to start by discussing a common theme from the briefing relevant to all three thousand before moving moving into spending the majority of my time discussing first why the forest service is extensive allowance of motorized a big game retrieval on arizona's national forest violates the travel management rule second why the three travel management plans violate the national historic preservation act in third time allowing i'll discuss why each of the three travel plans required an environmental impact statement under the national environmental policy act so first the forest service throughout its answering briefing repeatedly argues that because the three travel management decisions at issue here reduce the overall effects from the status quo by prohibiting cross country travel except for motorized to be game retrieval that the three travel management decisions comply with the travel management rule and h p a and neither is the your client's object to do away with big game hunting in a national forest no your honor and they've been clear throughout the administrative process they don't object to game hunting or or hunting of any kind and they don't object to all motorized big game retrieval what the objects to is a designation of motorized a game retrieval that essentially opens up the entire forest to off road travel and so they're trying to through this litigation put some constraints on it as we believe is required by the law management argument and so the travel management role generally prohibits cross country many off road travel you're fine with that yes yes you can but there are limited exceptions for a variety of things where people can drive off of roads on to engage in certain activities at issue here is the motorized began retrieval provision and the travel management rule is clear that the forest service can only do that in a limited manner off of certain roads and it must employ it motorized retrieval is necessary in the case of milk and bison i don't think generally it's not required to pack out harvested animal a number of individuals in the record is clear a number of individuals don't gauge and motorized the game is it is it reasonable for the forest service to allow motorized vehicles to transport big game yes if it's limited and otherwise complies with the law so you so you do not contest as judge hawkins just asked that rule is not violated because you don't think the rules violated because they allowed a motorized travel motorized the vehicle to retrieve the game  we don't dispute that we dispute ok how it was was done and in on the three of you started off by saying that the other side made a mistake by in effect comparing the status quo ante to what would occur after the rule i think that's a correct statement of our nepa law is that a correct statement of our a p a law and i think it would depend on the corresponding statute that we're talking about i think generally when we're talking about impacts on the environment or duction of effects does not mean right but we're not talking about impacts on the environment under the e p a we're talking about compliance whether or not you're whether or not you've acted in your arbitrary and capricious fashion and so why why isn't that a responsible consideration in a case in which the overlying rule wants to reduce travel offer oh sure i don't think that it is in  so unreasonable to consider that but it's a first step in the analysis so that they argue it and i guess your point is it doesn't win the case for him but it helps what difference does it make counsel that in each of the forest involved here there was a substantial reduction in the number of miles of roadway doesn't that go to those in quotes a limited factor so so those limits don't extend to the motorized big game retrieval designation what i mean by that is yes there was a reduction in the total mileage of roads on each were injured district however when you still look at the effect of the designation and i think the maps that we included in the briefing and from the excerpts of record really illuminated even with that reduction the forest is still almost entirely open you know for example the record shows that on the north ranger district ninety seven percent of non wilderness lands live within one mile of a road and so even when you reducing the mileage so even if you do an example say you eliminate a particular road road a from being open that road however is still open for the purposes of motorized a game retrieval because an individual could cross that area to retrieve their big game and so it's not just a matter of we reduce mileage so you know reducing impacts and you know it doesn't matter for but motorized big game retrieval all these areas are still largely open to that practice  case law that construes the statute in the way that you do to my knowledge related to motorized the game retrieval this is it your honor the district court opinion here where there's no statutory mandate here with respect with respect to travel management is there we're dealing with a rule a rule from the u s department of agriculture is so so you're not worried about whether or not the plan corresponds with the statute who are about whether the plan corresponds with the rule correct for the purposes of your if you claim yes correct your honor in so here you know each ranger district allows it for one mile off each road which opens up the entire forest and  could the force of the search in his briefing that there were certain conditions imposed that if used as if the limitations that meet the requirements of the travel management rule that limited nature of it included in this is it's only allowed during hunting seasons only for certain types of big game only off roads and not off trails and that hunters are expected to avoid resource damage but these arguments either incorporate already existing requirements so they're not an additional limitation or a disingenuous in that you're just not a real limitation an example of that is only allowing this during hunting season and the travel management rule is clear that you can only engage in motorized the game retrieval for illegally harvested big game animal meaning that it was taken ranger districts plus bison on the north cape eb ranger district is the restriction with respect to the and understand it's not an enormous restriction but there are some roads that are no longer from which you can no longer travel to pick a game correct there are certain roads that were close never close to and correct so that that redoubt is a reduction that doesn't limit as a as opposed to the prior situation does it not yes but again i  think that it that largely doesn't matter because of the fact that you can still travel off one mile from any open road well it is that true i'm trying to figure that out if you have more than a mile of road closed down and and you're at the end of that road  and you take an animal i don't see any way that you could get from you could legally get there with a motorized vehicle to pick it up if i'm staking that so your honor how it works is you have a road and the roads are open and so it really doesn't matter if that road is closed because to retrieve the big game animal you travel off the road so you think you can retrieve a big a man number with one mile of within one mile of a closed road if it's also within one mile of an open that's why question near substantial area where one within one mile of a closed road is not within one mile of an open road no and i think that's what those maps indicate on the maps in the briefing and in the record the light blue areas which is almost the entire picture are the areas open to motorized big game retrieval and so so so that's i think my so you think it's an insubstantial area where that occurs correct you're clearly has some area just as a matter of mathematics correct yes so it's very very limited the forest service admits in the record it's on the north side that for example ninety seven percent of the non wilderness lands lie within that one mile assuming those facts are true why is it why is it contrary to the rules because we're example the word certain if you read the language in the rule if you if you just eliminate the word certain it doesn't need to be there and that would could mean they could designate it off of any road all the roads but the u s department of agriculture use the word certain and that word has to have some meaning and we believe that means it has to be a subset of the roads on the forest what if it just means specified well i still think you run into the problem of eat is every single open road but that's a different argument and certain that's a demo that must rely on some other part of the rule well i think what the forest service argues that certain can also mean you just have to say what you what it is so that's right so that's right for second what why  that's right what why is this service arbitrary and capricious and finding it a complied with so i think he then go to the third word at issue here which is sparingly which comes from the preamble and the forest service manual itself recognizes your three ninety four and four thirty one that you apply m p g are sparingly after you've conducted the site specific environmental yaml have any legal effect it is not a component of the rule itself but it certainly persuasive about what the u s department of agriculture intended in promulgating the rule and why is that why is that why is it persuasive i think it's persuasive because of the for the department of agriculture says of the u s d a expects the forest service to apply the sparingly and then the forest service interpreted that in its forest service manual providing guidance for how to do or to comply with the travel management rule and specifically motorized big game retrieval it says you know we will apply the sparingly after we've conducted the requisite environmental and i don't buy sparingly do you mean that what should have been done with respect to each of these forests then specific maps indicating where you could go off an existing road within a mile and areas where you couldn't such as where there might be petroglyphs right that would be an one example of an approach the forest service could take another example would be a permit system so that of the forest service knew how many people might be engaging in this could direct them to certain areas and to avoid certain areas based on the the conditions on the ground at the wouldn't wouldn't you have to  but a new man that told where you could go off road and where you could because you told us at the onset you're not here to outlaw this completely  detailed study should be done to protect areas of endangered species petroglyphs whatever right exactly and as part of the travel management process the forest already produces a map showing the open roads i'm it doesn't show the co s but it could add that detail in your client's world there would be areas where you could not harvest the game no at all no that that's incorrect it's just the retrieval of the big game an individual could still  go you could harvest but you have to leave the animal there to rot know a number of individuals in gage and packing out animals and and the record where they talk in the record where they talk about the number of animals harvested it explicitly shows that there is a certain subset of think there might be some issues with that under the truck somewhat see every jew weight of an adult male elk it's over a thousand pounds and by some of us the same year i think it's two thousand pounds for vice and isn't it could be you know so very large in these areas you're talking about you'd have to chop them up yes ok it in effect aren't you you know everybody uses these maps now google or whatever and if if you go up high the whole thing's covered a good angle or there's more of a spread it seems like a benefit for the benefit of your clients that you've got the overall map and saw everything says it just kind of blend in together so it seems like there's no area that is not covered ranger forest you went from seven hundred miles to five sixty six and so on so the reality is as my colleague has suggested here if we're understanding you correctly you are in effect saying we're going to close off significant portions of these for us to big game hunting and is that i correct is not what you're trying to do i don't think so your honor i think we want reasonable restrictions on motorized was reasonable is in the  is it not it can be reasonable in the views of my clients that to me is q i'm different question and see if i can flesh out what your position is what if this plane were exactly the same as it is now but the corridors on either side of the roads were a quarter of a mile would comply with the point with the rule in your view potentially but but i'm i'm doubtful  court or certainly is huge and i think if we look at the map for what a quarter mile would look like it would certainly close off much more the force to that motorized month of a mile i think it's the same issue it's still off of every road and while it would open up more of the forest that would not allow motorized became retrieval under our argument about what the rule requires designated off designating it off every single open road vows and yards i'd respond with the same when he says your argument has to be that it's the it's the car here that violates the rule not the size of the card or you know i think there's a lot of factors but yes under our argument we're arguing that designat all roads violates the intent and this is the language in that you're really saying that you shouldn't be able to use motorized vehicles at all to recover became or you're not no we just think and this i think really gets into our end h p a argument as well we think there needs to be much more analysis about what actually is out there on there is that it how you want to get there but the point is are you not saying that vehicles that stay on the roads not go off the roads and if you go off for a thousand yards or whatever you're going to be violating various rules or x is that a fair statement i think we're saying that there are certain areas on the forest where motorized big game retrieval is not appropriate in those areas or anywhere off the road no i don't think my client would object if it was a much more limited designation what amount we've been asked a thousand yards even ask for different what what would be acceptable to you what it's not so much the distance from the road so much as every single road and the forest service should have an obligation to look at you know where does that make sense where people hunting if they want to close off portions of each forest to big a money so the retrieval of the game actually so you art you do it agree that that's what you're may have please the court i mark a from the department of justice unlike my colleague in your immigration case i pushed very hard to be able to get here today because i wanted to enjoy the warm weather and you know it wasn't so here about this the extent to which this action these decisions limit motorized to use on the far east because i think that's very important the forest service when it was making these decisions i looked at the types of motorized use that have the biggest impact on the far us and it started with the ones that have to the biggest potential impact and onl or significantly limited those so there's no more just general cross country travel the off road camping is limited to specific  corridors and that's an end that's an that's a use that does have the potential for impact so instead of let me just be sure i understand that one point is that the forest services position that under lease the current situation there could be far greater damage by people just wandering off wherever and not within a confined area yes is that is that and the other houses no no i don't think so there's not doesn't that a lot of our say we measure the impact of a particular action not whether it improves not necessarily whether it improves the situation that existed before yes yes but but and in doing that it's important to look at what the baseline is what the what this is the status quo is and what is the effect of the what the agency action is what the action is actually doing or not doing it is that true under the  we look at the impact that the the undertaking which is the right and see the agency action and the agency action here greatly restricts the amount of oh i understand that but  let me give you a hypothetical that may not be factually accurate but i think this record is consistent with it let's assume you know of a cultural site within one mile of of of a road that will now be within the card or  you have some obligation to to take some minimisation actions with respect to the effect of this corridor on this cultural site now i understand that before people were site because you didn't have an action it's the at stake well right now you have an action at stake and you know the cultural site is in that one mile corridor you have some obligation to do more than simply say well it's better than it was before civil mile of a road and that's now within the corridor in which you can travel on you don't have to map the whole thing you just know this one is there now that you say it's ok to drive motorized vehicles in this one mile area  do more it's simply enough that they could have driven over the petroglyphs before i don't think that it would be lawful to drive over the petroglyphs before i think apart from any of these decisions the the background rules are when you're travelling on national forest land when you're visiting national forest lands you're not allowed to disturb historical what is there potential for increasing the disturbance of this cultural resource because where before you could go wherever and whenever you wanted now you're stuck within this one mile car i don't think so your honor because this is the effect of this action is not to concentrate use in particular areas it's just to limit it's it's to ratchet down the overall amount of use i'm frankly surprised your answer to my colleague's question because if i understood it correctly he's basically saying  before the action was taken even though the n h p a was out there because you look at drive around wherever they wanted to there was a greater likelihood that there would be damage to better gifts or whatever whereas now or are they more limited used within this confined area plus the fact that people are concentrating on the fact that there are those petroglyphs there but the likelihood of damage is reduced in some way you seem fighting that is that i misunderstand you i may be misunderstanding you your honor in terms of the this the the the issue of concentrating use comes up here in the of those carders for archaeological resources and limited those corridors to areas where there are no known this is allowed to post records right not what was there before yes that's right that's right and those carters in the in the north it's two hundred miles out of the four hundred miles so are you saying there's already limitations within this one mile corridor the one mile is different the one mile is for motorized right primary and that's why that's why so are there limitations within that one mile corridor with respect to cultural properties there is that there's the admonition that hunters are supposed to use the most direct you route they're supposed to avoid disturbing any now was it there was a great was not a preexisting admonition yes yes it would have been so mad it may not be required i'm just trying to get a factual question should it my am i correct in saying that no particular restrictions were made as part of this action with respect to cultural properties within the one mi restriction is the wet weather protection because the evidence in the record is that damage to sites to sites that are on the ground me so we're talking about cultural properties we can talk about an artifact scatter or it could be an historic ranger cabin but the artifacts scouters the things that are on the ground that damage is much more likely to occur when the soil is wet and under the rules the district rangers will issue closure orders when soil conditions are too wet and that kind of damage is likely to occur one of the proposed yes right yes that's right other than that did your client  make any effort to take into consideration damage to cultural sites that would be enhanced by the allowance of motorized  the agency's view is that the decisions will not increase that kind of damage that it they will reduce it because theirs will be so much less travel off road but i take it as a take it your client did not look at a map and say these are culturally sensitive areas and we're not going to allow motorized begin retrieval at all in those areas even if it's within one mile of an existing room they didn't do that no they didn't and i think it's because the in the areas that get that the areas  jason to the roads within half mile or a quarter mile have been significantly surveyed there's less surveying of the areas that are farther out but they know that the sites on the forest are the un the undiscovered sites on the far east arse small and they're widely scattered and the amount of acreage that's going to be affected by this motorized big game retrieval is a tiny percentage of the total acreage of the far east so it's less than one tenth of one percent point zero six percent and though williams and to stay on point zero zero nine nine percent in kind of action that is likely to cause a significant that is not likely to be in the same place each time is that is that the theory and it's yes and what causes damage to these kinds of resources is repeated use or driving out under what conditions if you question about exemption q there's at least some reference in the record at some point too the fact that some of this activit said that the reference to the exemption to you that appears in the forest service record is an error it's in and in a single response to comments there are other places in the record and i have cited them in my brief and included them in the federal supplemental this would not have significant impacts on historical resources and so i want to get back to something he was a just a minute ago to contrast that with your opponent pete he suggested that the way the new map and it's mr melbourne is correct when he says that most of the forest is potentially open to motorized off off motorized game retrieval however in any given year the because the number of motorized became retrievals are so small and because it's just a single trip in and out of it just a total distance of no more than two miles mile and mile out that the actual amount of acreage that will be disturbed in any one year is is minuscule k so the potential is what he's talking about but the reality from your perspective is based on the expertise of the agency is the very very tiny portion will be affected and indeed less than would have been affected before the rules adopted that's yes yes and  less than that would have been a defect and before the roll was adopted because now we're talking about fewer species we're talking about only retrieval not not scouting not joyriding not  interpretation of the word certain is probably closer to the dictionary definition than the opponents but what does the word spearing we mean i think what we argue in our brief and  is that it's not intended to be a nash nationwide or region wide designation but the thing that as long as you there's always it doesn't cover everything it's very well it's well the the way that it is sparingly are limited here which is the operative word in in the rule not in the preamble it's limited by species it's a matter by time is limited by who can do it it's limited by distance it's for any purpose now it's been curtailed to two limited exceptions dispersed camping and motorized big game retrieval that is already a huge change in what's available on the national forest in some ways plaintiffs and their cause have already won this issue a long time ago before the agency a few ways in which the current rule is limited and i'll try to pick up on where the court left off it's limited in species only bison and elk the state of arizona actually requested mule deer to be included as well because their population control issues around that species and we were rebuffed in that by the by the forest out you have to be a legal hunter of course you're limited to dry conditions you can't cross creek beds and other riparian crossings except at hardened places and there's no offered travel for any purpose in the areas of the forests that are so designated and there are those areas moreover the forest service reduced the total number of roads by twenty to thirty percent in each of these three districts and the area impacted is less than seven hundred ths of a percent  of the total of the totals forest of surface area that is an extremely limited using the language of the t m r restrictive the travel management role that is an extremely limited restriction i think it's also sparing even if the purposes of the final rule it's not just sparingly sort of hanging out there in the abstract it sparingly in order to avoid undermining the travel management rules over all purposes and given how drastically the agency here has reduced the amount of travel on the forest it's hard to say that they're undermining the rules purposes this is ultimately an a p a review and in some ways this court has already ended the discussion in two thousand and twelve when people  people in public lands for the people in curses u s d a which explained that was a case involving mineral prospecting but it's the same ultimate statutory hook sixteen u s c five fifty one in which this court explained that the forest services extensive statutory authority dooms i believe that's actually this court's word dooms the challenge yes it is before it even began and that's true here to the is i think it would be an a p a analysis in both circumstances but then the question of whether the rule was authorized by the statute is really a different question of whether or not your plan complies with the rule isn't oh i think it's the same legal standard it is a different reference point because now we're talking about compliance with a rule they were talking at the rules compliance with the statute but the same scope of authority exists for the forest services actions in both cases because it actually here to it's sixteen five fifty one that's the wellspring i guess and maybe it's not a major point they're not attacking the rule there that they're not saying the rule that was promulgated it wasn't probably going to pursue it to statutory authority they said you last few weeks indicates that fixed and certain is by far the most compelling definition the most widely used one the only example i could find i guess there were two that sort of indicated the other side's position might be  viable in the oxford english dictionary definition eight to seven c and it says some at least it's also an obsolete definition of certain but sun at least implies that it could also be all so i don't think that does much to help and in the webster's sort of family of dictionaries webster's seconds says one or some among possible others possible others it could of course also include all  but then by webster's third that's highlight i'm afraid you're out of time let me ask my colleagues does anybody have additional questions i've asked some but not all of the call certainly and they were certain indeed thank you thank you your honors i'd like to my brief time to discuss respond to some of the and h p a argument we just heard first you know the court asked about you know whether it's illegal for someone to go in and run over a cultural site and i think one of the issues that  maybe last year is that a lot of the damage is inadvertent damage we're talking about people who are driving and they don't know that they're going over a cultural site and the record contains a lot of of pictures of what this damage looks like in so i think it's important to remember that you know people especially because they haven't conducted the requisite surveys under the n h b a they don't know where these resources are in the absence of this rule what you describe was open season right it was your honor and so you know here there is a reduction of the impact because the cross country travel is banned but importantly under the n h p a it requires the forest service to look at the effects to any site that may be impacted any cultural site and so it doesn't over reducing it we have some extra cultural sites to spare here you know it really requires them to look just determine what is out there where it is and whether that not they need to do anything to protect it but council us as i think we've all suggested here it it seems like this is in every respect better for what your clients are looking for i mean everything has been reduced there's a limitation is that of open season you got the i know you want more but the question is whether this is adequate under the a p a and the other processes that we're dealing with here it other times i just want to quote it the protocol says the following areas require one hundred percent surveys then there's a list of things that qualify in the very first thing is where site density is expected to be high and that's not disputed here they know that there is high site densities they had a requirement to do one hundred percent service and they chose not to thank you very much thank you thanks all council very helpful the case just argued is submitted and the court stands in recess for the day