you raise your honors my name is karen len tolt and i am here on behalf of petitioners to the fair for everyone state brothas petition for review because the united states environmental protection agency violated the law when it approved the federal implementation plan under the clean air act for indian reservations in idaho i will be referring to those as the far otherwise known as the federal air rules for indian the far when determining whether or not this rule was arbitrary and capricious specifically my clients could challenge three sections at the far forty nine point one three to forty or so give me forty nine point one three three forty nine point one three five and forty nine point one three eight e p a s purpose in adopting the far was one formally leveled the playing field you know other words to quote provide people living within reservation boundaries with their quality protection similar to surrounding areas and to require that emissions from sources located within reservations are controlled at levels some large or those of sources located outside the reservations t found when reviewing the various air pollution sources on the reservations it concluded that it was appropriate that this far be adopted and e p a concluded that one of the particular air pollution problems on the reservations was in fact you could have done nothing however the fact is it chose to do something and in doing that it must do that within the confines of the law each year between mid in early november on the quarter land reservation in idaho approximately thirty thousand acres of grass fields we were burnt on any particular day between two to  five thousand acres of the residue is part of course across the border in washington the practice has been banned because of the kind of public health impacts that is on the record the three arguments raised by my clients on mean that's really the heart of my question the difference is the evidence for there is so much evidence in the record what happens when the smoke travels to commercial property to residential areas to public areas people get hurt people have died so when the e p a has this information in front of them i would assume they won't be issuing a permit and like on the court of leave court of a reservation where form and it does not if they do not those who issued the permits and in fact we have submitted on pages i think last sixty to the five sixty nine of the record i would encourage the court to look at those permanent there is rose does or does not do were not in the administrative record for the agency when making its decision and so it is frankly hard to flush out exactly who was doing what when which is again part of this and i would encourage the court to think without really what was in the administrative record in the for the each and see when making these decisions versus what is now in the record and what is being argued after the fact when we are here in litigation i feel like i will have failed my clients if i somehow can't explain to this court that there is a big difference between what happens on the court of law and reservation of course that impacts speak for themselves september fourteenth two thousand and six thousand acres have been burned in the court of law and reservation they traveled nor indian reservations wanted to be regulated by the staff i'm sure no one wanted the fifth but the fact is this information was presented to the e p a and they felt the need to do something they did something moving on to the second issue and that is register of the ag burning activities so that we know annually what the emissions are how we use that that we can really astounded at how was the e p a can is sound as if they are in fact leveling the playing field and protecting the most vulnerable populations if they don't know what the annual emissions are from venus to agricultural burning which we know is a huge practice thirty thousand acres they don't know what the annual emissions are from the court far explains why it did and the fact is none of these reservations on their own had to drill had adopted the tribal implementation plans because that hadn't happened based on the evidence felt the need to come in with this part of regulate obligation to comply with the administrative procedures act in the case law interpreting it in the ninth circuit and everywhere else which says if you take these actions they have to be you know they must not be arbitrary and capricious and we have a definition capricious i submit if the purpose of the far is to level the playing field is to understand the emissions and the impact of those inventions on public health i submit  smoke management program under section forty nine one three three rule for ag bringing permits may be designed as appropriate to require farmers to provide information on their burn activities while the reality the permit currently doesn't require farmers to provide that information five cents the quarterly reservation is exempt from this provision they will never have to provide that type of information  that information has never been made available and isn't available to my clients and at this rate it will not be available in areas where the largest amounts of fuel burning are going on in the interests of the relevant to the long run to the question of whether proposed rule i submit to you that the comments of my client made on this point were significant and that again in the record there was ample evidence that the practice of fuel burning on the court of lane reservation reservations numerous different types of air pollution sources and we were based on a lengthy process of consultations and outreach with states tribes industry representatives and  agricultural burning from the registration and hoarding rule with respect to the standard of review i'd like to agree that the under the ag that is the appropriate possible i'd also point out that e p a has its own policy of considering tribes to be the decision makers on matters of spectating environment public welfare on the reservations not an expert in that area but the tribal authorities rule was applicable to the decision made by the agency here i'd like to turn to the rule reduces the total quantity of pm emissions from burning within the reservation so that's been basically saying is talking to change anything coming off the reservation so what are we talking about  for the agency not to impose a program that has no differen reporting and registration rule i find that its requirements have about thirteen or fourteen different sections of categories information the first five or so are basic name address and point one thirty eight not really applicable to open burning or agricultural fernie there are more properly directed to stationary sources rules is to make sure that the protections provided on the reservations were similar to protections provided possible off the reservations that there was no that's what we call leveling the playing field or filling the regulatory gap and the those are valid arguments in themselves and certainly changing them twice on the cusp of force of their challenge so that the agency was selecting a standard that gives it the right to take actually against sources pollution sources if it's i would submit that that's an area of particular administrative mechanism for the agency to take action against source when saying is on here other rules in which one or the other of these versions has been adopted applicable else other geographical