commercial timber sale rules under the national environmental policy act by relying on a categorical exclusion for road maintenance activities like pruning vegetation where hazard trees are being cut the problem here is that the wildfire burn vegetation on both sides of the road didn't yes ron ok so why isn't this just part of road maintenance activities in order to remove danger trees from the three hundred foot radius because it involves a commercial timber sale and if you look at the forest service is what i mean there may very well be salvageable burned trees that the forest service can make some money off of that are harvested but isn't it isn't the primary purpose here to protect the public traveling on the road from damage to trees that may be fall across the road in the wind and so on i think the important point there is it's not the purpose for which the project is intended but it impacts and the categorical exclusion rules twenty nine thousand dollars acre wildfire burning area here i don't understand this is not a normal timber sale where the forest service picks several one thousand acres and said ok we're go we're going to put this timber up for sale the problem is that you've got all this burned would still standing on both sides of the road that presents a danger to the traveling public while it was in immediate danger you know the agency took a year to develop this and then a year to carry it out and certainly if there are trees hanging over the edge of the road the forest service may and probably did cut down quickly under category four for road maintenance or whatever it is but the problem is when it plans a temper sale there is a categorical exclusion specifically for hazardous is your argument that if it stood for a year it's not really a danger that you that's my argument is no not that it's not a danger but not that it's not a particular hurry they have plenty of times there's no doubt that the agency has the discretion to carry out a temper sale of salvage timber but when it is not an emergency as it isn't in this case it has the time to develop an environmental assessment for service made a determination that these trees pose a hazard to the traveling public and the analysis basically was if we don't conduct this maintenance activity we're going have to close the road  no you may not think that's an emergency but i mean the forest service gave a pretty reasonable explanation for what they were trying to do here along with fifty point two miles of forest road that's certainly find that they carried out but it is has to be done with an environmental assessment which can be carried out normally is in a couple of months just as quickly as a categorical exclusion the problem is without an environmental assessment you don't have any range of alternatives so for instance earth island was urging the forest service to leave more logs on the ground because they're needed for wildlife purposes that would have been an alternative they could have looked at most of the wildlife particularly the threatened or endangered species had essentially been burned out of this area and with i think the exception of one den for a fish or was somewhere along the route it wasn't really suitable at this point for wildlife habitability was well but they come back and that's a question for the agency to examine more fully in an environmental analysis you know that the comments by earth island were that that was not the case and that the wildlife come back to an area if it's not if you don't take out all of the lugs is your concern here that  had the courage been restricted to less than two hundred and fifty acres of forest service could have done whatever it wanted in terms of road maintenance and removal of danger tree while it was under two hundred and fifty acres they could have claimed the exemption rules keep saying commercial timber sale and i think the forest service is trying to draw a distinction between the sale of salvageable wood in conjunction with road maintenance activities and the removal of danger trees it and i don't know of anything in the multi use forest act that prevents the forest service from making multiple use of what is otherwise lost him or know they can certainly make multiple use it's a matter of what level of need for compliance they have to do if you look at the what is your position that every time the forest service sells a tree an environmental impact statement is required every time a commercial timber sale of over two hundred and fifty dollars acres at least an environmental assessment not an that's a much bigger even if it's been destroyed and in a wild land forest fire and forest service is trying to protect the traveling public from harm yes it's rules in ether tina specifically for harvest of trees damaged by wind ice and fire and so you don't seem to argue that there's any relief we could give you on the bull run project but are looking only at capable of repetition and evading review exception and yet the government argues in this very case there are cases that are stayed which raises the same issue and since air stayed a decision could be made on whether it's fifty four dollars is applicable so doesn't that just strip  jurisdiction to consider your issue no your honor the two cases are before the same judge judge o'neill and so for one thing there'd be no reason to believe that he would rule any differently without intervention by this court and to all the cases are sta provide him why it's a decision on this issue should wait for a case where across the panel could provide relief so help me understand that the two other cases the cases are stayed but the loggings not state there's no injunction place and one of them has that we've mentioned has moved forward another one i think is still pending but so if those cases move forward assuming judge o'neil would rule the same as he did in this case that the forest service is allowed to seek an injunction of the the project or the activity on the ground in the other cases no so why not so that it was and that the district court rules against you sought an injunction of the activity in the court ruled against you you just haven't asked to see the activity because it's the exact same question as presented in this case and so in that therefore the very thing was just so so so your view is we exception doesn't apply to said m multiple different cases are you talking about in the case before the court or in the the other cases that may repeat we're talking about the bunker limited partnership for the well this and when you didn't seek you didn't appeal to denial of the preliminary injunction you didn't seek to stay pending appeal therefore it seems to me given and i'm just thinking what judge trying to ask you but that's where i came to the bunker limited would say i shouldn't even get into this if you did done something to help yourself maybe i'd say it has something to do with capable of repetition since you didn't i don't know why i'm using the courts power to help you well i know in the alcove vs bonneville case this court stated that a party need not seek a stay pending appeal that was a real different case like like the other when you relied on alaska center where a contract or a permit expires of eyes of the terms there's nothing to enjoin because you can't enjoying a permit or a contract from commercial timber sale to temper contractor and in those other cases it's a permit to carry out some other activity but i think that it seems like the there's a contract in the case of alcoa it was a contract for the sale of power at a certain rate for a certain period of time as a thing to stay whereas you certainly can stay the bull run project which is removing timber and selling it well the alaska center case was involved a helicopter is more like a pregnancy case you can't stay a person from having a baby so that's why they use that exception for capable of petition and if they think if you but here it's clear that it falls within they had waters an american horse case with its actual conduct undertaken by an agency that could it could be stated and it wouldn't happen so assuming that those cases are more on point why wouldn't this permits void you may no longer do helicopter trips and that would have alleviated the harm of the planets which was incursions of helicopters into their wilderness experience so i think it's the same and i would say for parties to file emergency motions because it's not you're not seeking to stay or you're denied a permit even though it's referred to sometimes it's you have to seek an emergency motion for injunction pending appeal and there's all sorts of language that's an extraordinary remedy and it has to be decided quickly and so you're forcing panels to decide these large issues in the context of emergency motions and doesn't seem like that is the way for an orderly proceeding of federal questions to get decided i see i only have three minutes left i would the only component of this project that earth island is challenging is the timber sale so there are other aspects of this project so the bull run project encompasses both the removal of hazardous trees and there are some reforestation activities that are ongoing and will continue so judge including you mention you know the project itself is complete actually no that's not quite accurate the components of the project that they challenge the one thing they're challenging this appeal they've narrowed it down to this timber sale that was completed in in anything else they're only challenging that timber sale and the forest service in this case there are and i mention this under the careful repetition not evading review there are two other projects the peer fire project  that the sale of the contract has not even minute warded so it is the same parties it's before the same district court judge the peer fire project is also proceeding under the same categorical exclusion this is that subsection d for but but nothing yet has occurred so our argument here is even if you get to the point where you say his escape of repetition not evading review we know it's capable of being repeated because it is being repeated and it's not necessarily evading review because in that case nothing has occurred so absolutely earth island can seek an injunction as they did in this case and if they need to seek an injunction for the appellate proceedings they're more than able to do so as has logging commenced on your fire no logging on to your fire has not severe creek is the other project that we mention and spear creek i believe there is ongoing tree removal that's under that project and again as you just heard them admit they did not seek an injunction to stop that from occurring so and are out a alaska center that we've we've at times has no requirement to say an injunction to certain circumstances and then they argue that particularly alaska's answer is applicable here  disagree with that your honor for the reasons that the panel just dimension and mean it is a unique circumstances analysis so you have to look at what are the unique circumstances of each one of these cases and in this case the alleged harm what they're alleging is that the is somehow harming them that this commercial aspect is somehow harming them it doesn't really make much sense because if you look at their brief they're saying we're ok with the removal of trees we just don't want you to haul them out so what's the injury right i don't understand what they're actually getting across here but my point is if that's what they're worried about if they're worried about trees being removed that are hazardous trees that have the capability of hitting the road they can get an injunction that will enjoin them and what the district court did when they saw in a injunction one of the things that is a court had to consider is irreparable harm and when it looked irreparable harm it looked at the environmental impacts of the activities that were being proposed at that time and on this record we proceeded the forest service procedure in our categorical exclusion species the forest service looked at this regulation and it complied with it it went to the fish and wildlife service for the mountain yellow leg frog and it went and looked at the biological assessment the biological valuation it looked at thirteen species for management management indicator species no it's another sixty she's under the biological evaluation no currents in this project area spotted hours eighty two thousand acres of available habitat on this forest this project impacts six hundred and thirty cite seems much closer to the description of the work that's not applicable because the size of the acreage larger this is just a question as to whether the forest service experiences this is the sort of thing that doesn't cause harm and they make a very strong argument that the category holds and she relied on those and really fed as as compared to the other one i mean if we relying on these particular categorical exclusions it points to three and i'll just stick the d for for one moment it's repair and maintenance of roads and so then you look at the handbook the four services handbook and this is the consistent judgment of the forest service when it talks about road maintenance the forest service handbook and this is that supplemental excerpt records three hundred and one two thousand three hundred and three you go to the forest service handbook and it tells you road maintenance includes the removal of dangerous trees it also tells you in specifically cites subsection d for and it tells the forest service managers you can look at subsection d for apply this categorical exclusion for the removal of trees and that falls within road maintenance why does that make sense roads are a very busy there's one million dollars people that visit this forest every single year there's also not just visitors with kids in minivans but there's a fire truck with firefighters there's a whole bunch of people that are using this roads to maintain those roads and judged home and brought this up if the forest service did not go for with removing each hazard streets it would have to close over fifty miles of road and the reason it had would have to close those roads is because of the danger that these trees posed and so when it looks at this provision that tells that you can maintain roads by doing a whole bunch of things that are listed in this categorical exclusion in the decision memo itself it says it falls within the general scope of this exclusion when in fact the forest service handbook tells it that it falls within this exclusion and so there's nothing arbitrary capricious about the forest services actions and that's what we're doing here before this court what you have is a decision by the forest service that is being applied under the a p s deferential standard  us says you didn't do what you should done then i don't have to give any deference to the forest service doing well so the me too there's sort of there's a lot of deference cling on here but i mean appreciate you want to have deference here no but if i read e thirteen which is the one i've got i don't think we need to give you any difference there seems to me there's a natural reading that indicates what this the salvage provision should govern and the natural reading would be that you shouldn't do it under that way under either thirteen right i wouldn't need to give any deference to anybody i just read it and that's what says ok so let me quickly do two things one alaska center the sick he said we've cited and it says whether a project falls within a particular so again there's that for instance owed when we the force are looking at our own applying our own expertise now you're absolutely right your honor we cite this in the same day that i filed my brief in this case the solicitor general filed briefs in kaiser kaiser as you know the supreme court had to look as whether our in some rock survives a challenge in the court held no yes it is not going to overrule those two decisions you're absolutely right that you have to find that the statute is ambiguous you have to find that it's genuine ambiguity  i don't find that after having exhausted all traditional truly tools of construction to understand the meaning right voting guys are then at that point i don't give any deference to the forest service right well you have to judgments verin considered judgment of the forest service that within the four that this applies this court had before it previously this is the american forest conservation case this was a district court decision that applied this categor existed in the handbook and apply to the district court to a removal of trees on something like fifteen thousand acres it came up on appeal and it was affirmed the judgment was affirmed on a similar exact word for word before subsection that this it was an unpublished decision i recognize that but it's an unpublished decision your honor but this court should reach the same outcome here i ask you to from the judgment in favor of the forest service i'm allowed interveners time  my argument on the merits the bull run timber sale does not authorize the commercial harvest of all the dead and dying trees along the seventeen nine miles of road instead it only authorizes those dead trees that pose a hazard to the roadway and  hazard to the public because they're within striking distance of the road clearing with or could roll on to the road this sale does not authorize a clear cut and any undamaged green trees or dead trees that don't pose a hazard they will be left standing  because with salvage any dead tree could be removed it doesn't prescribe a certain type of civil cultural prescription it could remove all or some of those within the two hundred and fifty acre and the purpose of salvage harvest is different than hazar tree removal the purpose  is to recover the economic value of those trees and not to for environmental effect i mean this is all about what is going to have an impact on the environment that we should study further why does the purpose of the operation make any difference the prime there's two kind of separate questions the primary purpose is going to determine whether the activity falls within the categorical exclusion we have to look to the primary purpose to determine whether this is going to have a nexus with the recorder and a nexus for the repair and maintenance for to fall within the four or does it have some other purpose or let's let's for example use each ten which is hazardous feels reduction if the thinning doesn't have a connection with hazardous fuels reduction it's not going to fall within that categorical exclusion so the primary purpose doesn't matter but what the impacts are relative to the inquiry of is there going to be extraordinary circumstances in this case to fall within any of these categorical exclusions that the agency has to determine that there's no extraordinary circumstances and there are  resource conditions under subsection b that the agency is required to evaluate to determine whether there are impacts and are those impacts significant here the agency determined that the removal of these dead trees right next to an existing road that are not concentrated in a single area and in cordons with its hazard tree guidelines and its forest plan that activity is not going to present take extraordinary circumstances it's not going to have significant impacts to the pacific fish or the california spotted owl now in the yellow leg frog and earth island on appeal does not challenge the forest service as well well reasoned determination with respect extraordinary circumstance and where you draw a distinction between a salvage operation that could be conducted anywhere in the forest without regard to its proximity to forest roads which clearly addresses as my colleagues have pointed out selby job fire damage tree and removal of hazardous trees as part of road public there's a difference there because again the road maintenance a has to be a nexus to the record or and a nexus to repair maintenance and there's a qualitative constraint because those trees have to be hazardous trees whereas under the salvage categorical exclusion they don't have to be has or they can be any dead tree and that man will be that the damage tree still has commercial value if it can be cut before it's ruined from having stood in the forest for two or beaver yes your honor the commercial aspect of of this is really an implementation choice and the forest service has many implementation choices they can use a service contract they can use their own funding mechanism to to remove the trees i see and out of time stand your argument but i want to ask you one more question it seems to me that what you try to do is you try to rely on a more general portion overregulation giving broad discretion for the road maintenance and weird looks looking at under the thirteen for most specific provision as a relate to if you will the salvage of dead and dying trees so as with  gateway hotel is that we were why on the specific over the general how do you respond to that at that point it would seem to be that we're really looking at a thirteen and not befor specific to what we have here your honor i disagree that that this categorical exclusion is somehow more specific then then before they're just different you got any good legal authority for that argument without relying on a wrong categorical exclusion but doesn't the forest service have to make the determination of how quickly these burned trees need to be removed if they happen to be located along the right of way of a forest this road but keep in mind your honor they took a year to plan this must very adequate time to do an environmental analysis and the agency's own rules and dissipates that talk to get salvage chembur before it goes bad for  instance it's fine to do it if under this number but i don't know if it's in the record in this case or from my experience in handling of the timber cases but am i correct that that tree has about a three year usable life span an environmental analysis is not like an environmental impact statement environmental analysis can and usually is carried out in the span of a couple of months easily within the span that they chose to go to the corpus of the project is really more safety and maintenance than it is sale of commercially salvageable temper why can't the agency make the determination that for safety reasons we need to move forward and there's no need to do an environmental impact statement because we're either going to take these trees now while they still have some value or we're just going to close a road well that wasn't the choice they could've done an environmental analysis and gotten this done in the same amount of time exactly the same amount of time and forty  f r fifty no way point four is the larger regulations governing all agencies and it says an agency can develop a categorical exclusion rule if it finds that the impacts of the action can be excluded the purpose is absolutely irrelevant it's the it's the impacts in this case from the logging equipment on the soils and from taking removing timber that some people including my plaintiff think should be left for wildlife purposes they were putting the trees by hand and i mean we're not building access roads here like we normally would to a timber sale no roads but there is the standard heavy machinery involved in the timber sale it's not just like not talking about haul roads and that's what not roads but machines going