socio economic health of these communities more than the incremental environmental benefits of the role this role would would would create in a forest it's already abundantly protect elections have consequences so on the one hand you have some details about socio economic matters for example and the agriculture department under president clinton and under his executive order had one perspective when president bush came in he issued a different executive order the same data produced a different result because of a different perspective after the case was filed president obama came in and the agriculture department didn't appeal because it had a different perspective is not really what we're dealing with or that's exactly what this case illustrates is that this is why we have election the executive branch can come in after election and take away the way the benefits and the cost differently depending on what that administration and it and if they do that is is that sufficient under fox to justify the change in other words if a little business ration says as a matter of policy based upon these facts we view them this way if we look at what the rod sad to that effect is that not sufficient under farkas i mean the same facts the same materials were looked at is that not sufficient under the law to justify the decision it is  require at least a rational explanation of a policy change or fox doesn't just allow you to say never mind we've chosen a different policy and we don't have to tell you why doesn't well that's correct but that has been time i'm wondering about that i see two sort of findings in the second already one is we're doing this because we want legal certainty with respect that strikes me is just silly there's been some attacks on a national roadless policy roadless rule and you make an exception in alaska to get national legal certainty that strikes missing credibly implausible and when there's a finding that says in the first one the suckers hungus exemption we considered it but it would pose a serious risk to roadless values which i assume means environmental concerns and other concerns and in the second one it says oh no the the rationale that the agency is itself was offering for the change as a panel majority pointed out it wasn't legal certainty overall the purpose of this tongue is exemption rule making  the circumspect way of saying that the agency had it view the state of alaska as lawsuit based on a no right as having some merit the agency had some legal exposure and so the close to just dramatically opposite conclusions not exactly because the the optimal level of roll this value is is again a policy judgment on the the original given didn't pass muster and were arbitrary and capricious but today it is that sufficient to justify and sustain the rod in other words must all the reasons given by in this case the department of agriculture pass the arbitrary and capricious standard or is it sufficient that any one of the stated reasons be sufficient it's sufficient that any one of the stated reasons passed muster because in activists and the federal government is action still as a reasonable basis it's still supported by the record and i want to point out that this case is not like the case cited and in the petition from on bunker view those cases either involve a factual error that infected the entire analysis or they involve the agency actions or new valid justification was offered at all and sun those  consideration of other issues such as socio economic hardships or was it something else the ending the litigation with the state of alaska which is i think pretty clearly what that  reference litigation is talking about is a stand alone reason and for for this action i want to explain why that's reasonable if the lawsuit went forward and there was an adverse ruling for the adverse for the forest service on the meaning of the no thirteen that could have repercussions for forest service and other federal agencies and management of lands in alaska and that's why there is so there  are eighty one which is the two thousand and three record of decision five and there's a fairly extensive discussion of the two statutes that congress can act it's exactly pertaining to alaska that is an ill and the tongass timber reform act and the agency talks about the fact that congress had made that determination when it passed the milk up in one nine hundred eighty that the preservation of five and a half million acres out of the sixteen point eight million acres in the  does that in response to judge smith question and establish at lease one legitimate justification for the change in policy it does the see is pointing out that this is exempting the tongue as is the best way to implement congressional direction and intent in those statutes and i think that that rationale and settling the state alaskans litigation are intertwined because the state of the class has lost its was based on the statute but yes this this is it carrying out congressional intent is certainly an adequate reason for any agency to  could be allowed with out express congressional approval and wasn't the effect of the two thousand and one record of decision to do what congress said could not be done without congressional authorization and that is the state of alaska's position the state of alaska is up but there are cases suggest that we ply harmless error review rather than just saying one good one it's enough well the harm of the district i know i know that you know the argument you make is that the one good is not exactly because those cases again that were cited in support of on bank petition none of them are like this none of them offer two separate rationales for a course of action and one is struck down again they have after one bad reason and one good reason that we can with a bad reason entirely without trying to figure out whether it somehow effects the good reason in the circuit i do not but the bowman transportation case that the panel majority cited from the us supreme court was know that two good reason is enough to support the agency in the sense that the agency would have made this decision if it if it had only had one good reason and it's not thinking about well if the court later things said one of those reasons and good enough would we do it the same way and that that you can see believe those reasons and so that's that should be enough to infer that the agency is still going to do the same thing even if the court decides that one of those reasons isn't well articulated enough or isn't is adequately supported by the record and i would also point out that it doesn't seem consistent with the deference due executive branch policymaking for a court to strike down a rule that has an adequate justification and i am there is it belongs that line and following up on judge of fletcher's decision or question rather in the fox case the court said the court is not to substitute his judgment for that of the agency and should uphold the situation of less than ideal clarity  agency's path may be reasonably discerned that have any bearing upon this case but yes it does and i think you can look at why that agency did took the course of action tha did and if the court finds that one of the reasons isn't good enough you still can identify why agency why they chose this course of action and that action does have a rational basis and they're supported by the record inferences from the agency's absence today but none of those inferences are relevant to whether the decision at the time was well supported and was well reasoned it simply has what the agency does today has no bearing on what happened at the time in the agency just as an agency can back fill reasons for an action it also can't retroactively undermine reasons that were valid simply because they may not prefer the policy outcome yes in two thousand and one the agency said this is consistent with teacher in two thousand and three the agency said well this is the best way to implement not only the spirit but also the letter of the law and it's true that the agency didn't because they're not here again but now it seems to me that you're doing sometimes what you don't want us to do and that is stepping into that agency susan asking us to to say to guess what the the range of discretion that's available under those statutes that may well be possible i would say that they didn't seem two thousand and one said this is consistent with congressional directives and in two thousand and three and saying this is a better implementation the panel never reached that the district court never reached that i think it would be wise for the for the court well obviously it's up to the court but our preference to the supreme and that to the district court for consideration that valued additional environmental protections over jobs and the new administration came in and and it looked at that balance and decide to strike a different balance consistent with its value is because that's the strongest one if you read the district  well there i think are a number of problems with the district courts and now it's so that one the district court really focused on the idea that this was a short term rule but i think it was overlooking a few that while the agency did use the phrase short term in the room making there's actually a rule of indefinite duration and it could do that it was certainly reasonable for us to think of the time that it might last a long time did just to be sure i understand what we're going to say to him did it not continue the two thousand and three rod continue until judge said rick overruled that's clearly not a period of what ninety  seven years something like that eight years seven years and there was reliance on some point at least by some people there was and actually this is in front of the ninth circuit when he of indefinite generation but the rule also explained the u s d a also explained that the role had separate utility in temporarily preventing socio economic dislocation in southeast alaska regardless of what they can see ultimately decides  it's true that the agency didn't attempt to predict the number of john so would otherwise be lost during the uncertain duration of this rule that's not really a fair criticism because it would have been hard to come up with good afternoon my name is tom waldo and the attorney for the organized village of cake and the other plaintiffs in adopting the tongass exemption u s d a relied on a series of findings about the roadless rules effect on community road connections on utility lines and on the timber industry but a careful review of the record shows that each of these rationales was either contrary to the evidence before the agency or any or ignored an important aspect of the problem or was contrary or contradicted previous agency findings without explanation how do we square that with the statute  agencies determination clearly resulted in increased acreage set aside for conservation purposes when it cut the supply of commercially available timber by from four percent to two percent about three hundred thousand acres that i mean keep in mind that the role this rule doesn't set aside my hands for conservation purposes that it still all of the normal uses are allowed on those lands still and the only things that are prohibited both with exceptions are new roads  generally with exceptions and logging generally but the division how do you square that i'm referring specifically to that language that i quoted to counsel for the state eighty or eighty one in the two thousand and three record of decision that congress had made the determination in things there one is that that's the land the five and a half million acres was enough that's a provision of a no that's in the policy statement about future congressional set aside future wilderness areas parks things like that it doesn't have any application to this case was about an agency's management of multiple use lands the other one about with crop further withdrawals of land doesn't apply here because the wilderness rule is not a withdrawal and that was the holding of the court or words to that effect we will like jobs more than we used to like environment less than we used to where we're republicans they're democrats we have different policies and so we're just switching policy course fox says that's ok just doesn't this one is the agency acknowledges that it's making a change and gives good reasons for that change it can do that so now now now tell me what you're trying to tell me woman to go tell me why that why you didn't think that's what happened here well when you look at the record it's clear that that that the agency that that the fact that it's the agency kept was i sorry for the record contest if you will between justice scalia and justice souter and justice briar they took one position on what the agency nice do and majority is turned out took a different one majority said policies you can do that yes or acknowledge that you make a change they certainly did that here did they not well they acknowledge that they're making a change from applying the roadless rule and for the time just to not doing so but communities to develop road and utility connections and back i was perhaps we read them differently i thought that the two thousand and one was talking about the fact that the laws are permitted interstate highways and public highways of significant size to go through and that was not affected or as the two thousand and three ride was talking about smaller roads with access to some of these smaller communities to rely thirty three communities or something like that that might have benefited from smaller  more individualized throws if you will no that's not correct your honor in one thousand one hundred two thousand when the floor service looked at this question if it specifically looked in it and there's a document in the record supplemental excerpts of record page one sixty eight i believe where they look to see are there was there any way that the roadless rule would block any community access roads and they found that it would not the communities that are not connected by roads right now are extremely remote an isolated and the only way they would ever likely be connected would be through the construction of federally highways and that's a good that's a very good example gets back to what roger woodson i and others have been concerned about here let's say you're right about the roads but let's just say that they said enough about the socio economic differences policy differences admittedly isn't that enough under fox for the rod to survive  why well what happened here was that they made a completely different finding that they went from finding it would have no effect on the ability of communities to develop road connection if it forgive me but that's all i'm i'm conceding that for purposes of our discussion let's say you're right about the roads are let's just say that another part of the rod that they did what they needed to under fucks isn't that enough if there is at least one valid reason which would have allowed them to sustain the rod for that to succeed or to survive if you will well know then you get into the harmless error analysis so the way that this court resolves the question if you're for example you've got some rationales that this is this is a can long line of cases about harmless error analysis in the open in these circumstances under those cases this court will only hold the congress exemption if it makes a finding that the errors it differently and they said so that's one issue let's just say hypothetically that from a policy perspective that's entirely consistent with the bush administration's position under those circumstances unless you go to a policy analysis why wouldn't that be harmless error because it's you may not agree with it from a policy perspective but it is rational that to use judge her which is perspective that  value the jobs more than the previous administration did not get on as the let's say they did in order you would have to then find that the error about going from saying it had no effect on roads to or within their rights about certain policy determinations you have to find that the errors clearly had no bearing on the agency decision and that finding is not possible in this case but that does not contrary to fox in fact say that i a knowledge they're changing policy if there would we're not doing the same thing and it clearly in this right it says we were going far with this from school for these things three things in that particular point and one of them a socio economic they state why they state their interpretation of the socio economic data the fact that disagrees with what the previous administration's interpretation on that da significantly limits the ability of communities to build roads that was a significantly changed finding from what the agency had found in two thousand want but it's not acknowledged in the record of decision if you read the record of d'souza reading it and  looking at the relevant paragraphs when they dock about why they think that it has an impact so tell me where it is that that's good for short is all it is here is your argument council that they have to say that in two thousand and one we looked at data  future and there's a question there is that a factual finding or a projection into the few i think it is a projection in the future about facts well that's not the same thing as a finding is it they do if they give the analysis they discuss why it is they think the existing authority of the secretary of agriculture may not be enough you made agree or disagree with the analysis but they do give it don't think well  eight they don't believe in analysis do they give an explanation as to why they think the power of the secretary of agriculture to exempt federal aid highways isn't enough they provide an explanation so the answer to my question and what the agency says is or what the court said was an agency may not for example depart from a prior policy subsequent you simply disregard rules and of course the agency must show goes from saying it won't affect community wrote and actions to say it'll have a significant impact on community road and actions that is a change in position and fox requires the agency to display the awareness that it's changing facts and circumstances that underlie or engendered by the prior policy what facts and circumstances were disregarded the fact that they could not identify even one example of a road or utility why that would be block comes out of fact it's disregarded is that in the prior policy in the prop and when they made their decision in two thousand and one they they look specifically at the the the secretary's authority under the federal aid highway law if they are under the roll this will essentially the same as under the federal aid highway law that was a finding that they made in two thousand and one it preserves the secretary's its discretion as it exists and for some reason in two thousand and three the agency finds otherwise and doesn't ever doesn't ever explain why it went from five doesn't even if it was at least two explanations it explains once that the secretary's authority requires a finding that quote may not always be possible for otherwise desirable road projects close quote a paragraph later it points out that most state highway additions have been upgraded from roads built to harvest timber not just federal highways for state roads and that without the pioneering work done by the foreign service and building roads to harvest timber it's unclear whether the state would have undertaken the construction how you can agree or disagree with the proposition that you can't tell me they didn't give some explanation well it disregards the facts in the record let me address that latter point about the upgraded logging it's again the forest service went and looked at that question in two thousand and one as a factual matter and said that all of the communities that still remain unconnected by roads on the targets are so remote and isolated that they wouldn't likely be connected by logging they could only be connected constructed federal aid highways and so that reliance on upgraded logging roads is a complete reversal if action is an action or is it because of the isolated geography and the mountainous terrain is that i oceans to these islands and you're not going to build a federal highway that cake because it's on an island that's right i mean or if there were for example if you tried to build a road to petersburg it would likely be a federal aid highway that's what that's what so let's go back to my timber question how how come reducing by half the amount of commercially available to him for is not a socio economic cost on an isolated southeastern alaskan community these that are dependent further would supply on the federal government because it owns or controls ninety some odd percent of the entire landmass of southeast alaska well let me address that question of the timber supply and timber that the agency's consideration of that issue was arbitrary because it ignored the fact of a seven year supply of grandfather timber for u s d a addressed the issue of the timber supply in the roadless rule when it exempted from the rule eight hundred fifty million board feet of timber that for that was already in various stages of preparation the agency found that was enough for seven years of logging even at the higher levels that prevailed prevailed as that time so by the time the tongass exemption was adopted logging levels were a lot lower it could continue indefinitely under the roadless rule with no further job losses now u s d a anticipated the possibility that the markets could bounce back again but it completely ignored the eight hundred fifty million board feet seven years supply of grandfather timber that  timber for the intended duration of a temporary exemption was more than enough to allow for a complete resurgence of the timber industry and immediately there was any timber industry laughed at the end of that time period companies that plan for the future but certainty is one thing they like to have as much as possible if you have a rule of indefinite duration to which you make frequent reference how can you plan to do anything if you are a bunch of people build a bunch of houses  i don't see that in the rot i see that interpretation by by what you've said and what the dissent says in our lower panel they don't say they're looking for certainty they just want to settle that particular lawsuit there was nothing in there that says nothing else will happen in any other part of the country is there what the agency as a question please it doesn't it doesn't address the vendor talking about anything else doesn't mean that they didn't think there would be other lawsuits they just said that for purposes of this particular case that they thought it was important to settle the alaska lawsuit that's all they talked about they didn't say that all these other lawsuits were going to go away and that correct yes ok but the reason they said they wanted to do that was to reduce the uncertainty and conflict resulting from these lawsuits in order to improve promote more investment in the timber industry as you suggested and the problem with that analysis is that it completely ignores the fact that it's just a temporary rule in  explained how it was possible that a nearly temporary rules could we do so uncertainty well as if we this in a fact that the prior to our supply contracts have been fifty years in duration because it's difficult to get capital invested in the mills unless you can be assured of an adequate supply of timber a long enough to receive a return on your investment yep that's right those those contracts expired in the one nine hundred ninety's and that's why it was so arbitrary for them to rely on such an uncertainty as a rationale for temporary exemption there was no way that a temporary exemption could reasonably promote greater certainty you would you want a fifty year so the rule that the rule must rule itself contains a section that that exempts in the congress from that has already been the subject of the notice of intent and that which is the eight hundred  fifty million forty feet so that provision is on excerpts of record page one sixteen and the third c rules reducing the potential for conflicts regardless of this is the disposition of the various lawsuits lawsuits that refer to that's referring to the eight or so lawsuits that were pending in district courts around the country by saying this was talking about the litigation in alaska and i thought the various lawsuits reference here was to litigation around the country about the road to this rule yeah that's that's right the so they were settling just the alaska case and priest conflict in litigation in the best best anybody could say about lawsuits is that you know your would be suing each other no matter what happened that's exactly right and therefore it was arbitrary to simply look at one side of that and not the coun realistically is it your position and if so in what part of the rod are the facts are you referring or the u s d a to take the position that by settling the one lawsuit which it  says in the preamble was the reason for the settlement that was the empathy that it somehow was going to settle everything else or resolve or thing else there was a case as i recall i came out of wyoming i think wyoming  district court had been joined nationally the imposition of the roadless rule that was then on appeal of the tenth circuit they had nothing to do with that right i mean there was no doubt there was nothing in this lawsuit or in th that they could have done at that point it was total conjecture well that's right and all that all they had before them was the one that had been brought by the state of alaska and if i may let me point out to you want to i believe it was and that particular part of the rod that it's a three part reference there in the first part talks about i seem to be off line here on policy i just in any event it would give the first thing talked about it with a lawsuit with a lawsuit brought by the state of alaska doesn't mention anything else in terms of its reasons when they summarize as they were doing you they record of decision that it starts out by giving some background so it describes the state of alaska's hayes and then but then the first thing it turns to when it starts explaining why it's going to adopt a temporary exemption it's  the eleven and there's a three part yet option so what they do in the first one talks about lawsuits what that talks about the alaska lawsuit does and with with respect your honor actually the first thing it talks about is the serious feet of timber under contract and that would be sufficient to satisfy want to have hears a predicted demand they'd sixteen's that it tends to keep enough timber supply under contract to excuse me satisfy three years of predicted demand in order to provide stability to the agency and then at a later point it goes on to say that the decision is needed now so that the industry can make the investment decisions that are needed to prevent future job losses so if you look at the language in the fossil vision station pieces the standard that's a reasoned explanation for disregarding the so called seven year pipeline of timber that was in the certain but i understand that there's a provision where timber harvested from national forest has to be processed in the united states and that's not true of timber and private lands that's a job preservation that is a job but that's