[00:00:01] Speaker 00:
May it please the court.

[00:00:03] Speaker 00:
I'm Maggie Hall on behalf of the environmental organizations.

[00:00:07] Speaker 00:
I'll plan to reserve three minutes for rebuttal.

[00:00:09] Speaker 00:
Watch my time.

[00:00:11] Speaker 00:
The Forest Service approved a project that allows cutting trees and mastication of chaparral in the Los Padres National Forest on Pine Mountain and its highest point, Raise Peak.

[00:00:21] Speaker 00:
This area is not only sacred to Native American tribes because of its religious and cultural sites, it also contains a specially protected roadless area as well as potential wilderness.

[00:00:33] Speaker 00:
Yet the Forest Service determined the project should be excluded from standard environmental review.

[00:00:39] Speaker 00:
I will address why the agencies reliance on categorical exclusions violates the National Environmental Policy Act and cannot be justified under the Healthy Forest Restoration Act.

[00:00:50] Speaker 00:
Aside from these environmental review violations, I will also address why the agency's approval

[00:00:55] Speaker 00:
of logging large trees under the project's exceptions violates the roadless rule.

[00:01:00] Speaker 00:
Now turning first to NEPA, categorical exclusions can only be used where there are no significant impacts and extraordinary circumstances do not exist.

[00:01:10] Speaker 00:
Now importantly, if there's uncertainty whether there are significant impacts, a categorical exclusion is improper.

[00:01:17] Speaker 00:
Here, the agency ignored evidence in the record showing the potential for significant impacts to three of the resource conditions that it must consider.

[00:01:26] Speaker 00:
And importantly, this is not a situation where the agency analyzed these impacts and explained why they are insignificant.

[00:01:34] Speaker 00:
Instead, in all three of these situations, the agency has entirely failed to consider an important aspect of the problem, and that violates a core requirement of administrative law.

[00:01:46] Speaker 00:
First, with respect to cultural and religious sites.

[00:01:49] Speaker 00:
The analysis in the decision memo is one sentence, and it concludes that there are no Native American religious and cultural sites.

[00:01:57] Speaker 00:
Now, that directly contradicts the record.

[00:02:00] Speaker 00:
For example, the Barberino Venturino Band of Mission Indians identified Ray's Peak itself as a well-known central observation point saturated with cultural and ceremonial significance.

[00:02:12] Speaker 00:
Eleven ethno-historians and archaeologists cited field notes that document Chumash trails and trail shrines directly in the project area.

[00:02:20] Speaker 00:
And the coastal band of the Chumash Nation pointed to evidence of medicinal plants in grinding bowls.

[00:02:26] Speaker 00:
Now, all of these comments- That's evidence of what?

[00:02:28] Speaker 00:
Medicinal plants and grinding bowls.

[00:02:30] Speaker 00:
Now, all of these comments were in front of the Forest Service at the time they made their decision, and they simply did not even recognize them.

[00:02:38] Speaker 03:
Boy, there was a cultural resources report issued by the Forest Service, wasn't it?

[00:02:43] Speaker 00:
Correctly, Your Honor.

[00:02:44] Speaker 00:
However, that report was not created to look at cultural sites as required by the agency's regulation.

[00:02:51] Speaker 00:
Instead, and it was also not part of the agency's rationale in its decision memo,

[00:02:56] Speaker 00:
The report itself states that it was prepared to implement the National Historic Preservation Act.

[00:03:02] Speaker 00:
And so therefore, it focuses on historic properties.

[00:03:05] Speaker 00:
And even looking at the report, it does not cure the deficiencies here because it provides no analysis of the sites identified in the record.

[00:03:16] Speaker 03:
Well, these tribes, though, identified no specific cultural, there wasn't a burial mound or anything specific found, was there, within this project?

[00:03:25] Speaker 00:
There were specific sites identified in the record, and some of those are ones I just mentioned, such as Ray's Peak itself.

[00:03:32] Speaker 03:
Well, but the peak itself, I mean, you can't say the whole, well, but what damage was done to the peak?

[00:03:37] Speaker 03:
I mean, that's just a place of reverence, but okay, so what?

[00:03:42] Speaker 00:
Your honor, the language of the regulation uses the term cultural sites.

[00:03:46] Speaker 00:
And importantly, looking to this court's decision and to MOAC tribe versus Department of Interior, the court was looking at cultural resources and explained that a tribe's relationship to an area is inextricably linked to the landscape.

[00:04:01] Speaker 00:
And that case concerned tops of mountains.

[00:04:03] Speaker 00:
And that's what we have here, the top of a mountain.

[00:04:05] Speaker 00:
that, as the record states, is saturated with ceremonial and cultural significance.

[00:04:10] Speaker 00:
But importantly, the agency did not even attempt to analyze impacts to the peak.

[00:04:16] Speaker 00:
It didn't say, we've looked at Ray's Peak in light of these comments, and we determined there are no significance.

[00:04:22] Speaker 00:
It entirely failed to consider that problem.

[00:04:24] Speaker 00:
Wait, wait.

[00:04:25] Speaker 03:
The whole purpose of this project, right, was to reduce the likelihood of a massive forest fire or worry about insect infestation.

[00:04:33] Speaker 03:
Isn't that the purpose of the project?

[00:04:36] Speaker 00:
Your honor, the purpose of the project is not relevant to whether the agency needs to analyze the impacts of its project as required by NEPA before it can proceed.

[00:04:46] Speaker 00:
And here it did merely a categorical exclusion.

[00:04:49] Speaker 00:
It did not even prepare an environmental assessment.

[00:04:53] Speaker 00:
or an environmental impact statement.

[00:04:54] Speaker 03:
Which it doesn't have to do unless there are extraordinary circumstances.

[00:04:58] Speaker 00:
That's correct and here the evidence, the agency simply said there are no cultural sites and that directly contradicts the record which points to cultural sites.

[00:05:07] Speaker 00:
Now one of the reasons the agency argues its analysis was adequate or suggests so is because of the source of those sites but here it's important

[00:05:17] Speaker 00:
Um, this source of tribes being recognized or non federally recognized is not a reason to ignore them.

[00:05:23] Speaker 02:
And that's because each of the tribes consult with both federally recognized and non federally recognized tribes and preparing the cultural resource report that made many recommendations for preserving what sacred sites there were.

[00:05:38] Speaker 00:
Your Honor, there is an indication of conversations with such tribes, but there is nothing in the record that shows the agency even considered the specific sites that the tribes identified in their scoping comments.

[00:05:52] Speaker 03:
Well, they did look for, like, these grinding bowls and couldn't find any, could they?

[00:05:57] Speaker 00:
Importantly, Your Honor, the Cultural Resources Report was not part of the agency's rationale on the specific question it had to look at under 36 CFR 220

[00:06:07] Speaker 00:
Instead, that report was prepared for subsection seven, which looks at a different type of sites.

[00:06:16] Speaker 00:
And the important point here is the agency has to explain the reason for its decision at the time that it makes it.

[00:06:23] Speaker 00:
There's also a deficiency with respect to the rowless area.

[00:06:27] Speaker 00:
Now, 41% of the project is within an inventoried rowless area, but the Forest Service dismissed impacts to this area relying entirely on the assumption that no large trees will be removed.

[00:06:39] Speaker 00:
However, the project contains broad exceptions that in fact allow for the unlimited and unknown removal of large trees.

[00:06:48] Speaker 00:
Now, trees 24 to 64 inches in diameter can be removed for safety reasons, for mistletoe infestation, and for overall forest self-health.

[00:06:56] Speaker 00:
Yet there is no definition of these exceptions or any limits on how often they can be used.

[00:07:02] Speaker 03:
Well, I've got a question in the decision memo.

[00:07:06] Speaker 03:
There's a quote, no trees in the greater than 24 inch

[00:07:11] Speaker 03:
diameter classes are planned to be removed.

[00:07:14] Speaker 03:
And it says the direct effects of the project to the roadless area as a whole is extremely minimal, impacting only 0.29% of the roadless area.

[00:07:28] Speaker 03:
Now, doesn't that take into some of these concerns of yours?

[00:07:31] Speaker 00:
know your honor because on the one hand they say no trees greater than 24 inches will be removed but then they have a broad open-ended exception that allows for trees to be removed up to 64 inches in diameter but there's never an explanation of what the impact of those tree removals will be

[00:07:49] Speaker 00:
Now, during litigation, the agency points to a post-hoc declaration of Forester Gregory Thompson to argue that few large trees will be removed, but that declaration was not before the agency at the time it made its decision and is therefore prohibited under the APA.

[00:08:05] Speaker 00:
The basic rule is clear.

[00:08:07] Speaker 00:
An agency has to defend its actions based on the time it gave when it acted.

[00:08:12] Speaker 00:
And the Forest Service tries to argue on that or rely on that post hoc declaration, arguing that it's explanatory in nature.

[00:08:20] Speaker 00:
But importantly, this court has made clear that consideration of post hoc evidence cannot be used to determine the correctness or wisdom of the agency's decision, which is what council urges this court to do here.

[00:08:32] Speaker 00:
Now, finally, turning to the potential wilderness issue, the decision memo dismisses with this issue in one sentence.

[00:08:40] Speaker 00:
It says no potential wilderness areas are identified within the forest plan for the project area.

[00:08:47] Speaker 00:
But the correct question is whether there's potential wilderness in the project area.

[00:08:51] Speaker 00:
And the answer to that is yes for two reasons.

[00:08:54] Speaker 00:
First, the project area includes a roadless area.

[00:08:57] Speaker 00:
And as this court has noted in Land's Council versus Martin, roadless areas are significant because of their, quote, potential for designation as wilderness areas.

[00:09:08] Speaker 00:
And this makes sense because by definition, these areas share many of the same attributes.

[00:09:15] Speaker 04:
in the sense that they may have a necessary but not necessarily a sufficient condition to be potential wilderness.

[00:09:23] Speaker 00:
That's correct, Your Honor.

[00:09:25] Speaker 00:
It doesn't have to be designated wilderness.

[00:09:27] Speaker 00:
It just has to be potential wilderness.

[00:09:29] Speaker 00:
And what that term means here, we're pointing to two reasons why that's met.

[00:09:33] Speaker 00:
One is because, as this court has recognized, there is an overlapping nature between a roadless area and its potential for wilderness designation.

[00:09:41] Speaker 00:
And it's also illuminating here that there is pending legislation seeking to

[00:09:46] Speaker 00:
designate approximately 34%.

[00:09:48] Speaker 04:
Why does that have any relevance?

[00:09:50] Speaker 04:
How can a legislative determination made by one house be given any weight?

[00:09:56] Speaker 00:
Because we're looking again at potential wilderness, not an actual wilderness designation.

[00:10:00] Speaker 02:
You define potential wilderness in this context.

[00:10:04] Speaker 00:
The term is not specifically defined here.

[00:10:07] Speaker 00:
And so we're pointing to two sources that are instructive, the court's reasoning in Lance Council versus Martin, as well as the fact that there's pending legislation.

[00:10:15] Speaker 00:
And the district court in Idaho addressed exactly this situation in Wildlands Defense versus Bullying, where there was an area proposed for wilderness designation.

[00:10:23] Speaker 04:
Under the Constitution, the House has not given any role in making administrative determinations about what constitutes wilderness.

[00:10:31] Speaker 04:
And the fact that a member of Congress introduces a bill and has a view that the law should be changed to do this, how can that be given any weight at all?

[00:10:41] Speaker 00:
Your Honor, if the question were whether it was designated wilderness, then of course that shouldn't be given away.

[00:10:47] Speaker 00:
But it's just whether there's potential wilderness.

[00:10:49] Speaker 00:
And again, looking at both of these scenarios, we have a roadless area.

[00:10:54] Speaker 00:
The overlapping area with the roadless area is generally what would be the potential wilderness area.

[00:11:00] Speaker 00:
And those areas share many of the same ecological attributes.

[00:11:03] Speaker 04:
What's your definition of a potential wilderness area?

[00:11:05] Speaker 04:
What are the elements of it?

[00:11:07] Speaker 00:
Your honor, we don't have a specific elements that would be supported by case law other than looking at the plain language reading is, is this area potentially on the table for designation.

[00:11:17] Speaker 00:
Of course, not any area is going to be potential wilderness.

[00:11:20] Speaker 00:
But again, the reasoning in lands council versus Martin from the ninth circuit.

[00:11:25] Speaker 00:
the court really looked at the ecological attributes of a roadless area and how those overlap with potential wilderness designation and found that an agency's failure to look at that made it for improper analysis of impacts to the roadless area under the environmental impact statement.

[00:11:41] Speaker 00:
Now any one of these deficiencies is enough to show that there may be significant impacts and that's all that's needed to require additional analysis.

[00:11:50] Speaker 00:
Now turning to HIFRA, these statutory categorical exclusions are limited to a set of four circumstances, and the Forest Service has failed to meet three of them here.

[00:12:01] Speaker 00:
First, it did not rationally explain how the project will maximize the retention of both old growth and large trees.

[00:12:08] Speaker 00:
The agency entirely omitted an analysis of whether old growth even exists in the project area.

[00:12:15] Speaker 00:
Now the agency has defined that term

[00:12:17] Speaker 00:
as consisting of certain ecological attributes such as canopy layers, variety and tree size, and dead and woody material, yet it never addressed whether those attributes even exist here.

[00:12:29] Speaker 00:
Instead, the decision memo simply points to tree size.

[00:12:33] Speaker 00:
That's just one consideration in assessing old growth, and HIFRA explicitly requires consideration of both old growth and large trees.

[00:12:42] Speaker 00:
And several of this court's cases, although unpublished, show that the Forest Service knows how to do this.

[00:12:48] Speaker 00:
In these cases, it identified where old growth existed in the project area and then explained how it would be addressed.

[00:12:55] Speaker 00:
Now, contrary to the Forest Service's argument, plaintiffs did not forfeit this issue.

[00:13:01] Speaker 00:
In addition, the analysis regarding large trees is arbitrary and capricious.

[00:13:06] Speaker 00:
Now, this analysis rests entirely on the assumption that no large trees will be removed, but as I've already discussed, this project authorizes the removal of large trees under its broad exceptions, and the agency cannot fill the gap in its analysis by relying on a post-hoc declaration.

[00:13:24] Speaker 00:
Second, I'll turn to the location requirements under HIFRA.

[00:13:27] Speaker 00:
While the agency admits that 12% of the project is not covered by HIFRA, it fails to show how the remaining 88% of the project meets HIFRA's location requirements.

[00:13:37] Speaker 02:
Does that have to meet the location requirement if it's a categorical exclusion under CE6?

[00:13:46] Speaker 00:
Your Honor, those are distinct.

[00:13:48] Speaker 02:
Completely setting us- I know, but can the CE6 exclusion stand alone without regard of HIFRA?

[00:13:58] Speaker 00:
Yes, because CE6 covers the whole project area, whereas HIFRA covers 88% of the project, and the agency chose to rely on all three exclusions.

[00:14:07] Speaker 03:
But... I guess I just want to be clear.

[00:14:08] Speaker 03:
If that means if we decided that the district court was correct that CE6, the regulatory exclusion, exempts because there were no extraordinary circumstances, we don't even have to reach these HIFRA issues, do we?

[00:14:21] Speaker 00:
Well, the important question is whether there were extraordinary circumstances

[00:14:25] Speaker 03:
Well, I understand, but I'm just saying, assuming we decided there were none and CE6 covers it, then we don't even get to the HIFRA categorical exclusions, do we?

[00:14:35] Speaker 00:
That may be correct, Your Honor, but there would also be the roadless rule issue as well.

[00:14:40] Speaker 03:
Oh, okay, right.

[00:14:41] Speaker 00:
Yes.

[00:14:41] Speaker 00:
So, regarding these location requirements, this location requirement was not met here, and I like to think of them as a Venn diagram where you have the specific vegetation classes on one hand,

[00:14:52] Speaker 00:
and then the fire regime groups on the other.

[00:14:54] Speaker 00:
And it's only that area of overlap in the middle that's even subject to HIFRA.

[00:14:59] Speaker 00:
And the agency simply showed us information regarding these separate categories, but made no effort to show us how it meets the HIFRA requirement or connect the dots.

[00:15:08] Speaker 00:
Now importantly, the Forest Service has to show its work, connect the dots, and it didn't do that here.

[00:15:14] Speaker 00:
It also failed to meet the HIFRA location requirement regarding Chaparral, and that's a 272-acre portion of the project where the agency concluded that Chaparral meets Fire Regime Group 1 when its own decision memo makes clear that on its facts, it actually meets Fire Regime Group 4, which does not qualify for HIFRA.

[00:15:35] Speaker 04:
You raised that argument below.

[00:15:37] Speaker 00:
Yes, Your Honor, we did raise that argument below.

[00:15:42] Speaker 00:
have therefore not forfeited it.

[00:15:44] Speaker 00:
I can point to a couple citations in our comments, in the complaint, as well as briefs at the lower court, and that's at SCR 039.

[00:15:54] Speaker 00:
And here, basically it appears to be a critical error that the agency simply just didn't correct.

[00:16:01] Speaker 00:
It simply matched up the HIFRA location requirement concerning Chaparral to the wrong group number,

[00:16:09] Speaker 00:
And for whatever reason, that error was not corrected.

[00:16:12] Speaker 00:
So there's an entire disconnect between the facts and the conclusion.

[00:16:16] Speaker 00:
Now, finally, this project was also not developed through a collaborative process.

[00:16:22] Speaker 00:
All essential components of the project were developed through the project proposal.

[00:16:28] Speaker 00:
And it wasn't until scoping began that the Forest Service reached out to a variety of stakeholders, including conservation groups, non-recognized tribes, states, and local entities.

[00:16:38] Speaker 00:
But by that time, the project was already developed.

[00:16:42] Speaker 00:
And the opportunity to participate in the scoping process, importantly, is not a replacement for the requirement to participate in the project's development as expressly required under the statutory language of HIFRA.

[00:16:56] Speaker 00:
Now turning to the roadless roll, this prohibits logging and inventory roadless areas except for generally small diameter trees.

[00:17:03] Speaker 00:
Now the Forest Service has defined what's generally small diameter here as trees under 24 inches.

[00:17:08] Speaker 00:
Large trees are trees that are over 24 inches.

[00:17:12] Speaker 00:
But the project allows for the removal of trees as large as 64 inches in diameter.

[00:17:17] Speaker 00:
And there's no reading of generally small diameter trees that would warrant logging trees so large.

[00:17:24] Speaker 00:
This plainly violates the roadless rule and the agency cannot circumvent that violation with its post-hoc declaration.

[00:17:32] Speaker 00:
Finally, with respect to remedy, the project should be vacated and remanded to the Forest Service with instructions to comply with NEPA, HIFRA, and the ROTUS rule.

[00:17:40] Speaker 00:
I'd like to reserve the remaining time for rebuttal.

[00:17:43] Speaker 02:
All right.

[00:17:44] Speaker 02:
Thank you, Council.

[00:17:53] Speaker 01:
Good morning.

[00:17:54] Speaker 01:
May it please the court.

[00:17:55] Speaker 01:
Andrew Burney on behalf of the Forest Service.

[00:17:57] Speaker 01:
I guess I'll just spare an introduction and dive right into the issues on CE6 in particular, because Judge Gilman, you're right.

[00:18:04] Speaker 01:
If you find that the Forest Service properly invoked CE6, there's no need to reach the HIFRA conclusion.

[00:18:10] Speaker 01:
So turning first to the issue of religious and cultural sites, I'll just talk briefly about what the Forest Service did, and then I'll talk about the comments that plaintiffs invoked.

[00:18:19] Speaker 01:
If you looked at the cultural resources report beginning on page 86 of the excerpts of record, I think it's fair to say that the Forest Service analysis of this issue was, by any standard, quite robust.

[00:18:31] Speaker 04:
What's your response to her comment that there's no indication in the decision here that that report was relied upon?

[00:18:40] Speaker 01:
I think that's simply not right, Your Honor.

[00:18:43] Speaker 02:
I mean, if you look at the... Is that what's covered in the so-called heritage section, the adoption of the recommendations from the culture?

[00:18:52] Speaker 01:
I think that's right.

[00:18:52] Speaker 02:
I mean, if you look at the recommendations in the heritage section on page 60... Why was it called heritage there and yet what was really being examined was the religious and cultural?

[00:19:06] Speaker 02:
I just, I mean, the agency used that word.

[00:19:09] Speaker 02:
How do we know that it connects back?

[00:19:11] Speaker 01:
Well, I mean, I think, I think first of all, I mean, the, we'll think, I think heritage, cultural, I think they're, they're sort of, there's, there's analytically, they're analytically quite similar, but.

[00:19:21] Speaker 02:
Religious or spiritual meaning.

[00:19:25] Speaker 01:
Well, I think the other point, Judge Wardlaw, is the recommendations in that section track the recommendations in the cultural resources report that if unanticipated resources are uncovered.

[00:19:35] Speaker 02:
It doesn't expressly say that, right?

[00:19:37] Speaker 01:
It doesn't expressly say that there, but if you look at page, I think if you look at page 57, it says, based on discussions with federally recognized tribes and agency research and analysis, I think it's

[00:19:49] Speaker 01:
I mean, the whole point of this cultural resources report was to identify cultural and religious resources that might be affected by the project.

[00:19:57] Speaker 01:
And it's expressly referred to in the next paragraph, B.1.7.

[00:20:02] Speaker 01:
So the whole point of this report was to look into these issues.

[00:20:05] Speaker 01:
And if you look at that report, so beginning on page, so it starts with an archaeologist looking at prehistoric and historic uses.

[00:20:12] Speaker 01:
then it goes into tribal consultations.

[00:20:15] Speaker 02:
I'm curious why the agency said there's no cultural resource impact without saying provided we follow the recommendations in the cultural resource study.

[00:20:31] Speaker 01:
I think it says, I don't have a site, but I think it says elsewhere that if the recommendations followed in that report are followed, there will be no impacts if the mitigation measures, I think that's on page.

[00:20:43] Speaker 02:
I'd like a site to that, yeah.

[00:20:45] Speaker 01:
What's that?

[00:20:46] Speaker 02:
It would be helpful to have an ER site to that.

[00:20:50] Speaker 01:
Yeah, I don't have one on the top of my head.

[00:20:52] Speaker 01:
I can certainly provide one in a 28J, but I think it's somewhere in the record.

[00:20:57] Speaker 01:
But the point is that in that report, the Forest Service looked at these issues in detail, conducted a record search, literature review.

[00:21:05] Speaker 01:
It looked at field surveys that have been done in terms of review for eight similar projects that had occurred within a half mile of the project area.

[00:21:12] Speaker 01:
In terms of field surveys, another archaeologist looked at that, and as a result of that, it identified eight cultural sites within the vicinity of the project, five in the project area, and imposed mitigation measures.

[00:21:26] Speaker 01:
So I think if plaintiffs are going to demonstrate that we acted arbitrarily and capriciously in finding no extraordinary circumstances in the form of religious and cultural sites that would be adversely affected by the project,

[00:21:38] Speaker 01:
They have to identify specific things that are comprehensive review missed, and they just don't do that.

[00:21:44] Speaker 01:
So, for example, my friend on the other side talked about grinding bowls.

[00:21:48] Speaker 01:
As they note, the cultural resources report identified potential grinding bowls in one site, noting that more recent searches have failed to

[00:21:58] Speaker 01:
locate those grinding bowls and that a search for them would occur before project implementation, but no others.

[00:22:04] Speaker 01:
And so if you look at the comment, plaintiff site, this is on ER 234, it just says we have evidence of grinding bowls, but there's no location, there's no information about location, where they are, no information provided to the Forest Service.

[00:22:20] Speaker 01:
Plaintiffs also point to medicinal plants.

[00:22:23] Speaker 01:
But there's also, in putting aside that we don't think the mere presence of medicinal plants makes something a religious or cultural site, there's no information about location, no discussion.

[00:22:32] Speaker 01:
I think it was Judge Gilman made the point.

[00:22:34] Speaker 01:
No discussion about how this project, which is intended to improve the ecology of the area, would adversely affect those resources.

[00:22:43] Speaker 01:
So when we've done a study like this, it's their obligation to come forth with specific sites that we might have missed.

[00:22:50] Speaker 01:
They didn't do that, even though they could, and they still could.

[00:22:54] Speaker 01:
I mean, the cultural resources report, this is on page 97 of that report, and that's incorporated into the decision memo at page 65, says that if unidentified sites are discovered, work in the area will immediately stop while an archaeologist assesses the situation.

[00:23:11] Speaker 01:
But in order to render arbitrary and capricious the Forest Service's careful study of this project, it's just not enough to gesture vaguely to grinding bulls, medicinal plants, without providing any information about how the agency's analysis.

[00:23:25] Speaker 02:
When is this project scheduled to begin?

[00:23:28] Speaker 01:
There's no set date, my understanding is implementation, this isn't in the record, my understanding is that implementation is about a year away.

[00:23:37] Speaker 01:
So I mean there's no sort of mootness problem and that's what the court is concerned about.

[00:23:43] Speaker 01:
So, but, and you know, council referenced the Timo case, but in that case, you had specific submissions of maps, ethnographic studies, and two of the sites were eventually added to the National Register of Historic Places.

[00:23:58] Speaker 01:
Here we have nothing like that.

[00:23:59] Speaker 01:
I mean, the letters here are quite conclusory, and for the most part, just object to forest management in the area.

[00:24:07] Speaker 01:
And that's just not enough to render what we did arbitrary and capricious.

[00:24:12] Speaker 01:
I want to talk about effects to roadless areas.

[00:24:16] Speaker 01:
The project does not contemplate removal of larger trees.

[00:24:19] Speaker 01:
The entire point of the project is to allow, or one of the points of the project at least, is to protect larger trees so that they can have greater access to water to fight off pest infestations.

[00:24:30] Speaker 01:
We say in the record at page 55 that no large trees are contemplated to be removed.

[00:24:36] Speaker 01:
And then the Forest Service said at page 49 of the record that any incidental removal of large trees would not have any significant environmental effects.

[00:24:44] Speaker 04:
Is there anything in the administrative record about what the impact of that exception would be?

[00:24:52] Speaker 01:
Sure, so a couple things.

[00:24:54] Speaker 01:
So as I just said, the Forest Service found at page 49 that any incidental removal would not have significant impacts.

[00:25:00] Speaker 01:
These are not, Judge Collins, contrary to my colleague on the, my friend on the other side's characterization, these are not broad exceptions.

[00:25:07] Speaker 01:
These are narrow sort of emergency safety exceptions for public safety or dwarf mistletoe infestations.

[00:25:14] Speaker 01:
This is just common sense that if the Forest Service, for it to safely complete a project, it has to have the ability to remove hazard trees.

[00:25:22] Speaker 01:
So these aren't broad exceptions in terms of the Thompson declaration.

[00:25:26] Speaker 01:
We don't think that you we don't think that you need to consider.

[00:25:30] Speaker 01:
We don't think that you need to consider that because it's clear from the record that the Forest Service doesn't contemplate removing any specific trees and that any incidental removal and not a broad impact, but that just underscores the point.

[00:25:41] Speaker 01:
I mean, what Mr. Thompson says in that declaration is most of the problem areas for hazard trees are on roads or on campgrounds where we've already done hazard tree removal over the past 20 years.

[00:25:56] Speaker 01:
And he also makes the point that I think is important in understanding the record.

[00:25:59] Speaker 01:
You know, we can't say in advance, this is on page I think 63 of the self supplemental experts SERPs, we can't say in advance exactly which large trees we're gonna remove because what contractors will do is if they can avoid a hazard tree without removing it, we'll do that.

[00:26:17] Speaker 01:
But these are very narrow exceptions and certainly not the sort of extraordinary circumstance that prevents resort to this exception.

[00:26:25] Speaker 01:
I want to talk briefly about wilderness.

[00:26:29] Speaker 01:
So what plaintiffs' counsel said is there's only one sentence in the decision memo on page 53 that says there's no potential wilderness.

[00:26:40] Speaker 02:
What's the agency's interpretation of what a potential wilderness is?

[00:26:45] Speaker 01:
So for potential.

[00:26:46] Speaker 01:
So, so I'm not.

[00:26:47] Speaker 01:
So I'm not sure there's there's any.

[00:26:49] Speaker 01:
I'm not sure there's any definitive regulatory definition your honor I think is a matter of practice.

[00:26:54] Speaker 01:
This is I believe in Forest Service documents that the Forest Service generally looks at availability.

[00:27:00] Speaker 01:
capability as well as need in terms of whether it's needed as a wilderness resource.

[00:27:07] Speaker 01:
So here, so there is just that one sentence in the decision memo, but the Forest Service looked at this for this land already when it established the land management plan for the Southern California Forest Management Plan.

[00:27:19] Speaker 01:
I think that was in 2005, and it looked at it again in 2014.

[00:27:23] Speaker 01:
And what it concluded, and this is recounted in page 108 of the excerpts of record,

[00:27:29] Speaker 01:
is that this area does not have good value as wilderness, and also that it's not needed as wilderness because there are 850,000 acres within 20 miles of the project that are little used.

[00:27:45] Speaker 01:
But the point is that the Forest Service already looked at this.

[00:27:49] Speaker 01:
This isn't specifically challenged here, and it didn't have to, I think, revisit that analysis when it already looked at it once and reaffirmed it more recently.

[00:27:58] Speaker 01:
Judge Collins, I mean, I think you're absolutely right that the unenacted bill that was passed the House and was not taken up by the Senate has no bearing on this.

[00:28:08] Speaker 01:
I mean, to be clear, if there had been something specific in the legislative record that plaintiffs said we should have looked at but didn't, that's fair game, I suppose, but they don't say that.

[00:28:21] Speaker 01:
They just say that the mere existence

[00:28:23] Speaker 04:
Do you agree that if the bill had recitals that laid out specific facts as to why it should be potentially wilderness, that those facts would need to be considered to the extent that they were relevant, that they might be relevant?

[00:28:40] Speaker 01:
Yeah, I think probably that's right.

[00:28:42] Speaker 01:
I mean, it depends on how persuasive the facts is.

[00:28:44] Speaker 01:
I don't think, given that the Forest Service looked at this, I don't think that, I don't want to say as a government lawyer that if they hadn't specifically addressed it, that would have necessarily made it arbitrary and capricious, but certainly a plaintiff could rely on those findings to the extent that they weren't addressed.

[00:29:00] Speaker 01:
as an argument for why the agency's action was arbitrary and capricious.

[00:29:04] Speaker 01:
But I mean, the idea that just the mere existence of this unenacted bill renders the Forest Service's determination arbitrary and capricious when it already looked at this and reached well-reasoned determinations that this isn't suitable for potential wilderness is, I think... Whatever that is.

[00:29:22] Speaker 01:
Fair enough, Your Honor.

[00:29:28] Speaker 01:
So we don't think you need to reach the HIFRA exclusions given we think C6 plainly applies.

[00:29:35] Speaker 01:
I do want to just make a couple observations in response to my opposing counsels.

[00:29:40] Speaker 02:
Can I just follow up?

[00:29:42] Speaker 02:
Sure.

[00:29:42] Speaker 02:
Do we need to rely on our deference for you to fail on that potential wilderness issue?

[00:29:53] Speaker 01:
No, Your Honor.

[00:29:54] Speaker 01:
I mean, I don't think I don't think because It's already been considered.

[00:29:58] Speaker 01:
Yeah, because it's already been considered to be, I don't think you need to rely on it, because I don't think plaintiffs, fairly read in their briefs, are challenging the agency's analysis of this issue in 2014 at all, or making any specific challenges garbage or capricious.

[00:30:13] Speaker 01:
So in a different case, that might be an issue, but I don't think the sort of rigor of the agency's analysis of that question is an issue in this case.

[00:30:21] Speaker 01:
I don't think that the standard of review is presented here.

[00:30:26] Speaker 01:
If I could just move briefly to the HIFRA exclusions.

[00:30:31] Speaker 01:
I mean, on old growth, so the Silva Cultural Report says that the oldest tree found was 120 years old.

[00:30:39] Speaker 01:
This is, I think, on page 82 of the excerpts of record, which is relatively young growth for the species, which is about 400 to 500 years.

[00:30:48] Speaker 01:
Now, we have argued in our brief that plaintiffs forfeited the argument that we didn't shout

[00:30:53] Speaker 01:
about issues of old growth apart from large trees.

[00:30:57] Speaker 01:
Certainly neither we nor the district court understood them to be making any arguments about that.

[00:31:02] Speaker 01:
But I think the issue, I think it's sort of beside the point actually because I think the issue of forfeiture and the merits basically amount to the same thing.

[00:31:10] Speaker 01:
If you look at their reply brief in this case on page 18 or look at their reply brief in the district court,

[00:31:17] Speaker 01:
on SCR 89 is the relevant pages.

[00:31:21] Speaker 01:
All of their arguments that there is older old growth than that 120 year old tree are amount to a claim that there are larger trees that we didn't core.

[00:31:32] Speaker 01:
So like no matter how you look at it, their argument that we didn't specifically maximize old growth is part and parcel of their claim with larger trees which are

[00:31:42] Speaker 01:
protected from removal by this process.

[00:31:45] Speaker 01:
Their argument to the contrary is just about this narrow exception, which I think that I've already addressed.

[00:31:54] Speaker 01:
On the location issue, I just want to emphasize one thing.

[00:32:00] Speaker 01:
So the Forest Service found that 88% of this fell within HIFRA categorical exclusions because they were in vegetation classes two and three.

[00:32:12] Speaker 01:
That's not disputed.

[00:32:13] Speaker 01:
So the location argument they make that we didn't also

[00:32:18] Speaker 01:
show that the area within vegetation clash two and three is also within fire regime groups one, two, and three.

[00:32:26] Speaker 01:
That argument they are making only implicates at most 10.69 acres.

[00:32:33] Speaker 01:
Only about 10.69 acres is

[00:32:37] Speaker 01:
of the entire project is within fire regime group four or five.

[00:32:42] Speaker 01:
This argument they're making about chaperone fact being within fire regime group four, I mean, I can't really add to what I said.

[00:32:50] Speaker 01:
I mean, this argument in our view is clearly forfeited.

[00:32:53] Speaker 01:
Yes, there's a line in it in the complaint.

[00:32:55] Speaker 01:
This wasn't briefed at all.

[00:32:57] Speaker 01:
My friend on the other side referenced I think SCR 38 to 39.

[00:33:03] Speaker 01:
If you look at that, there is not even a reference to Chaparral or to Fire Regime Group 5.

[00:33:09] Speaker 01:
There's nothing in that that put us on notice that they were actually claiming that the 316 acres of Chaparral in this project are actually part of Fire Regime Group 4.

[00:33:20] Speaker 01:
So this argument

[00:33:21] Speaker 01:
is just plainly forfeit.

[00:33:22] Speaker 01:
It wasn't part of this case at all in the district court.

[00:33:25] Speaker 04:
What about, what's your response to their, what I take to be their argument that it's apparent from the record that it's not in, in group one?

[00:33:33] Speaker 01:
I mean, it's certainly not apparent from the record.

[00:33:35] Speaker 01:
I mean, I don't think it's apparent from the record, but it's also not the sort of purely, it's a fact-bound question.

[00:33:40] Speaker 01:
It's not the sort of purely legal issue that this, that this, that I think this court would ordinarily reach out and decide in the first instance when it wasn't briefed at all below.

[00:33:49] Speaker 01:
and when the district court didn't address it at all.

[00:33:54] Speaker 01:
On the roadless rule, the only thing I'll say about that is the question of generally small diameter timber.

[00:34:02] Speaker 01:
Judge Wardlaw, I know you were on the panel in the Takuya Ridge case.

[00:34:06] Speaker 01:
I think that case is all but dispositive.

[00:34:09] Speaker 01:
It's unpublished, so it's not binding.

[00:34:12] Speaker 01:
But in terms of persuasive authority, I think it is dispositive here.

[00:34:16] Speaker 01:
You had trees being logged up to 21 inches.

[00:34:19] Speaker 01:
Here, you have up to 24 inches.

[00:34:20] Speaker 01:
But in that case, it was 60 by 90 inch DBH.

[00:34:24] Speaker 01:
Here, the growth range is 80 to 117 inch.

[00:34:30] Speaker 01:
And the overall pre-existing tree size in the area is also larger.

[00:34:35] Speaker 01:
So I think that really just follows on all fours.

[00:34:40] Speaker 01:
from that case.

[00:34:42] Speaker 01:
And as for the issue about whether we're actually logging this exception, this public safety exception, I think I've said enough about that.

[00:34:54] Speaker 01:
With my time remaining, I just want to briefly touch on the question of vacator.

[00:35:00] Speaker 01:
We don't think the court needs to reach this issue, obviously, but I mean, it's apparent that

[00:35:04] Speaker 01:
And even if the court were to find fault with some of this, with the agency's analysis in some respect, for example, that the explanation in the Thompson Declaration should have been in the record itself, arguments along those lines, we don't think that that's correct.

[00:35:21] Speaker 01:
But in any event, these are asserted errors that the agency could easily correct in any remand.

[00:35:30] Speaker 01:
And I think that that gets at the broader theme of this project, which is this is an environmentally friendly and an environmentally necessary project.

[00:35:41] Speaker 01:
The project area is at very high risk of catastrophic wildfires that pose severe dangers for human life, property, natural resources, if they've occurred.

[00:35:50] Speaker 01:
It was identified more than a decade ago as at high risk of pest infestations.

[00:35:56] Speaker 01:
I mean, notwithstanding

[00:35:58] Speaker 01:
The, the clear need for the project the project itself is quite narrow it's only 755 acres.

[00:36:05] Speaker 01:
It doesn't involve any wilderness doesn't involve construction of any roads and applies to just 0.3% of the road lists of the relevant road list area.

[00:36:16] Speaker 01:
The Forest Service nonetheless performed extensive analysis in the decision memo and in the Cultural Resources Report, the Silver Cultural Report, other analysis.

[00:36:26] Speaker 01:
So this is a much needed project.

[00:36:29] Speaker 01:
If there are no other questions, we would ask the court to affirm the district court's judgment.

[00:36:34] Speaker 02:
All right.

[00:36:34] Speaker 02:
Thank you, Council.

[00:36:35] Speaker 02:
Ms.

[00:36:36] Speaker 02:
Hall?

[00:36:43] Speaker 00:
I have three brief points on rebuttal.

[00:36:45] Speaker 00:
First of all, I'd like to direct the court's attention to 2ER57.

[00:36:49] Speaker 00:
That's the decision memo's analysis on cultural sites.

[00:36:53] Speaker 00:
The decision memo states that there are no cultural sites in the project area.

[00:36:58] Speaker 00:
It does not say we have determined that impacts to cultural sites are insignificant.

[00:37:04] Speaker 02:
But it does have that heritage section which adopts the recommendations of the cultural resources.

[00:37:11] Speaker 02:
There is an inference you can draw here that that minimizes or it shows that they considered this and they're taking steps to make sure there's no impact.

[00:37:27] Speaker 00:
So yes, Your Honor does cite to that.

[00:37:29] Speaker 00:
But the important point here is the agency said there are no sites.

[00:37:33] Speaker 00:
And now during litigation for the first time saying that in their cultural resources report, they identified such sites.

[00:37:39] Speaker 00:
But as far as we can tell, the reason it created the Heritage Resource Inventory was pursuant to a separate law, the National Historic Preservation Act.

[00:37:48] Speaker 00:
And that's in the very language of the cultural resources report.

[00:37:51] Speaker 00:
That looks at a very different set of types of resources.

[00:37:55] Speaker 00:
And importantly, it does not look at the cultural sites in the records, such as the trail shrines that were identified by the ethno-historians, as well as Raise Peak itself.

[00:38:06] Speaker 00:
Those documents are completely silent.

[00:38:10] Speaker 00:
And so when the agency has not considered an important aspect of the problem, that renders it arbitrary and capricious.

[00:38:18] Speaker 00:
I'd also like to address the government's argument that it analyzed the impact of removing large trees.

[00:38:24] Speaker 00:
Its analysis at page 49 of the decision memo is one sentence, and that kind of a summary dismissal of impacts is not enough.

[00:38:33] Speaker 00:
In fact, these exceptions are much broader.

[00:38:36] Speaker 00:
They include not only the removal for safety and dwarf infestations, there's also an opener for overall forest health, and that these determinations are made on a case-by-case basis, but there's no language defining any of those terms, and there's really no operative language in the decision memo that would prevent the Forest Service from cutting down, say, half the trees in the project area.

[00:39:00] Speaker 00:
I'd also like to address briefly the roadless rule,

[00:39:03] Speaker 00:
Now, the Takaya Ridge case has no bearing here.

[00:39:07] Speaker 00:
And that's because plaintiffs are arguing that the removal of trees up to 64 inches in diameter is well above removal of trees that are generally small diameter.

[00:39:18] Speaker 00:
And 21 inches is a far cry from what's going on in this case.

[00:39:24] Speaker 00:
Thank you very much.

[00:39:26] Speaker 02:
All right.

[00:39:26] Speaker 02:
Thank you, counsel.

[00:39:28] Speaker 02:
Los Padres Forest Watch versus the USFS is submitted, and this session of the court is adjourned for today.

[00:39:37] Speaker 02:
Thank you.