[00:00:01] Speaker 06:
Case number 14-5259, Arc Initiative at L Appellant versus Thomas L. Tidwell, Chief U.S.

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Forest Service at L. Mr. Eubanks for the appellant, Mr. Masonette for the appellees.

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I'd like to reserve one minute of my time for a bottle.

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Before the court is the validity of the Colorado roadless rule ski area exclusion, which for the first time in agency history removed roadless in fact parcels from the nation's objective roadless inventory.

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Although plaintiffs have provided many grounds for reversing the district court's decision and vacating and remanding this exclusion, today I will focus my time on three distinct arguments for why this court may not upheld this exclusion under the most elementary of APA principles.

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First, in the Colorado Roadless Rule, the Forest Service applied different legal standards to two similarly situated industries without any explanation whatsoever in the record for that disparate treatment.

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Second, the Forest Service abandoned its longstanding and uniformly applied procedures and policies embodied in the agency's own handbook, again without any explanation in the record.

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And third, despite receiving numerous public comments, raising significant concerns about the ski area exclusion and the precedent it sets for national roadless inventory management, the Forest Service did not even bother to respond to those comments, let alone acknowledge the fundamental shift in management resulting from that exclusion.

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Under this Court's precedent, any one of those reasons renders this decision arbitrary and capricious.

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Turning first to the disparate treatment argument, I'd like to point the court to JA 488, and that is the Colorado Road Literal Preamble, which was the vehicle by which the Forest Service told the public what it was doing in this regulation.

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When faced with a request from the oil and gas industry to remove roadless, in fact, parcels from the objective roadless inventory because that industry viewed these parcels as parcels that had high potential for development, the Forest Service made two key findings explicitly in the preamble in rejecting that request.

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First, the Forest Service said, quote, roadless inventory procedures follow Forest Service handbook 1909.12 land management handbook procedures, end quote.

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Meaning that the handbook that the service has abided by for many decades is what constrains the agency's ability and discretion when making decisions about what parcels are included in or excluded from the objective roadless inventory.

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The service went on in rejecting the oil and gas industry's request to say, quote, whether or not an area is identified as having high mineral potential is not an inventory criterion, end quote.

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So before a service,

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unambiguously and unequivocally rejected the oil and gas industry's request to remove roadless and faxed parcels from the objective roadless inventory because the fact that an industry views parcels as having high development potential is not a relevant factor for making decisions about the roadless inventory.

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In the same rulemaking,

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The Forest Service granted a functionally indistinguishable request from the ski industry to remove roadless in fact parcels from the objective roadless inventory because the ski industry sought those parcels to develop because they saw them as parcels with high development potential for ski related activities.

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Nowhere in this record did the Forest Service even attempt to reconcile this damning fact.

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And this is a situation under this Court's long precedence, which we've cited more than a half dozen, including some that members of this panel have been part of, in which the D.C.

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Circuit has said when two similarly situated industries, as situated under a particular regulatory scheme, are treated differently,

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And in fact, not just treated differently, but a different legal standard is applied with no explanation in the record for why that desperate treatment occurred.

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This court must vacate and remand.

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What about the state wants one and not the other?

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How do we?

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Well, Judge Kavanaugh, that's certainly one of the few reasons that the Forest Service has proffered here.

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But as we've explained extensively in our briefs, because the Forest Service has given the answer in their record, which is what this case has to turn on because it's an APA case, the answer in the record at JA-488 in the Colorado road literal preamble is the handbook

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is what governs our roadless inventory management and the procedures and policies in that handbook govern, and thus what a state or an industry might want to develop because they think it has high development potential is not a relevant factor.

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This is not a criterion on which these decisions can be based.

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So we have to take the government at its word in the record.

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That's what this case is based on, not government counsel's postdoc rationalizations, not any other answers they might give

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but the handbook and the procedures that have long applied and have been applied uniformly by the agency through over 40 years of managing our national forest.

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What the court said here, the district court, and it makes sense to me, is that there's not a disparate treatment problem here because these industries are very distinct.

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Well, Judge Brown, there may be some abstract differences between the oil and gas industry and the ski industry, but insofar as they are regulated pursuant to whether this handbook applies and whether roadless inventory procedures apply, they have always been treated the same as every other industry wishing to develop in our national forest, and the Forest Service has

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always applied the same criteria, the same procedures to every industry that wants to develop in our national forests.

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So the fact that a ski industry may use ski runs and an oil and gas industry may use an oil dairy is irrelevant insofar as this regulatory scheme is applied.

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There are essentially two questions at issue here.

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The first is, what lands, what parcels are in the roadless inventory?

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And heretofore, it's always been objective and based on the same criteria.

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Then there's a second question of what types of development can occur within lands that are in the inventory.

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What's happened here is the Forest Service has allowed impermissible factors that really can only come into play in that second question.

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What type of development and subject to what limitations can occur in the inventory roadless area rather than what they've tried to do here, which is allow those political and economic considerations to, for the first time ever,

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remove parcels, roadless in fact parcels, parcels the government concedes are not degraded from the objective roadless inventory to satisfy a request from a state or an industry.

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They've based it on irrelevant factors.

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They've admitted in the record, which again has to be the touchstone for this court's decision at JA 488, that this, the development potential sought by an industry is not a criterion by which these decisions can be made.

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So it would be contrary to this court's long line of precedent in disparate treatment cases to allow the agency to come in and deviate from its past practices, past policies.

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You say that it's consistently adhered to the handbook, but the handbook itself says it doesn't apply to areas designated roadless.

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So I'm not sure how that squares with, and I recognize the portion of the preamble that you, there's a sentence there that says

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by the Forest Service Handbook, and that just seems wrong.

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Well, Your Honor, we've made this point in our brief, and I want to be crystal clear about it.

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So not only is JHA 488, it's not just an offhand suggestion.

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It's not a stray statement by the agency.

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This was an explicit finding in the Colorado roadless rule preamble after a six-year rulemaking process.

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This is how the agency communicates to the public the reasons for what it did and why it did it.

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So this is a formal pronouncement in the record, which this court has to take into consideration in making this decision.

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In addition to that, there are over a dozen places in the record where the Forest Service's own documents make absolutely clear that the handbook- What about the handbook itself?

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Yes.

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They make absolutely clear that the handbook does apply to this particular situation.

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At JA-200, JA-201 through 205, JA-207, JA-213, JA-269,

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J.A.

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272 through 75, J.A.

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429.

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That's only an example of all the places where the Forest Service's own formal guidance, formal memorandum about roadless inventory procedures say this handbook applies and its criteria are what delimit the scope of which parcels can be included and are included in this inventory.

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So we have extensive record evidence consistent over the course of many decades saying that these are the criteria by which these decisions are made.

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And I think it's quite instructive that not one place in their briefs have the defendants been able to point to a single instance in the 40 years that this agency has managed the National Forest and the roadless inventory where the Forest Service has ever

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accepted a request to remove a roadless in fact parcel from the objective roadless inventory.

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It's never happened.

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In 2001, in the roadless area conservation rule, they rejected the ski industry's request to do exactly what they did here.

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In the 2008 Idaho roadless rule, every single acre, which was 9.3 million acres that were deemed roadless in fact, were included in the Idaho roadless inventory.

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This has never happened before.

[00:10:36] Speaker 05:
I think roadless in fact is a description, however useful, that you've developed in this litigation.

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That's not a legal category that the service uses, is it?

[00:10:49] Speaker 00:
Well, roadless in fact is a description of

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that the service has long used, and when they have found an area roadless in fact, meaning it meets all of the roadless criteria by which the agency has operated for 40 years, and again, which they've said in the record many times governs here, that those parcels meet all of the criteria.

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And if the parcels meet those criteria, every acre that has met those criteria has been placed

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in the inventory.

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I'd just like to say very quickly.

[00:11:15] Speaker 02:
You're in essence retrofitting a term to cover the prior application of the handbook, and then saying that that term, Rogelson fact, is the agency standard.

[00:11:26] Speaker 02:
But that has not been the agency standard, at least as articulated, correct?

[00:11:30] Speaker 00:
Well, we are using the term roadless in fact, but it is true that this is a standard which they have uniformly applied over the course of many decades and the record has extensive evidence of that.

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There is no time before the ski area exclusion in the Colorado roadless rule where the agency operated by any other criteria.

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And in fact, I think the key thing here, this is an APA case.

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And what we think is crucial is they have not even attempted to explain in the record why they treated these two industries differently, why they departed from the handbook criteria they admitted over a dozen places governs.

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And in fact, they did not even respond to significant public comments saying, this is a fundamentally different way of managing the national forest.

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And we want to know what your basis for doing this is.

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And there was no explanation at all in the record.

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Well, isn't there a difference between

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deciding what goes in the inventory and actually managing these forest lands.

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I mean, you seem to be conflating the fact that they have criteria for deciding what goes into the inventory with what they do later.

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Well, the two are incredibly related.

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They're inextricably intertwined because the first question, the threshold question, is what is in the objective inventory?

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And again, the Forest Service has said in multiple places in the record that it has to first make that threshold determination.

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What parcels are in the inventory?

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Once that's been made, then the question is what types of development may occur there and subject to what limitations and prohibitions?

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That's what the Forest Service did in 2001.

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That's what it did in 2008 in the Idaho Roadless Rule.

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And then here, for the first time ever, coming in and taking a very different tack, they allowed the considerations that have never heretofore been part of this decision-making process.

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Well, it is not clear that the handbook even applies to what they're doing here.

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But if it did apply, a handbook is not law.

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number one, is not lost.

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Secondly, it's the services handbook and it's USDA that ultimately makes this decision, so they wouldn't be bound by it anyway, correct?

[00:13:43] Speaker 00:
Well, Judge Brown, as this Court has long recognized and as you have recognized in Town of Barnstable versus FAA, a decision in which you were on the panel, when an agency departs from its own handbook, that's not necessarily bringing a cause of action based on the handbook.

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It's one of many indicia of something being arbitrary and capricious.

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And in that case, the Court expressly held that when the FAA deviated from its longstanding criteria in the handbook and failed to give an explanation for that, that required vacatur and remand to the agency.

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We believe the same treatment is due here because this case is actually far more egregious.

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In this case, we have a situation where we have four decades worth of agency management.

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We have a handbook that the agency, in more than a dozen places, has said, this handbook governs this particular decision-making process.

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And we have the agency not responding to comments, not applying its handbook, and then taking two industries

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and treating one one way and one the other with no explanation at all on the record.

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This is, at bottom, a situation in which we have multiple ways of getting to the same place, which is finding this, as Judge Kavanaugh said, in SeaWorld versus Perez, another case dealing with disparate treatment, paradigmatic arbitrary and capricious decision-making, in which an agency failed to grapple with... Sadly, a dissent.

[00:15:01] Speaker 00:
In a separate opinion.

[00:15:05] Speaker 00:
I still agree with it though.

[00:15:07] Speaker 00:
But here we have fundamentally irreconcilable situations which the agency has not even attempted to grapple with.

[00:15:14] Speaker 05:
There's some suggestion in the record that

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It's an accident of mapping, imprecise mapping, that the permitted ski areas and the overlap with roadless areas, and I'm looking, I guess, at JA-221, where there's some discussion of this.

[00:15:33] Speaker 05:
And that seems like that's yet another rationale that the service has cited, the management simplification, which might in general mean management simplification could be used more broadly, but here it seems like there's actually some historical roots for that.

[00:15:51] Speaker 00:
Well, and I'm well over my time, but I'd like an opportunity to answer this, Your Honor.

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So it is true that one of the reasons that was given by public commenters from the ski industry is this would avoid confusion over whether or not there's an active permit, a special use permit for ski activities in a particular location.

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But that's true for every other industry also.

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The oil and gas industry has leases that overlap with roadless areas.

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The coal mining industry has leases in Colorado that overlap with the roadless inventory.

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So the ski industry was not unique here.

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And that's what's key to this disparate treatment argument.

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Insofar as this regulatory scheme is applying to different industries, they all come in essentially in the same posture.

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The coal industry, the oil and gas industry.

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But they don't all have this, isn't it true that they don't all have this particular situation when

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The roadless areas were first mapped with historical data, and now there's this much more refined GPS-based mapping.

[00:16:48] Speaker 05:
And so there's some suggestion that they just misdescribed it, wanted to run the boundaries of the Permanent Ski Area as not overlapping with the roadless areas, but they just didn't succeed.

[00:17:02] Speaker 00:
Well, again, I don't even think that's an argument that the government has given, and nor could they, because again, their position, long-standing position in the 2001 roadless area conservation rule, 2008 Idaho roadless rule, and again in this decision at JA 488, is that the decisions of whether a parcel is

[00:17:22] Speaker 00:
meeting all of the standards and criteria to be in the objective roadless inventory has nothing to do with whether a ski industry wishes to develop there, has nothing to do with whether the oil and gas industry wants to develop.

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It's a decision made based on the condition of a parcel on the ground.

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It's a factual determination based on specific criteria.

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And so the fact that an agency would like to develop there, the fact that they may have a lease or a permit or some other type of development approval has absolutely no effect on threshold question of is this parcel in the inventory.

[00:17:54] Speaker 00:
Thank you.

[00:17:55] Speaker 03:
Thank you.

[00:18:01] Speaker 01:
Good morning, Your Honors.

[00:18:01] Speaker 01:
May it please the Court.

[00:18:02] Speaker 01:
I'm James Masonette.

[00:18:03] Speaker 01:
I'll be arguing today on behalf of the federal appellees.

[00:18:06] Speaker 01:
Also with me at counsel's table is Zeke Williams, who represents the Aspen Skiing Company, who are also an appellee in this case.

[00:18:14] Speaker 01:
So in 2012, the United States Department of Agriculture adopted the Colorado Roadless Rule.

[00:18:19] Speaker 01:
That rule includes a very narrow ski area exclusion that removes 8,300 acres from the roadless inventory that are either already subject to special use permits for the ski industry, or that are next to those permit areas and are allocated for ski area expansions.

[00:18:36] Speaker 01:
It doesn't offer.

[00:18:36] Speaker 01:
The Forest Plan.

[00:18:37] Speaker 01:
I'm sorry?

[00:18:38] Speaker 05:
Allocated by the Forest Plan?

[00:18:39] Speaker 01:
Yes.

[00:18:41] Speaker 01:
It doesn't authorize any expansion of ski areas, but new projects on those lands won't be subject to the roadless rules of prohibitions.

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on tree cutting or road construction.

[00:18:51] Speaker 01:
Any new projects will still have to comply with the forest plan, and they'll still be subject to NEPA.

[00:18:55] Speaker 05:
But the NEPA analysis would differ.

[00:18:57] Speaker 01:
The NEPA analysis will differ.

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So the NEPA analysis will no longer have to consider the characterization of the lands as roadless.

[00:19:05] Speaker 01:
That is, their inclusion in the roadless inventory.

[00:19:07] Speaker 01:
To the extent that these lands have roadless characteristics or undeveloped characteristics, and those will be affected by the project, then the NEPA process will still have to consider the effect of the project on those issues.

[00:19:18] Speaker 01:
To the extent that some projects put forward and it will affect the roadless or undeveloped character of the land and the Forest Service fails to consider that, ARC and the other appellants can submit comments.

[00:19:30] Speaker 01:
And if the Forest Service proceeds without analyzing those issues underneath it, it will be doing so at its own peril.

[00:19:37] Speaker 02:
Now, I think the theme of their argument, at least here today and in the briefs, is that you're treating two industries that are similarly situated desperately for political reasons or other reasons related to the state's interest.

[00:19:55] Speaker 01:
Yes.

[00:19:55] Speaker 01:
Yes, Your Honor.

[00:19:56] Speaker 01:
Let me respond to that first with the big picture and then responding specifically on the oil and gas exclusion itself.

[00:20:02] Speaker 01:
So their argument fundamentally is that this is a sea change, that this is a complete transformation of how roadless areas are managed.

[00:20:11] Speaker 01:
Now, it's important to remember that there's no statute that requires the USDA or the Forest Service to manage these lands for their roadless or undeveloped character.

[00:20:19] Speaker 01:
This is something that they do as an exercise of agency discretion to be good stewards of the land.

[00:20:27] Speaker 01:
But the protection's never been absolute.

[00:20:29] Speaker 01:
They've always balanced that protection with their management of these lands for all the purposes that are authorized by Congress.

[00:20:35] Speaker 01:
And those purposes, as you know, include outdoor recreation.

[00:20:38] Speaker 05:
It would be really helpful if you would focus on the contentions that the handbook has been deemed by your client always to govern and that this, even in this rulemaking, and that they've now eschewed that and that they haven't even acknowledged and explained that they've done that and why they've done that.

[00:20:55] Speaker 01:
Right.

[00:20:56] Speaker 01:
OK, so let me turn.

[00:20:58] Speaker 01:
My further point was only that all the roadless rules have always included exceptions for different industries.

[00:21:03] Speaker 01:
So turning now to the idea that the oil and gas exclusions.

[00:21:06] Speaker 02:
So this is not, I do want to follow up on that before you get to Judge Pillard's question, which is, so this is not a sea change in your opinion.

[00:21:15] Speaker 01:
It's not a sea change in my opinion.

[00:21:17] Speaker 01:
The 2001 national roadless rule has exceptions, exceptions that are tailored to different industries.

[00:21:22] Speaker 01:
Colorado Roadless Rule has other exceptions that are tailored to other issues, water projects, power line construction.

[00:21:29] Speaker 01:
The Idaho Roadless Rule has exceptions for other kinds of projects, phosphate mining, and ski areas.

[00:21:34] Speaker 02:
Now... But they were roadless in fact, right?

[00:21:39] Speaker 01:
Well, these affect lands that are in the roadless inventory, but to be clear, the state agencies have not used the same administrative tool.

[00:21:47] Speaker 01:
Those are exceptions that are in the roadless rules themselves.

[00:21:49] Speaker 01:
The agencies did not remove those lands from the roadless inventory.

[00:21:52] Speaker 02:
Exactly.

[00:21:53] Speaker 02:
There's an administrative difference.

[00:21:55] Speaker 02:
That's their key point, is this is the first time I believe that's been done.

[00:21:59] Speaker 01:
And as far as I know, Your Honor, that's true.

[00:22:01] Speaker 01:
That's the first time the agencies have used this administrative tool.

[00:22:05] Speaker 01:
Now, they don't argue that that's inconsistent with the law or that it was somehow unlawful to do that.

[00:22:08] Speaker 01:
They just say it was arbitrary and capricious, that we didn't explain it well enough.

[00:22:12] Speaker 01:
Now, let me turn to the oil and gas exclusion.

[00:22:15] Speaker 01:
So first of all, central to their argument is that these exclusions are the same.

[00:22:21] Speaker 01:
That's why I had to explain why they were treating these same things differently.

[00:22:24] Speaker 01:
But of course, the exclusions aren't the same.

[00:22:27] Speaker 01:
First of all, these 8,300 acres, 6,600 of them, are already subject to special use permits for the ski industry.

[00:22:32] Speaker 01:
That's not true under the oil and gas exclusion.

[00:22:35] Speaker 01:
The oil and gas exclusion, as the USDA explained in the preamble of the regulation, they didn't grant that exclusion because there are already oil and gas leases for a lot of those lands, which is obviously an issue not relevant to the ski industry.

[00:22:49] Speaker 01:
And there's a process for applying for and being granted or denied an oil and gas lease.

[00:22:56] Speaker 01:
The record shows that the oil and gas exclusion would have been significantly larger than the mere 8,300 acres that are affected by the ski area exclusion.

[00:23:05] Speaker 01:
And as the district court noted, this is sort of an apples and oranges comparison.

[00:23:08] Speaker 01:
We're talking about oil and gas development as opposed to skiing.

[00:23:11] Speaker 05:
I know they're related, but I wasn't so much asking about the different treatment of the two industries, but about the services historical treatment of the handbook, the wilderness areas handbook, as applying to roadless areas.

[00:23:28] Speaker 01:
I beg your pardon, Your Honor.

[00:23:29] Speaker 01:
I was trying to navigate both responding on oil and gas and then coming to your point.

[00:23:33] Speaker 01:
If I could just finish on oil and gas, I'll turn immediately to the handbook after that.

[00:23:38] Speaker 01:
So I think the fundamental point is to read what the USDA said about the oil and gas exclusion.

[00:23:45] Speaker 01:
What ARC says is that they said, well, we're precluded from granting this by the handbook.

[00:23:48] Speaker 01:
We're prohibited by the handbook.

[00:23:49] Speaker 01:
Those are ARC's words.

[00:23:50] Speaker 01:
The record doesn't say precluded or prohibited.

[00:23:53] Speaker 01:
Those words don't appear in it.

[00:23:54] Speaker 01:
What the USDA did was it said, we're not granting this because we don't think you need it because there's already a process for oil and gas leases.

[00:24:02] Speaker 01:
And a lot of these lands are already covered by leases.

[00:24:04] Speaker 01:
This is not important to us.

[00:24:08] Speaker 01:
Now, that section, that discussion begins with a citation to the Forest Service Handbook, which I'm about to come to.

[00:24:13] Speaker 02:
You should turn to that.

[00:24:14] Speaker 01:
OK, I'm turning to that.

[00:24:15] Speaker 02:
Would be my advice.

[00:24:16] Speaker 01:
But if you read that citation, they're not saying that the handbook prohibits it.

[00:24:18] Speaker 01:
That's all.

[00:24:19] Speaker 01:
That's the only point I want to make.

[00:24:20] Speaker 05:
They are saying it applies, and I think that's really their main argument.

[00:24:22] Speaker 01:
No, I don't think they say it applies, Your Honor.

[00:24:23] Speaker 01:
I think if we parse the language more closely, you'll see that it doesn't.

[00:24:26] Speaker 01:
They don't say that.

[00:24:27] Speaker 01:
What they're doing here is they say the world's inventory procedures follow the handbook.

[00:24:33] Speaker 01:
Well, no one denies that.

[00:24:34] Speaker 01:
This is not the roadless inventory.

[00:24:36] Speaker 01:
This is the Colorado roadless rule.

[00:24:38] Speaker 01:
As you pointed out yourself in your colloquy with my opposing counsel, the handbook doesn't govern the management of the roadless inventory.

[00:24:45] Speaker 01:
It doesn't get it given to the management of roadless lanes.

[00:24:47] Speaker 01:
It tells you how to build the inventory.

[00:24:49] Speaker 01:
So what is the USDA saying here?

[00:24:51] Speaker 01:
It's saying, look, let me explain to you why these oil and gas lands are in the roadless inventory to begin with.

[00:24:57] Speaker 01:
Because oil and gas isn't one of the criteria in the handbook.

[00:25:00] Speaker 01:
So when we followed the process in the handbook, it didn't matter to us that these lands have a high potential for oil and gas.

[00:25:06] Speaker 01:
That's why we put them in the inventory.

[00:25:08] Speaker 01:
That's what these sentences say.

[00:25:10] Speaker 01:
The words ARC's read into them, precluded, prohibited, those aren't here.

[00:25:14] Speaker 01:
If you parse it carefully, they're laying the groundwork to explain, look, these lands are in the inventory.

[00:25:20] Speaker 01:
If you want to get an oil and gas lease, there's a process for that.

[00:25:22] Speaker 01:
We're not going to grant this exclusion.

[00:25:25] Speaker 01:
They don't say what ARC says they said, which is that the Hamburg prohibited us from granting this.

[00:25:32] Speaker 01:
And in fact,

[00:25:34] Speaker 01:
The service and the USDA have never said that.

[00:25:37] Speaker 01:
None of the documents that AHRQ cites, it claims that the handbook says you can't do this.

[00:25:41] Speaker 01:
They say that the 2001 National Religious Rules say you can't do this.

[00:25:44] Speaker 01:
None of it says that.

[00:25:45] Speaker 01:
So turning to the handbook, finally, I beg your pardon, Your Honor.

[00:25:48] Speaker 01:
So as you said, we don't have to speculate what the handbook is for.

[00:25:51] Speaker 01:
The handbook says what it's for.

[00:25:53] Speaker 01:
The handbook defines the process and criteria for identifying wilderness.

[00:25:59] Speaker 01:
The handbook only mentions the roadless inventory at all in passing.

[00:26:03] Speaker 01:
It doesn't tell you how to manage the roadless inventory.

[00:26:05] Speaker 01:
It never says, well, once something's in the inventory and it's objective roadless in fact, you may never remove it from the inventory.

[00:26:13] Speaker 01:
It doesn't say anything about what to do with the inventory once it's generated.

[00:26:17] Speaker 01:
These lands, these ski areas, the sparser to stall the handbook.

[00:26:21] Speaker 01:
It identified these lands using the criteria in the handbook, put them in the inventory.

[00:26:25] Speaker 01:
That was the end of the relevance of the handbook to this process.

[00:26:29] Speaker 01:
Then, through this elaborate six-year notice and comment rulemaking, the service decided, as a matter of policy, to carve these 8,800 acres out of the roadless inventory.

[00:26:39] Speaker 01:
That is not in any way inconsistent with the handbook, because the handbook doesn't address this issue at all.

[00:26:46] Speaker 01:
I, opposing counsel, this is a long series of record sites.

[00:26:49] Speaker 01:
I can't, we've walked through whatever they cited in our brief, in our brief.

[00:26:53] Speaker 01:
I can't respond to them all today.

[00:26:55] Speaker 01:
But it's never been the policy of the USDA or the Forest Service that the Forest Service handbook governs either the practice of managing roadless inventory or what has to be done with the roadless inventory later.

[00:27:10] Speaker 01:
These lands have been inventoried.

[00:27:11] Speaker 01:
That's the end of the handbook's role here.

[00:27:14] Speaker 01:
The question what to do now is an open question.

[00:27:16] Speaker 01:
What the agencies did was they balanced all of the uses that Congress has authorized, and they made a judgment that Congress has entrusted to them that these acres should be excluded

[00:27:29] Speaker 01:
because they're already being used for developed recreation or they're planned to use them for developed recreation because the state of Colorado asked for them because skiing is important.

[00:27:40] Speaker 01:
It's an authorized use of these lands by Congress.

[00:27:42] Speaker 01:
It's a $2.6 billion a year industry in Colorado.

[00:27:45] Speaker 01:
None of that was irrational.

[00:27:46] Speaker 01:
All of that's adequate to explain why they did what they did.

[00:27:51] Speaker 01:
And in my remaining 12 seconds, I will say that opposing council said they never responded to comments on the ski area exclusion.

[00:28:00] Speaker 01:
The record site is CRR 152444 to 46.

[00:28:03] Speaker 01:
This is part of the final environmental impact statements response to comments section.

[00:28:09] Speaker 01:
It's hundreds of pages long, and those are the sites where the response to comments on the ski area exclusion are.

[00:28:17] Speaker 05:
Can you explain a little bit what the use is of the roadless area characteristics that are in the Federal Register, it's JA503.

[00:28:27] Speaker 05:
How are those used?

[00:28:31] Speaker 05:
What's the function there?

[00:28:33] Speaker 01:
I'm sorry, Your Honor.

[00:28:35] Speaker 05:
High quality or undisturbed soil, sources of public drinking water, diversity of plant and animal communities, habitat that threatens the unit.

[00:28:41] Speaker 05:
Just trying to get a sense of

[00:28:43] Speaker 05:
Are they used to designate roadless areas, or are they used to identify the significance for NEPA purposes, or?

[00:28:54] Speaker 01:
Yes, they're used in it.

[00:28:56] Speaker 01:
So if you look into, for example, this case and its District Court incarnation involved a challenge to the approval of the Burk Mountain egress trail.

[00:29:02] Speaker 01:
And if you look at the analysis under NEPA that the service did of that project, you'll see that they look at those criteria, what are called the roadless characteristics, to see how the project would affect them.

[00:29:15] Speaker 01:
And so in the new NEPA process, they won't be per se required to consider the effects of a project on the roadless classification.

[00:29:25] Speaker 01:
But they may, depending on the project, still be required to consider the effects on those roadless characteristics.

[00:29:34] Speaker 01:
So unless you have anything further, you're on.

[00:29:38] Speaker 03:
All right.

[00:29:38] Speaker 01:
Thank you.

[00:29:42] Speaker 03:
Thank you.

[00:29:43] Speaker ?:
OK.

[00:29:44] Speaker 03:
I know you ran over but we will give you a minute if there is something you need to respond to.

[00:29:50] Speaker 00:
Thank you Judge Brown.

[00:29:51] Speaker 00:
Just a couple of brief points.

[00:29:54] Speaker 00:
First, I want to make clear that this is, in fact, a sea change, no matter what the government says here.

[00:29:59] Speaker 00:
And this is part and parcel of what's wrong with this decision.

[00:30:02] Speaker 00:
They refuse to even acknowledge the fundamental change in national roadless management occurring here.

[00:30:06] Speaker 00:
But if you look at JA 759 in the Burnt Mountain egress trail decision, it shows the concrete ways in which the agency refuses now to do an environmental impact statement and to look at these issues.

[00:30:16] Speaker 02:
And your fear is this going to be replicated over and over?

[00:30:19] Speaker 00:
It will be replicated.

[00:30:20] Speaker 00:
That's the entire point of the rule.

[00:30:23] Speaker 02:
Second of all, I'd like to take the point of the rules just to ski parcel in Colorado.

[00:30:28] Speaker 00:
That's the part at the point of the ski area exclusion.

[00:30:30] Speaker 00:
That's the entire purpose of it.

[00:30:32] Speaker 00:
is to truncate deeper review.

[00:30:33] Speaker 00:
And we've explained that at the beginning of our reply brief, the first five pages.

[00:30:37] Speaker 00:
Second of all, I'd like to again point the court back to two specific sites, JA 200 and JA 429, which explicitly say there are quotes, I don't have time, so I will just paraphrase.

[00:30:47] Speaker 00:
for a service saying in their formal memoranda and guidance that this handbook applies to roadless inventory procedures, not just the inventory itself, but also the management of it.

[00:30:58] Speaker 00:
So I would refer the court to that.

[00:30:59] Speaker 00:
And finally, since time is now done, especially given how confounding some of the answers were from opposing counsel, and since none of the answers that were given by opposing counsel were relied on as reasons for the ski area exclusion itself in the record, which is what this court's decision must turn on,

[00:31:14] Speaker 00:
and especially since there were comments from the public that have never been responded to.

[00:31:18] Speaker 00:
And I'll point the court to specific comments, J.A.

[00:31:21] Speaker 00:
339 and J.A.

[00:31:22] Speaker 00:
344 through 47, where my clients raised not only the ski area exclusion, not only the national precedent that has now been set by the ski area exclusion sustained by this court,

[00:31:32] Speaker 00:
But also the fact that most of these parcels, if not all of them, are roadless.

[00:31:35] Speaker 00:
In fact, they've been to them, and they are concerned about what the basis is for doing this particular action.

[00:31:42] Speaker 00:
And nowhere in this record is there any response to that at all.

[00:31:45] Speaker 04:
Under basic APA... Why do you say national precedent, since this is under this quite anomalous Colorado rule?

[00:31:50] Speaker 00:
Yes, Your Honor, and so what the agency has done by for the first time ever allowing an industry to come in and ask for a particular exception, not to question two, how can we develop and subject to what limitations in an inventory roadless area, but we want an upfront exemption so that these areas lose their safeguards

[00:32:09] Speaker 00:
They're all front safeguards as part of inventory roadless area, as part of the inventory.

[00:32:16] Speaker 00:
And by doing that for the first time now, industries can line up, states can line up, because any state can petition the Forest Service for a state level

[00:32:24] Speaker 00:
rule of this kind and so now what that means is that any state governor who comes in and has a preference for any particular industry or any other type of activity may now lobby for that type of exclusion and it will be based on those particular wins rather than any kind of specified criteria in a uniformly applied criteria that have been consistently applied by the agency.

[00:32:44] Speaker 05:
I know you said the major implication here is in how the NEPA analysis

[00:32:51] Speaker 05:
that it will no longer be conducted with the yardstick of roadless designation or roadless inventory character.

[00:33:00] Speaker 05:
But as I read the roadless area characteristics,

[00:33:04] Speaker 05:
All of those are issues that any NEPA analysis would take up.

[00:33:09] Speaker 05:
And presumably once there's opportunity for public comment under NEPA, any comment going to any one of those would be in order, would be something that the government would have to deal with.

[00:33:23] Speaker 05:
Is that wrong?

[00:33:25] Speaker 00:
That is wrong for two reasons, Your Honor.

[00:33:27] Speaker 00:
Number one, so while the agency may look at those characteristics, standing alone, there's no requirement that the agency conduct an environmental impact statement, which is a far more detailed assessment of environmental impacts than a much lower review called an environmental assessment.

[00:33:43] Speaker 00:
And showing this in concrete form is JA759, where my clients raised in the context of the Burnt Mountain egress trail,

[00:33:49] Speaker 00:
our as applied challenge, a number of roadless related issues and said, not only do you have to do an EIS, but you have to look at the roadless characteristics of this parcel.

[00:33:57] Speaker 00:
And the agency's response was, quote, an EIS is not warranted because the egress trail is no longer located in a designated inventory roadless area.

[00:34:07] Speaker 00:
So not only are they not doing EIS now, but they don't even look at the irretrievable development activities that may have rendered a parcel not only no longer roadless in fact, but not even having the potential to be added as a permanent wilderness area by Congress in the future.

[00:34:24] Speaker 00:
So it's really truncated the NEPA review and taken away the ability of the agency to look at these issues and to disclose to the public what these impacts will be.

[00:34:32] Speaker 02:
Two quick questions.

[00:34:33] Speaker 02:
Suppose it's the first time, we agree with you it's the first time, what's wrong with the agency doing something like this for the first time in the exercise of its broad discretion granted to it by Congress in this area?

[00:34:46] Speaker 00:
Well, as the Supreme Court has said, just because an agency has broad discretion, when an agency has adopted a long-standing course of action and applied consistently procedures throughout that long-standing course of action, a deviation from it is nevertheless arbitrary and capricious.

[00:34:59] Speaker 02:
Well, that can't be right that it can never deviate and carve out an exception to a previous

[00:35:06] Speaker 02:
policy.

[00:35:07] Speaker 02:
We're changing course.

[00:35:10] Speaker 00:
We think the record here is absolutely crystal clear about the fact that the procedures that are in place have applied for decades.

[00:35:19] Speaker 00:
They applied in the 2001 rule, the 2008 Idaho roadless rule.

[00:35:22] Speaker 00:
And so by deviating from that, and not even providing an explanation in the record for that deviation.

[00:35:27] Speaker 00:
Under basic state farm principles and Fox television principles, there is no basis upon which this court can uphold the decision, especially given, again, that commenters raised these significant concerns, and the Forest Service didn't even bother to respond.

[00:35:39] Speaker 02:
And then the second thing, big picture question, which is Congress has to draw lines all the time.

[00:35:44] Speaker 02:
When they delegate a massive delegation to the agency, the agency in turn has to draw lines between skiing and oil and gas.

[00:35:52] Speaker 02:
Don't we have to be quite deferential to that kind of line drawing when there's no specific statutory guideline against which to measure that?

[00:36:02] Speaker 00:
Well, Judge Kavanaugh, if the agency had drawn lines, then we'd be in a position to assess that.

[00:36:07] Speaker 00:
The agency never actually looked at the two things together.

[00:36:10] Speaker 00:
Even though it was in the same rulemaking, they said, we do not have the ability to do this for the oil and gas industry because the development potential of the parcel is not a criterion for this decision.

[00:36:20] Speaker 00:
But we're going to do the exact same thing for the ski industry.

[00:36:22] Speaker 02:
So on both my questions, I think your bottom line answer is maybe they could get away with that if they didn't explain it sufficiently.

[00:36:27] Speaker 00:
Well, we certainly think that they're precluded by their own longstanding history.

[00:36:31] Speaker 00:
Given the opportunity on remand, we would certainly submit public comments and we would argue that they are not able to do that.

[00:36:38] Speaker 00:
Any other question?

[00:36:41] Speaker 03:
Thank you.