rule of reason when it rejected two middle ground reasonable alternatives proposed by suing for an environmental assessment that was preparing to support an oil and gas the reason being is it is i understand it you can't your argument as to what the district court may have constituted was an error that that does not show any harm that the agency did to of the agency to follow the rule of reason in its alternatives analysis and this court in multiple cases has tackled that failure in cases like davis and flowers and an airport neighbors alliance the court has squarely addressed the alternatives analysis in an environmental assessment and it's really a matter of remain and as to what the remedy should be so here we're  a reasonable middle ground alternative there's no surface occupancy alternative for four for four of the parcels and the b l m failed or violated the rule of reason that's what squarely in front of this court and i'd like to focus my argument m had considered the no action alternative so not offering any parcels for lease the proposed action to offer online parcels it did not it is the problem here that their first review of leasing was over was concerning a very broad area and that and they're saying well the things that you're now arguing about we considered when we looked at this very broad area for leasing so that is a part of their argument the b l m points to the price resource management right plan and in that that's a the resource management plans look at resource allocation issues there's no specific decision made in the our m p s whether or not to lease any tract of land and the b l m and the price plan had an alternative alternative energy which would have made one point five million acres closed entirely to new orleans gas leasing now that's not the plan adopted obviously and at no point in the price our m p did they consider a no surface occupancy alternative for the four parcels here or for the lands that were subject because they weren't that narrow at that point they were looking more broadly well how did the alternative differ from what you're asking for now so alternative i would submit is a reasonable middle ground alternative it would allow the b l m to lease and for for alessi to four weeks tracked the subsurface resources while preserving the surface and so mean as far as the drilling is concerned when you go straight down is versus when you're diagonally drilling you don't know what kind of problems you're going to run into and drilling like that why have men that are not very reasonable well i have a few responses there so there is there's a report that philosophy here points today it's called the new tech engineering study and that's at appendix one fifty four and one seventy five and one seventy six this new tech report was appended to the west have a puts environmental impact statement that was a step down analysis from the price plan but to your point that report we believe supports the argument that the no surface occupancy alternative proposed is in fact a reasonable and technically feasible alternative it's important t proposes no surface occupancy alternative and the b l m acknowledged as much in six eighteen three six twenty in the appendix there's no response though thousand acres yes that's correct and you're talking about by about drilling sideways you're leaving a whole lot of ground on covered were when you can drill vertical through that just because of the fives you're leaving a whole lot of the four thousand acres under covered for potential recovery and that is that's not reasonable the art doesn't seem reasonable to me let's put it that way when my spacing you can recover the maximum of the minerals that are being mined for that my not right side a few responses there first place is the formation that's being produced from here really doesn't start until about forty eight hundred five thousand feet and what this new tech report confirms is that the use of this technology for a route the west haven't put field is feasible and is being used reasonable that's the test that we have is the reasonableness of where you want to go ahead well so when i when you ask is it reasonable i think this court's rule of reason analysis wen up proposes the no surface occupancy alternative and there is this new tech report that says that it is a feasible alternative is it reasonable in the sense that it would allow the agency to perform a cost and benefit analysis and determine whether a sufficient amount of the subsurface could be developed such as that it should be carried forward for further analysis now there's no answer here sewa and so this case is much more like i defines the reasonableness of the range of alternatives and again here we have the no action alternative make no visas available the proposed action offer online for sue to put forward an alternative that is non  facially reasonable that all nine parcels could be offered but four of the nine simply wouldn't have surfaced the serpent's authorised and again there's no answer here from b l m so they don't say no if it's not a reasonable alternative and they don't say no it's not a technically feasible alternative at six eighteen three six twenty of the appendix is the response to comments in the final environmental assessment and there's no answer f we raised it and then they don't have a response and we did raise the bill i'm still here to address the no surface occupancy alternative in front of the district court for a variety of reasons the court  that's their argument and i and then you're just saying that's not good enough because that's not narrowed to these four parcels well that was looking again so the resource management plan is a resource allocation decision it makes no specific decision whether or not a does not mandate that any particular tract of land should be offered for sale and the prices are in p when it looked at whether or not to make one point five million acres of vailable for leasing or not so should it be closed for leasing that is not the same as saying should less than four thousand acres be available for leasing it with no surface occupancies the fuel actions the final point i'd like to make sure before i sit down  pursue is alternative to be reasonable it has to fit within the agency statutory mandate and here that mandate is a federal land policy and management after flight one and put it is quite sweeping in its scope and there's no mandate  like to begin by correcting the miss characterization of the record in this case the proprieties resource management plan is the control and management document for the management of public lands in central eastern utah and the point of that settled that issue on page eight sixty eight of the record and each seventy eight of the record were demanded management documents that of one point one million acres open to lease in two hundred eighty two thousand would be subject to no no surface occupancy stipulation but four hundred sixty seven thousand including the land issue here would be subject to only minor constraints and those constraints are incorporated into the leases here s proposals for alternatives in this we still management for wilderness characteristics the for a long term it is and it's no surface occupancy alternative squarely conflict with those management directives and this court has stated multiple times at for specific parsons and you know at that point very well what type of topography ecology whatever is present there the value we're there for drilling think to say that well we've looked at it and to say we're done now when there is a very different question when you get down to the narrowness of looking at four isolated parcels change in the characteristics of these lands from its two thousand and eight and two thousand and ten analysis remember we're not just talking about the price our entry there is also the subsequent analysis that was done in two thousand and ten in the west have a post which again went back and looked at a small and looked at a smaller area of land west tablets plateau which includes these lands and again analyze the characteristics of these lands to large scale analyses of what had already been done the agency went back and found that the characteristics of use of land had not changed since it conducted doesn't allergies and this would be a much different kids who had come forward with some additives that some information that the agency  wearily conflicts with the management directed in the price r m p which sets in broad restraints on how the agency is supposed to manage these lands i think it's also important to point out that these  leases contain a number of targeted gnashers to protect sensitive resources including various types of wilderness characteristics they include and as thursday to protect ephemeral streams and other streams sensitive resources that was within the bounds of the r and p which again instructs the island to manage these lands for the development of oil and gas resources so you're saying that they're focused on four parcel scene contradictory to you know your honor what they can't do is what they did here which is without any information that the agencies analysis was lacking or any information that the character of these lands have changed make new information that the analysis was flawed that the characteristics of these lands changed in some way and judge briscoe i'd like to also briefly address go back to one point you made which was that the previous environmental analysis considered a larger area here we're only talking about four really really nine leases in the environmental assessment even though a larger area was considered suicide has been demonstrated at all how the analysis area of land with wilderness characteristics so that large scale analysis of what the environmental impacts on that land would be equally apply here and i think that also gets to the point the district court made in footnote ose suggestions fall outside the bounds of the r and p they haven't explained how that would be any different than the analysis that was done on the no action alternative regarding environmental impacts and that was really also the basis of the records harmless error find in the district court cited pages twenty one and twenty two of its opinion that the agency is analysis of different alternatives here and action alternative in the no action alternative bookended the possible universe of management scenarios for the for the is land so here it is true hasn't even challenge the correctness of the fonzie the finding of no significant impact so the burden is on them to show been should have been conducted of alternatives why that would at all change defined determination when it was based on analysis either end of that spectrum that was the basis of the district really talks about it all it talks about is the standard the arbitrator pressure standard of review and that is goes to the first hole in the second holding of the district court is that even if this this argument about whether we're would change the decision here because again the l n analyzed an alternative on one extreme an alternative on another and even in that totality of scenarios it found that impacts wouldn't be  honor on behalf of exhale energy the company that purchased the for at least parcels at issue just want to provide some some additional background information from the record to respond to some earlier questions well before you do that let me i've got one question i'd like to ask you that only to your knowledge are there any geological reasons reza wars conservation wide or furrow would not be appropriate in this matter maximum horizontal offset was only three thousand feet based upon this geology and this is in the record in the supplemental appendix at page seventy six and it page ninety and this goes directly to the fact that the  they were looking at doing a stand alone alternative for the sun least lands that would have no surface occupancy but explain that because there are so many other considerations and constraints that they had to look for to look at as well as the fact that they were imposing that a geisha measures to address and minimize these impacts they decided not to carry it forward this is explained in the record it's supplemental appendix at page ninety and regarding the minimum the measures that were actually imposed i think it's important to note from the operator's perspective that the west how it was record decision took the analysis of these mitigation measures to minimise impacts of wilderness characteristics they actually carried these forward to the record of decision you know for that environmental impact statement and they included for these leases conditions of approval to minimise impacts wilderness characteristics and this is in the record at the supplemental appendix page one ninety six and they explain what these mitigation measures are  roads and had locked gates to prevent access to some of the roads that went to these will miss characteristics areas the operators required to use low profile equipment and facilities and these various measures are explaining the appendix at nine twenty two nine thirty nine thirty one so your leases are you are you working those leases this point there has been a development proposal that has been submitted that is that an under analysis by the allow for the last several years a decision has not been issued yet is still waiting for that decision to be issued and so whether or not the leases will issue and drilling will ochre on these four parcels and what if any those conditions of approval relate to any future permit so those conditions approval will be added and they have to be complied with in order for that show you want you want to ever get to the point where sue i want you to be right because  believe we squarely tackled this issue from the district court furthermore it's not so as obligation as this court's well aware and opinions that have been issued  procedural statute that doesn't govern the substantive outcome and so as i mentioned earlier in cases like flowers and davis this court has squarely analyzed and agencies alternatives analysis and found that alternatives analysis flawed and the rule of reason and found that sufficient to remount finding in flowers for example the court talked about how the finding of no significant impact is not the same as no impact and it acknowledged that there's an obligation the federal agencies have underneath to consider alternatives so we don't have to show that the agency would have had a different outcome at the end of the day she was  reason which is it here or you're arguing that prejudice has no place in this along with the district court that i think the district court was mistaken when it said that so i had an obligation to show that the that the agency erroneous derives that are finding no significant impact our point here is that the b l m by violating the rule of reason fills complier with needs this alternatives mandate and that alternatives mandate applies at both environmental impact statements and environmental assessments and that's sufficient for the court to ring in now if you if you look at instruction memorandum two thousand and ten one seventeen which is six seventy three in the appendix and so that's a b l i'm instruction memorandum and that said when the agency is walking through the need to con the need for a process in an oil or gas least sale that the resource management plans are not the beginning and the end of what the alternatives should be it's specifically called on b l m to consider alternatives even if those alternatives were not consistent with the land use plan and that makes sense the rule of reason analysis looks said if an alternative is consistent with the statutory mandate and not a particular plan to hear there's no record one way or the other it's too it's no surface occupancy alternative was consistent with the resource management plan and finally i think b l m knows it's too late at the apv stage for us to raise this no surface occupancy issue if i can just finish th ahead the sale of a non no surface occupancy lease is a point huge and she makes that commitment of resources and that's the time at the least well stage when it should have considered an alternative such as who has reasonable middle ground alternative for no surface occupancy speculations thank you for your time thank you all for your arguments this morning case