it violates substantive standards set forth in the federal land policy management act or flip and second the environment impact statement prepared for approval of the project both the right of way on the plan and mehmet violates the secretary saw manage the public lands in accordance with the land use plans developed under slipknot under forty two u s c seventeen twelve that quotation is from second seven hundred thirty to  resource manager actions shall conformed to the approved plan in order to ascertain whether the two project approvals in this case conform to the approved plan as required by the statute and the implementing guidelines the court needs to examine what were the standards applied by the agency when it made its determinations as reflected in the rod one finds that the standards set forth for a class s lands were not applied by being a lamb and were in fact violated by a b l m when it approved the project let me explain why according to the c d c a plan class cell  is intended to quote protest sensitive natural scenic and cultural resource values class all lands are quote managed for generally lower intensity carefully controlled multiple use of resources while ensuring that sensitive values are not significantly diminished in our record that would be ex urbs a record one four three seven and the though that basic distinction between a class cell land which is subject to this overarching restriction on use that it must not subsist significantly diminished sense of resource value is the key  distinction that feelin failed to observe and implement in this case let me elaborate the c d c a plan further fills in the interest to seize here it states that consumptive uses are allowed on class l land quote only up to the point that sensitive natural and cultural values might be degraded e r one four four five so it's not a casual reference to this distinctive restriction it's the driving distinction that appears in multiple locations throughout the operative plan and the the other documents that help the court understand what the plan was doing and we find that contrary to those clear distinctions when b l m approved the right of way and the plan amendment and i'll explain why the plan amendment doesn't begin to unravel the gordian knot it failed to understand its own standards and it didn't apply them and had it applied them it would have then under this record required to disapprove this project it couldn't be clearer on this record let me explain why i say that and i'll provide the court with several examples of where the i r s concedes that there is a significant diminish moment or degradation of those resources in our record the are two seven five the last admits the projects construction and operation and maintenance would result in permanent unavoidable adverse impacts to cultural resources as important as those eligible for the national register of historic places as a result quote as a result of the conversion of a natural desert landscape to a landscape dominated by industrial character that city are two seven five with respect to sensitive vegetation the same e i a s explains quote permanent impacts to sensitive vegetation communities and special status plant species due to long term land scarring following project decommissioning thirty years hence what results due to the large impact area and the long recovery time for desert vegetation  two seven eight two eight zero likewise with regard to wildlife the i s admits quote permanent unavoidable impacts to suitable unoccupied peninsular bighorn sheep habitat burrowing owl burrows and foraging habitat special status raptor and migratory bird species due to collision and special status pets species due to collision all would have permanent unavoidable adverse impacts with regard to scenery the us is even more graphic it explained that virtually every significant scenic resource in this area and this is an outstanding park to the west so it's surrounded by some of the great west's most outstanding scenic and wildlife and cultural resources imaginable the i r s says quote adverse a no conversion of a national desert landscape to a landscape dominated by industrial character of that city are two seven four two seven five the four hundred foot high turbans quote would be prominently visible and the introduction of industrial character and structural visual contrasts would result in substantial adverse effects on the panoramic and highly scenic dusters currently available to back country recreationists that access the volcanic hills on the how come by mountains west of the project site the how come the mountains and wilderness south of the project site and the covered mountains north of the project site it goes on to say quote the resulting two minute deal visual impact would be significant and unavoidable that city are five five three five five four quote the resulting visual change would substantially degrade the existing visual character or quality of the site and its surroundings are five five four in some the project would cause a quote cumulatively considerable impact to the surrounding this does individually and collectively close quote again your five five four so here we have a cavalcade of significant permanent unavoidable adverse impacts and degradation admittedly so to all of the sensitive resource values that were carefully catalogued when below him examined the the site so far so good at it and then to find the resources realized they were sensitive made a class l determination designating those resources for the heightened level of restrictive zoning and protection that they're entitled to and then threw those standards out the window when it decided to lean over backwards to approve this project without applying the very standards that it did labored to make sure were included in this plan standards which are enforceable under its own regulations pursuant to statutory direction so this is not a case where b l m was given discretion by the statute to balance in some cases that's true certainly with regard to areas designated l limited use instead the plan provides clear direction as to what the standards are and below him job here was to apply the standards but it never did so now below has advanced three or four arguments to excuse its failure to apply its own plan standards all of them fail first it argues that the rod directs energy generation where resources are available and here there were wins that warranted study for potential wind generation therefore it follows that the area should be developed for wind not so the right restricts energy development to those locations where it is quote environmentally acceptable close quote he or twelve seventy six so what is environmentally acceptable well acceptable is defined by the plans standards and the way to get to that ultimate decision in an informed way is to do any i a s that's why the guidelines require the for solar or wind energy development takes place in class l lands as in other not so the law of this circuit is that where and age of land managing agents agencies decision is quote plainly inconsistent with the planet issue postcode that's agency interpretation should be disregarded the agency doesn't sit as a court determining legal interpretation of the statutory and regulatory guidance this court have that job that's  oregon natural resources council fundy borrowing the what's plainly inconsistent here ok there are with regard to those for sensitive resource values reconcile with the with its approval of this project but it didn't reach that point because it is food asli circum vented any consideration of the the very plan standards that would foreclose approval of this project its next argument which the court has a verdict to previously is that well it solved all the problems by amending the plan well here are the problems there number of them the plan was proper not properly adopted you didn't say that they didn't follow the correct procedures for adopting we chapels therefore it seems to me that your challenge of the plan amendment is pretty minuscule well you can argue what the plan amendment does but i read what you said and i don't find any place in there where you challenge the plan amendment in its proper adoption on the using the the right of way and we also pointed out that both the right of way on the planet ma'am it were based on the i asked that had deficiencies which are developed fully in our brief well i'm more than willing to talk about the things you talked about as to whether they adequately examine the impacts on bigger and she as to whether they failed to consider the adverse visual impacts of many of the projects as to the effects of the  infrasound on the low frequency noise from the project i think those are there even though as to the consideration of alternatives to the wind energy i'm willing to talk about that as well but you haven't got there what we're really talking about yet is all a background information that i think we can understand which i thought we kind of demonstrated in the last questioning but i don't have anything here that suggests you're fighting the plan of the plan amendment at all as to these particular issues in and in a course or opening in reply briefs in this case the primary argument is that we have a mishmash we have a purported amendment which doesn't make sense in the context of the plan standard it never repealed any of the plan standards it never purports to make any findings with a guard to the plan standard issues of whether there was a significant diminishment sense of resource values or a degradation of them instead  what we have is a claim by the government that the c d c a plan was amana to provide quote permission granted to construct when energy facility proposed ocotillo wind energy facility close quote that's not so that and as has been indicated the mere fact that it suitable means that when energy developed of some kind might take place after an e i athens done after a determination is made whether based on that fully informed information that's developed through the i m f the wind energy development that might be proposed would conform to the plan standards for the class felt classification that didn't occur here there was no to turn a nation of the classical stanage were satisfied and what we have is it a minimum inconsistency between a purported amendment which doesn't actually grapple with the inconsistency between a perhaps intent to give this project a pass and the fact that the plan stannard simply wouldn't allow it given the e i f is determinations that this would significantly diminished all of these sensitive resource values  the the other argument that the government has made is that the guidelines allow development of wind energy in class all areas if and that it may happen if there's any ins and our point is it doesn't say shall be allowed and since may and the idea here is that of course you want any i ask these are sensitive areas and if the i have told you that the plant standards are going to be violated then that proposed project that specific project could never be approved under this plan so on remand if the court is persuaded that there were mistakes made it's up to the government ultimately to decide water that the apical standards it looks to the sash during guidance it looks to the public comments to decide what this plan should provide but whereas here it's already determined that a class cell site should not be developed it would not attempting to usurp its statutory discretion but we are doing is attempting to hold it to the standards it has adopted in a formal public manner based on an e and what its told the public was going to do so if i could reserve change the class designation it could but it would have to go through the process because i think that that point underscores how formalistic th back countries challenge is here we know that b l m amended the plan to say this area is suitable for wind power and mr volcker just told you that b l m could have said this area is suitable for wind power and it's now designated class by or class am if it had done that their case would be their first slip my claim would be gone there'd be nothing left mclay there would be no basis for them to argue you can't do this in class sell because b l m would have said well this is no longer class l b l m didn't do that here because it did not believe me that when that this wind power was inconsistent with class but the but it went through the process of doing the plan amendment it went through the process of identifying all of the plan amendment criteria the public notice the decision making to amend the plan to save this area is suitable for wind maybe it should have included the magic words and it's also now class i didn't think it was necessary to do that but i mean if we're if that's all we're talking about and that's what the claim is missing those magic words agencies intent agencies reasoning in its path is clear here and the missing no magic words should not be determinative of the outcome but counsel i guess the big problem that i have is if the amendment to the plan simply suggests this project can be done here and now i'm supposed to apply the standards of a class else to this particular situation given all of the things that he cites in the past that where the government and the project coordinator suggests that this will be significantly diminished how it can ever reach class l well  the distinction between saying that an impact is significant there are substantial and saying that this will significantly diminish the class lan and the e i a s is thorough and it's comprehensive and it's forthright and identifying where there will be impacts and that some of those impacts are will be significant i think with respect to cultural values most of what that says is that there are risks there will be impacts despite the mitigation that the tribes consider to be significant and but the yayas discloses significant impacts but that's different than saying that class l resources will be significantly diminished over the whole five point nine million acres of class elements in the in the desert protection area where does this short as the d suggest that they're using the class failed standard i mean if you read the i as you read the rudd they're suggesting you haven't even used the standard standard you're using are the class size fand the rudd in a couple of places i got it you don't have the particulars i mean i can read the road again but i know i do write i do i made a long list of particulars here and i should use my list  address impact on multiple use classes on the various other resource categories and in discussing multiple use classes it explains what is the way that b l m interprets its plan and it says multiple class l says uses window energy is permitted significant diminishment resources have to be managed to the extent practicable or  consistent with multiple use balance so that the rod puts that to last on the language of the plan because that's how b l m inter milan it's a multiple use plan it calls for balancing the plan guidelines and to express picking up exactly where mr hague was just at for this case the relevant discussion from the record decision in which they discuss the application of the land use guidelines to this project appears at p s e r thirty nine through forty three and the based on that analysis and what the what the agency did as it went through and applied each of the guidelines looked at the guidelines as they applied to this project now a number of the guidelines don't differentiate across the land classes for example the native american values guideline apply the same to all four land classes and that's where in this case it's that e r want to leaven the comment in the record decision in discussion that discussion in american values pieces cultural resources are preserved and protected to the extent practicable where that's where that extent practicable that we heard in both these cases comes from that is also values wherever prudent and feasible if you look at the s t r thirty nine through forty three as it discusses the guidelines it does note guidelines that differentiate between the land classes and discusses class fell in the in that context where a guideline does differentiate now there is not the a robust separation out of that criteria of this significantly diminished rate area in the rod and that's because the agency interpreted the plan its decision criteria as what's found in the plan elements and then applied it in that way i just close with the observation that much of this discussion about how to interpret the plan has occurred at a pretty esoteric level and as that plan was actually applied to this individual project if you look at the modifications were made to this project to reduce its footprint and reduce its impacts those were the essence of multiple use management there are steps that may not have been taken if this was unclassified plans and those steps are what represent the agenc application of the criteria for class sell to this project through substantially reducing its scope to reduce its impact on other uses and value volcker me thank you donna very quickly we have addressed those arguments in our reply brief and pages nine to ten in summary below minorca tio quote the plans energy production and utility court orders element found at your fifteen seventeen to fifteen twenty which admonishes below to quote avoid sense of resources whenever possible close quote the problem with the reliance now placed on that language is that this language does not direct b l m to disregard class sales prohibition against uses that significantly diminish such resources it is rather general hortatory language that does not discriminate be let alone repeal the various class destinations that govern the type and degree of permissible uses the planets elements must be construed to harmonize and give effect to all of their words rather than create conflicts between them and we cite the native ecosystem's case for eighteen f thirty nine sixty the other point here your honor is that be a lemon ocotillo rely on the plans direction that quote all land use actions with any multiple use class delineation must meet the guidelines given for that class that city are fourteen thirty eight but they ignore the plans preceding sentence which states quote the class designations govern the type and degree of land use actions allowed within the areas defined by class boundaries close quote you fourteen thirty eight this language recognizes that land use actions must in addition to meeting the requirements of the class defamations that govern the type and degree of land use actions allowed within the areas defined by class boundaries also meet the guidelines given for that class so it's a two step process first you look at the class restrictions if you meet those then you apply the guidelines but you don't even get to the guidelines until you've determined up the class applies it's like the analogy between a general plan which made it an area for a certain intensity or density of youth and then if it me that criterion that you move on to whether this is owning allows it here we we have a government that jumped ahead to the final determination whether its guidelines might be construed to allow this project without ever passing through the threshold determination whether the planned standards themselves allowed it and they don't think your thank us will thank all counsel for the argument that concludes the oral argument calendar and