[00:00:00] Speaker 01:
Our last case on the argument calendar this morning is American Whitewater versus the US Forest Service.

[00:00:50] Speaker 01:
When you're ready, counsel.

[00:01:05] Speaker 03:
Good morning, Your Honors.

[00:01:06] Speaker 03:
May it please the court?

[00:01:07] Speaker 03:
Oliver Stiefel on behalf of Plaintiffs Appellants, who are seven organizations with thousands of members across California.

[00:01:14] Speaker 03:
I'd like to reserve five minutes of my time for a rebuttal.

[00:01:17] Speaker 01:
All right.

[00:01:19] Speaker 03:
We're here today on an Administrative Procedure Act challenge to the U.S.

[00:01:23] Speaker 03:
Forest Service's review and approval of Hazard Tree logging operations on over 5,700 miles of National Forest System roads on nine national forests.

[00:01:33] Speaker 03:
And just for some perspective, that's approximately equivalent to driving up and down on I-5 in California four times.

[00:01:43] Speaker 03:
In my presentation today, I'll take the issues in our briefing in reverse order, if I may, starting with the hard-look claims under NEPA and then moving to the alternatives claim, because I think that one really ties everything together in that based on the hard look that the agency should take, it can evaluate ways to tailor operations to promote public safety objectives and also sensitive ecological values.

[00:02:08] Speaker 03:
So turning first to the cumulative impacts claim, if I may.

[00:02:13] Speaker 03:
The standard requires the agency to evaluate the effects of the action when added to the effects of past, present, and reasonably foreseeable future actions.

[00:02:23] Speaker 03:
And here, we really have a cut and dried cumulative effects violation on two grounds.

[00:02:28] Speaker 03:
First, the analysis that the agency provided was incomplete.

[00:02:32] Speaker 03:
There are a number of other projects that the agency simply failed to consider.

[00:02:36] Speaker 03:
And second,

[00:02:38] Speaker 03:
For the projects that the agency did consider, there's no quantified or detailed information, which is the standard that this court has articulated on numerous occasions.

[00:02:49] Speaker 03:
In terms of the incompleteness of the analysis, the only basis that the Forest Service offered on the record for ignoring many of the projects that my clients raised

[00:03:00] Speaker 03:
was that these projects either did not overlap or were not reasonably foreseeable.

[00:03:06] Speaker 03:
And that's just factually incorrect.

[00:03:08] Speaker 03:
We point in our briefing to the McFarland project.

[00:03:11] Speaker 03:
That's one example.

[00:03:12] Speaker 03:
There are a number of others, including the River Complex project, the Bear Country project that were raised by both my clients, American Whitewater, as well as Klamath Forest Alliance, 3ER 393, 3ER 418.

[00:03:28] Speaker 03:
So these were all reasonably foreseeable projects that overlapped with the R5 project, but the agency simply didn't disclose or consider them.

[00:03:36] Speaker 03:
So turning to the insufficiency of the analysis, that's the project that the agency allegedly considered at appendix C of each of the environmental assessments.

[00:03:47] Speaker 03:
This court's precedents make abundantly clear general statements of possible effect and some risk are inadequate, and that's precisely what we have here.

[00:03:55] Speaker 03:
So of course, Appendix C is just a mere listing of the projects.

[00:04:00] Speaker 03:
Turning to the substance of the environmental assessments, there's just no analysis of all of these federal logging projects that would overlap in space and time with the R5 project.

[00:04:12] Speaker 03:
And then turning to kind of the extra EA documents that my friend on the other side points to, there's also no meaningful analysis that actually enumerates the effects of these other federal logging projects and adds them to the effects of the R5 project.

[00:04:27] Speaker 01:
On your cumulative effects argument, I'm looking at, starting from ER 16, the district court had a pretty detailed analysis of each argument that you raised.

[00:04:37] Speaker 01:
Perhaps there'll be

[00:04:38] Speaker 01:
more helpful for me, for purposes of today's argument, if you can point out where was the error in the district court's analysis here?

[00:04:45] Speaker 01:
I know you're raising the same arguments that you raised below, but is there something about the district court's analysis that you think is totally off that we need to focus on?

[00:04:56] Speaker 03:
I do, Your Honor.

[00:04:56] Speaker 01:
Of course, this is on de novo review, but in terms of the district court's order... No, I understand that, but the district court had a careful discussion of the points that you raised below that you're now arguing on appeal.

[00:05:11] Speaker 03:
I think the clear error in the district court's opinion is that the district court relied on an

[00:05:15] Speaker 03:
a case involving the Endangered Species Act versus this court's precedents involving the National Environmental Policy Act.

[00:05:22] Speaker 03:
So the district court said essentially that it was okay for the agency to disregard all of these overlapping and reasonably foreseeable projects and cited the Endangered Species Act case law.

[00:05:35] Speaker 03:
Of course, cumulative effects under those two statutes are different, and we think that it would have been more appropriate, indeed required,

[00:05:43] Speaker 03:
for the district court to rely on the bevy of cumulative effects case law from this circuit.

[00:05:50] Speaker 03:
So that's a principal error.

[00:05:51] Speaker 03:
And then I think the district court also in terms of the sufficiency or we argue insufficiency of the analysis, the district court really credited these extra EA documents such as the biological assessments and the biological opinions

[00:06:07] Speaker 03:
But respectfully, we submit that the district court focused on kind of the number of pages and ignored the substance of the analysis.

[00:06:16] Speaker 03:
So I would point this court particularly to 2 SER 461.

[00:06:23] Speaker 03:
through 470, and that's where the agency is looking at cumulative effects to threatened and endangered species in the north zone, and there's just no there there.

[00:06:34] Speaker 03:
There's no articulation of the effects from all of these reasonably foreseeable future projects that the agency said it allegedly did consider from Appendix C. Unless there's any further questions about cumulative impacts, I'll turn to... Quickly, before you move off on that, so the seven county

[00:06:52] Speaker 00:
Change anything here, in your view?

[00:06:54] Speaker 03:
No, with respect to cumulative effects, your honor.

[00:06:57] Speaker 03:
Seventh County was, we think, narrowly focused on the indirect effects issue.

[00:07:02] Speaker 03:
And those are conceptually different.

[00:07:04] Speaker 03:
So indirect effects that the court was concerned about were remote in space and time from the project at hand.

[00:07:11] Speaker 03:
And here, we're talking about effects that are caused by the R5 project that accumulate with other effects caused by other projects.

[00:07:19] Speaker 03:
And so Seventh County is really inapplicable on that score.

[00:07:24] Speaker 01:
Can I have you address the argument on proper incorporation of the specialist report?

[00:07:28] Speaker 01:
It was mentioned, albeit very briefly, and what the district court said is that although you faulted the agency on the incorporation question, there's no evidence in the record that plaintiffs requested the data underlying the specialist report from the Forest Service and were unable to obtain it.

[00:07:48] Speaker 01:
What do you make of the district court's analysis?

[00:07:52] Speaker 03:
Two points.

[00:07:53] Speaker 03:
I think that's factually inaccurate.

[00:07:54] Speaker 03:
If you look at the comment letters submitted by my clients, there's a number of references to the kind of insufficiency of the information provided and kind of an articulation of the efforts that were made by my clients to obtain information and essentially being stonewalled by the agency.

[00:08:08] Speaker 03:
But really, we didn't focus on that because that's beside the point, because even if this court does credit the specialist reports, there's not evidence of the hard look that's required.

[00:08:19] Speaker 02:
So did you get the specialist report or not?

[00:08:23] Speaker 03:
There were so many specialist reports, Your Honor, in terms of for each of the three zones here.

[00:08:30] Speaker 03:
Some of the specialist reports were provided, some were provided in draft form, and they were updated after the close of public comment.

[00:08:39] Speaker 03:
If the court would like, I could provide a 28-J letter or something that kind of articulates which ones were provided when.

[00:08:46] Speaker 03:
But again, that's not really the focus of our argument.

[00:08:49] Speaker 01:
I guess my question wasn't very, very specific.

[00:08:51] Speaker 01:
And I'm focusing now on the wild and scenic river portion of the report at SCR 93.

[00:08:58] Speaker 01:
There is an allegation or an argument regarding whether there's proper incorporation on effects on the wild and scenic rivers.

[00:09:09] Speaker 03:
Yes, Your Honor.

[00:09:10] Speaker 03:
Thank you.

[00:09:11] Speaker 03:
And that, so the agency points to the specialist report and the spreadsheets, and those were never provided.

[00:09:19] Speaker 01:
You know, I think we... But it referenced the specialist report, right?

[00:09:23] Speaker 01:
So you knew that there were specialist reports with regard to the wild and scenic rivers?

[00:09:28] Speaker 03:
I'm sorry, Judge Wynn.

[00:09:29] Speaker 03:
The environmental assessment does not reference the special areas report.

[00:09:33] Speaker 03:
So all that's in the environmental assessments is this 54-word conclusory statement of no effect.

[00:09:39] Speaker 03:
And there's no reference to the specialist reports.

[00:09:41] Speaker 00:
But even if this court does turn... What about the references, you know, the pertinent specialist has reviewed, right, the proposed action?

[00:09:50] Speaker 00:
Isn't that a reference to the specialist?

[00:09:54] Speaker 03:
Perhaps, Your Honor, usually, I mean, so there's other places in the environmental assessment where there is specific incorporation by reference.

[00:10:01] Speaker 03:
So we would submit that the agency, in terms of the biological assessments and biological opinions that evaluate effects to sensitive species and threatening endangered species, the agency does make clear

[00:10:13] Speaker 03:
that it is incorporating those documents by reference.

[00:10:16] Speaker 03:
And there's no such incorporation with respect to... You're right, that it doesn't say specifically about the report.

[00:10:21] Speaker 01:
It says the pertinent specialist has reviewed the proposed action and made the following determinations.

[00:10:28] Speaker 01:
And what the district court said was, well, I suppose the district court viewed it as you knew that there were specialist reports out there and there was no effort to obtain these particular reports.

[00:10:40] Speaker 03:
Well, I think I'd fall back then on our second

[00:10:43] Speaker 03:
prong of this, which is that even looking at those specialist reports, there's no analysis that amounts to a hard look.

[00:10:49] Speaker 03:
And that's particularly true with wild and scenic rivers, because we have all of these river segments, some of which are designated, some of which are eligible for designation, which have all of these unique, outstandingly remarkable values.

[00:11:03] Speaker 03:
So the impacts of this project are going to impact those areas in much different ways, and there is no analysis.

[00:11:09] Speaker 02:
I think we're trying to discern the

[00:11:13] Speaker 02:
whether or not the information was available to you.

[00:11:19] Speaker 02:
Because the district court said, and I'll quote, here there is no evidence in the record that plaintiffs requested the data underlying the specialist report from the Forest Service and were unable to obtain it.

[00:11:32] Speaker 03:
And in my submission to your honors today is that the wild and scenic specialist report and spreadsheets were not provided to my clients.

[00:11:40] Speaker 03:
And if you look at my clients, American Whitewater in particular.

[00:11:44] Speaker 01:
You asked for it and they were not provided?

[00:11:46] Speaker 01:
Is that what you're saying?

[00:11:48] Speaker 03:
And I'm sorry, Your Honor, today I don't have that information in front of me.

[00:11:52] Speaker 03:
I'd be happy to follow up.

[00:11:54] Speaker 02:
Well, it's important for this reason is that the public is entitled to comment on reports, and if they are not provided or not available, that may be significant in this case.

[00:12:07] Speaker 02:
And your answer is you don't know whether or not they were made available or not or whether they were rebuffed or not.

[00:12:14] Speaker 02:
And your argument is they weren't publicly available, which seems to be true.

[00:12:21] Speaker 02:
But then the district court says, plaintiffs contend that the specialist report fails to support this conclusion, which indicates to me that you had it.

[00:12:35] Speaker 02:
Again, I know you want to say it doesn't matter.

[00:12:39] Speaker 02:
And we're saying, yeah, it might matter.

[00:12:42] Speaker 03:
Very very well your honor and I apologize that I don't have that precise back and forth with the wild and scenic rivers specialist report I think What we're you know alleging here is that the specialist report and the EA say exactly the same thing in terms of there's just Categorically going to be no effect, but there's an art.

[00:13:01] Speaker 03:
That's an arbitrary and capricious conclusion that

[00:13:04] Speaker 03:
because there's an absence of any site-specific hard look.

[00:13:07] Speaker 03:
So kind of regardless of whether my client actually had that information, you know, the specialist report and the EA say the same thing.

[00:13:13] Speaker 03:
My client was commenting on what the EA said, and it was precisely the same.

[00:13:20] Speaker 02:
When you say it's precisely the same, did you have a copy of the report?

[00:13:24] Speaker 03:
Not to my knowledge, no.

[00:13:27] Speaker 02:
Then why are you saying it's the same?

[00:13:29] Speaker 03:
Oh, today we do.

[00:13:31] Speaker 03:
So it was included in the administrative record for litigation.

[00:13:38] Speaker 03:
If I may, I'll turn to the alternatives claim, because as I alluded to at the beginning of my argument, this is where we think everything kind of gets tied together and where the rubber hits the road.

[00:13:49] Speaker 03:
Is there a way to meet the public safety objectives of this project while minimizing the scope and degree of impacts?

[00:13:56] Speaker 03:
And that's just a question that the agency never evaluated here.

[00:14:01] Speaker 03:
This court has held time and time again that the existence of a viable but unexamined alternative renders a NEPA analysis unlawful.

[00:14:11] Speaker 03:
And here we had a number of alternatives submitted, but both my clients and other members of the public in terms of, can you look at a different geographic scope?

[00:14:21] Speaker 03:
can you look at a lesser degree of intensity of operations?

[00:14:24] Speaker 03:
And the agency just simply took those off the table and did this all or nothing approach, no action or action.

[00:14:30] Speaker 03:
And in fact,

[00:14:31] Speaker 03:
It actually took no action off the table, so it only looked at a single viable alternative.

[00:14:36] Speaker 03:
And that was unlawful, really based on the facts and the law.

[00:14:40] Speaker 03:
So on the facts, we point out in our briefing how the agency has conceded that it is viable, it is feasible for the agency to reduce the scope and intensity of treatments.

[00:14:50] Speaker 03:
And so that's really off the table.

[00:14:52] Speaker 03:
And I think

[00:14:55] Speaker 03:
The Supreme Court in the Seven County case also did address kind of the feasibility of alternatives question and said that that's really a determination of fact for the agency.

[00:15:04] Speaker 03:
But here, again, as a factual matter, the agency has conceded that it is feasible to do this project by reducing the scope of treatments and a lesser degree of intensity.

[00:15:18] Speaker 03:
So the agency, at the end of the day,

[00:15:20] Speaker 03:
kind of on an ad hoc basis, dropped a number of roads from the final decision.

[00:15:24] Speaker 03:
That's at 2ER 252 through 57.

[00:15:28] Speaker 03:
In the Six Rivers National Forest, one of the nine national forests here actually reduced the scope of the corridor.

[00:15:35] Speaker 03:
So the project proposes, and this is what the selected alternative called for, was hazard tree logging operations in a 600-foot corridor on all 5,700 miles of roads.

[00:15:46] Speaker 03:
But what the Six Rivers National Forest did at the end of the day in its final decision notice was say we're actually only going to look at a 400 foot corridor.

[00:15:54] Speaker 03:
So 250 feet on the upslope side of the road and 150 feet on the downslope side.

[00:16:00] Speaker 03:
So that's shrinking the geographic scope and the intensity of operations.

[00:16:05] Speaker 03:
So as a matter of fact, alternatives that proposed similar operations were in fact reasonable.

[00:16:13] Speaker 03:
And if I may, I'd reserve the remainder of my time.

[00:16:15] Speaker 04:
...quibbling with the very nitty-gritty of how granular the Forest Service's analysis was, how deep they went into looking at very specific parts in their environmental assessment and in the record.

[00:16:27] Speaker 04:
But the Forest Service simply wasn't required to do more, certainly not under NEPA and definitely not after the Supreme Court's decision in Seven County.

[00:16:36] Speaker 04:
So this Court should affirm.

[00:16:38] Speaker 04:
I'm going to start with Seven County because I think that's the umbrella that really shades all of this case and it's really important in this court's review.

[00:16:46] Speaker 04:
Seven County was a course correction in judicial review of NEPA analysis and reaffirmed that the key principle, the pole star of judicial review of NEPA analysis is deference.

[00:16:57] Speaker 04:
It explained that the goal of NEPA is to inform decision making, foster public participation, not to paralyze decision making.

[00:17:05] Speaker 04:
And I think the key part of Seven County, as it applies here, is that it recognizes that agencies in their environmental analysis invariably make sort of fact-specific, context-specific, and policy-latent choices about the breadth and depth of their analysis.

[00:17:22] Speaker 00:
I mean, a lot of law said that before.

[00:17:23] Speaker 00:
So is this more like a mood shift, or is there anything really substantive in Seven County that you think bears directly on this case?

[00:17:31] Speaker 04:
I mean, the Supreme Court called it a course correction.

[00:17:35] Speaker 04:
Maybe mood shift is also a way to describe it.

[00:17:39] Speaker 04:
But I think the key is that this court has to defer to the agency's decisions about where to draw the breadth and depth of their inquiry so long as it falls within that broad zone of reasonableness.

[00:17:51] Speaker 04:
And here, all the decisions that the Forest Service made fall within zone of reasonableness, certainly.

[00:17:57] Speaker 04:
I think that's enough to resolve this case.

[00:18:00] Speaker 04:
With that seven county umbrella in place, I'll turn to the specifics of the merits arguments.

[00:18:07] Speaker 04:
I'll start with alternatives unless the court wants me to take it in a different order.

[00:18:12] Speaker 04:
I'm happy to do anything.

[00:18:14] Speaker 04:
But yeah, starting with alternatives, plaintiffs recognize in their brief at page 34 that the purpose and need statement here is sufficiently facially broad to cover multiple alternatives.

[00:18:25] Speaker 04:
So I think the real question that this boils down to is whether the Forest Service was permitted to incorporate that policy-laden choice about taking a safety-first, safety-oriented approach to hazard tree management on California's national forest.

[00:18:41] Speaker 04:
The answer to that question is certainly yes.

[00:18:43] Speaker 04:
The Forest Service explains at 1SER 35 why it chose to err on the side of safety rather than risking being under-inclusive and risking injury or death to forest users.

[00:18:55] Speaker 04:
It explains that it's impossible to tell exactly when a given hazard tree will fall, so failure to cast a wide enough net could endanger safety on the forest.

[00:19:06] Speaker 04:
That choice was certainly permissible.

[00:19:09] Speaker 04:
plaintiff's specific alternatives that they propose that the agency did evaluate whether or not they were reasonable.

[00:19:16] Speaker 04:
That's in the EA at 1SER 4445 and explains that with this policy focus on safety that the agency is taking in its purpose and need statement, plaintiff's proposed alternatives did not meet the purpose and need of the project.

[00:19:31] Speaker 04:
To be sure, the Forest Service worked to incorporate comment or suggested alternatives where it could.

[00:19:36] Speaker 04:
At 1SER 43, the Forest Service explained that it removed some treatments in inventory roadless areas where commentators suggested that, and the Forest Service determined that it would not ultimately harm the purpose and need of the project.

[00:19:52] Speaker 04:
But it was reasonable for the Forest Service to determine that it made these general determinations in its travel management plans that these roads were necessary to maintain the integrity of the National Forest System.

[00:20:04] Speaker 04:
maintained those routes for firefighters or for evacuees.

[00:20:09] Speaker 04:
And it was certainly reasonable to draw that line when conducting the environmental assessment for the entire project that all these roads were going to need to be treated.

[00:20:18] Speaker 04:
The plaintiff's choice to second-guess the agency's policy decision there is just not one under which they can prevail after Seven County.

[00:20:31] Speaker 04:
I'll go to hard look now and environmental effects.

[00:20:39] Speaker 04:
Starting with cumulative effects.

[00:20:42] Speaker 04:
Again, the Forest Service reasonably chose where to draw the line as to cumulative effects.

[00:20:49] Speaker 04:
It conducted a different analysis for each sort of resource that it was analyzing.

[00:20:54] Speaker 04:
For some resources, it looked at a more narrow corridor near the road or trail or facility that was going to be treated.

[00:21:01] Speaker 04:
For some resources, like watersheds or viewsheds, it looked at the entire watershed or viewshed scale.

[00:21:07] Speaker 04:
It listed out all the ongoing or foreseeable projects that it considered in that analysis at 1SER 132-253.

[00:21:14] Speaker 04:
And it provided specific specialist reports with more detailed quantitative analysis when that was appropriate.

[00:21:24] Speaker 04:
It's not true that there is no quantitative analysis in the record.

[00:21:28] Speaker 04:
In our briefs, I think we point to the soil cumulative effects analysis, the watersheds cumulative effects analysis.

[00:21:35] Speaker 04:
There's all these technical reports that are specifically designed to provide quantitative analysis and inform the agency's decision making.

[00:21:43] Speaker 04:
As to wild and scenic rivers and the specialist reports specifically, I mean, I think fundamentally

[00:21:51] Speaker 04:
The threshold NEPA analysis in the EA shows that this wasn't an issue that required the Forest Service to drill down even more on.

[00:22:01] Speaker 04:
Only 0.43% of the project's total acreage is in the Wild and Scenic River Corridor.

[00:22:06] Speaker 04:
And the analysis in the EA looking at recreational and scenic values at 1SER 89 to 90 just shows that this project is tailored in scope and limited in scope such that it is unlikely to have significant effects.

[00:22:20] Speaker 04:
Especially where there is so such little intersection between wild and scenic river corridors and the project treatment area So that that analysis was certainly enough, but if that weren't enough It's also backed up by this specialist report, but my concern is the specialist report apparently wasn't released Yeah, my understanding it it wasn't available to the public during the

[00:22:45] Speaker 04:
the EA development process.

[00:22:48] Speaker 02:
Yes, and I don't think I've seen a case where the specialist report or an expert report was debated.

[00:22:54] Speaker 02:
I mean, it wasn't provided.

[00:22:58] Speaker 02:
Usually that's the main subject of the debate.

[00:23:01] Speaker 02:
So tell me why you didn't provide it.

[00:23:03] Speaker 04:
I can't speak to why it wasn't included in the public materials during the administrative process, but what I can say is the Forest Service didn't see this as a

[00:23:12] Speaker 04:
major issue while it was developing its EA.

[00:23:15] Speaker 04:
It put out the draft EA that has all this information that says there's not going to be major scenic... No, I understand that.

[00:23:20] Speaker 02:
I'm just saying, you know, if we adopt a rule that you can say we have a secret report we relied on and that's enough, that's contrary to what the Supreme Court has instructed in terms of what the public gets to comment on.

[00:23:34] Speaker 04:
I guess what I would say to that is all this information was in the EA that plaintiffs could have commented on.

[00:23:40] Speaker 04:
The EA says a pertinent specialist reviewed this project.

[00:23:44] Speaker 02:
A secret specialist reviewed this and supports our conclusion.

[00:23:50] Speaker 02:
How can the public comment on that?

[00:23:53] Speaker 04:
I think plaintiffs could have raised an objection.

[00:23:59] Speaker 04:
I shouldn't say objection, but comments to the draft EA at that point.

[00:24:03] Speaker 04:
asking to see the specialist report?

[00:24:07] Speaker 01:
The district report did say there's no evidence in the record that plaintiffs requested the data underlying the report and were unable to obtain it.

[00:24:16] Speaker 01:
Do you know whether they sought the information and were unable to obtain it?

[00:24:19] Speaker 01:
Is that factually accurate that there was no attempt made to obtain the underlying report?

[00:24:25] Speaker 04:
To my understanding, that's factually accurate, but I'm not sure.

[00:24:30] Speaker 04:
I haven't seen anything to the contrary.

[00:24:31] Speaker 02:
I didn't see anything in the record that supported that one way or another.

[00:24:36] Speaker 04:
Whether they requested?

[00:24:37] Speaker 04:
Yes.

[00:24:38] Speaker 04:
Yes, I don't think there's anything in the record that speaks on that.

[00:24:41] Speaker 02:
And if they did, what the response was?

[00:24:46] Speaker 02:
In other words, if they asked and you said, no, you can't see it, but we're going to rely on it, that's of some significance.

[00:24:53] Speaker 02:
Right.

[00:24:53] Speaker 04:
That would be a problem.

[00:24:54] Speaker 02:
And so we don't know.

[00:24:55] Speaker 04:
Well, there's nothing in the record that says that.

[00:24:58] Speaker 04:
What I will say, there is information in the record showing that some plaintiffs' groups did request specific information and the Forest Service provided it.

[00:25:07] Speaker 04:
What is that?

[00:25:10] Speaker 04:
No, I mean...

[00:25:12] Speaker 04:
What does that have to do with the specialist?

[00:25:13] Speaker 04:
Oh, sure.

[00:25:14] Speaker 04:
No, this isn't about the specialist report specifically.

[00:25:16] Speaker 02:
I mean, you're saying, yeah, we did it in some other cases, but... Yes.

[00:25:21] Speaker 04:
But they haven't pointed... I mean, I think fundamentally the burden, if they're saying we asked for this and it wasn't provided, they would have to point to somewhere where they asked for it and it wasn't provided and they haven't done that.

[00:25:30] Speaker 00:
But what are we actually talking about here?

[00:25:32] Speaker 00:
Is it just data that shows the overlap between the roads and the rivers?

[00:25:36] Speaker 04:
Essentially, it's data along with a little bit of supporting analysis.

[00:25:40] Speaker 04:
Granted, it's not

[00:25:41] Speaker 04:
pages and pages of supporting analysis.

[00:25:44] Speaker 00:
Is the supporting analysis just talking about the essentially lack of coincidence between those two things?

[00:25:49] Speaker 00:
We're talking about a very small amount of mileage here.

[00:25:52] Speaker 04:
Yeah, I think it goes to that.

[00:25:54] Speaker 04:
It talks about the small amount of overlap, again, 0.43% of the overall project overlapping between Wild and Scenic River corridors and the project treatment area.

[00:26:03] Speaker 04:
But her argument would really be that it's plain from the environmental assessment that this wasn't an issue that the Forest Service had to dig down on further.

[00:26:14] Speaker 04:
You know, it reasonably drew the line there.

[00:26:16] Speaker 04:
It looked at certain effects from the project, like scenic effects, like effects on recreation.

[00:26:22] Speaker 04:
It explained that it reviewed wild and scenic rivers and that, you know, just because of how small a footprint this project has on wild and scenic rivers particularly,

[00:26:33] Speaker 04:
that there weren't likely to be significant environmental impacts.

[00:26:37] Speaker 04:
And plaintiffs don't challenge that conclusion that there weren't likely to be significant environmental effects.

[00:26:42] Speaker 04:
They just say that you needed to do a little bit more.

[00:26:45] Speaker 04:
You needed to be a little more granular.

[00:26:47] Speaker 04:
I think under 7 County, this court has to defer to the agency's choice on where to draw that line, because it was more than reasonable in this case, where there's so little overlap.

[00:27:01] Speaker 04:
I think fundamentally here the NEPA process was more than enough to inform public participation, inform the agency's decision-making, bearing in mind that NEPA is designed to inform agency decision-making and not to paralyze it.

[00:27:17] Speaker 04:
I think the correct course here is to affirm, and I would just briefly note on remedy that even if the agency's analysis falls short in some respect, Seven County also instructs courts

[00:27:30] Speaker 04:
Not vacate the underlying decision absent some reason to believe that there would be a change and here where we're talking about really minute granular analysis about very specific resources It would not be proper to vacate the project if the court found some error unless the court has any further questions I'm happy to sit down.

[00:27:50] Speaker 04:
Thank you counsel.

[00:27:50] Speaker 04:
Thank you your honors

[00:28:04] Speaker 03:
So I'll direct the court to 4ER739, and this is the comment letter from American Whitewater that kind of addresses this issue that we've been discussing today.

[00:28:16] Speaker 03:
At the bottom of that page,

[00:28:20] Speaker 03:
American Whitewater says, it is apparent that the three EAs were prepared hastily and that they lack site-specific information and that the proposed treatment areas have not been evaluated through field work.

[00:28:29] Speaker 03:
This, along with the omission of key specialist reports, e.g.

[00:28:33] Speaker 03:
fisheries, recreation, and scenery, and the incomplete nature of other reports and supporting documentation, calls into question the sufficiency of the overall analysis.

[00:28:42] Speaker 03:
So I think my client is pointing out that there are several relevant specialist reports that were not provided.

[00:28:48] Speaker 03:
fisheries, recreation, and scenery that would bear on impacts of wild and scenic rivers.

[00:28:53] Speaker 03:
But because my client didn't even point to this special areas report, they didn't even know about it.

[00:29:02] Speaker 02:
If I understand your argument though, your primary argument is that now that you've seen it, it doesn't differ from what's contained in the EA.

[00:29:13] Speaker 03:
Essentially, yes, Your Honor.

[00:29:14] Speaker 03:
It's just this conclusory statement of no effect that's not backed up by any supporting analysis.

[00:29:20] Speaker 03:
And so my friend on the other side says, well, look, it's only a small number of miles affected.

[00:29:25] Speaker 03:
But that's inappropriate dilution of impacts.

[00:29:29] Speaker 03:
Each one of these river corridors has unique, and in some cases, congressionally protected attributes that make them outstandingly remarkable values.

[00:29:40] Speaker 03:
And without any site-specific analysis of those values, there's no way to actually look at how this project is going to impact those values.

[00:29:47] Speaker 03:
And I would point this court to its recent opinion in Wild Earth Guardians versus APHIS, which addresses this question pretty closely

[00:29:55] Speaker 03:
And analogously, in the context of wilderness areas and wilderness study areas, where they're, like here, the agency only looked at kind of a broad brush review of impacts to these areas across a large scale.

[00:30:08] Speaker 03:
And the court said, well, you're inappropriately diluting the impacts by adopting such a broad scale.

[00:30:15] Speaker 03:
Each of these wilderness areas is protected based on their unique set of resources.

[00:30:20] Speaker 03:
And without an analysis of those resources, you can't actually

[00:30:24] Speaker 03:
meet your obligation to take a hard look.

[00:30:30] Speaker 03:
In terms of the purpose and need statement, our overall position is that this court's precedents generally teach that the court interprets purpose and need statements capaciously.

[00:30:40] Speaker 03:
And our position is that there's a way to do that here.

[00:30:43] Speaker 03:
Overall, public safety is the agency's primary goal.

[00:30:47] Speaker 03:
That still begs the question, is there a way to meet the basic public safety goals while manipulating treatments in some areas, i.e., reducing the geographic scope, reducing the intensity, so that we can protect other values?

[00:30:59] Speaker 03:
The purpose and need statement is sufficiently broad to accommodate such alternatives.

[00:31:05] Speaker 03:
If, however, it's not,

[00:31:06] Speaker 03:
then we have a classic case of a purpose and need statement being unreasonably narrow.

[00:31:11] Speaker 03:
Because what the agency is doing is interpreting the purpose and need in such a way so as to reject from detailed consideration any alternative other than here's our predetermined set of operations on 5,080 miles of roads.

[00:31:25] Speaker 03:
And that's the only thing that we're going to consider.

[00:31:27] Speaker 03:
That's the only thing that our purpose and need allows us to consider.

[00:31:31] Speaker 03:
That is unreasonably narrow.

[00:31:35] Speaker 03:
In terms of cumulative effects,

[00:31:37] Speaker 03:
My friend points to deference to the scope of the analysis in terms of cumulative effects.

[00:31:43] Speaker 03:
But as we point out with McFarland, McFarland is right on top of this project.

[00:31:47] Speaker 03:
The R5 project will treat the road segment.

[00:31:51] Speaker 03:
The McFarland project will treat all of the acres outside of that narrow road segment.

[00:31:56] Speaker 03:
These are right on top of one another.

[00:31:57] Speaker 03:
I think just in closing, Your Honors,

[00:32:05] Speaker 03:
We can all appreciate the devastating fires.

[00:32:08] Speaker 03:
My clients are the ones who live with this and fire danger every day.

[00:32:12] Speaker 03:
Many of them live out in these areas.

[00:32:17] Speaker 03:
But it still begs the question, as I alluded to, is there a way to meet these public safety objectives while minimizing impacts to ecologically sensitive areas?

[00:32:25] Speaker 03:
And again, the agency just never asked that question.

[00:32:29] Speaker 03:
In terms of Seven County, my friend on the other side

[00:32:33] Speaker 03:
It basically suggests that that case dramatically reshaped judicial review.

[00:32:39] Speaker 03:
But what the court did in that case was advise that the court's role is to confirm that the agency addressed environmental consequences and feasible alternatives.

[00:32:48] Speaker 03:
And that's exactly what this case presents.

[00:32:50] Speaker 03:
We respectfully ask this court to reverse the judgment of the district court.

[00:32:54] Speaker 01:
Thank you very much council to both sides for your helpful arguments this morning.

[00:32:58] Speaker 01:
The matter is submitted and that concludes this morning's argument calendar.

[00:33:02] Speaker 01:
We'll be in recess until tomorrow morning.