report good morning your honour's finance quiz for the balance the issue on appeal is whether the bureau of land management violated the national environmental policy act by failing to evaluate a reasonable alternative a desert solar program your honour's the alternative was not only reasonable but pragmatic it was to direct you to scale solar development and to disturb your degraded lands rather than onto the largely undisturbed sets the policy for all the individual sites the civic plants that will be permitted after all the agencies says that there's no clear and well established definition of what you mean what that is but that's not true your honor elsewhere in the in the program came up with the definition and in that same in that same in the same two paragraphs where they said there is not a clear definition it said that they had in fact identified some disturbed lands within those solar zones so they must have relied on some de the idea that you have that you have no idea as to what might be encompassed by that doesn't doesn't doesn't tell you that an agency can't look at something and say well whatever the definition is this land is clearly covered that is true your honor but a in another instance or another fact that goes against their position that they didn't have any definition of this was that the state office of arizona's b l m had actually started a program to identify disturb integrated lands that was exactly the sort of program that the national b l m office said was not a reasonable alternative for the six day program and one of the states within those one of the states was arizona which is in those six which is in the alternative was suggested not only by the three conservation organizations here but also by the environmental protection agency which was a federal cooperating agency for this program early in the development of the desert solar program e p a made the clear case for a disturbed lands alternative that was that identifying and utilizing the degraded and contaminated public lands first was clearly within situation where the this was proposed and they have cases like that this is not one of those cases they did not consider it as an alternative they said that they would consider the use of disturbed lands in the variance areas and in future in solar zones and they said that there were some disturbed lands within the seventeen zones they identified but the record doesn't the program  inventory of what those lands are so we don't know if it was one percent of the lands fifty percent of the lands ninety percent of the land but just no way of knowing that they evaluated disturbed lands as a reasonable alternative one hundred acres and they thought after an initial evaluation were suitable for utility scale solar development ok did d d p continue to protest the way that deal and decided to handle the strip land so that doesn't seem to be much of a protest from e p a doesn't they also state that they think that the disturbed lands alternative should receive further evaluation ok where does that say that you're on i'm sorry i don't to have the that letter in front of me for the paragraph i'm reading from is the second second the is the first full paragraph on page eighty four california that would be appropriate for renewable energy and b l m said they would give preference to that didn't they they said they could give preference but but there's nothing in the record that states what preference means there's  there's the preferred program gives financial incentives and streamlined permeating to lands within the solar zones and this just as well give a preference in the future that's not the that this doesn't look like a very strong i think my original question was this doesn't look like a very strong protests from e p a it looks like e p a is pleased with what b l m has promised them i think the fact they addressed it in each of their comment letters suggests that although they appreciated b l and work they still believed that and were disturb lam's yes your honor but but saying that they will will do that is not the standard that need to requires which is an evaluation of all reasonable alternatives to say they will consider in the future was not an evaluation of this at the program matic level and the importance of evaluating at the program magic level is that that sets the policy for all the individual permeating of solar plants in the future so if if they say that this people to people who come with proposals to put it on disturbed lands well in the initial in the initial cut at the seventeen solar zones that creates financial incentives and streamlines permitting authority only within those  are there just are plans within those zones b l m says there is but it doesn't identify what they are and it doesn't verizon as arizona has helped them and e p a says there's one hundred thirty to disturb sites in california on  we've got we're well down the road our way we've got we've got some things identified we don't know the record does not show that any of those one hundred thirty two sites were within the solar zones the b l m identified difficult then to to match those up now have you tried matching any of those that i can provide those sites to so i don't want to i don't want to match them up i was asking if you had maps not your honor ok the government argues that the energy policy act in the executive in secretarial orders did not require b l m to focus on the use of disturbed lands this is a misplaced argument because it's need but not those directives they require b l m to evaluate the alternative some sort of yes directive that doesn't make any sense to have a yes your honor the standard is whether the the alternative is reasonable and the courts look to the nature and scope of the wouldn't be a reasonable alternative because it's completely random as to what the public lands would be in the county starting with any particular letter so that the standard is is the alternative reasonable and to determine what reasonable is we have to look to the purpose and need of the program yet so that the initial the initial requirement is that the agency consider all reasonable requirements and then we're good we're to judge that to see whether the agency has acted in an arbitrary and capricious national we have an arbitrary  when it considered just acknowledged it dressed it because you're out of the the agency did not address it it gave two paragraphs to its entire discussion and this was an eight volume twenty four hundred page record for the program  i'm counting words that is a sort of a minimum number of words and if i don't know said percentage of your i just i don't know that there's a minimum number of words but i would suggest the two paragraphs in a twenty four hundred page document that's a functional that's a functional definition it is but arizona listed what it considered disturbed and non conflict plans is how they describe it so it's a broader category than just disturbed lands that actually sounds like a maybe more really of thirty criteria that would exclude land for me inappropriate for solar development and that what are they areas where this critical habitat are there areas with wilderness values for all of those things and said those are unsuitable lands and then they looked at a number of criteria that made land suitable is there a transmission capacity it's a really flat and based on all of those they found that this two hundred and sixty five thousand acres in various parcels in six states were the most suitable for solar energy development they didn't do it on the basis of disturbed or non disturbed but there's nothing that requires them to at analyze that under that for desert tortoise and so even though it's disturbing it may be unsuitable on the other hand you may have you know undisturbed land that's very flat and has no features of note no biological value that might be very good put in a solar energy zone so the whole concept of disturbed lands doesn't line up very well with an h c that's trying to find the most suitable lands for future development now of course as b l m said it will consider  because you must be a lawyer because instead of answering the question i asked you going to answer some other question but i would insist on answering the question i asked whether makes sense or i'm not asking that question i  understand there may be reasons not to do it but i heard you saying something else i heard you saying it would be inconsistent don't possible of implausible you know somehow at cross purposes with oth requirements that that's what i heard you saying and my question is why couldn't they just simply add one more requirement to those other requirements and say of all the lands that meets all the other requirements really nothing in these document that says this too little of that land i mean they said that then and i was well by the record there wouldn't be an issue but there's nothing like that right and they don't offer this an alternative and then reject it because there's not enough of it nuff land like right right does not have an in the bill that's not a good answer what you want to try for another answer so because it doesn't have an inventory it would have to go out and search and try and determine which lands are disturbed which are and that involve some very difficult questions for instance land that has cheek grass not it because there's been wildfires that are a human cause is that does that count as disturbed land there's no criteria let me just make sure on the stand your answer here because you're answering the question is meaningless and so the answer is it's hard work to figure out what it is it's not that it's inconsistent or you know the cost how do we know that that i mean you said that how do we know that that is a correct answer how do you know that it is difficult i mean these are make a plausible case that lands i mean i think that concept is that you know we have thirty different categories where we have definitions that come from regulation or statute that we can deal with and we have inventories of wilderness lands and so forth we don't have anything on disturb lands because that's just not a recognized concept so yes it's theoretically possible that they could go out and do a new inventory of disturbed versus not disturb lands but under the rule of reason i think you can't impose that duty on b l m when there's no statute or or regulation that says they have to look at it in terms of disturbed or non disturbed lands this is just a concept that others have come up with now  it had to build an entire alternative constructed alternative based on disturbed lands they said give hard to look at it and give it a preference and that's what b l m decided to do and so so so so think you have a minute and a half or so honors the government just said that b l m needs to take an inventory of disturbed lands before it could proceed with this type of alternative well that is exactly what e t a was offering when it suggested that the b l m give further examination or further evaluation of this alternative regarding the fact that b l m failed to provide a rationale for not evaluating this alternative forty c f r fifteen zero two point fourteen a demands that an agency either rigorously explore an objectively evaluate all reasonable alternatives or for those alternatives that are not studied in detail to briefly discuss the reasons that they were eliminated from further study feeling did not do that in this case they devoted two paragraphs in this large document to discussing isn't the issue there your honor is that it's going to be the developers that come to b l m asking to have specific lands developed it's a question was just significant is i'm sorry could you repeat the question your honor in giving preference to disturb really isn't that significant it is not significant your honor and that the standard of standard is an evaluation of all reasonable alternatives and future preference does not evaluate the benefits the comparative benefits of a program that focuses solar development on disturb lands and giving preference later would only  provide an evaluation of the alternative for one or two thousand acres of land that were for a specific desert solar plant utility scale plant but that happens every time somebody makes a proposal are so the preference kicks in every time certainly oh ever it would make more sense to evaluate whether this is a reasonable alternative at the program matic phase but that's not the test for us the