaker 04: And I think they're dividing their time. [00:14:24] Speaker 04: 11 minutes for the USFS and then four minutes for the American Forest Resource Council. [00:14:33] Speaker 00: I apologize, you weren't asking a question, were you? [00:14:35] Speaker 00: I couldn't hear you. [00:14:36] Speaker 04: Oh, no, no, no, I'm calling the opposing council. [00:14:53] Speaker 01: Good morning, your honors. [00:14:54] Speaker 01: May it please the court. [00:14:55] Speaker 01: My name is Ezekiel Peterson here representing the United States Forest Service. [00:14:59] Speaker 01: With me at council table is Sarah Gaffore, representing the Interveners American Forest Resource Council. [00:15:05] Speaker 01: My plan is to speak for 14 minutes before turning it over to the interveners to speak for the remaining four. [00:15:10] Speaker 04: You have 11 minutes. [00:15:11] Speaker 01: Excuse me. [00:15:12] Speaker 01: 11 is correct. [00:15:15] Speaker 01: The Forest Service's analysis here was reasonable. [00:15:18] Speaker 01: They went back after remand and adequately substantiated their analysis about why the trees that would be thinned by this project were generally small diameter timber, comporting with the 2001 roadless roll. [00:15:32] Speaker 01: The Forest Service specifically added the analysis that this court said was missing in Takuya 1, the prior decision, including stand-specific exams about the types of trees that are actually in this project area, and a biological and scientific rationale about why the trees that would be harvested were generally small diameter timber. [00:15:51] Speaker 01: Um, the district court correctly held that that analysis was reasonable and this court should affirm. [00:15:56] Speaker 03: So I'm having trouble figuring out like what administrative law framework we should be in here. [00:16:02] Speaker 03: Um, there has been discussion of Kaiser and our deference, but I don't think you've really embraced that approach in your brief. [00:16:08] Speaker 03: Can you explain whether you think we should be thinking about this as interpretation of the word small and using deference or what? [00:16:16] Speaker 01: From our perspective, Your Honor, this case doesn't present a question of regulatory interpretation, because it's not really a question about the definition of the word small or the definition of the word generally. [00:16:28] Speaker 01: Those words carry their plain English meaning here, but the question is about whether the Forest Service was arbitrary and capricious in adopting a certain methodology to determine that [00:16:39] Speaker 01: under these particular, this particular set of facts, the timber that they would be thinning was generally small. [00:16:44] Speaker 03: The appellants plaintiffs say that the Forest Service has never relied on this growth potential idea to explain why something is small before. [00:16:54] Speaker 03: Is that true? [00:16:55] Speaker 01: We're not aware of a situation in which the Forest Service has relied on this particular rationale to explain in the roadless rural context why timber is generally small, but I think it's important to emphasize that this is the rationale that the Forest Service came up with [00:17:12] Speaker 01: when conducting this extra analysis on remand from this court. [00:17:16] Speaker 01: So the Forest Service took this court seriously on remand, went back after that mandate, and looked at what the best scientific or biologic rationale for what generally small diameter timber would be in this project area. [00:17:30] Speaker 03: But only in the context of this project is this the definition that you'd like to use? [00:17:37] Speaker 03: Would the Forest Service like this to be the interpretation of generally small in all roadless rule interpretations in all projects. [00:17:44] Speaker 01: We're not necessarily setting out a definition or regulatory interpretation of generally small across all contexts. [00:17:51] Speaker 01: And I think the [00:17:52] Speaker 01: A roadless rule itself acknowledges, or the regulatory preamble, I should say, to the roadless rule, acknowledges that this determination was meant to be made on a site-specific basis, taking into account the different ecological considerations in the national forest. [00:18:08] Speaker 01: A national forest in Alaska is going to be a lot different than a national forest in Southern California. [00:18:13] Speaker 01: But for this project, it certainly was reasonable for the Forest Service to use this rationale. [00:18:17] Speaker 04: Why is it reasonable for this specific project? [00:18:21] Speaker 01: Because the Forest Service made the specific determination that Jeffrey Pines in this project area can grow up to 60 or 90 inches. [00:18:30] Speaker 01: And compared to that growth potential, as well as the past management history on the site, which has resulted in there not being any trees that are currently at that growth potential, it's reasonable for the timber that will be thinned in this project to be generally small. [00:18:46] Speaker 01: And I want to emphasize the profile of the timber that will actually be thinned by this project. [00:18:51] Speaker 01: 73% of the timber that will be harvested is less than 2 inches. [00:18:55] Speaker 01: That's at record page 47. [00:18:56] Speaker 01: 96% is non-commercial, which is generally less than 10 inches at record page 49. [00:19:02] Speaker 01: And 98.5% is less than 14 inches, which is at record page 46. [00:19:08] Speaker 01: I think plaintiffs today have made a big deal about the fact that it was [00:19:14] Speaker 01: arbitrary for the Forest Service to choose this 21-inch number. [00:19:18] Speaker 01: But it's clear from the analysis in the revised decision memo why the Forest Service decided to include thinning of 14 to 21-inch trees in this project. [00:19:30] Speaker 05: The one thing that troubles me a little bit about what you said to us a few moments ago is that is this the rationale on this decision? [00:19:40] Speaker 05: The rationale that the service had for choosing 21 inches or is it a post hoc explanation when you were told to provide one and you looked at and you came up with an explanation and it's it seemed to me you suggested we just found an explanation that fit the scientific evidence. [00:19:59] Speaker 01: Well, I think the Forest Service went back on remand and determined that this was generally small diameter timber consistent with this court's mandate in the 2Q1 decision. [00:20:12] Speaker 01: And it did that analysis based on the two prongs that it discusses in the revised decision memo. [00:20:17] Speaker 01: So one was that generally small diameter timber analysis based on the benchmark of the species growth potential on the site, which is a statics benchmark that doesn't change based on [00:20:29] Speaker 01: past management history or disturbance history or wildfire history of the site. [00:20:34] Speaker 01: But second, the Forest Service explained that even if, for the sake of discussion, some of the relatively larger trees that would be harvested here, the 14 to 21 inch trees, were not considered small. [00:20:46] Speaker 01: the project would still remove generally small diameter trees. [00:20:50] Speaker 01: The plaintiff's proposed interpretation of this regulation would essentially say that the Forest Service can only harvest small diameter timber from roadless areas. [00:21:01] Speaker 01: That's not something that's in the regulation. [00:21:03] Speaker 01: The Forest Service could have written the regulation that way, but it didn't. [00:21:07] Speaker 01: So this word generally has to be given some meaning here. [00:21:10] Speaker 05: That's where you get into, I think Judge Friedland's question about are you [00:21:15] Speaker 05: did you waive, essentially, that we should give our deference to that interpretation of the rule? [00:21:23] Speaker 01: Your Honor, I think, again, the answer there is that there's no question of regulatory interpretation here because the word generally carries its plain English meaning. [00:21:37] Speaker 05: You rely on that it's clear and it's vague. [00:21:39] Speaker 05: Yes. [00:21:39] Speaker 01: We're not asking for our Kaiser deference. [00:21:42] Speaker 01: The Forest Services [00:21:45] Speaker 01: rationale here was not arbitrary compression. [00:21:47] Speaker 04: So your argument is generally doesn't mean that all of the cutting sale removal has to be of small diameter timber. [00:21:57] Speaker 01: That's correct. [00:21:58] Speaker 04: Most, I guess, has to be. [00:22:01] Speaker 01: Yes, Your Honor, because the Forest Service could have written a regulation that says small diameter timber thinning is permissible or only small diameter timber thinning is permissible. [00:22:11] Speaker 01: It didn't. [00:22:12] Speaker 01: It wrote a regulation that says generally small diameter timber thinning is permissible. [00:22:16] Speaker 01: Here, 73% of the trees are less than 2 inches. [00:22:19] Speaker 01: 98.5% of the trees are less than 14 inches. [00:22:24] Speaker 03: So it seems like this project seems like it fits within this generally small, but it seems like the interpretation that you'd like us to say is clear would allow much more cutting of much bigger trees. [00:22:38] Speaker 03: And it seems a little bit troubling as an argument that as long as you're cutting 51% small trees, you could cut giant sequoias. [00:22:46] Speaker 03: I'm not sure that's a great argument for the Forest Service to be making is what this means. [00:22:51] Speaker 01: So under the roadless rule, that hypothetical would probably not be permissible, and that's because there's other prongs of the roadless rule analysis that are driven by these ecological considerations. [00:23:02] Speaker 01: So certainly, in this case has really been whittled down to just this issue of generally small diameter timber, but it didn't start that way. [00:23:11] Speaker 01: Initially, the plaintiffs had also challenged whether or not this project would maintain or improve roadless area characteristics, and this court said in Takuya 1 that it would, that part of the Forest Service's analysis was satisfied. [00:23:25] Speaker 01: So that is always something that the Forest Service has to consider when harvesting or when thinning timber in roadless areas, as well as whether or not the timber thinning would promote the protected species habitat and maintain ecosystem composition and structure. [00:23:44] Speaker 05: I understand the forces decision services decision did we only reach the question of whether the rule can be interpreted as permitting some logging of non small trees if we do not find the potential growth rationale to be sufficient yes your honor we agree with that we think here [00:24:08] Speaker 01: Compared to the growth potential on the site, which the Forest Service, they're the experts here that the government's forest management, so culture agency. [00:24:16] Speaker 01: they work with this national forest, they determine that for this site, that's the growth potential. [00:24:21] Speaker 05: I understand plaintiffs' argument about this. [00:24:24] Speaker 05: A few different ones aside from that, you know, they're arguing that the rule just does not allow consideration of potential growth. [00:24:32] Speaker 05: But they also say that in this particular case, I think there's a service essentially didn't provide any evidence to back up its factual assertion that the potential growth of Jeffrey Pine is 60 to 90 inches DBH. [00:24:46] Speaker 05: So, can you address that argument? [00:24:50] Speaker 05: If that is the potential growth of the Jeffrey Pine, why isn't there any evidence cited in the decision to back that up? [00:24:57] Speaker 01: I think I would go back to the fact that the Forest Service is the government's expert agency that is making these determinations on a regular basis and they haven't provided any evidence that shows that the growth potential is not 60 to 90 inches. [00:25:12] Speaker 01: The agency here is entitled to a presumption of regularity as to the determinations that it's making about the trees on the national forest that it manages and we think that [00:25:23] Speaker 01: There's no evidence that shows that that was a clear error of judgment. [00:25:28] Speaker 05: Do you think the service can make statements of fact as long as they're acting within their technical expertise? [00:25:36] Speaker 05: They don't have to provide any sort of supporting citations for that unless in the case the plaintiff would bear the burden of showing that there's some true genuine question about that? [00:25:48] Speaker 01: We certainly believe that there's no requirement for the Forest Service to provide a citation to publish scientific literature for every factual assertion they're made, they're making, and that's especially true. [00:25:58] Speaker 05: What about a very significant one, one in which, you know, their whole, the whole determination relies? [00:26:04] Speaker 01: We don't think they would need to, so long as here they're making that determination based on their expertise. [00:26:10] Speaker 01: They're the agency that manages this. [00:26:12] Speaker 01: They're on the ground, and the plaintiffs haven't provided any evidence showing that that... If they had, would it be different? [00:26:19] Speaker 01: If they had, then maybe we would be in different territory. [00:26:22] Speaker 03: Yeah. [00:26:22] Speaker 03: I had a similar question about the crown thinning. [00:26:25] Speaker 03: It wasn't obvious to me. [00:26:27] Speaker 03: The biggest concern is the 14 to 21 DBH. [00:26:30] Speaker 03: And it seems like your explanation is we need to do some crown thinning for fire prevention. [00:26:35] Speaker 03: But that also sort of seemed floating out there without much explanation. [00:26:39] Speaker 01: Your honor, I would. [00:26:40] Speaker 01: So the analysis in the revised decision memo on this is at record page 50. [00:26:45] Speaker 01: And I would also point the court to the fire and fuels report, which discusses the impacts of a crown fire. [00:26:51] Speaker 01: on forest health at record page 61. [00:26:55] Speaker 01: These crown fires are the most catastrophic destructive forms of wildfires if the fire gets established in the crown of trees and it has the opportunity to really destroy the forest. [00:27:04] Speaker 03: So I understand that but is there anything that links the 14 to 21 to that? [00:27:09] Speaker 01: I would look at the statement on record page 50 saying that thinning trees 14 to 0 inches diameter would accomplish the project goals of [00:27:20] Speaker 01: Reducing surface fuels and ladder fuels but would not have any impact were fire to reach the crowns of the trees. [00:27:26] Speaker 01: So the Forest Service determined based on its analysis of the stands that a very limited number of 14 to 21 inch trees would have to be thinned in order to address that crown fire risk. [00:27:36] Speaker 03: Okay, it just didn't seem very well spelled out. [00:27:37] Speaker 03: It didn't really say 14 to 21 or this height and that's the crown. [00:27:41] Speaker 01: No, it doesn't say that specifically, but it does address why those 14 to 21 inch trees are creating the crown fire risk that would be ameliorated by the thinning. [00:27:55] Speaker 01: Unless the court has any further questions, we would ask this court to affirm. [00:27:58] Speaker 04: Thank you. [00:28:12] Speaker 02: May please the court, Sarah Gaffori on behalf of defendant interveners. [00:28:16] Speaker 02: So the Takuya Project is a much needed fuel break and it's long overdue. [00:28:21] Speaker 02: The Community Wildfire Protection Plan in its 2009 update identified it as a priority and one that needed to be established within five years. [00:28:30] Speaker 02: Now turning to the sole issue before this court of whether the Forest Service adequately demonstrated that thinning up to 21 inches meets the generally small diameter timber requirement, [00:28:39] Speaker 02: The Forest Service's revised decision memo is much more robust than what was originally before this court in the first round of litigation. [00:28:45] Speaker 02: Now, on remand, the agency has provided data related to its stand exam analysis. [00:28:51] Speaker 02: And as Mr. Peterson noted, 98.5% of this thinning is in that 0 to 14-inch size class, and then we only have 1.5% or three trees per acre that are in that [00:29:01] Speaker 02: 14 to 21 inch. [00:29:02] Speaker 03: And your clients are here because of that last 1.5%? [00:29:06] Speaker 02: No, Your Honor. [00:29:07] Speaker 02: Actually, when we submitted declarations in support of intervention, it was about forest health concerns and about wildfire risk. [00:29:14] Speaker 02: It wasn't about the commercial nature. [00:29:16] Speaker 02: And in fact, this contract has been awarded to a non-member of the three interveners. [00:29:21] Speaker 03: Oh, that's interesting. [00:29:22] Speaker 03: So I guess that's not in the briefs before us because you are already interveners. [00:29:25] Speaker 03: What is the interest then? [00:29:27] Speaker 03: Who are you representing? [00:29:28] Speaker 02: Why are they here? [00:29:29] Speaker 02: American Forest Resource Council, California Forest Reassociation, and Associated California Loggers. [00:29:34] Speaker 02: There is a declaration and interveners excerpt the records that explains interveners interests as it relates to American Forest Resource Council. [00:29:41] Speaker 02: What is it? [00:29:42] Speaker 04: Tell us. [00:29:43] Speaker 02: Oh, it's about forest health concerns because our members care and depend on public timber [00:29:49] Speaker 02: and want to ensure a sustainable supply. [00:29:51] Speaker 02: We want to ensure that there's continued forest health. [00:29:54] Speaker 02: There aren't wildfire issues on public lands. [00:29:56] Speaker 02: That's our interest. [00:29:58] Speaker 02: But I want to focus on the growth potential here because what the agency did is it made a site-specific determination. [00:30:04] Speaker 02: It looked at the growing conditions of this project area. [00:30:07] Speaker 02: It looked at soil. [00:30:08] Speaker 02: It looked at climate and determined as a factual matter that those are moderately good such that it's reasonable to expect [00:30:14] Speaker 02: that Jeffrey pine can grow to 60 to 90 inches. [00:30:17] Speaker 02: They didn't look at the growth potential generally, but for this specific site. [00:30:21] Speaker 02: And this court's case law has said that- But is that true? [00:30:25] Speaker 02: I thought that it was really more general. [00:30:27] Speaker 02: No, it's at excerpts of record 49. [00:30:28] Speaker 02: They made a site-specific determination in that first paragraph. [00:30:32] Speaker 02: And the Forest Service must have the discretion to rely on the reasonable opinions of its own experts. [00:30:37] Speaker 02: And this is stated in Lands Council v. Martin, which we cite in our briefs. [00:30:40] Speaker 03: I guess we don't have a site for it, so it's hard to know. [00:30:43] Speaker 03: You're right that it says that they could grow 60 to 90 in the project area. [00:30:48] Speaker 02: And it looked at site-specific conditions. [00:30:50] Speaker 02: It said soil, climate. [00:30:52] Speaker 02: It looked at those conditions. [00:30:53] Speaker 02: It determined that they're moderately good, such that it's reasonable to expect that Jeffrey Pine can grow. [00:30:57] Speaker 02: But that must be based on how big they grow somewhere else, because they're not growing that big here, right? [00:31:02] Speaker 02: Right. [00:31:02] Speaker 02: It's based on their own professional judgment and expertise on looking at site productivity and determining [00:31:08] Speaker 02: by evaluating that, by determining that it's moderately good, that they can achieve that growth potential. [00:31:13] Speaker 02: That might not be true in other locations, but it's true here. [00:31:16] Speaker 02: And it's consistent with what the preamble directs the agency to do when looking at ecological considerations. [00:31:22] Speaker 02: Site productivity is a consideration that the agency should take into account. [00:31:27] Speaker 02: And I want to answer your question about deference, and you talked about Kaiser and Auer, but the appropriate deference here is the Land's Council v. McNair, the Land's Council v. Martin-type deference, which is matters that are within their expertise, that are highly technical, and certainly size classification is one of them. [00:31:41] Speaker 02: That is entitled to deference. [00:31:42] Speaker 05: I think we're only talking about our deference when it comes to the interpretation of [00:31:46] Speaker 05: the terms generally small diameter. [00:31:49] Speaker 02: So that's our level deference, but there's that McNair type deference about agencies being titled to deference of matters of their expertise. [00:31:56] Speaker 02: In terms of your question about scientific, whether some sort of scientific study. [00:32:01] Speaker 03: Sorry, I'm not sure what you mean by that. [00:32:02] Speaker 03: Do you not think we have to interpret small and generally and instead should use some other kind of deference? [00:32:07] Speaker 03: What are you saying? [00:32:08] Speaker 02: We submit that based on this record, this court need not address the hour line of deference because [00:32:15] Speaker 02: all of these trees are deemed small under the growth potential analysis and the court only needs to address the plain meaning generally if this court were inclined to find that some of these trees were not small and then and so you don't think we have to interpret the word small to then talk about whether these are small [00:32:32] Speaker 02: Well, small is a factual determination that the agency makes and the regulation was clear that it wasn't going to define that in that it was going to be guided by ecological considerations and that the agency could make that determination based on site specific analysis or land management plan analysis. [00:32:48] Speaker 02: So it's a factual determination [00:32:50] Speaker 02: But what is entitled to deference is if the agency rationally explained the facts found in the conclusions made that they are entitled to deference because this is a matter within their expertise. [00:33:00] Speaker 05: What about the interpretation of the roadless rule as permitting a potential growth rationale? [00:33:05] Speaker 05: I mean, that requires some level of interpretation of the rule. [00:33:09] Speaker 05: I believe, sure, so I think there is a sort of threshold question of whether the agency can interpret the world this rule as permitting it to use potential growth rationale as a methodology. [00:33:22] Speaker 02: And again, I would point the court to Lance Counsel V. Martin, which says this court will not second-guess [00:33:26] Speaker 02: an agency's choice of methodology. [00:33:29] Speaker 05: So is that a tech? [00:33:30] Speaker 05: I mean, if it's a technical issue, right, we we owe deference to the agency's technical expertise. [00:33:35] Speaker 05: But if it's an interpretive issue, we have to interpret the link. [00:33:40] Speaker 05: That's a legal issue. [00:33:41] Speaker 02: That is a legal issue. [00:33:42] Speaker 02: But this wrote this rule does not prescribe a one size fits all approach. [00:33:46] Speaker 02: It gives the agency a lot of flexibility in its site specific determination. [00:33:51] Speaker 02: of how it deems something as small, and that's a factual determination, and that factual determination is entitled to deference. [00:33:58] Speaker 02: I see I'm over time, so I would, if I may quickly conclude. [00:34:02] Speaker 02: Okay, thank you, Your Honor. [00:34:04] Speaker 02: The Forest Service rationally explained its small diameter timber determination in compliance with this court's remand order, and this court should uphold this important field break that will help the communities in the wildland urban interface. [00:34:15] Speaker 02: Thank you. [00:34:16] Speaker 04: Thank you, Council. [00:34:18] Speaker 04: Mr. Augustine? [00:34:23] Speaker 00: Thank you, Your Honor. [00:34:24] Speaker 00: There's a critical point I want to go over here that gets to your point about 14 to 21 inches sitting out there, and that's this fact. [00:34:31] Speaker 00: There's a technical analysis in the record. [00:34:33] Speaker 00: It's the fire and fuels report, and it specifically says that ER 57, the largest fuel in the project area, is, quote, small tree understory, not 21 inch overstory. [00:34:43] Speaker 00: They pointed to page 61. [00:34:45] Speaker 00: ER 61, fueled reduction treatments are designed to remove, quote, existing hazardous fuels [00:34:53] Speaker 00: And they give us examples, forest floor, ladder fuels, or in the crowns. [00:34:57] Speaker 00: But that's a generic criteria. [00:34:59] Speaker 00: It's not saying that there are, in fact, crowns or an overstory problem in this situation. [00:35:05] Speaker 00: So when you look at the page where they actually address the Dekoya project, ER 57, it speaks only to small tree understory. [00:35:15] Speaker 00: And when you add up the percentages, it covers the entire project area, 100%. [00:35:19] Speaker 00: So I think at the very least, Your Honors, [00:35:21] Speaker 00: For this case not to be arbitrary and capricious, they would have to explain why their overstory finding, that to my perspective is a generic statement, contradicts their [00:35:31] Speaker 00: actual technical analysis that only finds that they should log small tree understory. [00:35:34] Speaker 03: Okay, I'm not sure I understood in your brief that you were saying there's no overstory or crown in this forest, but if you had argued that, I would be confused because wouldn't every forest have some top? [00:35:46] Speaker 03: I don't really understand how there could be no top to the forest. [00:35:48] Speaker 00: Oh, there's always, yes, I understand your point, but that doesn't mean they are a problem from a fire perspective. [00:35:53] Speaker 00: The analysis that was done on page 57 of the ER says, let me go there real quick. [00:36:00] Speaker 00: to Koya fuel type. [00:36:03] Speaker 00: And it shows, it lists them all. [00:36:06] Speaker 00: And none of them that are listed include the overstory. [00:36:09] Speaker 00: So that means that for this particular project area, they found that overstory wasn't an issue, in this report at least. [00:36:16] Speaker 00: And so there's a discrepancy between the actual technical analysis that exists in the record and their generic analysis that says, well, we also feel we have to go up into the overstory. [00:36:24] Speaker 03: Did you point that out in your brief? [00:36:26] Speaker 00: Yes, this is in the opening brief in the fire section. [00:36:28] Speaker 00: We highlighted that. [00:36:29] Speaker 00: or so I thought. [00:36:31] Speaker 04: All right. [00:36:32] Speaker 04: Thank you, counsel. [00:36:33] Speaker 04: You're over your time. [00:36:35] Speaker 04: Los Padres Forest Watch versus the USFS is submitted