i'd like to reserve one that in my time bravado before the court is the validity of the colorado growth rules ski area exclusion which for the first time an agency history removed roadless in fact parcels from the nations situated industries without any explanation whatsoever in the record for that disparate treatment suck at the forest service abandoned its a long standing and uniformly applied for seizures and policies embodied in the agenc own handbook again without any explanation in the record and third despite receiving numerous public comments raising significant concerns about the ski area exclusion and the precedent it sets for national ro in tory management the forest service did not even bother to respond to those comments let alone acknowledge the fundamental shift in management resulting from that exclusion under this course precedent any one of those reasons renders this decision arbitrary and capricious turning first to the disparate treatment argument i'd like to point the court to j forty eight and that is the colorado where little preamble which was the vehicle by which the forest service told the public what it was doing in this regulation when faced with a request from the oil and gas industry to remove roadless in fact parcels from the objective roadless inventory because that industry viewed the parcels as parcels that had hired attention for development the forest service made two key findings explicitly in the preamble in rejecting that requests first the forest service  inventory procedures follow forest service handbook nineteen zero nine point twelve land management handbook procedures and quote meaning that the handbook at the service has abided by for many decades is what constrains the quote we quote whether or not an area is identified as having high natural potential is not an inventory criterion and quote so the forest service on a day to asli and unequivocal rejected the oil and gas industries request to remove roadless in fact parcels from the objective roadless in tory because the fact that an industry views parcels as having high development potential is not the relevant factor for making decisions about the  same room and the forest service granted a functionally indistinguishable request from the ski industry to remove or a listen fact parcels from the you've got to listen tory because this he industry sought those parcels to develop because they saw them as parcels with high development potential for ski related activities no where in this record did the forest service even attempt to reconcile this this this damning fact and this is a situation under this course long precedence which we've cited more than a half dozen including some the members of this panel have been have been part of in which the d c circuit has said when two similarly situated industries as situated under a particular regulatory are treated differently and in fact not just treated differently but they are different legal standards apply with no explanation in the record for why that disparate treatment occurred this court must vacate every man for the time the state wants one and not the other how do we judge trial and all that certainly one of the few reasons that the forest service has has proffered here but as we've explained extensively in our briefs because the forest service has given the the answer in their record which is what this case has to turn on because it's an a p a case the answer in the record of j a four eighty eight in the colorado roadless rule preamble is the handbook is what governs our roe listen torie management in the procedures and policies in that handbook govern and thus what a state or an industry might want to develop  because they think it has high development potential is not a relevant factor this is not a criterion on which these decisions can be beds so we have to take the government at the word that it's we're in the record that's what this case is based on and not government councils post hoc rationalization it's not any other answers they might go but the handbook in the procedures that have a long applied and have been applied uniformly by the agency through the over four years of managing our national forests when the court sent here the decision and it makes sense is that there's not a disparate treatment problem here because these industries are very distinct well judge brown that there may be some abstract differences between the oil and gas industry and the and the ski industry but in so far as they are regulated pursuant to whether this handbook applies and whether roadless inventory procedures apply they have always been treated the same as every other industry wishing to develop in our national forests and the forest service regulatory scheme is applied there are essentially two questions at issue for the first is what lands what parcels are in the roadless inventory and here are two for it's always been objective and based on the same criteria then there's a second question of what types of development can occur area rather than what they tried to do here which is allow those political and economic considerations to for the first time ever remove parcels roadless in fact parcels parcels the government can see and are not degraded from the tour to satisfy requests from a state or an industry they base it on irrelevant factors they get made in the record which again has to be the touchstone for this court's decision at j a for a b a that this the development potential sought by an industry is not a criterion by which these decisions can be made so it would be contrary to this court's long line of precedent in disparate treatment cases to to allow the agency to to come in and deviate from its past practices past policies and  not a stray stated by the agency this was an explicit a finding in the colorado world which will preamble after a six year will making process this is how the agency communicates to the public the reasons for what it did and why it did it so this is a formal pronouncement in the record which this court has to take into consideration in making this decision in addition to that there are over a dozen places in the record where the forest service does own documents make absolutely clear that one handle yes they have a cell so th four twenty nine that's only in example all the places where the forest service is own formal guidance formal memorandum of a memorandum about rules in the torah procedure say this handbook applies and its criteria are what do you limit the scope of which parcels can be included in are included in this inventory so we have extensive record of it's consistent over the course of many decades saying that these are the criteria by which these decisions are made and i think it's quite instructive that not one place in their briefs have the defendant been able to point to a single instance in the forty years that this agency has managed the national forest and the listening torrie where the forest service has ever accepted a request to remove a roadless in fact parcel from the objective roadless and tory it's never happened robeson fact is a description of using the criteria that the service has along used and when they have found an area roadless in fact meaning it meets all of the list criteria by which the agency has operated for forty years and again which they've said in the record many true that this is a standard which they have uniformly applied over the course of many go days in the record has extensive evidence about there is no there is no time before the skiri exclusion of the colorado roadless rule where the agency operated by any other criteria and in fact i think the key thing here this is an e p a case and what we think is crucial is they have not even attempted to explain in the record why they treated these two industries differently why they departed from the law in the handbook criteria they met in over a dozen places governs and in fact they did not even response a significant public comment saying this is a fundamentally different way of managing the national forest and we want to know what your basis for doing this is and there was no explanation at all in the record  goes in the inventory and actually managing these forest lands i mean you seem to be complaining the fact that they have criteria for deciding what goes into the there and subject to what limitations and probations that's what the forest service did in two thousand and one that's what in two thousand and eight the idaho roadless rule and then here for the first time ever coming in and taking a very different tack there's a lot of the considerations they ha lost secondly it's the services handbook and it's us that ultimately makes this decision so they wouldn't be bound by correct well judge brown as as this course has long recognized a we have the agency not responding to comments not applying its handbook and then taking two industries and treating one one way and one the other with no explanation at all in the record this is at bottom a situation in which we coal mining industry has leases in colorado the over a lot with with with the roadless and tory so the ski industry was not unique here and that's what's key to this disparate treatment argument in so far as regular the scheme is applying to different industries they all come in essentially in the same posture the coal industry the oil and gas industry isn't it true that they don't have this particular situation when the business areas were first math was historical data and now there's this much more refined g the i don't think i don't you can best be in argument that the government has given and nor could they because again their position longstanding position in the two thousand and one roadless area conservation rule two thousand and  again in this decision a j for a da is that the decisions of whether a parcel is meeting all of the standards and criteria to be in the objective or listen torie has nothing to do with whether it's the industry which is to develop there has nothing to do with whether the oil and gas industry wants to develop it's a decision made based on the condition of a parcel on the ground it's a factual determination based on specific criteria and so the fact that an agency would like to develop there the fact that they may have a lease or a permit or some other type of development approval has absolutely no effect on threshold question is this partial in the inventory thank you you thank  of agriculture adopted the colorado wrote this rule that rule includes a very narrow ski area exclusion there are moves eighty three hundred acres from the rose inventory that are either either already subject to special use permits for the ski industry longer have to consider the roadless the characterization of lance as roadless there yet is their inclusion in the road this inventory to the extent of these lands have characteristics or undeveloped characteristics and those will be affected by the project but the new process will still have to consider the effect of the project on those issues to the extent that some projects put forward it will fecht the roads are undeveloped character of the land and the forest service fails to consider that harks park and the other  proceeds without analyzing those issues underneath but it will be doing so at its own peril now i think there of the theme of their argument least here today and in the briefs is that you're treated to industries that are similarly situated to spur leave her right political reasons or other reasons related to the state's interest yes yes your letter is one of the first of the big picture and then responding specifically on the forest service to manage these lands for the roadless or undeveloped character this is something that they do as an exercise agency discretion to be good stewards of the land but connections never been absolute they always balance that protection with their mantra these lands were all the purposes that are authorized by congress and those purposes as you know include outdoor recreation it would be really helpful here a focus on contentions that the hammer has been deemed by your client have always included exceptions for different histories so turning now to the idea of the oil and gas exclusion this is not an idea i do want to fall for that before you get you have to don't question which is so this is not a sea change in your a sea change in my opinion the two thousand and one national road this rule has exceptions exceptions that are tailored to different industries kahlil of colorado of this rule has other exceptions that are tailored to other issues water projects power line construction in idaho so first of all central to their argument is that these are these exclusions are the same that that's why i had to explain why they were treating these same things differently but of course the solutions are the same person all these eighty three hundred years sixty six hundred of them are need it because there's already a process for oil and oil and gas leases and a lot of these lands are all recovered by leases this is not important to us now that section that discussion begins with a citation to the forest service hamburg from among you should turn management of the road the inventory doesn't get driven the management of the science that tells you how to build the inventory so what is the sort of what is the u s d a saying here it's saying look let me explain to you why these oil and gas lines are in the road of this inventory to begin with because oil and wilderness the hammock only mentions the roads in and tori at all in passing it doesn't tell you how to manage through this and then tori it never says well if something's in the inventory it's objective romas in fact you may never remove it from the  doesn't address this issue at all now i am opposing counsel is a long series of record sites i can't we've all through whatever they cited in our brief in our brief i can't respond to the mall today but it's never been the policy of the u s d a or the forest service that the forest service handbook governs either the practice of managing road this inventory or what has to be done with the road listen torie later these lawyers have been inventory and that's the end of the hymn books role here the question what to do now is an open question what the agencies did was they balance all of the uses that congress has authorized and they made it a a judgment this or that congress and trust to them that these acres should be excluded because they are already being used for developer creation or their plan to use them for developer creation because the state of colorado asked for them because seen as important it's an authorized use of these lands by congress comments on this here exclusion the record cited as c r r one five two four four four to forty six this is part of the final environmental impact statements response to comments section it's you know hundreds of pages long and that's those are the this record information both challenge to the approval of the per pound eagerness trail and if you look at the analysis underneath but that the service did of that project you'll see that they look at those criteria what are called the rose characteristics to see how the project would affect  and so in the new need the process they will be personally required to consider the effects of a project on the road this classification but they may depending on the project still be required to sort of effects on those change in national roadless management occurring here but if you look at jay's seven fifty nine in decision it shows the concrete ways in which the agency refuses now to do an environmental impact statement into look at these issues in your fears is going to be replicated over and we explain that at the beginning of our reply brief the first five pages second of all i'd like to again point the court back to two specific sites today two hundred in jail for twenty nine which explicitly say there are quotes i don't have time so i will just paraphrase forest service say in their  formal memoranda and go and guidance that this handbook applies to road listen in tory procedures not just the the inventory itself but also the management of it so i would refer the court to that and finally since time is now done especially given how confounding some of the answers were from opposing counsel and since none of the answers that were given by opposing counsel were relied on as reasons for this year you solution itself in the record which is what this court's decision must turn on and especially since there were comments from the public they have never been responded to colorado all yes your honor and so what will the agency has done by for the first time ever allowing an industry to come in and ask for a particular exception not to question to how do what how can we develop and subject to what limitations in an in can line up because any state can petition the forest service for a state level roadless rule of this kind and so now what that means is that any state governor who comes in and has a preference for any particular industry or any other type of activity may now lobby for that type of exclusion and it will be based on those particular weapons rather than any kind of specified criteria any uniformly applied criteria that have been consistently applied by the agency would rather see this you make i know you said the major pati all of those are issues that anybody else's would take up and so when once there's opportunity for one comment underneath that any comment going to any one of those would be the agency conducted an environmental impact statement which is a far more detailed assessment of environmental impacts than the much lower your called an environmental assessment and showing this in concrete form is j seven fifty nine where my client raised in the context of the  designated inventory roadless area so not only are they not doing any i asked now but they don't even look at the irretrievable development activities that may have render a partial not only no longer roadless in fact but not even having the potential to be added as a permanent wilderness area by congress in the future so it's really truncated the need for review and taking away the ability of the agency to look at these issues and to disclose to the public when these impacts will be to two quick questions who would suppose it's the first time we agree with you it's the first time what's wrong with the agency doing something like this for the first time in the exercise of its broad discretion granted to it by congress in this area well as the supreme court has just because an agency has broad discretion when an agency has adopted a longstanding course of action then applied consistently procedures throughout that long standing course of action a deviation from is never the less arbitrary and capricious one that can't be right that it can never deviate carve out an exception to a to a previous policy well and we would change in course yes i mean we think the record here is absolutely crystal clear about the fact that the procedures that are in place applied for or for decades they again that commenters raise these significant concerns and the forest service didn't even bother to respond and the second thing big picture question which is congress has troll lines all the time when they delegate a massive delegation of the agency the agency in turn has to draw line between skiing and oil and gas don't we have to be quite deferential to that kind of mind drawing when there is no specific statutory guideline against which to measure that distinction we'd be in a position to assess that the agency never actually looked at the two things together even though it was in the same rule making they said we are we are we do not have the ability to do this for the oil and gas industry because the development potential the parcels knowledge criterion for this