thank you we will begin with alliance for the wild rockies versus martin would like to start out today by addressing the grizzly bear biological opinion issue and more specifically starting with the statutory requirements and i i want to start with the statutory requirements because i i think that there has been a little bit ok your honor i will start with that while then i mean you could do the grisly paint briefly but i do think the other issue is huge this actually ok here and i will start there then i will start with that well then urban interface issue and to sort of clarify on mock the mass i'll also start with the relevant statute in for that issue which is the healthy forest restoration act statutory definition of wild then urban interface and so because there have been various definitions through the years of what wild intervene in current statutes out there you know i think so what we're looking at right now starting with the statutory definition under the healthy forest restoration act the definition of while then urban interface which says an area within are adjacent to an at risk community that is identified in recommendations to the secretary and the community wildfire protection plan so that's the st step is that we look to the a community in the wildfire protection plan at risk mean to their community their their policy to the powell county plan right yes does that mean that they can say anything no your honor what it means  it still has to be an at risk community and the healthy forest restoration act also does define at risk community in that same section six thousand five hundred and eleven but it subsection one it also defines at risk community and what it says in that definition is that it has to be either an interface community as defined in a specific federal register entry or a group of homes and so that is when we have to powell county plan is being permissible no not on appeal your honor we are just saying that when you have to have an at risk community the powell county plan did look at that risk community and it was those four mile concentric rings around those at risk community per square mile and they say what the how county plan actually looked and which nobody seems to have discussed at all was some they didn't appear to be that's using housing density rather than people people and from what i can tell if you actually did it this way you'd have about half the county cover silva study and then they go on and they use that standard so army all new on ball park in terms of what this let me add to that and just as you make it more  standard are you urging the court to it which of these i mean you don't like the government's right well the powell county plan which is the four mile buffers around the find w u i and that's defined differently if you look at there is if you look at the actual document which is not in the record then being just a concentric circle around direction and so this and so basically what they're saying if we look at the statute the definition there's a part a and a part b and the part a says basically if there is a community wildfire plan you apply the wild and urban interface that is in the community wildfire plan if there is no community wildfire plan you apply part b and part b is where it says areas that are half a mile from the boundary of an at risk community or areas that are one and a half miles from the boundary of an at risk community and contain certain key features such as steep slopes etc so what they basically did was take these towns and then add the one and a half or eleven mile half a mile or one and a half hour but i just explained to you that this isn't what they  because they weren't starting from the child's they were starting from this different mapping in this document which is not in the record which was as i understand it wasn't wrapped around the tabs the same town necessarily well that might be a reference to whether it's an interface community or not and so the and so if you are looking for the number of people per square mile if you're looking at that definition of it that's what's in the federal register and ok but it's not specifically in this planet it says housing density and it's based on housing density and not on people you're in or what page in the record i am looking at are  what it says is there's a while then urban are you looking at something other than the wild an urban interface protection buffer i'm looking no i'm looking at what's in before that what they're they're not buffering the town they're buffering an area that is in this extra record document that is based on housing density and not people per square mile honor what this really brings up is that it's really unclear in the record how this happened and to further add to that i would say that it wasn't until we got these post hoc declarations from the government which seems to be very different than what you're saying if we look at s c r two they say that what they did was take the regional are one we layer where they took anything with population density over twenty eight dollars people per square mile which again is the intermix population not the interface population so it's not an at risk community and then they added to that the data from the tri county interface community reasons that's at s c r eleven and so if you look at s e r twelve paragraph seven they say this will be a layer was created joining two different layers one was a four mile buffer of interface communities with population density over two hundred and fifty people per square mile the other was the region one h f r e we layer based on the h f r a we definition which they then say that s t r t point fifty one point five miles and mapping that's not what it's doing because it's not looking at the interface community it's taking the inner mixed communities and add to the differences between interface and what is an interim mix community ok your honor so so this gets back to the definition the statutory definition says that an at risk community that sub part one is an interface community what does that mean that means a population density of over two hundred and dollars people per square mile and that same federal register site also defines what an inner mixed community is and that's the lower population numbers twenty eight dollars yes to two hundred and fifty dollars and so we have to look at that federalists or to know the difference between to paragraph three where they say the metadata specifically explains that communities with population density over twenty eight dollars people per square mile and roads were buffered by either one half mile or one and a half miles so they were buffering intermix communities which is not the definition of while then urban interface and this is confusing in the reason it's not the definition of that or it's not the definitions from the pell county through w p pane it's not the statutory definition which must be more than just the number of people involved there must be other criteria and involved also right coast we're saying one is an at risk community the interface community and one is not an at risk community it's an interim mix community can you tell me more of the difference other than just the numbers you're out of the well the difference is just that the statute makes a distinction for some reason they made that distinction at that number of people over two hundred and eighty dollars people per square mile is interface and at risk less than it is not and all i can say is that if we look at the citation that they cite in the age of fairy definition is  citation to the federal register let's go back to the pal county see w p p wild land urban interface to you i w y is composed of both interface and intermix community and both interface and intermix communities housing must exceed meet or exceed a minimum jessamy a one structure pro forty acres so that there is talking about a different world and here that does appear to be saying in her face and internet it also says or counting house is not people so and nobody has said go about this in the present that's true your honor and i guess that is because when we looked at the so in the e i a s this level of detail was not admitted in these declarations that the forest service filed as c r one through twelve they then gave this definition which i'm presenting to the court which is based on the number of me ask you something that as a district judge i can't help but raise at this point you are arguing and i have a feeling your opposition will also argue from matters that none of you had before this appeal which means there is now a new material in the record that really doesn't m with the arguments with what made you appeal in the st place if i were seeing this situation for the st time at the district court level i would send you guys out to talk to each other i would say either directly or with a mediator whichever you chose but i would say you haven't really had a chance to sit down and compare apples and apples because you've got a whole fruit salad here i mean it and you haven't really addressed the questions that judge person has been asking you that they're not in your brief think this is not a question ok this is a suggestion that if it turns out that this case goes back i strongly urge you to suggest both sides want to talk to media and what your position would be in that case with which would be a totally different stage of proceeding but it just almost cries out for you guys to talk to each other that's ok yes and secretary shell provide a written statement setting forth the secretary's opinion and then it goes on to say detailing how the agency action affects the species or its critical habitat and that's at  and thirty six b three a and i just wanted to put that in the record because it does say that it is the fish and wildlife services job the secretary to do the written statement that details how effects and that's at six hundred and nineteen fed that's a different point in other words if they're saying things didn't matter which the fire service said in matters and they have to address it but they don't have to repeat what's in the foreign service  document do they as opposed to incorporating it well if they if they agree with it if they are dismissive towards it yes and as this court held that when the agencies disagree quote while the record certainly does not compel either conclusion it does a stab wish that this specific issue was a relevant factor that required discussion in the biological pinion and so here there was significant disagreement between the forest service and fish and wildlife service about what type of effects this wildlife says it does recommends or doesn't recommend isn't it interplay bound up with what the project is and don't we not know at this point what the project should be at this is that w just discussed for about fifteen minutes so if we were reversed sorts of something in the st part and we just kept saying if you were to remand for an analysis on the correct your honor yes and your honor i see my time has been long on how much yeah thank  you good morning may it please the court i'm summer in goals here from the fish and wildlife service and the forest service and we ask the court to affirm are you going to clear up these mysteries i don't interview yes nobody has looked at involved in developing it interpreted references to the h f r a to refer to the statute itself that's wrong as to what this plan says i agree that there appears to be at some tension there i think that the larger me it is and it must meet meet or exceed a minimum debt sensitive one structure for forty acres and it's not saying anything about people yes if the court is concerned and i understand the court's concern that the  improperly mapped based on the powell county definition we asked the court to remount without fake it or st because the polk county definition here with reference to this old us project does appear to include much more of the project area than is set forth in the f e i ass and also because the map i've cited on page thirteen of my brief which is provided from the state of montana and also referenced in montana is because brief reflects that much of the area interface area howard on the map that you're trying to use you have the concentric circles and then you have some more pink prop land what's that that you say it's not the district judge that it was it's federal register cited in other communities then ellison is seven in the town yes either the net or some other communities down there that's correct the town of allison is north of the project area part of the we've offered  extend into the project area but the buffered so where does your version of the national h f r a map appear where is it is there some in the region one is is there some document that has it all the region one we buffer is not forth well that the entire brief for the project area set forth on s c r two or four i don't have a larger map that shows the we buffer throughout region one  declarations in the excerpts of record do explain the mapping process for that for generating the region one wild and urban interface and i would add that their property part of the record on appeal because they were submitted were rd just record summary but still i don't understand how we can go ahead on on a completely erroneous understanding of what pal county did i agree it's frustrating that the what's frustrating is that neither you could read the plan that's what's frustrating will that mean that nobody along the way has actually read this plan so they could cure is as you're presenting it but the difference would be allowing whatever activities are going ahead in whatever whatever section they're going ahead in to continue while the re man does in effect and so forth a song that's that's public county plan the court has identified seems to apply much more broadly to the project area than the area identified in the maps in the record nd the state of montana has provided a map that mapped the powell county community wildfire protection area and it clearly includes much more of the area that is identified in forest services map the other reason why vacant her is not for appropriate here is because the on the ground conditions in this project require prompt treatment this area has been affected by a significant mountain pine beetle infestation ninety percent of the area in fact has been affected now the trees that remain where th of my brief it should immediately pull up the p d f using ninety percent i'm sorry you say ninety percent of the forest is it is it dead or it's not entirely dead but much of it is the areas that are proposed for clear cutting are largely dead areas that are not dead or diseased or a dying and it's important for the forest service to promptly treat these areas because without prompt treatment the areas are at risk of wildfire should a wildfire start forest service personnel will be unable to get in on the ground because palm trees lying on the ground will block their entry and require entry by air should a file or fires started also particularly dangerous not only because communities are in this area homes and structures could be affected but also because the area just east of the project area is the ten mile watershed which is a crucial watershed for the city of helena and the larger helena valley so those factors council against completely vacating the project and allowing the project to proceed while the forest service generates a map that is the takes into account the silvis project ok so let me ask you this  i believe short while ago judge person pointed out that they were mediation services available here at this court before the decision is made about  do you you don't i don't want to put you on the spot but wouldn't it be more advisable if it leased the parties could sit down and agree on some part of this that could go forward while while the remapping is done because the there is overlap there definitely is overlap between the plan a little hard to tell which is the right overlap and what isn't but there is overlap and surely as the project goes forward i won't say surely but isn't it likely that as the project goes forward it could be agreed that while the  of the project could go forward and that plaintiffs might even not object to that i'd be happy to enter into mediation i would need to talk with my client about what would be able to go forward but ultimately the we that project could proceed ensuring that the agencies are able to generate a proper amount balls so treating this area to respond so do you want to talk about grizzly bears and be happy to talk about grizzly bears the ultimate purpose of formal consultation is to ensure that our federal project is not likely to jeopardize the listed species it's not to discuss the facts that have already been discussed in detail and the forest service has biological assessment so here the forest service created i detailed biological assessment that discussed the project the facts in detail and the fish and wildlife service analyzed those the facts discussed them in it biological opinion and explained the basis for its determination that the project will not jeopardize listed species here i think it's important to us but the actual conclusion was leaving aside the access was that one result  to grizzly bear that's a different conclusion then the far services that right that's a different conclusion yes right so doesn't have to explain a different conclusion ultimately the purpose of likely to adverse concerns i mean with regard to the helicopters for example it was since helicopter use would be limited to prescribe burning activities would not exceed forty eight hours at any given time just  host church it was only about roads and access that's true it's steered in that sense but the agency evaluated the other site specific plaque you know what with a single paragraph that says nothing essential it's a brief discussion but takes into account the fact that the agency has already studied grizzly bears in this region in detail but it hasn't this it has been studied them with regard to three out of five of the issues that were raised by the fire service in only in it in the opinions of tiered to the only discussed roads and access to of right i mean yes that's true the site specific impacts including changes to cover linkage habitat and helicopter use are specific to this project so they're not here to the two thousand and fourteen and he says their disgust with the effects of the proposed action on grizzly bear calmer and four inch would be insignificant wildlife service analysis reflected the fact that this project takes place in a distribution zone and not a recovery zone if it were in a recovery zone it's possible that the agency would have discussed these factors in more detail and what that means i don't know what i mean yes a recovery zone is the primary area that's managed for a grizzly bear recovery includes high quality grizzly bear habitat and secure areas core areas that are separate from motorized access and in and in include large chunks distribution zone because they're doing quite well in the recovery zone the population has grown at a rate of three percent each year since two thousand and four and in two thousand and thirteen the agency determined that there are around a one thousand grizzly bears in the recovery zone so they've travelled into the distribution zone because they're doing really well in the recovery zone now that doesn't mean that the agency doesn't need to consider the possibility of jeopardy but it doesn't mean that the agency's analysis here reflected the fact that the grizzly bear population is doing well the agency further explained that areas free from human disturbance would remain the fact that treatments but occur in one drainage area at a time means that grizzly bears will be starting another forty eight hours i don't understand why forty hours of the time mains and just mains i even have lots of forty eight hours this use will be spread over a significant period and it will not be forty eight hours back to back ultimately the th the forest service predicts that if it uses helicopters to ignite prescribed burns at all it will likely be using them for only two to four hours at a time and it will try to use preexisting roads to limit disturbance to realize how much more information you have just provided us in about two minutes then is contained in the in the in the report yes i do you a lot of the information or the information i provided is from the biological assessments which the biopics plains that i didn't incorporates by reference so the agency the fish and what fish and wildlife service its ultimate purpose was to come to a jeopardy determination part that's what bothers me is that everything you say makes sense except that they disagreed with the biological assessment that so that seems to put a lot higher burden on on it and they could have said yes there is an adverse effect but it's not going to jeopardize anything and that would be one point that is what the glutinous inclusion is that if i could have adverse effects my best response is that the forest service was being careful here and reasonably brought these concerns to the fish and wildlife services attention but ultimately the fish and wildlife service is the agency responsible for evaluating the effects on the listed species ok thank you very much  so it turns out there being no dispute that the forest service did not use the powell county plan and the declarations basically say they use the tri county plan in this other layer and i think that we're all in agreement here today that they didn't actually use the county state montana department just and that but whatever it is you just need to deal with the fact that it's i mean in terms of what you want to do going forward that is probably true i can't prove it's true that that the actual plan is described as most of the most of the projects well i didn't look at your citation you're in the e r eighty six dollars and it does say that there needs to be one house per forty acres with over fifty percent vegetation of one house for forty acres with over fifty percent vegetation and then you're not challenging having to this point challenge and i don't think you could do it now whether they could do this when they could whether the plan can go to house instead of people even though the statute seems to be reason that we need to take a chair is because this court has said multiple times that we can't correct deficiencies in and yes with a new procedure because we need to have public comment on this issue we need to put the map out have public comment on it and then they to being essentially asked to talk to the mediators as to whether mediation is worthwhile i mean that's where we usually couch it we don't say you must mediate we say you must talk to them and was determined whether there was any point meeting yeah that's fine your honor