for commercial logging for timber emphasis the rest of the project is set aside by the northwest forest plant for protection and restoration commercial logging in this area is highly constrained this is one of the reasons that barks staff and volunteers have spent over one thousand acres in the project area walking every unit gathering high quality site specific information that we then made available to the forest service in the neighbor process to help them make a well reasoned decision about the best approach to active management in this very protected watershed in a large part of the forest service did not incorporate parks information in the n c a a or analyze parks proposed alternatives in detail giving rise to the claims before the court well the government takes the position that barks alternatives were economically feasible do you think the characterization is unfair that's their post hoc rationalization in litigation if you go back to the record and look at the exact language that they have with alternate routes to be looked at either individually or in combination that's if you are one thirteen those alternatives were to remove the logging in from late succession reserves and repairing reserves to remove the portions of there's twelve miles of roads there already to commission that they would have to build those were the three alternatives if you look at their analysis the first thing they do is come fleet finian in right perry reserves they know it's ours and an alternative that we never suggested which is the leading mean in earth flows altogether always suggest as they don't do ground based charging which is tractor yarding on these very highly unstable areas so we completely is three different things and then say well that would remove three quarters of the project they don't speak to economic to do it and in fact you take the position that if they had just no ground based then it only would have taken one hundred acres out of playwright correct so then that brings me to my next question which is are you aware of a case in which a lower court was reversed for having failed to consider another proposal when it did consider that action and no action well that this court reversed the lower court in western watersheds project the abbey fairly recently right however the court specifically said that they were quote troubled by the agency's refusal to look at a reduced grazing alternative as well as a new grazing alternative and so that it was reasonable to believe that something less than three thousand one hundred twenty animals grazing would still meet the project's purpose and need in a way that better met the objectives of the protected monument so the fact that there was not a reduced grazing alternative as well as a new gra give rise to the course reversal ok so let's say maybe to your point that this is exposed rationalisation don't we nonetheless need to consider as a reviewing court whether the project would be economically viable because isn't one of the purposes to produce well specifically for right pairing reserves they are not included in the timber base for the northwest forest land commercial logging and impairing users the starting place is that commercial timber is prohibited so we're looking at the agency planning a sale on a whole lot of land that is not designated for commercial logging so economic viability is not actually a key factor in making this decision this court has to look at the fact that these this land is set aside for watershed protection and restoration and what the forest service is done is overlay it with a commercial timber sale that looks a lot like the commercial timber sales that they're doing all through the rest of the forest on land that is designated for that and so economic viability while it might hold the place it's not in the record at all and you can't judge for yourselves whether or not that it's viable that agency is you know if they had me that determination then that would be something the court should defer in this case the only alternative that it found as economically and viable was increasing helicopter logging in which no commenter actually suggested and they refused to look at anything that would decrease the amount of eaker is treated through a commercial logging because it's directly on point situation where there is a land with a protected designation where the there was a suggestion to do a reduced alternative but right here we're looking at something that would have logged three hundred seventy five thousand trees rebuild twelve their argument correct that's what's what's in the record they did they got to that by conflating proposed alternatives and actually even expanding them later did you have to bark submit a proposal that would have like sixty percent or seventy percent of which would have only removed one hundred acres but that's a very important hundred acres because they would have meant they didn't have to exempt themselves from complying with to forest land standards that they are violating because if there should standards so they can exempt themselves or not rebuilding roads which would have left about sixty percent of the sale removed huge amount of the environmental impact one of them that they could do the logging without making roads i thought that was where the helicopters came in they could  the thing they didn't analyze is they said well we could do the logging without building roads but then we just have to do with helicopters and that's not viable we're barque suggested is removing the units that require rebuilding these roads over half of  we have that in our briefing that somehow the sites are not jumping out at me in this if it's in the brief i can find  you i think the next main topic to talk about is when deference is appropriate and how in this case the court should not to further to the agency's findings on the nepa issues the starting place for difference of course is lance council gave mcnair and makes clear that the court should defer to an agency's conclusion when the agency makes a rational connection between the facts found and the conclusions reached and how it got there this of course assumes that the agency starts with an analysis with all of the relevant facts looked at there is a little rational connection between the facts and the conclusions that the forest service reached now in a large part this is because they don't have baseline information that the issue of road i keep coming back to because it's a huge issue on the collar watch watershed as you've seen the forest service itself plant a major project to decommission roads because they see that that is the biggest impact to water quality in the color washes the presence of roads now they're going into two very protected areas and saying we are going to rebuild the twelve miles of road that are already decommissioned in recovering but act like it's actually not a very big deal and we're not going to get specific details about the the hydrologic recovery of each segment just assertions of historical action did we was actively decommissioned or passably decommissioned now bark went out as i said spent hundreds of hours of gathering high quality site specific information and engaging a hydrology expert to look at the impacts on the ground of what this would look like submitted this to the forest service asked to be included in the analysis once and they withdrew their decision we said great it will be in the next day and they resubmitted another e t a they did not include that information so again we went out got information and submitted to the forest service that clearly showed if you looked at the fact that they are not going to improve water quality by rebuilding twelve miles of road that are already decommission recovery for years in a protected watershed the government says the information the information from the volunteers was not the sort of scientific information they can use and second that their own expert had active decommissioning was important for soil structure i don't understand exactly the scientific terminology they used but that was the gist of it this was as far as i can tell from reading the soil scientists reports there are charts that show whether the roads in question were compacted or d compacted but again that is a statement of historical acts and not whether or not they're in some state of hydrologic recovery they didn't actually engage themselves with the vast amount of science that barks hydrology expert did present specifically from site specific visits and other studies about the long term impacts that happen after you have to decommission a road the forest service in some ways is saying well you know they're speaking out of both sides of their mouth well these roads are decommissioned but they're not really recovered is the first thing they're saying and then at the same time they're also saying but immediately after we read decommissioned them they will stop contributing to sediment in the watershed and through the summer in the middle because every single one of these roses in a different state of hydrologic recovery and bark gave them information about that which was not incorporated now an agency that we you should defer to an agency's science in if there's conflicting scientific evidence but the agency must actually address the conflict and much actually explain the conclusions that has drawn from its chosen methodology and the reasons that it can you know considers that underline evidence to be reliable or not there so that's one of those for the government's conclusion is that after the process of active decommissioning things will actually be better off than they were if nothing were to happen is there scientific information in the record to show that after commissioning in fact the world's won't be better well there's two things one remember over half of the roads have already been actively decommissioned so there's nothing that shows that those will be in a better condition after this and second there is a chart prepared by barks hydrologists it's the all me thing that makes a comparison between action and no action and that's that's our six sixteen six sixty one is that chart and it should give you an idea of the comparison between the baseline of not acting at all with the roads the state that they're in and what it would be if they kind of reopened like this yeah basically to be covering wound which is what the ro fifth at least fifty years into the future and because they don't have high quality information on the facts they aren't able to make a reasoned decision or conclusion the comments record on recruitment of would be debris into the stream pretty good for the government  i mean tell me there was a broad question why is that wrong was when i just said wrong there is scientific evidence in the record about how far away from the stream the would be debris has to be for it to occur there is a clear statement of what buffers there will be so that that would be debris would not be removed or disturbed what short on a differential standard review why is that good enough i'll answer your question then i want it to rest for a bottle so the facts are that the project areas loss of large would need to be recruitment for at least the next fifty years since much the forest service makes an unsupported assertion that this is sufficient for soil productivity but there we have specific cases i mean sorry science that says that you need to have the long term composition of soy of large body degree to maintain soil productivity but you ask a civically about large with the streams the forest service relies on to study both of those studies look at all the growth non disturbed areas neither of which are political to the coal ash watershed which everyone agrees is recovering from clear cutting we've submitted many different studies that  very different conclusion and if you look at what the forest service said about this it recognizes that there's a scientific controversy at the r three zero nine it recognizes that public comment suggested that quote recent research points to a conclusion that thinning reduces the quantity of wo debris available to streams its conclusion is these papers were examined that's it it doesn't actually describe why the papers that john rhodes includes in his ideology report which specifically talk about plantation thinning and large what he did agree are not more on points than the ones where it looks at all growth and finally for the purposes of the quote a conservation strategy the standard is to maintain and re store structural diversity in large forty degree by removing large it please the court my name is robert oakley i'm here on behalf of the forest service also sitting in council sable mr mollett alley he represents intervener in this case and we're splitting our time fourteen six i know it's my responsibility to keep my eyes on the clock so let me get started first i want to frame this discussion on a key point this project is addressing not any old growth forest it's addressing areas that were clear cut and then planted plantation style that is very thick trees with the why this project was suggested it was they agreed with that park actually dropped out of the group because of the project and they recognized that this project would allow the far as to be returned to a more natural situation and move much more quickly to a lake succession a farce as opposed to this artificial system that you know now trees planted closely together that are not going to grow in diameter that are going to die and that there's an absence of other things like skips and gaps which create either openings for wildlife or provide in some cases very sick shade for other types of wildlife that need it so this project if we don't dial down this project we go down the economic benefits and we disappoint people who were working with the forest service to improve this farce now there were a number of statements about post hoc and i don't know i miss bell must have something wrong with her administrator for record first she asserted that the forest service statement about this project not being economically viable was something i thought about if you look at the environmental assessment page two forty four it could not be plainer the forest service is responding to parks proposal there would only remain about one hundred acres or five percent of the proposed action and in the senate before this it says the if considered as an out alternative the remaining acres would not be economically viable  explains why this would be these remaining acres would lot like likely be viable by themselves because they would not have sufficient value to cover the cost of necessary road apart repairs along the hall routes also if you look at the decision that's in the e r at one seventy nine the forest service says look we cannot do this project if we don't in the timber and have some commercial component to it so the projects that the post hoc the true post h rationalization because it comes in parks reply brief is this business about oh we propose something that would only be one hundred acres and you could go ahead look at the record you don't even find in their opening brief they never made that proposal to the forest service instead they give a laundry list they say you should and they connect them all the anger or so it's like a chinese menu you can there they want the forest service to pick this out but they do somebody unclear about the word or i'm sorry there's something unclear about the word or it's the government's position and me no let me talk they they never separately proposed for example no ground based it's getting from getting that right as a standalone they link them by and or so it's either any of this is or don't do parts of it did the government ever separately consider just that item as a stand on no it did not it looked at all of these and it concluded that if it did some of them the project would drop to seventy five percent and if it did all of them it would drop by ninety five percent and the project the proposals and this is why i was harping on the end of war they expect the they claim that the burden is on the government go through and say pick out units and make distinctions that barque is unable to make itself that is to say what we really think these late successful reserves are crucial here so you should set them aside it's an it's unclear at this point what the government could propose other than either a ninety five percent or one hundred percent reduction that would have prevented this loss of work is never done a five that but most importantly they didn't get a fight in their comments even in their in some of inter peals administratively there was some discussion of limitation but in their comments they just listed everything that they'd like and say and or and or and or and so the forest service without any meaningful standard to apply here looked at them and said well we do want to end a war and we're down seventy five percent we had another one and we're down ninety five percent so there's simply that is not in in the record the one hundred acres would thousand reasonable who knows but what it pops up in a reply brief not in the comments not in the scoping process then under vermont yankee if that's true what we can't come here today and negotiate a settlement or address this and that's one of the big failures now on the western watersheds case i think this point may have been picked up but in western watersheds the government's position was it had no alternative on the activity at issue there which was writing the government but we it had to renew the grazing at the same level so not only were lesser grading not considered there was no well no no action proposal was considered by the government and here we do have a no action proposal which looks pretty much like a ninety five percent proposal by bart and again if we do that what's going to happen is we're going to leave these overcrowded stains that will either have to be cleaned up later or if we don't do anything at all if we set them aside and say just let them go us we're not go forest at all we're just going to had dead and dying trees small trees they talk about large woody debris these trees are on average nine or ten inches and as the forest service says it's they're unlikely to get any sicker in diameter because they're so crowded they're competing for water they're competing for sun now going to the e a n e i yes again i think there's a big difference here on our view of the record barking lames that the forest service lacks a baseline  there's a table and this is e r five twenty three five twenty five and it goes through each unit and it shows you what's the current status and by the way there was a reference to historical status there's actually a table before that the story of scientists went and now and revise the standard or revise the condition of the forest because the soil scientists looked at each one of these parcels whereas mr rudd's i believe in his declarations that he was out there for two days and he was looking at other things as well so the table though at five twenty three five twenty five in the e r as this is where it is now after checking this is what how it's going to improve and this is where it's going to be now you don't get much more specific than that when you go through three pages of a table and there's an extended spreadsheet behind that that will give you even more information mr rudd's just engages as generalizations as to mark's volunteers well i can see place i can even see a tree on it it must have recovered compaction is not even across the entire surface of the road so there could be some area within the non decommissioned which is recovered enough and some tree gets plant seeds got there it grows and to a white person like parkes volunteers they're going to say great this is don't need to do anything about this at all but in fact the soil is still suffering and that and it provided explanation for why bart people were wrong the government has the right to rely on its own experts here and especially when even if there were a lesser standard the government's expert provided far more detail and explained her methodology in her report about how she went out and she wasn't content to just rely on the records as they then existed about how the soil from paxson was but she actually revised to address other problems and and actually i will be there to be completely candid was a court there were a couple of units where she and this is disclosed in the way where the compaction will not get that there are only a handful overall is that of benefit most of the units but this is a level of honesty and detail that the government provide where it found that there would be an improvement it said it would be an improvement and that's what that's the only obligation underneath it is to be open here and the government could not have been more open on the status of the so i'm going to turn it over mr mollenhauer in just a second but i just want to go back again this is this forest which is different from many of the others this court has to deal with nobody's talking about me and so this part of the wilderness area or any of those issues this was commercially logged our views and knowledge about what commercial logging does too far as to change and so the far service in collaboration with the us other groups is trying to do this through stewardship contracts which are contracts where the money from at least for some of these projects the money will go to carry out these projects to do things like put in skips and  i believe your objectives is the correct word and the the forest service is supposed to either it can maintain them it can also take action affirmative action to restore them or to improve this is smart argument i'm not sure that it is that absolutely nothing can be done that even for the shortest period of time causes some decline if that's the case i mean even though that short term decline would lead to some long term improvement that the latter is is disallowed i mean that just doesn't make sense there it's not clear to me from their brief where they are but in pre settlement over natural loading five point zero one percent one hundred one percent a different way of looking at it is point zero seven hundred of one percent and these are both over natural says that that that that estimate does not include the sediment generated from the approximately thirty five hundred log trucks that would be needed to take this number out of the forest is that wrong i don't believe that it is but even if it is that second point it's not wrong then doesn't the government have to provide some data on that impact unless it's impractical to do that isn't this and it's what the government refers to and this is backed up by another agency impacts in terms of strains and this is the national marine fisheries service it's going to be in significant it's not even we're not even now getting to the level of hundreds of one percent natural lo my my assumption is that the government has to provide data on the impact of these thirty five hundred trucks unless it's impractical to do that and you said yes your honor there's this national marine fisheries study and so my question for you is is that the data or is that a point in support of your argument that it's impractical to provide the data because it has to be one of those students and it was far better question and maybe i'm asking a question poorly there's no data there's no data on the impact of the thirty five hundred trucks right on a quantified number ok and the requirement is that there be such data unless it's impractical to provide that correct to me i believe it's picked up by the by the time but i just want to do we agree that that's the test i believe you're correct your honor i'd like to look at my regulations but i'm sure you're you know you're looking at something and now  so my question is is so so my question is just on this point is the data in the was the data provided or is there something from which i could conclude it was impractical if that's the test that's well i don't let's say that judge players were nice enough to assign me to write the opinion is there something that i could use to conclude that it would be impractical to provide the data not that i know of but i to be honest i would like to look at my record frequently i don't know i'm not going to speak i know but as to whether it's picked up in the numbers because we're talking about settlement generate about these drugs in the first year which would include trucks riding on so it would aspects raised by bar the e a a mitigates and the a right this project will mitigate impacts whether it's from settlement invasive species other measures there are thank please the court my name is robert mellon ellie and i represent the intervenor in or for in this case i just want to make a few quick points about some questions that were discussed earlier first with regard to the impacts of log call we discussed that are in our briefing page twenty five and i believe the discussion of the mitigation measures related to long haul is that in the exits a record at two eighty one and the agency found the effects to be measurable based on the best management practices they instituted unmeasurable you mean in significant is that they were that they use the term and measurable they can't is so small that you can't measure it your honor that's the term they used in the next point is on western watersheds project versus abby the language that this court used was that they were troubled by b l m decision not to consider a reduced or no grazing alternative and they were specifically troubled by the comparison of the alternatives because it did not and i believe it says this court said we question how the agency can make an informed decision on the project's environmental impacts when each alternative considered would authorize the same underlying action there is no meaningful difference here there is a meaningful difference between the two alternatives and i think in examining whether this is a reasonable range of alternatives you have to look at the purpose and need statement the case for that is native ecosystem's counsel and here you are one ninety seven this is the purpose of this project is to increase the health and growth of trees and to hance diversity within right parian reserves late successful reserves and matrix land allocations within the project area so  description of the proposals that work made i think the language that they put in one thirteen of the record is one or all of the following changes and then they list the three changes they're proposing and it's true that they didn't put in this one hundred acre number until their reply brief but presumably it's in the jazz thinning documents what the acreage for ground based yarding is so everybody knows with one hundred acres is why why shouldn't we be troubled by the failure to consider that as a stand alone alternative your honor i think nato says native ecosystem's is on point and they basically said that the agency doesn't have an obligation to consider alternatives that are essentially the same so the agency's expert went out to the field and looked at those units to determine that stability was not a concern because it was only a hundred acres and alternative that would subtract those areas which it verified as not being a concern would be essentially the same as the proposed action i only have a few seconds left so i'd like to conclude by saying determine whether or not yes is required you look at the context and intensity of an action here ls ours is in our two of seven to two zero eight i think it's important to remember that it's the duty of the agency to develop study and study usable alternatives to an action it's not the duty of the public even though we can assist the agency in completing its duty but the statutory duty under one hundred two to clearly place is that on the agency here the agency is centrally trying to avoid that duty by creating different  configurations of bugs proposed alternative to get them out of study that we did not propose no action no action is no action we propose several different ways that this timber sale in protected areas could go forward and avoid some of the  what we consider and what are the expert hydrologist considers some of the most important environmental impacts the very reasons the serious protected is because it's very unstable and these are throws it's highly compacted it's in recovery from being a clear cut and it's important for right parian health all of barks different alternatives better meet those protective standards very much like the reduced grazing alternative in western watersheds project where this as they were they were wistful about the absence of an alternative no one had given them right well i think that they thought that the agency could have given them that alternative it hadn't alan analyzed it and they vacated the decision and sent it back to the  impacts of building rebuilding and decommissioning roads is there a law on the question of what the court to work degree does the court defer if that's the right word to the assumption that best practices will be followed assume the best management practices are followed however in this case even that assumption doesn't mean it's going to mitigate the impact to zero if you look at the studies in the record that specifically say talk about logging impact roads and it's point zero one percent if they're not looking at the trucks but they say if you follow best practices the trucks contribution of sediment will be measurable doesn't that meet the impractical standard well they don't have again we look at what the conflicting science says barque posited that there are measurable is there still several studies that show how to measure this we offered those studies to the forest service they chose not to use them and dismiss the impacts but even with with those impacts you know not included they're still not sure how they're maintaining or restoring the sediment impact because they're not decrease even beyond the first final things are over b horizon correct we actually agree he was not adequately represented in parks litigation perspective if you look at the increment to decision that the forest service did which decommissioned several hundreds of miles of roads there was a short term watershed but there was a demonstrated long term benefit in this case they have no demonstrated long term benefit in fact the record shows that they will be over the long term decreasing the health of the watershed in terms of sediment by rebuilding an already decommissioned roads in that case when there's no resort to that and that's been supported by the record one can't find that the short term degradation is justified the standard is to maintain and