minutes which will be handled by my co appellant this case involves a settlement between b l m and certain special interest groups regarding management of millions of acres of federal public land in utah after eight years of litigating the case only resolving one out of reason why that's the case and also discuss why the state has standing to assert this challenge if tomorrow the trumpet ministration decided it wanted to change its policies and guidelines regarding public land management it could do so and it could apply those changes in forty nine states but not you talk that is because the settlement agreement gives the special interest groups special veto power over any changes in policy or in regulations which are somehow viewed as inconsistent with they'd be done according to that and then if anything wants to change that they must go through the through the revision read the rest of the paragraph the last sentence in the paragraph after which there is a listing of all the things you pointed to that says nothing in the settlement agreement makes binding the aforementioned guidance it doesn't say that but those two statements can be read in concert you cannot both say you have to follow the guidance and the guidance is discretionary one of those provisions has to be read out and i think through as you continue in the paragraph and then specially look at the response briefing of the police and make clear that their position is that if any changes in guidance occur they can be applied outside of the travel management areas they can be applied here if they are consistent but if they are viewed as inconsistent then they will not apply and lest you go through paragraph twelve paragraph twelve requires any changes to be in writing and to be agreed upon by them but all of because it's because of this disclaimer the disclaimers are there but i think the of the language that say that the conditional language of they may modify i think the clarity really comes through the response briefing of both the agency and the special interest groups and which they clearly say that if any changes are inconsistent that they have that they may apply that they may be approved the settlement agreement made you modify there's there's no allowance for for federal for the executive branch to change its mind and automatically have that applied in utah that is only it will that only will be applied in utah if the settlement agreement is modified and that's all done outside of the context of the a p a which requires any binding roles be gone through a public notice and fall upon her saying it's a lot and right regulations change they cannot be applied in time if they are inconsistent then i believe the that please are clear that they will they will consider modifying the settlement agreement if guidelines change and they are inconsistent then the special interest groups are the gatekeepers i think that i understand the disclaimers are there but they cannot be read both to say you must do this and oh by the way you don't really need to do that as as is happening all year the travel management agreements are yes currently being implemented there are there ongoing in utah and so we haven't come the final decisions but the status currently involved in the process working together with the agency in two to conduct these travel matters well under your argument has any of them been vetoed yet have i'm not sure i have to sign off on it which you're arguing that gives them a veto power over new regulations or there haven't been new policies or regulation so another it has anything happened yet in regards that they have not they have not had the opportunity to exercise  ok can you off the top your head give me an example or how that might occur sure if if for example some of the specific guidance of that is cited in fifteen paragraph or in paragraph fifteen one of those memoranda two thousand and twelve sixty six if deal in utah or if the federal b l m decided that it wanted to change that guidance change updated guidance is supposed to be temporary so that would be an entirely reasonable thing to do if it were viewed as inconsistent then it would not apply here unless they got permission also like to discuss standing in the special the case that we have here is a special circumstance in which a state as a sovereign is particularly interested and has legal rights and interests involved in the management of public lands within its borders this case this court and the johnson versus lodge ninety three case tied in our previous recognize that a non consenting intervener has the right to block a settlement if it's legal rights are interests are implicated by the settlement and i think i'd like to briefly that discuss three points in which that occurs through the settlement agreement this is not a case where a regulated entity who is who received some decision final agency decision by an agency you only have those rights or are interest implicated at the end when that decision is made the state adult sovereign has special rights to be involved not only in the final decision but in the process leading up to that decision and there's three ways in which that occurs first  regulations then the settlement agreement itself in paragraph sixteen and that's on page eleven o two of the record states the state local counties will be invited to be cooperating agencies this gives them a right to be involved in in the planning process again it's an intro relationship between state and federal agencies whitman section two zero two c nine also requires that that when the state are choosing when the federal government makes plans or management that they must coordinate those plans with the state the governor's entitled to a consistency review whereby the agency has to identify any inconsistency and the to work together to resolve that finally in our brief i'll just touch briefly as we discuss more in our brief the role of the status or preservation act or your state's historic preservation officer of the ship oh to comply with the national historic preservation act this court in the problems and your case recognized the relationship between federal and state an integral part of complying with section one of six of the n h so as a coordinating agency as a cooperator as as an intro part of the ship a process the state has rights not only to be involved at the end of the day but to be involved in the decision making process itself and the settlement agreement fundamentally alters that if i could just make one last point and then i'll see the remainder of my time flip mud the multiple useful mandate under flip my is a balancing act of play among competing and but equal interests for any management of public land deal i am should sit down and look at the options available to it the highest use of of a piece of public land maybe grazing it may be recreation it may be mineral leasing but this is a choice among equal options all recognized as valuable by congress the settlement fundamentally alters that paradigm instead of deciding among equal options same first look at wilderness always look at wilderness regardless of the parcel you're looking at wilderness becomes the first among equals you always have to consider wilderness yours have to be wary of any options that might impair wilderness i believe it's against anything happened that has harried the state's interest but as yet the state is currently involved in that process we believe the process itself is illegal it increases exponentially the burdens on the state it forces us as injury the involvement itself is not the harm it's not the injury it's increasing the burden to be involved and it's forcing us to be involved in a process which is illegal and against apollo it might increase burden you have the authority to exercise and be involved going through i mean that's what you're supposed to pay attention to in regards to that if it meets your input you give your input and you have the right to do that correct so obviously been burden of years and say well i have to look at it a little more closely it's not just look at it more closely but it's look at it in ways are a legal and against public policy valid existing right is one example of that to say you have to show a purpose a need for all valid existing right and so it's not just you need to be involved but you have to you have to go through hoops which are legal and against public policy and that's as going back to again focusing on wilderness i believe it's against public policy for any special interest either clarify for me or make it where i understand but can you point to an exact place in the settlement agreement that contains new subs new rules that could only be promulgated through an problematic to say that you have to consider wilderness character is problematic is a different thing your argument that the a p a notices that the settlement agreement requires a rule making process which th really i think paragraph fifteen is the core of our rule making process but i think that is not the only fatal flaw within the settlement agreement with alfie the remainder might thank you thank you implemented this case is unripe because the state and county challenges to the settlement agreement concern exclusively the interpretation of the settlement agreement itself and how will have made no final agency decisions that will have actually implemented the settlement agreement but you're implementing it in other words the agreement is moving forward and that's what they're attacking so if it's not right it didn't be attacked yet but you're implementing it moving toward a final product to come out so in another itself it would be right then respectfully your honor i disagree and that's why and that's because of the nature of the challenges that the state of the counties spring so if if the state of the county simply has said the fact that you're implementing the settlement agreement is what we challenge in and of itself and perhaps identified some other flaws with the settlement agreement i hesitate to speculate on what those might be but what they've seen in the counties a challenge here is how i feel i am will interpret terms of the settlement agreement when it actually adopts route does nations and travel plans b l m has not as of yet made any decisions about how it will designate particular routes or how it will account for wilderness characteristics or other resources of the public lands when it adopts certain travel management plans decisions whatsoever now to help me out again here so you're telling me that this settlement agreement does nothing more than involve travel management plans the only components that the state and counties have challenge involve the travel management plan components and so that while the settlement does extend beyond the scope of travel management planning to seeing the counties not challenge the those other components so i prepared to state and county challenges really to how b l m will interpret or implement the v new it's a process required by the settlement agreement settlement agreement requires the airlines to consider some of the disputed components of the settlement agreement require b l m to consider potential route doesn't nations impacts on wilderness characteristics the settlement itself does not require b l m to close any routes if those routes damage wilderness characteristics has implemented the settlement in an unlawful way so for example let's take this in the specific context of the guidance issue that my friends raise the if b l m implements in new travel plan and states we cannot follow new administration guidance because in paragraph fifteen in the settlement agreement which made previous guidance binding then the state would be able to challenge a new travel management plan and allege that that travel management plan had relied an appropriately on guidance that was elevated to the status of a rule and that should have undergone notice and comment rule making until b l m actually makes a decision implementing a travel management plan this court lacks the relevant facts to be able to discern whether the settlement agreement is lawful or not and so finding that this case is or that the challenges raised by the state in the counties here are on the right both preserves judicial resources because it doesn't waste at that time and the issues will be focused the factual record will be established and the court will actually have something to review again it's just out of curiosity when the settlement plan was worked on and all of you were sitting around the large table systems of this court mediation office all of the parties were involved and the fact that the settlement is fair and reasonable unlawful is reflected in the fact that we have numerous not only diverse but opposing interests who both signed on to the settlement agreement and did not oppose it so for example the state trust land administration did not oppose a great meant and participated in the negotiations to separately represented oil and gas industry groups also  settlement agreement and we have the recreational vehicle user groups who who agree to sign the film an agreement there is a broad consensus reached on the terms of the settlement agreement and for the court to disturb it would mean that we would go litigating an enormous case both in district court and on appeal our appeal would be reinstated the district court litigation against five other resource management plans a travel meant travel management plans would proceed and given the lay of the land at the time that we decided to enter into the settlement negotiations b l m had obtained a a burn some remedy order from the district court that would have required it to spend three million expend resources employee work hours etc in order to be involved in the settlement process predicted those asserted injuries are not sufficient to support standing for the simple for two simple reasons one operating costs are not sufficient to say two to demonstrate an injury that would allow standing to challenge you know any sort of federal action and secondly if there were some costs or resources that were to  extent expended that were beyond just normal operating costs it is the state in counties burden to submit a declaration demonstrating what those are and they have not met that burden here at no point have the state or the county submitted any such declaration to challenge the settlement agreement i would like to briefly address the the suggestion by my friends that see some agreement create substantive standards for managing wilderness characteristics overview of the language and well before you go to war to go back to the point of their argument that the agreement between sue art and the billiam get a slew of the authority to to veto ultimately any decision that they might not approve of in regards to the changes or the final recommendation of the final report that you might come out it absolutely  which would hold up or not but if they say we want to sign off you're involved in a lawsuit right you know we're on our end of the settling party if there is no daylight between the settling parties then on the meaning of paragraph let me be clear of the settling parties i don't expect that i'm talking about what the state of utah and they're arguing that in essence the agreement and i'm bored riscoe was a while ago when you look at it appears that they don't have that authority but the authority does lie that they can refuse to sign off and then where are you you're arguing over whether or not the settlement agreement will promulgating emmanuel's the last sentence at the end of paragraph fifteen is best understood to refer to the fact that should be l m implement new guidance the parties may agree to modify the settlement agreement to reflect that guidance but that does not under relevant laws and regulations and states and nothing the settlement agreement relieve b l m from complying with its obligations under the statutes to provide the the environmental groups a veto would arguably violate the a i'd also like to point out in it's important to note that the district court doesn't actually have any unforced minister already over many of the most of the terms of the settlement agreement that this report only has in force an authority over the deadlines in this agreement to the extent there disagreements about the meet the applications the guidance the court would have no authority over that's there's really no way for those components to be for the environmental groups to have a so called veto power unless the has any other questions i would like to yes the rest of my time thank you i please the court robin cooley for the environmental appellee it is not every day that you have b l and environmental organizations and three off highway vehicle recreation groups sitting at the same counsel table approve and that's just paraphrasing what i saw in this settlement agreement if you do if you're grieving that it has no effect then why even have that in the contract to begin with if you don't have some if we want to be able to modify the remit is the let's say they come up with some new policy that they think is better than i am twenty twelve sixteen and it it sets forth a procedure that makes more sense then we want to have the ability to bring that into our settlement so the language has meaning but we are in complete agreement with the federal government that it does not mean that we have you topaz or over what the agency can and cannot do and i think that let me give you an example because this is a travel management plan that believe because of what maybe it transpired before on a possible right of way as told the state of utah that they can build a brand new highway through some wilderness area travel management and you say that's in violation of agreement and we're not signing off on that do you have that authority grows that clearly contrary to what anybody would expect maybe th we're having over what the o m might do in the future how it might affect guidance documents all of that points to why this case is not right because as this court said in utah versus department of the interior when sewell was trying to challenge the wilderness settlement which is an agreement reached between the state of utah and the b l m when there are these sorts of questions the appropriate remedy is to allow the settlement agreement to play out on the ground see how it impacts the parties and then if the state and counties are impacted by those decisions they can bring a challenge at that time so we would urge this court to follow that utah we're joining with the other counties in the state of utah i do want to tie back to one point that counsel just made it is not every day that the united states and the environmental groups sit down in a room and make an agreement and i think the context for that should be read by dick candid admission on page eight of the united states brief they couldn't comply with the remedy in order the district court did not just send this planning action that to  the district court ordered the united states to take discrete steps the united states appealed the decisions made by the district court the first time sought relief as nest day of the remedy order at the district court sought relief at this court and was denied and it's right there they couldn't pay for what they were ordered to do they didn't have the money and so they went to mediation porto's you bring me right back to my initial question of of writing this and it makes sense for us to be able to release me to get my arms around this to have more information about what possibly can happen under this agreement but it hasn't been played out yet and i don't know well the fact to the right is question is it really truly right for us to do anything to this argument at this time yes your honor it is because it of course they're go comply with the n h p eight to comply with the regulations what we've challenged is the extra add ons that the environmental groups put on the b l m and i can interpret that paragraph fifteen that's been discussed by this court the seconds last time it says they can adopt new policies the last sentence of paragraph it seems as one apply in utah that's the thing that is really at the heart of the challenge by the state the counties is that they the united states did something unique and special for utah just us so on the merits one of six resource management plans with found to be deficient under the n h p a and planning regulations look at the record wilderness environmental groups to say that they should settle and your honor judge briscoe you mentioned about the something about being in the same room or where we invited i had to threaten to get in to it there into mediation and to say that we were in the same room misstates what happened draft was out and i please i trying to be careful of the mediation rules that are there but we had to threaten our way to even get invited to the to the proceedings that it's something i mean it's not unusual in litigation when you have a situation where there is a court order or some event and the parties get together and you know bargaining occurs and i may not of there may not have been a wilderness characteristic claim in this or these one of these many suits that were pending but the fact that it was involved in the negotiation and they part of the settlement is not unusual but i understand your honor and i've represented clients know situate how it works but this is the united states government is that how the united states government works it gets into some situation where it gets held over a barrel and in is it state candidly we can't comply with the district court for emitting order and suddenly a special interest group that has had one item coming back to this court time and time again has its day i mean it there it is and so now there's a different government regime from of the lamb that is right now being have to be complied with by the state and county of the united states acts as if the state and county can choose whether to cooperate b cooperate in agencies and participate utah's sixty six percent federal land the counties are represented are over eighty percent federal land these resource management plants last for twenty to thirty years they don't have the option of just sitting this one out and waiting to see what happens they have to do it and they're not complaining about complying with the regulations or flip thank you thank you all for your arguments this morning case in that it will take a ten minute break at this time when we return we'll hear arguments in southern