myself in the unusual position of asking this court to defer to the united states forest service to be precise i'm asking you to defer to the agency's clear unequivocal oh and logical interpretation of the farm bill set forth in the record for this case it's a well established principle of law they supposed a long line of u s supreme court decisions thought and in administrative record case your decision must be based upon the record before you and not some new record established in litigation and more specifically the four services interpretation of its own implementing procedures for categor are entitled to substantial deference from this court as noted in an opinion authored by judge of all and citizens committee versus u s forest service and yet the department of justice is here today to argue against the four services on official and detailed interpretation of the record in this case concerning the meaning intent and practical application of the farm bill categorical exclusion as it turns out the same contrarian arguments were presented to the th circuit and the case which post dates the lower court's decision in this case and the th circuit chose to follow the much more sensible course of holding in effect that the  bill categorical exclusion is a matter of law a categorical exclusion created by statute and not a statutory exception to meet them that necessarily follows from that sensible determination that the extraordinary circumstances review required underneath those regulations before taking advantage of a categorical exclusion is itself reviewable under the administrative procedures act as  and that congress has formulated that bet it could before services done it anyway without that without the legislation by rule yet by yes so what was the what was the purpose of the statutory empowerment than if the forest service already had the regulatory authority to do these projects i suppose to impress upon the foreign service  congress is concerned with on going up a democrat for the widespread epidemics and when that suggests then that the regulatory requirements of the exceptional circumstances  the statute that that frees the forest service from some of the regulatory requirements right and that's that's there that's what we're going to hear in a few minutes you know asking you what were the parts wrong with that exclusions so the forest service has consistently told the public in this case that the two projects alledged here represent the forest service as initial efforts to achieve the greater santa fe fireside coalition's goal to change conditions across a landscape of more than one hundred thousand acres  and the st question for the court relative to me puts up occasion in this case is whether or not the forest service was required to on consider cumulative effects as part of the consideration process or the scoping process or the extraordinary circumstances review process because in this case they did not but you agree that the two decisions concluded there was no extraordinary circumstances they did so they did by the chief judge him which was that it was done to him my question is why isn't that kind of undercut your argument well where we're basically challenging that determination so cuz it's all you're not arguing extraordinary circumstances should have been considering the potential for larger cumulative impacts when considering categorically excluding a project the difference between this case and and that the case  was that in boss with judge him commits had to sort of thier eyes well it's true that if there were theoretically a number of different projects in the same landscape then that extraordinary circumstance review would be adequate adequate safety valve for the forest service to be being required to consider those can one of the difference in this case is that it's not theoretical these projects are actually part of a larger project a program matic project to fireproof this fire shop to do these kind of treatments and over seventy thousand dollars acres of forest service lands in addition to treatments on facts review was not necessary because the projects are reasonably forseeable at the time the agency made the decision well we know from the record that at the time the agency made its decision there were already twenty million twenty one thousand eight hundred and ninety six acres of projects that were either ongoing or planned according to the forest service so that represents about twenty percent of the entire fire side and includes four thousand three hundred and eighty three dollars acres of the two projects at issue here so that's it's if the fore conducted yes and he is so is your concern that they were conducted properly and then you started citing the case and i never heard an answer to your question no it wasn't done properly so so what so both stoping projects and the extraordinary circumstance review of the projects both together and vog consideration of the facts scoping rules specifically size cumulative effects but often and in the case here in the scoping letters there's no mention of chairman of the facts and so then again the safety valve kicks in and under extraordinary circumstances fact that you have this larger project and because of the fact that the nepa regulations say that the forest service may not break of larger project down into smaller projects in order to avoid  preparation of environmental impacts then and that's precisely what's happening we the forest service has never pretended that these two projects are not part of a larger project but they have actually segmented that larger project down into these two and other projects and are trying to do find a categorically exclude them by not considering what are the environmental effects eliminating ninety four percent of all of the smaller trees on this larger landscape and then push by burning that will have mortality of another thirty percent of the large trees and then repeating that every fifteen years in an area that's largely road less and has never been not this is and it's not a new issue the forest service has tried to come tried to bring this project forward twice before and both times withdrew that because the regional forester said you're not considering the the impacts to the road to us here that's still the concern of the people that roadless area for recreation it's quite popular recreational area and it has it's unique in that it surrounds a wilderness area so it's potentially wilderness and oh my goodness hand out and the largest trees are over about two hundred years old which brings us to the other primary issue which is the old growth of compliance with the forest plan and there's no dispute that they are required to comply with the forest plan forest plan requires all growth planning of the project level which never happened here specifically they're required to develop in a in any project twenty percent of the project area must be if it's not if there is no  growth which they say in this case is the fact then they have to six plain how they're going to develop old growth over time with twenty percent of the landscape but are in service as it did and in this case the record is very clear that these treatments will preclude the development of old growth because there will never be enough trees to meet the minimum requirement for growth stands the record says very clearly these treatments are intended to keep the landscape in a mid serial condition and old growth only can develop in the climax and late serial conditions so the whole point of this project is to fireproof this fire shed by creating open park like stance the forest service has it's not all gurkhas there's not enough large tree is and yet the intent and purpose of the project is to prevent  growth and large trees so i would say yes they did consider the impacts of the project on the large trees and there they are trying to preserve some large trees however they say they say it's not over growth because there's not enough there's not enough large trees and then they're eliminating those trees that would eventually become large trees sixteen inches and under and so therefore there will not be a development of l habitat ogled habitat is more than just large trees large trees is basically a park and that's basically what they're creating here there's open park like conditions that will not actually be suited to the wildlife that depends on oprah habitat conditions for their survival and before you sit down is going one make sure my question was answered and so you do agree that the service performed in extraordinary circumstances review here or they they did conduct an extraordinary circumstances review but it did not consider the cumulative effects of these proud of this project in relation to combine to other projects ongoing in the fires and if i could reserve i don't you're here over time  good morning in may please the court eric grant for the forest service i'll start with the extraordinary circumstances review your honor it was done it's on for the hyde park project on pages forty five dollars forty six cents of the appendix and for the pacheco canyon project on pages fifty six dollars fifty seven cents on the other hand we did not brief in the district court and in our briefs here in this court a defense of those of that analysis of course our primary argument is as a matter of statutory construction for which we seek no  construction of the healthy forest restoration act that congress has excluded small projects like these two from the requirements of need and specifically this kind of project from the requirement of doing extraordinary circumstance but if you are combining merely a small projects all of which are under the the d maximum limit permitted by statute and  time there's going to be many of these within this particular santa fe forest doesn't that really not follow the intent of the statute i mean is that really just subdividing the it i'm just asking you the question on for a couple of reasons one i think putting whether extraordinary circumstances review applies i think we're all agreed that the statute is very clear that the projects like these are categorically excluded from nepa and and the cumulative impacts analysis the segmentation analysis nd i would say these projects are distinct there are maps of them on pages ninety four dollars fourteen cents of the record they're separated by several miles and for all of the plaintiffs allegations of tens or hundreds of thousands of acres of projects being done these are the only two projects that have got off the ground in twenty years and there it is the administrative record that supports the appellant's argument was made  there's all these other projects in the in the set of the forests that are either under way or big boy are you going over the past twenty years the santa fe fire shed coalition has been very concerned about catastrophic wildfires in this area which has the watershed for the city of santa fe those those are that's indicated on the maps i just cited and so there has been much discussion other projects planned or under way in the forest that was represented by the appellate your honor i am not aware of of the  evidence for the project we we put in saying that all the administrative records which were limited to we're going to look at it we're going to find zero support for the proposition that there are other some of those discussions are recorded in the in the numerous documents in the administrative record and does it support the large volume of projects that the appellant represented to us just no no it certainly does not your honor does it have any quantification to it at all i am not aware of of the qualification and again despite congress's twice and acting the healthy force read restoration act in two thousand and there is a on the ongoing completion of these projects no your honor there is not there is the project still under under way then it is still under way as we as we referenced in our brief there is a pending litigation in the district of arizona that has in joined some of the project area the pacheco canyon dollars is covered and one is not and i should also add that what is being stated what is not one of the two projects in part is subject to unfortunately i don't seem to have that right in front of me will find it in the record at some point is that in the record it is not your honor because the proceedings in the district of arizona have post dated the record arizona and that motion has been fully briefed and is awaiting to dissolve it entirely or just as it relates to the mix dissolve it as it relates to the santa fe national forest and other national forests for or basically having complied with the court's instructions to reinitiate consultation between the forest service and the fish and wildlife service and to reissue a biological so going back to the statutory argument that we diverted you from the statute does does it use mandatory language it uses appears to be discretionary language in directing the four service review here before service did in extraordinary circumstances review and i think your position is that they need not do do so but take take take in combination the discretionary language of the statute the regulations that apply to you know other categorical exclusion does that suggest that congress was directing the four service a do more of these types of projects but be at least conduct in extraordinary circumstances slash cumulative effects review your honor our primary argument is applying normal canons of statutory construction namely the canon from her cell of the united states and from dean versus united states that congress  when it deliberately omits a particular term from a statute in courts must not read into the statute that omitted term and what we have here is a dilute is a very distinct contrast between these two types of projects that stink is different from a deliberate drives you pointed out the distinction this project as different language the other closely related provisions in the statute but the difference was deliberate so you more between distinct and deliberate the you have evidence that this was a deliberate change well your honor i would i would respectfully direct you two capital b congress expressly and this is on page two and a of our statutory appendix congress expressly made those kinds of projects shall be subject to the extraordinar circumstances procedures established by the forest service and it did that in a nd statute in the healthy forests act and that is section six thousand five hundred and ninety one little d and in particular paragraph c four and that's on page thirteen a of our appendix and these are hazardous fuels reduction projects and congress expressly provided that the forest service shall apply the extraordinary circumstances procedures under its regulations congress did not do that for these types of projects these healthy forest projects that are under three thousand dollars acres each day that still require scoping regulations that's forty c f r section one thousand five hundred and one point seven and you can read through that regulation and it does not require extraordinary circumstance interview but because it required cumulative effect review no it is not your honor scoping is is the initial look at the project why the agency proposing the project to basically see see what we're doing here see what what are the options and of course the forest service did that with with respect to both of these projects pursuant to congress on page fifty seven dollars of the appendix the appellant's appendix so the the for i think scoping is is yet another example of why the court should not infer in extraordinary circumstances review requirement congress knew how to impose in this statute compliance with specific nepa concepts like scoping and  that term though is not unknown to other areas of the law it's defined in in black's law dictionary as an absolute exclusion from from an otherwise applicable requirement so that's of statute and in the th amendment was concerned that not enough of these projects were being accomplished and it wanted to speed the administrative process and so it removed from the forest service the burden of having to comply with these detailed requirements for tiny little projects like this that are extremely salutary in preventing catastrophic wildfires and in this case protecting the watershed of the city of santa fe hi and how does special circumstances and commute in the cumulative affects fit together i mean is  a cumulative effect a sub part of a special circumstance or is there is separate issue usually in a statute overnight in this case about cumulative effects and could cumulative effects be considered but i respectfully submit that a statutory exclusion is at least as efficacious and powerful as a regulatory exclusion and i see that my time has expired and i would urge the score to affirm the judgment  and as i'm leaving your honor i see that it's the pitch canyon is project is allowed to proceed and it's the hyde park project that's currently under the injunction from the district  i'll be brief your honour's on the issue of cumulative effects analysis under the regulations in the me regulation from c e q it says any may have a significant environmental effect now then you have to refer to that definition of significant and marmont a fact and it includes direct and druck and q mode of facts so therefore any find evidence in this record about all these other projects potentially underway as far as the concerned oh as far as the other products so the other projects you mentioned on the i believe that the it was the supervisor or the forest service official that's who signed off on the project in the record  projects respect with it and so it was the question was her locker wrong in the declaration that other projects were speculative yes ok i counsel your time's expired counsel are excuse s for the helpful arguments in the case will be submitted