oregon is a place so unique that congress twenty years ago decided it should be managed in a more protective manner than surrounding public lands directing b l m to manage the mound to protect its long term ecological integrity above all elam's failure to prepare and yes for its motorized travel plan was fatal underneath not just because steen this is an ecologically critical area but also because of the extraordinary controversy and if the proposed action could significantly affect the environment the result of the uncertainty here is that there is simply no way for b l m let alone the public to truly understand the environmental consequences of maintaining or improving or closing hundreds of miles of so called roads b l m decided to designate for motorized used and mechanical maintenance and there's no such serious dispute on the record here about the negative effects that roads can have on wild lands and on wildlife habitat it seems to me that the dispute is where the roads are and what they are that's exactly right your honor and in this case during the nepa process beginning more than a decade ago on doe went out and using b l m zone inventory protocol and forms and methodology surveyed more than two hundred miles of roads because on to suspected based on its long in understanding and enjoyment of scenes that a lot of these roads didn't exist at all or if they did they were so primitive and had been naturally reclaimed through nonuse over the deck it's that is one size fits all existing roads assumption just didn't comport with the reality on the ground here i have a sort of question about the sort of structure of all of the arguments in that case if we were to agree with you that there is an inadequate baseline description of the environmental conditions of the roads or purported roads and that has is sufficient to assess it because it i guess i just don't see how if the analysis is sufficient to determine that then i don't see how you went on the baseline context was impacts to a local population of wales off the coast of of washington or like in the national parks case that we cited but the d c circuit decided last week the context was that historically important so another player into the same question you then after the deeper analysis have a series of substantive arguments do we need to address those if we were to in one way or another in terms of what it is they have to be looking at i think the court doesn't necessarily need to reach the scenes act on the federal land policy and management act issues if it decides the case on the basis of one or bo doesn't have to be on the craft that is that you have impact on what going to be analyzed in the n e i ass such that you need to know the answer to that question you to the national parks case the d c circuits decision from last week where it decided in the i asked was necessary and the fonzie were insufficient or didn't he i asked but then to go on to interpret the meaning of one provision in the preservation act it was at issue there in order to as it as that court described to facilitate the corps nepa review in its yes that was ordered by the court so i think this court could take us the same path and decide that b l m violated by not preparing any i a s because of the uncertainty generated by the incomplete and inaccurate baseline and things however they become the ground our roads for scenes at purposes because their historical record of them and therefore we're not one of their arguments is we're not actually changing anything by our just station in there and that seems to be a ground level part of their of why they say there's no significant impact so how without matter of record definition of a road in two thousand and fourteen was reasonable or not i understand that but what i'm trying to understand is is had it interacts with the nepa now well it's almost step to your honor because underneath it doesn't matter what the definition of a road is it could be anything it could be a matter of record but underneath but the key is that b l m needs to go out and take your money on the ground environmental  are twenty fourteen definition of a road as basically anything that exists on paper is the definition then they environmental assessment or yeah says he even brought her because it means more things are roads than are actually found on the ground so i mean it almost increases the task of determining the environmental impacts rather than the crucis that's right if anything it does increase the task and i would play with the court specifically to e r ten twenty seven that's the two thousand five general land use plan for scenes mountain and there b l m to find the road is something that is maintained for regular use and can be reasonably and prudently driven now if you compare that definition to e r volume four which is on does example excuse me that example record of eighty or so different routes a lot of those photographs show places that simply cannot be reasonably and prudently driven at least not with i said relation about the maintenance level  the government more about that then is there any other authorization that's needed you know could be l n just go and take any of these anything that it doesn't needs to be a road and  everything off and make it into much more sophisticated that's correct in the situation and there's no other other process that needs to be gone through that's right in the order was it was issued on the work was done so that's why this this really is a critical piece here not just with regard to where vehicles are allowed to drive but absolutely with regard to the maintenance levels that are authorized has specifically suggestion or has anybody different levels of maintenance for different kinds of religious yes although on does that i would say on his focus has been waiting any maintenance at all on the most primitive routes another while in other words allowing them to be maintained by usus as people travel on them as opposed to the types of far more significant maintenance that we saw on earth car road i saw the photographs and figure one of the brief that there was hardly anything there at all before that work was done it was a dramatic change and that comes from it comes back to the fact that these are significant environmental consequences the degree of controversy and uncertainty or so great that there's no question on these facts in this particular place thing that feels like a point to me in this case so far is that the controversy over the debate has been around whether the baseline  account of the romans is sufficient but it seems to me that has to be with her some reference to what it is you know looking at and on like most environment ok since you're just seem to be a focus of what the environmental concerns exactly are i mean there is some just question of sage gratis but that's a bad but that's not really the focus so i and i'm having a hard time understanding what it is you're supposed to be looking for i agree and i think that stems directly from the fact that b l m used this sort of existing roads one size assumption whereas if the agency had taken a more granular look at the actual baseline condition of each of the routes it wanted to designate for driving or for maintenance then the agency let alone the public trying to review the agencies work but what about the what's the subsidy of standard ultimately what is one of the environmental concerns they're supposed to be looking at please the court all met for all of for a hearty county i'd like to try to reserve one minute my time for buttle if i may i'd like to start by briefly reminding the court what we're talking about here we're talking about one of the most remote and desolate regions of the contiguous united states we're talking about a county with eight thousand permanent residents we're talking about motorized roads and trails that are primarily been established through the passage of vehicles and not bulldozers bulldozers or asphalt trucks and i think really the fact that many of these  roads he'll each season three growth of vegetation is something to celebrate and not litigate and in fact is on to emphasize in their briefing that their need to claims must be analyzed in the context of substantive law here the scenes act i would ask the court to really take a close look at the act itself we've provided the court the legislative history of the act in the fact that it was intended in two thousand to be a new way of doing business by the clinton administration and as  representative walden's that it was written by the people most effective and as representative to fazio's emphasized those same people were significantly impacted by the legislation they traded thousands of their acres of land to be able to facilitate the creation of a wilderness the first of its kind hundred thousand acre no grazing wilderness they they agreed to close over one hundred miles of road in that wilderness to create it but to find that cooperative solution for the community and all the adverse interest holders at stake they negotiated in the final compromise version of the bill that we provided the core specific protections against any kind of road closures or road use restrictions in the comprehensive management area i mportant negotiated protection that was really important to the local stakeholders important to the county so i want to i want to look at the act here with the court for a minute plaintiff talks a lot about section one  two a which this explains the purpose of the c m p a to conserve protect and manage a long term ecological integrity but section want to be states the objective is to further that purpose and consistent with such purpose the secretary so manage the sea n p a for the benefit of present and future generations to do among other things promote grazing recreation historic and other uses that are sustainable and to ensure the conservation protection and improve ecological social and economic environment and finally to promote and foster cooperation communication and understanding to reduce conflict on the mountain so that leaves section one thirty one the  ut there how many roads and what is the character of the rose that you think should happen klaus you know for right now i'd really like to focus on that we were complaining that the bill and did a gold standard pro recreation plan decision was made to close routes which was not done in consultation with outlets so how many rents are there and i think there's about roughly twenty five to thirty miles in play as far as what was closed in the locate on the ground i mean they disclose that as part of the environmental baseline and that's really the key here as far as what was disclosed in the original plan is that the beal in more than adequately disclosed the baseline and it was more than adequately open to the public there's tons of public was an extension of an offer of compromise to plaintiff and we disagree with that we think that it shortcut it the advisory council process but we wholeheartedly support the advisory council process that occurred and inventorying these routes it was it was a gold standard public process unanimously by by all four of the members of the organs governor appointed to the advisory council including two environmental groups stakeholders that a democratically appointed elected governor in the state put on that advisory council they all agreed with it nobody disputed there was no controversy about the route network the only person that disputed it is the plaintiff given to the advisory council to try to decide whether to do this the advisory council asked for more time they were not given a chance to make formal recommendations as they did for the truck transportation and that's really what we're complaining about in that particular sense is that they didn't give that so what would be the correct if we agreed with you that the consultation which they had to happen was inadequate what would be the bottom line have a following question if we were to agree with the plaintiffs that the me pat analysis was insufficient would this consultation automatically occur again when the new  process began or not that is is it would there be an s s city for a separate consideration of your concern in that event asking whether whether he would even have to reach your claim and so far as it is a separate complaint about the result that occurred here if the if the whole thing were going to be done years not been allowed well i understand that but maybe we're not communicating because the premise of my question and i'm not saying that we've decided anything i'm just trying to figure out how we would structure a decision in different circumstances one of those circumstances would be if we were to agree with the plaintiffs and send it back for a do over wouldn't that satisfy your interest in being consulted again because wouldn't that happen as part of the process or am i mistaken about that i think it depends on the grounds on which you decide the case i mean because if it has to do with the question of the existence of the routes and there's any prohibition on the that congress is very clear that no no public restriction on the use of any existing roads will still occur and this idea of a referendum on these types of routes that are players are trying to occur we have here it's just it's inappropriate  improvement are that are the two things are supposed to consider before closure i mean congress an improvement i mean there's nothing that stops the feeling from that what i'm saying is it seems to me your position is that they can't close any rounds no that's actually not  in fact we've been taurus the visor council invited people to be requests route closures based on site specific conditions that unanimous unanimous among everybody on the smack including the environmental interests to request that  council yes we're comfortable with the advisory council giving good advice on whether these roads are important to all the varied interests that are on the site exactly happened here yet years they did you just saying that they went good morning your honor may please the court sean martin from the u s attorney's office for the federal defendants and brad grant him from the interior solicitor's office at counsel table the court now is the focal point of this appeal is the i b l a's two thousand and fourteen decision on the legal issues that the district court reminded for its consideration that right or is the focal point the  three three sixty six yes i know ok does that answer your question your honor well somewhat but that you're essentially saying that we're reviewing i think ten appellate decision  impact statement is going to get done and it was it just that the agency has now gotten the appeal it aboard is now going to rethink the the two thousand and seven analysis it would likely would need to go back to be allowed to depending on where and where the court comes out if there's if there's a belief by the court that there you know really needs to be photo points you know at each segment of each route across the intensity factors and its two thousand and fourteen decision and that think the context and the intensity required any i os than it would need again we need to be at square one your honor but if i could follow on judge graber your clear that if a project basically amounts to a status quo or conforms with existing land use patterns that favor is preparation of any and and i would point out that on to through its council in it comments on the way back in two thousand and seven took the position that that b l m quote would do almost nothing to change the existing situation and seventy nine and that the b l m proposal separately in the same letter would quote would be quote essentially a no action alternative so what that tells us is even back during the process for this travel management plan i wasn't going up the baseline and had a closure alternative that it wanted b l m to to adopt and the record shows us that that b l m considered the odd alternative in detail that was alternative c now in terms of the  recognizing that with reference to sage grouse and this discussion the i believe discussion regarding sage grouse intensity factors that you are to seventy one seventy two is that you have primitive roots that are a little used that are closed cathy year you have large blocks of undisturbed habitat in the c m ph because of the students mountain wilderness that's one hundred seventy five thousand acres of public land out of four hundred twenty eight thousand acres total of public land in this area you also have studies in the record that showing that road this especially less traveled roads you know the heart of the network here are not negative influences on sage grouse breeding areas and you don't have you don't have any because of the maintenance permit first of all are they right that they transportation management plan itself authorizes level two maintenance and no further review needs to be done to do that is that correct that's not that's not correct across the board for routes that are involved in a study areas those are permitted to be made with mechanical means because of the not impairment standard so if we're talking about any routes but that's in the existing travel management plan i pres now well my point is only that level two maintenance is an authorized for every single route that was identified that problem has no where i think the question is in those areas where it is allowed yes it's just allowed the each team just go do it without asking or getting any further analysis that's correct and unless we're talking about special maintenance for heavy vehicles for a horse gatherer or some sort of described project that would require if it's going to be beyond level two maintenance but i would also point out that prior to the travel management plan you know these were routes the routes be identified or routes that were already open a motorized travel and that b l m was able to maintain those routes even though they were formally identified i find how do we make any of these determinations without knowing what is a road isn't that sort of where some of this is still ambiguous i don't know that it is your honor because it's really uncontested before you today that the stains act allows for motorized travel on trails and roads and it's it's also it's been plain from the get go that told the public that you know eighty percent of the routes in this teen's area are primitive roads that are maintained more by use than by equipment are accessible by a high clearance vehicle but that's what i was about to ask that there is nothing in the traffic management plan that require that condition be maintained i e that these eighty percent of the routes that are primitive roots or are just crops which they are better but also says that these eighty percent of the roots  hands are only maintained by people using them and there's also no as i understand a limitation on using any of them well if we're talking about the historical roots those are only for the livestock permit to use  by by motor by users but there's nothing in the plan that requires that well them to be clear that you know i'm told the public in the in the e p a that they're largely there they're mostly maintained by vehicle use rather than now but the plan doesn't require that it doesn't you say there's no change right but i think the current tradition is that these roots are very rarely used and that they are maintained just by use not just by use but but largely by use and nothing in this plan maintains that condition so when you're say that there as a requirement so you say there is no change there is a change because there is some whether you think what was being preserved was what's on the ground or something that's you know theoretically possible but not on the ground well i certainly can tell you that the the scenes not advised the council which not only represents environmental interests there to representatives but permit teas recreation permit holders tribal interests fishing interests that advisory council after many months of meetings with b l m hearing about the routes and b along this  you know honestly endorsed the alarm's baseline for the travel management plan and it it endorsed an alternative to keep that status quo network open to public motorized use you know the five hundred fifty including the fact that the current condition is not going to be it doesn't need to be maintained i mean this is that the the problem here is that we need to know what the current conditions are and be there needs to be what disturbs me is your notion that nothing is changing when with a focus on what is there now and this this goal was then morphs into this decision that road is not much there it's what is authorized to write well it's just again i may not be getting through but but part of my point is even before this problem i understand that but that's because there's still a difference between a focus on what was authorized and what's actually they are my point is there isn't a difference because if b l m didn't have a travel management plan and chose to maintain a before the scenes that before not going to the scenes that it certainly could have well so the scenes the actors there and so that's part of what we have to think about we carry i assume away from my point is before the scenes act b l m could to be maintained for public motorized use let me let me make this point is well below i'm chose not to as you as you well know inventory by ground photography every you right right well and used some anecdotal information i have some roads you know many of the roads aren't in dispute you know fifty five miles is the main loop road which gets almost all of the tr and then there's fifty five miles of secondary roads and then what b l m did was it focused on the newer routes you know keeping in mind that the the steam's resource management plan which was reached after any i asked process in two thousand and five that already identified five hundred one miles of routes so what the travel management plan did was found additional routes talk to landowners verifications looking at aerial photography  use putting them on maps and b l m verifying that information with its targeted boots on the ground inventory procedures and i would point this out even  photographs which were before the b l m and they were before the scenes mounted vizor council back in two thousand and seven and us photos don't undermine the baseline of primitive roots that might be rocky that might be high clearance access that might be trails because they show robert on the ground page twenty two of our brief to this court shows two of the routes that  saying are nonexistent and that would you know that pruitt irrational baseline but just look at the photos there are several hundred pages in and as excerpts of record of these roads and in our point is there there and those routes those photos don't undermine deal on a space line you know they can they confirm it you know these are roads that our driver built by a standard city vehicle but you know it's a two track it's obviously there and it's not it's advisory council to respond to the final proposal well judge in any event it's harmless error because harney county submitted a comment letter  regarding the c r p in early two thousand and fifteen so harney county scientists were impaired because harnett county had time to file its own comment letter and make its points about its concerns about closing these so called obscure routes you made the point to as well judge that you know b l m did consult with the scenes about advisory council in two thousand and fifteen it had two days of meetings and you know i wasn't mandated to agree with with with her any county's arguments or its views i mean what b l m didn't twenty fifteen was looked at those obscure roots anew in light of what i'd be elated in twenty fourteen it looked at those roots and i want to know is is it joe we need to decide that question in order to now meaningfully root for us to review and for you to respond with regard to that he just yes you do judge because the whole the whole statute if you look at  claims with it with a lens towards the underlying sets substantive statutes here the scenes act is critical backdrop and framework for a need for review and here the stevens act allows for motorized travel on trails and roads so it's critical when you look at that seeks for environmental a facts of what is proposed no no it doesn't it doesn't override it it doesn't override it but it but it it it  others and this is not a historical record that preexisted the statute as to what what the roads were that's not what we're talking about we're talking about road said it would i be a lay out some of the term it as a matter of record if it was in there was no record it was scattershot all right so what records when you were there looking at what's a matter of record what records he looking at they're looking at the maps that b l m reviewed prepared by landowners by harney county by has now made a record of events never existed before but based based on review of other facts on an aerial imagery or accounts from the local people who use the routes and i would also point out to judge agrees on that for at least some of these ro undertook the position that it would it would accept recollected uses of the historical roots by livestock but if it is a very strange use i mean apparently there they're saying it's something different than what roads are actually there find a ball it's instead whatever as a matter of record i thought therefore that there was some record we were looking at well let me say this for these these these most and it had details of a route by route information and b l m n twenty fifteen in the c r p that's part of the spiel as well closed many of those obscure routes because it didn't find a public purpose its in find if they what they were  they were being used but for those that b l m left open the record before b l m and the c r p decision in two thousand and fifteen shows their existence shows their utility you know we're talking ground revisited in two thousand and fifteen by by b l m so to the extent that you're uncomfortable with this matter of record where there is nothing whatsoever you know regarding these obscure routes that's something that thank you you're honest the big problem with b l m spoke us on the i p l a's two thousand and fourteen decision is that that decision never went through a public need but process it's been more than twelve years now since the first came out for the travel management plan in two thousand and seven having been strung out for this many years and with this much controversy and uncertainty on the record as to what exists out there regardless of what  label we provide to these different routes that's why our submit is that it's crucial for the court order and yes so that we can finally get down to the business of a full and meaningful public process and we have to define what a road or either defer to the definition of that that has been provided in the twenty fourteen opinion or by some other means do we have to figure that out before we finalize the rest of the claims for purposes of your honor no you do not however if congress had intended for the work road to mean something different than the way b l and asking how we can avoid it well that the term has has the death the original definition comes from congress in the legislative history of flippen one nine hundred seventy six  b l m has never defined a road as something that exists on paper the stuff initially came out but basically your basic submission is that there was an adequate baseline as to existing  right that we have to know what a road is to know when and what what the in the attic of baseline has to cover i think what what you have to know your honor is whether it was reasonable under the facts of this case matters what hold a matter of record and that seems to have something to do also with whether there is a change or isn't a change because i mean there are there fundamental reason why there is no need for any i asked a scientist and it is because their proposal isn't going to change anything and that depends on what you're looking at doesn't it whether you're looking at whether what's there or what theoretically could be there i go a step further than that though your honor because b l m it made it in the and in other places in the two to decision records that it was in fact adding new routes that it discovered or adding routes that  definition of a matter of record and there is there is an existing record it's whenever somebody puts on the record well and that definition came out not in the public process but years after the public process that one last sorry document is that correct i don't think so because the two thousand and fourteen i p l a decision has to rely on the actual record of what the conditions are of routes on the ground analysis of it well for a p a purposes of course the final agency actually it's not just that decision document with the signature at the bottom on the bottom line but the underlining underlying findings conclusions and environmental