areas that will be logged pursuant to the decision are the areas that were burned at a moderate or severe intensity in the rodeo should desk a fire in the summer of two thousand and two the areas within the rodeo that would allow a fire to combust and spread importantly the forest service also concedes that post fire logging projects like this one are controversial and associated with a number of adverse effects on soils watershed and wildlife and the forest service also concedes that the adverse affects some posts fire logging generally outweigh any positive ecological benefit that is associated with in the district court seem to rely upon in that connection two facts one was that the forest service did not have the you the only way to remove these trees was to contract out in get value for them right that's correct your honor if you have private companies come in and harvest the  eighteen months was used the value of that for commercial purposes disappears that it has been the for services claim but in that regard year i think it's important to realize didn't the district court specifically rely on that we're dealing with that's twenty four thousand seven hundred acres a larger project that was popularized at the time that the commercial timber sell was authorized it's a project of more than thirty seven thousand acres almost thirty eight thousand acre fortune of the that  side one blown right one that's not that's not the point that i'm making the the project authorizes actually fourteen thousand acres of non commercial work watershed in soil we have bill a haitian restoration that aspect of the project almost certainly will not be implemented because it will require six million dollars in government funds that haven't been made available it was of course our contention that you know while that work would be nice it was authorized primarily as window dressing  what's particularly important here and so far is just more towards finding something in this regard our concern is that the commercial to hersel aspect of this project the twenty four thousand seven hundred acres that were authorized will really not do anything to appreciate reduce any of the hazardous fuels that will appreciate in the timber sterile area over the next one or two decades ten to twenty years for a couple of reasons first of all as as i believe that our brief make clear the timber sell with this temper sell the timber sell operators will be removing only approximately ten percent of the dead and dying trees and those are the ten percent of the trees that are larger than twelve inches in diameter all of the remaining trees the trees that are smaller than twelve inches in diameter which are the trees that are most likely to fall quickly and most likely to become a future fire and load will remain in the in the fire area in the project area after the timber sell is complete why because the removal of those trees isn't profitable so the forest service has offered private industry the opportunity to come into this feria where the   makes sense in a perfect world we're here because you can do and then should have done an environmental impact study of some kind before being allowed to pursue these contracts from the reason that the context of the  urban interface project because it would be more economical for the government in the long run to allow private industry to remove these ten percent of the trees at this time now talking about the wild life urban interface the wild land urban interface but they didn't the the forest service doesn't appeal that right the forest service had appealed that but they have dropped their appeal they're not appealing that they're not appealing that right now and in the judge march tones order satisfies whatever nepa concerns my client might have had at the time that it initiated this lawsuit but that's that cannot be the sorry that the forest service went back to prepare an environmental assessment on a project that had already been authorized that was already under contract and that was already under implementation releasing most of what they were suppose being carried out as we speak the project the project is being implemented pursuant to four chamber sale contracts and each of the forest contracts includes within the scope of the work authorized by the note that this court as well as other court have recognized the need but contemplates a delay and that oftentimes that delay will be associated with increased costs to the government if the government could  way the money here could mean another disaster that's incorrect your honor as the forest service concedes the administrative record this project implementation of the temper still project at this case well actually increase the risk of fire in the project area and not decrease the risk of fire in the project area and that's where this army in the administrative record there's there's there the forest service has not conceded that point to treat any of the slash which is the debris that's created by the logging operation in this case the timber sale operators are being allowed to leave that slash on the ground and at some point in the future if the congress appropriates sufficient funds for the forest service then the public will go up and clean up the mess that was created by the timber sale operators but judge kozinski in the hawkins is aware of as are the forests throughout the western united states are heavily overstock because various management decisions that have been made over the course of the last eight decades  you're absolutely correct such progress and the forest services last official word on this topic as an institution was made in two thousand when they issued a report which was specific specifically dealt with the environmental of post fire logging and really whether there were any ecological or public safety utility to coming into a fire area and conducting logging shortly after the fire and what the forest service has determined is  any potential ecological benefit it goes without saying that it's good for industry to be able to come in to a timber sell area and high grade as they're doing in this case but in so far fuels i think that it's clear that this project will elevate the short term risk of fire and not decrease it on the issue that you're talking about your honor is a different issue that's the public safety respect to why this project ought to be allowed to proceed and why it's important that a proceed quickly is an argument that it's important for what the forest service calls hauser trees to be removed the forest service here for a couple of reasons first of all even without this commercial timber sell the forest service has authority under no here's another acronym judge hawkins bear authority be a are burned area the authority to allow a commercial timber cell whose primary purpose is to allow private industry to capture economic benefit of trees in a way that can be through some semantic summersault be denoted or characterize it makes a individualized determination as judge crater some suggest as to whether a tree actually poses a risk of falling on a target that means that the tree when it falls will hit a target and cause injury to property or to the people here trees up to two hundred a tree that might be fifty feet high not high can be removed as part of this commercial timber stele even if it has no possibility at all of falling on a target and really if a tree is ten inches in diameter but is right but is immediately adjacent to the road it will be left by the timber say operators because it's not profitable to remove that tree so really it's very cynical of the forest service to characterize this as a house or tree removal project trees that pose no risk of injury are being removed because they're economically valuable trees that might legitimately we have mismanaged the forests over the last eighty years because the forest service has largely been concerned with protecting the timber resource for the benefit of the timber industry and because of the large amount of resources the lessons that we've now learned is that fire is an ecologically beneficial component of what happens over time in fact in an area like this the forest service has already determined that fire actually despite the fact that it was a tragedy for some people who might have lost their homes the fires like this actually have a very important role in ecology and that they're beneficial to wildlife and the forest service right now is readjusting so that it doesn't automatically suppress every four aspire that comes along the forest fires if they are allowed to if they're allowed to burn periodic leave they burn  a slight increase of both of of fire in the immediate aftermath of the cutting of the temper related to the the remaining slash but that had to be viewed in the context of the fact that cutting was ongoing in areas where the fire risk the immediate short term fire risk was very low because these are areas that have been severely or moderately burned by fire and so we're talking about a temporary short term increase  you know when the slash is there the other thing that mr sugarman suggested is that we're not coming in and doing that slash removal or the other aspects of these projects and i submit that the record doesn't demonstrate that it was there are indications in three separate projects one was a fuels production project for the wild land urban interface the other two projects involve hazard tree removal to protect roads trails fences utility lines etc the district court of course ruled against us with respect to the wild land urban interface project and where i'd like to start this morning is with the questions of movements that we have raised with respect to that project and then come back to the issues of about the use of categor rule that addresses when and actions should be when multiple actions should be considered in the same environmental impact statement and that rule tends to guide the earlier stages of the process both at  action is not independent of the other and the task that it's typically applied to that in that circumstance is a test of independent utility and what we argue here is that these projects did plainly have independent utility it's important to cut down the hazard trees to remove those has the trees that effect the trails to protect the public they're going to use the trails and that's a completely separate justification than doing the wild land urban interface removal which is designed for fuel reduction there's nothing it says you can't have the safety benefits of the one without doing the two together so they're really not connected actions in that sense that they use the rules reaching out so that the final thing the only thing that's potentially relevant is the issue of cumulative effects and what the rule essential he says is that there will be cumulative cumulatively significant attacks then that should be considered in a single environmental impact so i think it's one hundred to two hundred depending on whether it was a highway or a forest service road it's in our brief force conservation council today at oral argument and for the first time really in the briefing had started to say that the  correctly analyze what the appropriate with was in order to protect those roads those utility lines from the dangers of falling hazard trees come on did it take the services to do the environmental time did it address concerns that are would have been materially different if all three of these decisions have been done at the same time in other words if you don't eat out on all three segments on all three segments is your best judgment it would have taken a lot longer in the same amount of time you don't know what you may have taken a little bit longer probably could have could have gotten the same concerns with respect to cumulative impact ye question for me it was about well if they challenge that but that's i mean that's the that's the that's the critical point with respect to notice we went back we did the environmental assessment the environmental assessment considered these issues about whether it should have been a whole you know treated as on project three projects they determined that there were no few middle east significant effect that has not been challenged that is not before this court what is before this court is simply the threshold determination as to whether the category reliance on the categor exclusions was appropriate and we would submit it would be inappropriate for this court or the more limited administrative record to go off and reach as to whether the forest service acted appropriately on the more expansive administrative record that was created in the underneath with respect to the other categories so if this court were to determine that category exclusions was wrong what the court would order is is just the next step you go on and you take that hard look are there cumulative effects do these need to be studied as one projects etc the need for service et this lady court determined that the forest service had in fact improperly allowed the salvage of dead trees in the wild land urban interface of the so called safety zone a half mile safety zone in the wild land urban interface rather than in joining the recognized that the equities favored allowing the project to continue and that the public interest allowed to continue favored allowing the project to continue now before i address the district court's denial of an injunction in this case i would like to join in the government's argument that this particular issue the challenge to the wild land urban interface project is in fact moot the claim that was raised by forest conservation council at the district court level was always to process in to the life safety of individuals who are using roads trails administrative sites not only public safety but also the safety of the administrative personnel who are working these sites and your honor commented on the number of acres that there is no mention of s three thousand acres that has to do with everything roads grading a road pruning posting land line boundaries replacing underground cable or reconstructing a power yes you're on your own or if it's within that category the forest service determined that it did in the agent in the district court defer to that interpretation because these trees were at risk of falling on the utility  on both the merits issues in the remedial issues should be reversed extremely brief with respect to the government suggestion of move next i urge the court to review the earlier decision of blue mountains biodiversity to this case this were on the legal issue your honor i disagree with you on the legal issue which is the appropriate scope of the need to document it should have been prepared in the first instance the cases are identical or exactly the same and that is in both cases the forest service was concurrently planning a number of projects in one fire area the projects had been announced concurrently the resource  here was by dividing what was one project into multiple projects in fact in the administrative record and we've cited this in our briefs the forest service admits that the reason that they divided this project into multiple projects is because they didn't want to put all of their eggs in one basket and they knew that they would be vulnerable to revert a reversal of their decision by this court they have been very candid with respect to the fact that they divided this project specifically to avoid that result