morning you're honest and may please the court the record before you documents forest service professionals trying to do their jobs as they evaluated a proposed pipeline through to national forest they were testing the project against the governing force plans and planning rule they demanded full evaluation of alternatives that would have avoided the forest under their care and they were searching for an engineering solution to the serious erosion a landslide hazard that characterized the forest the record tells a consistent story of problems and legal violations atlantica failed or refused to address and then suddenly the agency reversed course and abandoned its well founded objections agencies can change their minds but they must do so based on factors congress directs them to consider and with a reasoned explanation for the change nothing changed in this project or the agency's analysis of it and to explain these reversal respect to the forest service authorization from the mountain valley pipeline i'll address each in turn subject to the court's questions turning first to the planning rule argument the forest service here as it did for the mountain valley on this case is on all fours with the court's decision in that case first just some context these two for us the jefferson national forest and the george washington issue here are managed as one unit by the same staff they are governed by separate forest plans that have a lot of overlap some of the same standards amended are identical and they were amended with the same approach exempting the pipeline from meeting them if it complied with promised mitigation and the agency's reasoning was the same  both cases it skipped over the purpose to us entirely this this test for determining whether the amendment is directly related in the court's decision for the mountain valley pipeline case the court noted that the record of decision in that case which was drawn from the same template as the record of decision here stated that the amendments were needed to ensure consistency between provisions of the forest plan and the proposal on nearly identical statement as in the record decision for the atlantic coast pipeline where the court says and this is a page thirty seven of the joint appendix the purpose of the plan amendments is to ensure consistency of the a c p project with the provisions of the two forest plans the rationale is the same as the court reason the mountain valley pipeline there's case and that in the early pipeline alone is enough to vacate the forces authorization because it failed to apply the protective standards of its own force plane again and hold these amendments these exemptions for the pipeline to them we also argued in our test faithfully or apply the purpose test at all is harmless error it bases that on that two arguments or they base that on two arguments one that mitigation promised for this project will address it and i'll talk more about the mitigation later the second is our contention that the forest service failed entirely to consider alternatives that avoid the national forest now as the court knows in the mountain valley pipeline case there was an issue that the bureau of land management had a statutory obligation erosion control measures of seventy eight percent at basle be overstated and this case the forest service except that a model that assumed ninety six percent efficiency for a single line of erosion control measures meaning put up  service failed to apply its own force plan standards that require it to consider require sorry disallow it from authorizing right away across the forest if other alternatives are available that can be significant environmental advantage it's important here your honor to know that there are there is an alternative available that real outside just fifteen miles to the north and avoids all federal land it would avoid both national forest the shenandoah national park the blue ridge parkway and would across the appalachian trail on private or state own land that alternative was named but dismissed from detailed study on the finding that it would provide no significant environmental advantage that that alternative got three paragraphs of atlanta to reroute on a longer path to avoid sensitive resources early in the project timeline the winner proposed a crushing into a national mountain which had habitat for a rare salamander species on it for sort of said you're not going to get approval for there and that resulted in a thirty one mile longer route around shenandoah national mountain around chanda mountain to avoid impact a sensitive resources that's a longer route with less environmental resources impacts overall because it was less as i understand the question for the court party the petitioners argued that the forest service failed to analyze for itself in the document in its record of decision field to go through all the alternatives and repeat the analysis longer is more environmental impact even though it says it acknowledges that it's not necessarily true that longer has more environmental impact and we haven't done resource surveys to figure out if that's the case we're going to go ahead and reject them on that assumption the forest service accepted that russia now notwithstanding that it has an independent obligation under its own force plans to seek out and confirm that all of those are not available there is no question what was really driving that your honor however atlanta in the response and the respondents for service point to the fact that atlanta considered two hundred route variations very proud of that they don't disclose that one hundred ninety eight of those two hundred variations went through the same one mile segment of the appalachian trail on the george washington national forest and the record is clear that that decision severely limited opportunities to avoid federal land who void the national forest the reason they did that was based on a statutory theory that the forest service could do something park service couldn't which is to use the mineral leasing act to authorize a right of way across a unit at the national park system this issue i think is also partly decided by a nother decision of the court our recent challenge to the national park service authority where the court said the mineral leasing act and units the national park system simply exist in different spheres this case our challenge here is not about what that was about we don't this is not an issue of whether a federal agency if it has independent statutory authority  of way can use the courts answer that here the forest service relies on the mineral leasing act which denies authority for crossing a unit of the national park systems that's the only question is this unit of the national park system and that question now post hoc taking a different position than they took in the record about the weather so the only question is whether the appalachian trail as it crosses the george washington national forest is a unit or the national park system here's what the forest service told her it said the of the trail of the park human as a unit of the national park system the national park service objected to that and said you got that wrong and said that trail is one of three national trails administered by the national park service that are considered to be units of the national parks  park service administers the entire national trail and as such considers the tryer trail court or to be part of the a and s t park unit that's the only question to be answered if you answer that question the yes in the affirmative this is a unit of the national park system as it crosses the george washington national forest then we have the problem you pointed out judge when two agencies looking at the exact same statute one the courts already looked at and said exists in a different spirit from units of the national park system and citing it as authority for this right  way so that's one of the issues that not squarely addressed by this year decision your honor the other is relates to landslides this pipeline will cross rugged terrain in the national forests for the same reason that erosion is a concern across the national pipelines can be built without problems and the strain this best in class approach that that if the forest service is described as a cookbook with generalities they identified ten classes of hazards and said when we get out the field we're going to pick from this recipe book to solve it the forest service said give us a picture of examples and say give us concrete cite specific designs to show this will work for each one of those hazard classes it never got it demanded them nine times it submitted an official letter saying it needed saying it couldn't analyze plant amendments or environmental effects without them and elate it simply refused ultimately the agency reversed so you're saying optimistic estimates that they relied on is going to crease by two hundred eight hundred percent of the project the landslides no massive tons of soil moving at the same time ok i'm going to your questions i'll take the rest of my time for a bottle  zero right but one issue that wasn't reached in sierra club was a harmless error issue so taking a step back even if they are right or wrong let's say those amendments are directly related any error was harmless because the error was a technical one forest service stated the wrong rationale for service didn't fail to protect any resource that they are required to protect under those substantive planning provisions if you go to the actual regulation thirty six  two eight to two nineteen point eight what it requires is that when an amendment is directly related the forest service must include provisions in the amendment that maintain or restore soils and maintain areas here if you look at every one of the modified provisions that the petitioners challenge there are measures in those provisions to maintain or restore soils and right here in areas and this is how the forest service does that they into those modified provisions by reference and they require that inland to applies the applicable mitigation measures from the robin to calm plan which maintain and restore soils and right very areas let me give you an example one of the modified standards george washington forest wide standard five requires that projects disturb no more than fifteen percent of the soil in an activity area they modify that standard here allowing atlantic she disturbed more than fifteen percent of the kind of evidence this necessary in order to show why and room where you don't have to take my word for it your honor this is in the record the forest service itself stated in the rot that all of these measures in the rod in the that argument so under the a p a that argument you came up with there's the right under the a p a this court has a responsibility to consider whether any error was was harmless its the  harmless error or sort of mike in our contention is that even if the forest service error were wrong these are directly related amendments any error was harmless because it was an error in stating the wrong rationale not in failing to apply those protective measures to maintain or restore soils or right period areas because each of the modified provisions includes a language requiring atlantic to do exactly that wanted to lower his the you just say that the permissive stand those were were lower in terms of less restricted so that gets to the question mark correct about there so that gets to the so so no we do not think that's correct your honor but i think the key argument what will happen it's about what the forest service did on the record and what they did on this record is requiring the lancet to abide by a robust set of mitigation measures to restore stilettos to restore areas that they negotiated over two and a half years of review the forest service took its choppier very seriously they have a difficult role they hash and we have the two thousand and twelve rule the law we saw argument is that the two thousand and twelve substantive planning provisions do not apply to this these particular amendments but the main argument we're making is that even if they want i don't i don't do so the arguments we made in our brief is that they are not directly related to these substantive requirements and that they will not have a substantial adverse effect on his resources but again i think the matter how how would you  effect on a national or us as the forest service stated well i mean again that that sort of forest service explained in the raw they went through all the analysis to look at whether the effect would be substantial but the best guidance for that issue can be found in the preamble to the two thousand and twelve rule where the forest service says that rarely if ever were it will aid projects specific amendment rise to the level of having a substantial adverse effect on these  poorest how many so how many trees you cut down before in a substantial adverse effect maybe not one will the forest all of them the way the forest service stated in the two thousand and twelve preamble to are you at your honor and start where you ask me to turn to the alternate yes so we think that this case in that regard is on all fours with the mountain valley pipeline for a service decision where this court said that it was perfectly reasonable for the forest service to adopt the conclusions in the environmental impact statement i think it's the key here is to look at the entire record and affect the forest service took its responsibility very seriously wanted land sick an initially applied for to work for an interest for a certificate of public convenience in this city they actually proposed a completely different route that would have gone through more of the national forest and the forest service  as was its duty under the natural gas act pushed back against that and said that that route wouldn't be ok they stated that in a letter in january two thousand and sixteen and they said it impacts too much of the forest specially its insensitive took the feedback from the forest service and the other cooperating agencies over a year and a half of review it analyze twenty seven route alternatives and it issued a certificate of public convenience in the city which is a q inflection point because at that point for has selected one route and determined that the public convenience of necessity require a pipeline on that route and once for it made that choice it narrowed the issue before the forest service it crescent trail case which is very similar to the situation here that following approach whereby the decision before the agency narrows over years of review accords with new rule of reason and common sense with my level of insubstantial as burst a path so on behalf of the forest service today what what would rise to the level of the substantial at first effect to issue a right of way underneath national forest system lands on the appalachian trail i think that issue can be resolved because there is a key mistake that petitioners make in their reference to a national park that is not a defined legal term it's convenient shorthand that the park service sometimes uses in referring to the outer boundaries of an area that contains national park system land national forest system way on private  that determine whether an agency can authorize a right of way underneath federal lands they can authorize a right of way underneath a national forest system lands that is lands owned by the united states and managed by the forest service the appalachian trail is appalachian trail and there are already fifty more than the pipelines running underneath the appalachian trail this is not some new fangled idea that the forest service came up with the trails act doesn't silently up and that system of federal land management environmental impact statement it was conducting its own it you address your own concerns the documents were documented the forest service address those concerns by conducting its own additional review the forest service reasoning it's clearly laid out through a year and a half back and forth with the atlanta and her on the contours of the complex and the forest service made provisions to those plants basically with the forest service said once for example the model of the land to came up with  service said that's that we agree that that is the best available model but it has limitations so we're going to continue on our own independent of the environmental impact statement to thoroughly analyze exactly what the impacts of this special use permit are they conducted dozens of meetings they can they submitted three rounds of substantial revisions to the com plan and only at the end of that process in october two thousand and seventeen this is well after the environmental impact statement was finalized only that and this is probably the most he documented record at page eight forty seven just the forest service send a letter to atlantic where they say that over this years a longer view you have finally are beginning in two thousand and fifteen the forest service began its own review process it didn't capitulate to atlantic they took this job very seriously the forest service has to manage the national forests for multiple uses and balance competing interests which include protection of wildlife habitat but also include a responsibility given to them by congress to responsibly maintain and construct utility corridors over two and a half years the pipeline recommended initially is it still in the funnel that's in the final environmental impact statement but what the forest service of our service really had objected to that and those objections are recorded in the environmental impact they they didn't that's why the passages that it was in the on all the model itself was in the finally i asked but what the says is that because that model isn't good enough for the service to conduct its thorough environmental analysis here the forest service models imitations and that's what the more service recognise you might go back and think about it more no your honor the forest service recognize the limitation in the model and relied on other issues in determining what the plan and as it made those revisions it required it the lancet to include in that calm planned construction protocols and mitigation measures that were sufficient for the forest service to fully analyze what the impact would be that's why that october third two thousand and seventeen letter at page eight forty seven is so key it was published it was submitted to atlantic several months after the final environmental impact statement and that's the point at which the forest service said you finally addressed most of our concerns the language they uses your responses have largely addressed our concerns but incorporating this final set his these fifteen pages of excel spreadsheet changes into the plan before you are comfortable with what you're doing here if you don't thank you hundreds brooksmith for atlantic coast pipeline let me talk to the quick i want to point to specific record evidence where the forest service is concerns were resolved not simply by acquiescence but rather through strict mandatory requirements on atlantic coast pipeline just s mention the sediment modeling analysis that issue of apparent commonality with m v p decision the forest service never accepted the ninety six percent efficiency indeed that model was predicated on a standard erosion sediment control phones instead of debating as it did in the other proceeding over the percent effectiveness of the sultan's the forest service made a much more direct and compelling move which was to prohibit the use  fences in the areas over which it had concern areas of concentrated overland flow whether natural or manmade which would represent the steep mountainous terrain through which portions of the atlantic coast pipeline cross that is reflected in the record that is noticeably absent from petitioners briefing it doesn't end in may it begins after may indeed those comments prohibiting the use of cell fences came to atlantic and were responded to atlantic on june that shows that the agency not only took a hard look but clearly did not acquiesce to applicants submittals indeed the issue of removal of efficiency for so fences was raised not less than five times in the in the forest service is the reaction to atlantic not to use these so fences in areas where they were not proven to be effective that's the type of record evidence that we use of mate because not just to the hard look analysis underneath but also important many of those did you provide your out of this is another great example two were provided before the record of decision the remaining eight were required is a strict mandatory term and condition the record decision and the special use for me in th look in on those now yes in fact seven of the eight have been submitted in approved but let me explain the back and forth that led to that there was a year of analysis of six sets of written comments and at least eleven meetings on those first two in the focus of those first two was  they reflect the consummation of reasoned and technical decision making that would give the forest service confidence that in these areas of slow prone landslide risk that these plans would abate that risk and once the forest service was the consummation of the record reflects that the forest service never relented it asked for ten and it will get ten and that's a mandatory requirement of the permit my point was that this is not just part of the hard look analysis the question is whether the forest service applied it substantive planning will standards in earlier the judges asked about whether this was to lesson plan standards or plan to close pipeline but the reality reflected in the rot is that for some of these standards like soil construction of a pipeline according to four required perceivers doesn't match up squarely with boris plant prescript percent soil removal or how much oil has to be stockpiled there when you put it back those are things that are inconsistent between two federal agencies and so what forest service did within his discretion was to apply those standards within the scope and scale of the amendment which is what the rule requires and in required equal or greater protections through the required procedures implants and the complex which is why these issues of erosion and sedimentation and last side risks are so significant because they their record shows that atlanta was able to reach  decision with the forest service was able to demonstrate compliance with strict mandatory conditions that would show that those concerns would be addressed in that the plan standards would be maintained or restored which at the end of the day is what the forest service is obligated miles if i may i will amplify one point on the appalachian trail crossing which is simply the bedrock principle of american property law is that you have to have ownership in the land in order to convey interest in land like right of way or a special use for the forest service has always owned it in mr deland being crossed it is owned it in administered it far before nine hundred sixty eight when the national trails act was enacted by congress and there's nothing in the national trails act that converts national forest system land like this to a national park system land simply by virtue of the fact that congress saw fit to designate the park service as the overall administrator the  if you read the trails act you will see that at that nominal overall administration function ties to seven specific authorities in section twelve forty six of the they could have things like uses along along the trail of camps and shelters  park benches it goes to court nation with all of those other agencies and private citizens that you heard from mr kopper that own some piece of this two thousand mile path it goes to rules or doubting you know consistent use or consistent signage those are administrative functions that the national park service is that it minister eight or of the footpaths for purposes of those seven the pardons congress was equally clear that it did not take away or transfer from other federal agencies with interest in that footpath buried ministration functions and that's why it's critically important when you look at the right of way section in twelve forty eight it doesn't say the administrator or the secretary with overall administration part shopping rights of way it says or first i think i can address quickly whether the question whether the court's decision sierra club is is in fact controlling with respect to the plan amendments the four services brief concedes the purpose of the amendments was to relax thirteen planning standards you don't need to go any further than that to find that it is on all fours with the sierra club decision which required for service to hold those amendments up to the planning role  counsel suggests they don't distance themselves from the modeling analysis that animated animated that erosion and soil analysis because of the court's decisions here but they can't do that because we pointed to the problem  the ninety six percent number but that model permeates the entire decision it cited in the record decision of page twenty five that's the model that predicted two hundred to eight hundred percent increase and erosion that's the wildly conservative number based on the wildly optimistic performance of those erosion control measures with the very least the agency needs to go back and do a thorough job and consider whether it can amend these plans under its planning role in light of what should be a much higher predicted er been defined by land ministered by the secretary of interior through the national park service they came along later in the national trails act and they designated a lot of actual trails some are administered by the forest service this one is administered that's the work of the statute administered by the national park service congress knew what it was doing when it used the word administered all the parties agree there's a difference between administering and managing you hear counsel go back and forth between the two words for service manages the land of ministers  and managed for conservation or recreation values in the middle east later congress reached out and grabbed that lead when it identified lands that are not suitable for oil and gas pipelines lands administered by the national park system that was a choice that what th says we're going to approve the pipeline on atlantics timeline and we're going to do it and we're going do it on their preferred alternative i expect that decision to come down as soon as january  client's favor not decided against us is that the forest service here has an independent binding statutory obligation to determine whether routes off of the forest where they can be accommodated or reasonably met off of standard the record a decision and ask you to look instead for a more general statements of purpose and practicality they didn't ask the question they completely bypass it and this is a binding legal department just as it was in the bureau of land management controlled by th