good morning your honor is that me please the court my name is d c lao and i represent the california department of transportation and by the feeling hello fornia department of transportation or caltrans seeks reversal of the district court's decision setting aside cal respects st the district court did not hear to the arbitrary and capricious standard of review under the administrative procedure act which requires deference to well informed agency decisions in fact in its order on the remedy in the district court cited to the wrong standard of review the reasonableness standard set forth in one thousand nine hundred and eighty two outdated case under the correct standard the agency decision must be upheld if the agency considered the evidence before it and rationally connected it to is ultimate finding of no significant impact even if there is contrary evidence in the record and it's the plaintiff's burden to produce evidence of crucial factors which the agency failed to consider the plaintiffs did not meet their burden here here caltrans took a hard look at the potential impact of its one mile highway realignment project it relied on expert opinions scientific purportedly blunter knows of an equally heavy california legal truck and that is a completely new theory that was raised for the st time in you so you're saying that specific thing about the length of the camps because i have a  establishing why collisions might be more might be more severe do test today trucks than california legal trust which are again equally heavy and that caltrans already considered the issue of of record well if the record recognizes that there are already already these trucks on the roadway and that contributed to the fact that the noise would not substantially increase result of the project the other issue that the district court today did not improperly relied on because it was not exhausted was the idea that paving over fifty percent of trees structural root zones w caused damage to the trees health that was never brought up in the administration of record or exhausted and then the rd error that the district court made was it's related to the issue of administrative reserve exhaustion and sentence because it is the both the plaintiffs and the district court recognized that it's not binding on caltrans so so again the rd error that the district court made yes there are so in an issue that was not exhausted it is the district courts st issue which is that paving over more than fifty percent of a true structural root zone would cause damage to the tree by suffocating it that of old growth redwood trees and hell transpacific lee examines the three trees that the district court thought were at issue when it analyzed construction in the amount of pavement that would be added to the root zones and found that there would be no short term visible reduction in foliage density that is still and that it's still within the adaptive capabilities of the tree and this was the decision of caltrans expert wood who has more than three decades literature in the manner that it did the district court reliant on it is then tim's in that study which said judging from the absence of significant loss of vigor in trees bordering the highways coast redwood i evidently not seriously affected by paving where it does not cover more than half the tree is really its own and the judge the district court judge took that sentence and then made the opposite inferences that they are for paving over more than fifty percent of the trees root zone would necessarily cause adverse effects to the tree and there is nothing in the rep heard but states that there is no study no expert comments or anything that states that paving over fifty percent of and she structural root zone would suffocate trees so it was it was absolutely error for the district courts to reinterpret the evidence and reweigh it and set aside arborist visited richardson grove multiple times he viewed the canopy of all of the trees in the project area and he found that they all remained very healthy despite the fact that when this roadway was built more than one hundred years ago you know butter streets were severed from these trees and heavy machinery was used the trillions over a one hundred years remain healthy today and this project will cause much less impact than the impact of the road building project which i've heard a one hundred years ago it's well a less than a quarter acre of pavement along the existing roadway where feasible help transit is going to use hand held pneumatic its design of the projects so just going on to the nd issue that the district court relied upon was the single sentence in the state parks handbook which all the parties and the district court concede is not binding on health trends because it is it's another agency's manual which states that there should be no construction in the structural root zone of a protected tree since it is not binding it was error from the district court or contrary sentences or comments in the end in history of record the in defense of animals case for instance this court stated that agencies are not required to respond even to every single scientific study in the record so it was error for the district with evidence on this and it considered the state parks handbook but it's not required to follow every single sentence stated in the administrative record heard to the letter if it has a well informed decision with engineers and help transit expert arborist to look at the proposed construction and look at mapping and determine what the effects on these trees would be and this resulted in the one hundred and nine d of each and every old growth redwood tree in the project area depicting the amount of cut in phil and pavement in each tree's structural root zone in analyzing the construction work and providing an expert assessments and it was error for the district court is that this is all aside based on a single sentence in another agent non binding him via the rd issue that the district court relied on was the issue of visitor enjoyment of richardson rove preliminary points they want to make are that this was not an issue that the plaintiffs raised in their summary judgment motion but one of the district court raised on its own and also the california department of transportation is an expert in highway traffic and noise and under the a p a courts should be particularly deferential to an agency's predictive judgments in the areas of his expertise and here caltrans took a hard look at traffic and noise impacts for example a senior transportation planner evaluated the project impacts and found there would not be used substantial shift in traffic from high five to highway one a one because i thought it has a straighter and faster alignment  cheaper traffic operations for district one looked at not as t a s truck traffic that shifts from i five to highway one o one when there are snow closures of i five and even when i five is closed and there was less than a one percent difference in traffic on one o one a ph d economist looked at the economic evidence of potential growth resulting from this project and the traffic evidence and in particular he relied on survey estimates from local businesses from a survey conducted by humboldt county which indicated that this project would result in a decrease in truck traffic now the plaintiffs in the district court criticized health trends for relying on survey estimates but this  so then just like in the ocean advocates keys or the national parks association he says where this court didn't set aside agency decision making there is no body of evidence here and should have considered but did not there is no evidence that a different or better production could have been made so there's just speculation about the potential of that and that's not enough to overturn an agency's decision and then health trends engineers in the record reflects that engineers designed the geometrics of the proposed runway to accommodate trucks and used computer modeling software called auto turned to check the project design and  found based on conservative estimates that the proposed alignment could safely accommodate these trucks so the district court had no reason to set aside caltrans is informed agency decision it's its decision and should be reversed your  increase the amount of traffic the record shows that currently businesses in humble county are are using hello forty illegal trucks on highway one on one to transfer cargo and and what what's happening stuart gross gross incline i represent salinas the proposed road projects here is in the middle of ancient redwoods some of which are many of which are thousands of years old and extend up to three hundred feet high over the course of twelve years and three different conferences never adequately a sus the potential impacts of the project on these trees or the park or importantly providing a combined in se provide a convincing set of reasons why there was impacts would not be significant now the district who are i've identified four bases for aspects of the problem that calderon's failed to take a hard look at this court only need to agree as to one of those to affirm the district court's order st the impact of cutting and filling in the structural root zones of all those trees and quite literally whether that work field work done in those trees what there is is there's a statement in response to col as a person on state parks says you need to look at these issues we believe that there is significant  apps in several different areas now what there isn't then is any kind of analysis for each treaty dot house those mitigation measures to be done in the root zone or very importantly any analysis of what is the impact for the trees where the mitigation measures would not be used and when we talk about not using the negation measures what we're talking about is using mechanical excavator slopes for colder work and for various other activities bolo those millennia old trees and there is no analysis no where does it say this is what will be done where in the structural those trees and there is nothing that then says and this will be the impact on those trees so state parks raises the actual question as did many other commenters and then there's no convincing set of reasons why that not look at this quite this issue of total coverage of health root zones and it did it earth is nothing in the revised that says in this health root zone of any n as an excuse not to do the analysis health trends said we in response to state parks saying specifically if you go over thirty percent total coverage of a health root zone again we believe that there will be significant potentially adverse unavoidable adverse events health trends response says well these trees have shown that they have actually made it over the last ninety years more to that converts it's going to cause a problem and state parks raises that substantial question is left unanswered that is precisely when any i a s is required now also  us there is nothing in the administrative record that addresses the long term driver who is the only noise study that exists in there is one about construction fails to determine and then port words which are consider an important aspect of a problem not looking at all at long term driving noise is precisely that failure of consideration don't have it precisely at my fingertips but there was a number of comments that i'd be happy optimist arguments over to provide you citations as you indicated it is an enormous and confused record of only portions of it were california's oldest state parks on the experience of visitors that was raised over and over and let's maybe back up slightly to this question of administrative exhaustion administrative exhaustion the requirements s not a narrow and specific requirement it's a rule of basic fairness and there has to be a basic raising of the issue that places the agency on notice that this is an issue it needs to examine and there were numerous people who came forward and said including state parks but many many others and said we are very concerned about how this project is going to ultimately impact the experience of visitors in those comments and i will find them for your author i am pretty sure there are ones that specifically say they were also concerned specifically about the long term noise but that's not necessary for administrative exhaustion as soon as the broader category of park visitor experience was placed in front of caltrans it was required to look at them at the very least when people and thirteen years now caltrans is obsolete crack that when you're talking about an area that is within their expertise in traffic is there's deference a distinction is it is absolutely outside their expertise the projects impact on growth redwoods but what talk about traffic simply because it is within their expertise does not mean that they're entitled to not take a hard look at the issue and one could argue that caltrans itself is particularly well situated should know that the gallo report that economic impact study is not a true traffic study  nine looking at the narrow question about whether it grants pass if they close grants pass drive we divert it down there it is not a study about whether or not in this circumstance you're going to have more traffic in this in this growth that then gets to another issue that we have here which is impacts the impacts of the district court identified that we're on looked at about additional collisions between trucks and trailers caltrans again never actually takes a hard look at they state when the issue is raised specifically by state further to conclude that it would be better now caltrans says it was plaintiff's burden to put in some kind of expert evidence showing that's not correct that's not the case the the issue was raised kit by state parks about additional accidents and is the latest site in their brief there are a number of pieces of evidence in the record that make that raises real questions about whether when you compliant road there are numerous design exemptions which are required for them to open it up also the record indicates that the main source of accidents in this area or collisions between trees and vehicles and this project is going to move the road closer to many of those trees so this raises stansell questions it's not our burden as the plaintiffs as the public to come again and do the work for caltrans what we need to do and what was done it is bring it to their attention now and we did it we did state parks did numerous people that and caltrans instead of actually taking a hard look and laying out evidence and showing the logical path by which it reached its conclusion simply jumps to the conclusion and that's the opposite of only a quarter acre of a new of new pavement the problem here for them is in the importance here is that each one of these trees but again are millennia old and  some of the tallest things on in the world each one of these trees as a historical is an important historical and cultural resource so you can look at this project in the aggregate you have to actually determine what's going to be the impact on each one of these trees and are they going to be placed at risk now it's not the question and maybe to finish the point the law that caltrans science in support of the proposition that it is ok for them to look at this in the aggregate that was looking at an entirely different c e q council for environmental quality factor that's looking at the factor of what whether a project is going to impact or would impact potentially about a protected species of threatened or endangered species and so those cases say to it when you're looking at that factor you look at the species as a whole which makes perfect sense given the underlying purpose of the endangered species act to prevent jeopardy of the species in this instance when we're talking about some of the few remaining tallest things living on earth you can look at it as well i think basically they're all going to be fine you have to dive down into it and take  which the status of the other claims because you even had i think in your complaint different counts on the four affan the us are a where there was dismissed before judgement was project and requiring that count trans prepare and in an environmental impact statement not effectively disposed of on the other claims and the reason is this on the floor af issue fact of way with the order for an e i as the wild and scenic rivers act claim not claim whether or not a new we would argue it and if we get to that point we will if need be that when cultures prepares a new eos it will be required to provide the national park service and the updated consultation because it will have updated information and so diagrams showing the construction in the trees root zones and providing an expert analysis as to each treat the plaintiffs don't respond to that the plaintiffs raise the issue of comments from state parks well the court made clear  native community cases that agencies are required to consider other agencies comments and analyze them as caltrans did here and but it's not bound by another agency's disagreement with the way that it conducted i the law here when they bring up you know speculation from comments in the record about potential impacts that might occur and the court in a very long line of cases from greenpeace actually franklin to center for biological diversity to be a lot decision the plaintiffs argue that health plans didn't do any study of boys that's not true it's noise technicians looked at the fact that the highway will not be moving substantially east or west there will not be any increase in capacity because there won't be an increase in the number of lanes and it measured the current noise in the car which actually is already quite noisy and that there would not be a substantial be a greater amounts of truck collisions to do this project actually this project would reduce collisions it would be safer because it would provide more room for a truck turning movements and that's in the record as well so have had ample evidence to support its well informed decision that this project will not cause is even if it can impact on the environment and the district court went well beyond  authority under the a p a in reinterpreting the literature way in the speculative comments in the record against celtic fans as agency decision and and setting aside an agency