council and have eight minutes in two thousand and seventeen the abbey fire burned about ten thousand dollars acres in the claim with national forest about half of the damage was severe the result was an increased risk of another castro while fire and endanger public almost all dead trees yeah those trees will fall most of them the vast majority of our time resulting in more wood debris on the forest floor and that will result in greater fuel loads and just over time right over time more  deadwood bigger flames will spread farther and then risk additional growth in the area the forest service designed this project to reduce the risks of a speedy recovery and plaintiff sought in the district by november th all the project work that plaintiffs ought to enjoin will be done there are some remaining work on the copper sales that's one of the two things they sought to enjoin there are two units there there's forty nine dollars acres of work removing we're we're close to move this we're not quite there yet there's a window of time here but we are we're happy to update the court when we when we get to the point where all the work is complete and just to underscore the core of the the order of the court cite winter that's a mandatory step in the analysis before the court can grant an extraordinary extraordinary remedy of a p r i with any on record other than what's in the written order about this about the emergency the need for access anything like that i think the court was aware of them it just is missing from the analysis section so that the balance excess forgive me and now is the section in the written order only but i was asking i've read the written course we all have but is there in it was there were there any on record statements that would indicate that i'm not aware of any i've i've i've skimmed through the transcript i don't recall if there was any further analysis of that in the transfer ok thank you but the the on the the order itself just fails to contain analysis then when the court did look at it and discuss it in the state where it said the public interest here is in favor of this project going forward it credited the forest service is analysis of the risk to the public and the important role that the salvage harvest here in the copper sale and the road removal has or tree removal would be camp road explain why that's important and why it should be going forward the other part of the public interest beside those two is that this project will restore old growth conditions in the project area about one hundred and thirty years earlier the natural regeneration and so this is a project that both as these important public interest and public safety aspects but also is going to result in a healthier forest with old growth conditions much sooner the natural regeneration as to irreparable injury in the balance of harms the district court st error here by presuming that logging cause irreparable injury the court then did cite plaintiff's recreational interests but here that recreational interest is diffuse and the project area itself eighty eight percent of it's going to be left to national regenerate and that's what plaintiffs interest is then so the vast majority of the project area of the ten thousand dollars acres we're talking this will still be able to recreate and without any impact by the four service actions here when you talk about balance it's even clearer and that's what this report relied on that it stay order that the recreational interests of plaintiffs is outweighed by the public interest say for forest and natural for some regenerates faster and the and that the safety of the forest workers and the and the public who use the road that's at issue here  a conservation strategy which is part of the northwest force plan the forest service here thoroughly analyzed both the project site its natural condition its condition after the fire and then finally it's condition that would be in place  after the project and the agency concluded and explained that the short term impacts here would not be significant and would lead to long term restoration improvement of water quality in terms of sediment and that's all that the a c s requires maintaining or restoring water quality and the project here will restore water quality in the long term with only minor short term impacts as to snag our attention snags or the standing dead trees that remain after this sort of fire  that the klamath plant here is a specific numerical standard and the forest service is now also shows that it's going to double that standard and then the project also complies with the northwest forest plans more generalized guidance about suitable habitat for the northern spotted owl the project here destroyed a lot of that habitat i mean the old growth that was burned down that's now severely damaged is at best marginal foraging habitat now for the northern spotted owl and because the profits going to lead to restoration sooner one hundred and thirty years back to its national forest management act and i'll say this but as i've explained there's no violation there that analysis was fine and so if you're building on a faulty foundation in any of that it's not enough just to cite to the other statutory issue and say there's a de facto requirement for an environmental impact statement rather the court should have analyzed the significance factors in the that set forth when there is it intentional impact to require a environmental impact statement t sum up and i'm happy to answer any questions but we think we're close to move this public interest amounts of harms here very much weight in favor of this project continuing to go forward and vacating the preliminary injunction and in the merits analysis the forest service to as a functional matter it it stops the primary junction so there's nothing enjoying the four service right now as a legal and alice's matter it found came out differently on public interest and balance of farms and said that's the main reason it's doing so on with within the natural range of variation for all of the four services empirical models and so that's that's the that's what the district court missed in its stay order and we think that shows that on the merits as well that the four service here has complied  today urges you to conclude that this case either is moot and i'll explain why i disagree a little bit with forest service counsel or alternatively to reverse the district court's preliminary injunction your honor regarding mootness your honour's you asked us to talk about the a can of or so i e case and we agree that under the unusual circumstances in this case or the preliminary injunction was granted and then actually stayed by the district court the district court effectively cured the problem and the appeal is moot from our perspective in the activities that were the focus of the preliminary injunction were discreet activities and those were areas salvage harvest and also the removal of certain hazar trees along the b camp road there's no dispute that the b camp road hazard trees have been removed from our perspective because the only activity remaining under the copper timber sale is some firewood removal into units firewood removal because that was not a focus of the injunction your honour's the focus was area salvage on under the under the theory of aquino that the particular focus of the preliminary injunction has now ceased those activities have ceased ever see does take the position that this case the appeal is moot regardless of whether the underlying case has ground no your honor i believe some of the trees will need to be felled but firewood removal was not the focus of chaos wilde's appeal and even if the court disagrees the case will be moot very quickly because the active the f removal is ongoing this week also for the forest service indicated it will be done within about the next three weeks we think if the weather cooperate selection will be done in about two weeks so the case is essentially moot you said it two different ways you said it's not the fire wood move was not the focus of your appeal it was not if it is that this is that if part of the injunction is a part of the enjoined activity the parties never focused on far would remove one that is really quite bastions more specific than that and it matters to me on the  answer that question to be helpful to me your honor perhaps we have to ask a last wild the appellee to answer that question because from our focus area salvage going through and actually salvaging large units was the focus of c court entered then it's not moot and that's what i'm trying to get out with our list of what folks discussed is the order doesn't the order cover your honor the order does not address fuel would rate firewood removal at all so in order for the order to actually cover fire wo remove all the area salvage component of the injunction would have had to have been compassed far would removal and if in fact it did that that activity will be complete within two to three that house to me thank you very much yes thank you i would like to briefly address  argument put forth by cass wilde in their declaration filed last week they filed a declaration under the guise of a twenty eight j notice basically saying that this appeal would not be moot because of the capable of repetition  exception to midnights we disagree that that could apply in this case because one of the reasons for that exception is that the activity that's being challenged is of such a short duration that it could never be reached within the course of the litigation but in this case in the district court case while did not pursue its appeal excuse me did not pursue the merits of its case after obtaining the problem area injunction in january and in fact in july the parties stipulated to a stay of the district court proceedings pending the outcome in this case so on and these facts the capable of repetition yet evading review exception to moving us would not apply your honour's even if you don't think this case is moot we agree with forest service counsel that the district court abused its discretion in entering the preliminary injunction which it then cured by issuing the stay order but it's very clear that the district court abused its discretion by misapplying the law the district court did not either in it order or your honor at the hearing addressed the public interest factor or addressed the balance of harms it very clearly focused only on serious questions on the merits and the likelihood of irreparable harm and in doing so the district court collapsed that four part test for a preliminary injunction into a two part test all chaos wild had to demonstrate with serious questions on the merits coupled the likelihood of a propos harm in the record is clear that that's all the district court required and that runs contrary to the admonitions of this court in the supreme court that the public interest and balance of harms elements must be considered if the court had considered those things it would not have issued a preliminary injunction and in fact when it issued it stay order it reached that very conclusion the district court explicitly recognized that the threat to public safety should the injunction remain in place warranted the stay of the injunction the record very clearly supports this perhaps your honor there needed to be more discreet focus on balance of the a balance in the equities but he very clearly recognized that the public interest element did not support an injunction and did warrant a stay  you know your honor we are not and i'm going to very briefly your honour's address the national forest management act snag removal issue that was the issue of challenging salvage harvest in a late succession reserve the district court actually reversed course on this when it issued its stay order and very quickly your honour's the court and chaos wild rely on the brawley case out of this court this case comes up repeatedly and so i would just like to briefly remind the court that braun is factually distinct and and factually distinguishable it involved a different force than the klamath involved a different forest plan it involved a different snag methodology and it did not involve the fire regime at issue in this case on this forest line rule that you can't remove snags from an late succession reserve it's important to recognize that when this court issued its plans counsel mcnear versus making your decision it abrogated the reasoning underlying barong wrong was a highly non deferential opinion and it did try to create sort of a bright line rule about snag removal but in lands council versus macnair your honour's the th circuit said it's improper to create bright nine rules regarding how an agency has to satisfy the requirements of the national forest management act so to the extent can swell continues to assert the barong created the law that you can't remove stags from late succession reserve it has been effectively over ruled by the decision that reasoning it can no longer stand mcnair was an on bank decision wrong was a three panel decision and it braun is no longer good law so your honour's would simply ask you to conclude that this case is moot and if you don't think it's mo so your honor so i'd like to start with moodiness this morning st of all it is important to note that all of the logging that chaos while challenged in this in our poll in our injunction motion is not going to be completed the harvest will not be completed by november th i believe with the department of justice is intimating is that the purchaser option units that the purchaser has elected to harvest may be finished by november th but as indicated in our twenty eight j motion or letter that we've supplied to the court there are number of purchaser option units that will not be harvested by november th we've made those allegations in the declaration that their declaration filed by george sexton so there is logging that will not be completed by november th it's important to note that we did challenge all of the area late succession of reserve logging in the copper timber sale and many of those units will not be harvested by november th i also believe that the units that the forest service deferred because they located a goshawk nest inactive nest and some of the harvest units those units will also not be harvested by november moot so it's not just that you challenge those things those component parts of the project in your complaint they were in your preliminary injunction and you interpret the court's preliminary injunction to have join them is that correct ok that's right and then the also even if those units were complete but we allege that they will not be complete by november to completion of an activity is not the hallmark of mootness as this court held in north west environmental defense cent and in this case in the th circuit case law goes on to explain that there are many ways that exceptions to mutinous would apply so for example in this court's case neighbors of cutty mountain equitable relief ordering the forest service to undertake future activities to mitigate the past harm that was done by the logging we've also played declaratory relief or a request for one in our complaint and again as this court in natural resources defense council the e p a has held that requesting broad relief and as well a request for to court declaratory relief which quote delineates important rights and responsibilities and can be a message not only to the parties but also to the public and has significant educational and lasting importance that when declaratory relief for example the forest service vi i laded x y z laws for these reasons that kind of declaratory relief can have a very important public and agency message has played such broad relief in our complaint declaratory from declaratory relief from this court or from the district court remains possible as does equitable relief for these reasons we do not believe that our appeal or this appeal will be moot even if logging was completed on november th which we dispute so returning now to to this appeal which is a little bit odd it is an odd procedural posture what when center is taking issue with is the district court stay order that stays the injunction so basically an injunction on an injunction so that's the posture that we're faced with here today in entering that state order the district court committed reversible error in a number of respects a y for several reasons so the st reason is that in the district court stay order he specifically said that the district court quote must defer to the forest service assessment of the equities of a stay pending the equitable relief and balancing issue and so the fact that the district court specifically said i must refer when in fact the case law is the opposite that he must not defer that is reversible error because the court his decision on her own yes legal standard where did he say that counsel set it in a state order on page ten paragraph excuse me a line six and seven weighing these four factors the court finds that the factors tipped in favor defendants period  yeah so he specifically to for two the four services balancing of the equities when no deference is due the nd piece of reversible error is that the district court again in his state order page out of the night circuits case law and did not seek to enjoin the roadside hazard tree removal that has direct links to public safety and administrative efficiency we didn't challenge that what we actually challenge was the area salvage logging that has the most ecological impact and also was of greatest concern to to my clients not their only concern but their greatest concern and we wanted to narrowly tailor what we wanted for relief in the of see a little sneaky corridor that goes around the roads that's the road side has or tree removal that we did not challenge and then adjacent to those air areas you'll see kind of more blocky areas and those are the actual unit that's what we call the area logging we challenge that area logging in the copper timber sale we did not challenge the area logging in the low gap sale which are much more acres there they were closer to town we thought that our humans around public safety was not strong there so we didn't challenge that so we actually allowed quite a bit of logging to go forward and narrowly tailored our request for relief here on the other hand the forest service  particularly defendant patty grantham filed several declarations with the district court alleging the economic harm that would result to the government if the logging in the area logging that we challenge in the policeman or injunction so not the roadside stuff where there are highly lucrative very large trees or in the low gaps sale so that again that went forward ms grantham statements were that every aspect of this project had to be implemented in order to recoup money in order to pay for what we consider to be the white hat aspects of this project has or steals reduction prescribed burning those things we have not challenged either in our complaint or request for  project would be sufficient to carry out those activities and so we have the forest service making unsupported allegations that they need every dollar possible to implement these other projects and the narrowly tailored injunction would preclude that and quote the courts may not accept appellate councils post hoc rationalizations for agency action is well established that an agency's action must be upheld if at all on the basis articulated by the agency itself and here we don't the administrative record has not a single piece of information about the economics of this project and because the district court clearly relied on those claims of economic harm to the forest service for the basis of its stay warder that is also reversible  isn't actually not the standard for achieving injunctive relief because the forest service was at arguing for an injunction of the injunction a stay of the district court order they the forest service also has an obligation to show  not a mere possibility but a likelihood of economic harm from the injunction and as i just mentioned there is no economic information in the administrative record for this case and therefore the forest service is claims of  and or made a clearly erroneous finding of fact that suitable habitat this goes to the national forest management act claim regarding snag retention in the late succession reserve but he made an iranian finding of fact that suitable habitat which is actually a term that is applied generally to listed species in their critical habitat is equivalent to habitat suitability as measured in protected by the northwest forest plan now those words sound very similar but they are actually quite different and i'll move on to discussing that in the merits of of our argument orders but that's not to say that the court did not consider those factors he simply didn't find them very persuasive it was clear at the injunction hearing that he was much more interested in the merits of plaintiff's case but not that he was oblivious or frankly did not consider those issues at all he made a finding in his injunction order and he reversed that finding in his state order these were issues that were definitely pled before the district court the district court was well aware of them he just simply didn't find them very persuasive in his order is clear that he didn't find those persuasive and because he found the merits finding so strong under both winter and quick trial the district court indicated that an injunction should issue at least initially however turning to the merits of the case and i want to start with the aquatic conservation strategy claim here quote a conservation strategy requires the forest service to comply with the aquatic conservation information that doesn't exist he st said that he must defer to the forest service which isn't a rony us legal standard to apply and then nd what he found persuasive was the allegation that the injunction would preclude the rest of the project from to your declaration yes ok is that the one we should be looking at so what should be looking at is the twenty eight dollars j letter that we submitted so the rd declaration of george sexton and his exhibit a is that map right and so if you look at yours next to him in october th i've got it right here so it just seems to me that you think there isn't a proximity to the road that is a concern here unit so that actually will not be harvested either but you can also see how this goes to our merits argument about snag retention that's a snag retention unit that's outside of the other harvests units so right below that crosshatch you see the speckled one i've got that the purchaser need not accept and based on our field visit of october th those units remain standing and i do not believe that those will be harvested by time by nov th this is part of this part of your argument these units thirty and forty are why you think it's not talked about moodiness correct all right because they're not hard harvested yet and they are authorized by the decision notice in this case ok as long as they remain authorized by the decision notice they could be harvested so if you can follow the road around  the left you know what the status of those those are so it's it is confusing i believe forty three dollars is a purchaser option unit i think condition the forest service used three models to assess sediment impacts to the project area as a result of the project all three of those models predicted predicted substantial increases in sedimentation result as a result of the product project of two  hundred and thirty percent increase because of conservation strategy was built to preclude this kind of increase because if you have these sorts of site specific increases at the watershed scale you'll have a degradation of salmon habitat and that's what they call a confirmation strategy discussed that on the map this is what the th circuit in the wrong case one aspect that the court found to be improper basically by averaging snack retention over a large area but i would maintains it here to was actually not correct standard to be complied with in this case and then finally moving to habitat suitability it is clear that the northwest forest plan talks about habitat suitability for all wildlife and we provided those citations in our brief but specifically regarding the northern spotted out the court has also made the forest service was also clear in the ministry of record that the project would degrade spotted all habitat well into the future as well as immediately proscribe checked again the northwest forest plan prohibits this kind of change in habitat suitability and therefore the district court on its state order should have held in plaintiff's favor on that claim as point to the contrary and we'll update the court when we get to that november th day or maybe before the cases here are clear ickiness clear you don't look at their whole claim in all their theories you look at what they saw in the preliminary injunction if you look at  i see my time is up by two more points that i'd be ok economic harm if you look at it there's something in the record that at f r c e r one thousand nine hundred the decision notice that explains the purpose of this project is not the economics it's restoration in it's safety but to get those things done the forest service has to use a contractor who's willing to come in before the trees decline too much or valueless same points also made eight hundred and eighteen three  e r and then skipping quickly to the merits they're confusing face yes comparison they're making is between the no fire condition and what happened after analysis is what what's the add the project on top of that and and one hundred and thirty percent is is based on the the no action alternative to the fire damage that the impacts from the project itself are much more marginal they're not significant and  long run the projects can improve the condition of the watershed by by doing good work but both restore the forest and to remove other source of sediment and he removes the element when cortlandt council and the case of climate