trust property is uniquely situated at high altitude from eighty three thousand to ten thousand feet in the surrounded by wilderness before you  even with its unique aspects however the trustee is charged under montana law with making property projective however there's no direct access to this property making that impossible telling is the fact that if you look at the trails and how they are defined in the record as well as the historic access to the property that was decided by the government the speculator trail  willing to give you the kind of real billing rights that you have asked for right we are saying that their decision was contrary to both the wilderness act and anelka and the way that they viewed this what they called information in the record is misleading if you look at the maps and the altitude you can see that you still gain altitude and the affidavits that we had intended to submit show are indicate that it is not just a walk in the park it i the supplemental expert excerpt of record two forty two that any trail cutting or maintaining a trail from those established or else to the property well also be part of the process and they said we would need a survey of construction plans an entire entire and the need for analysis and that that would take quite some time and if you look at the some early situated properties that they reviewed in the of sorkin verities well known as you'll see that they're not similarly situated at all the phrase cannot just mean any in holding and it appears to us that they try to find all the in holdings in the wilderness but by definition to be similarly situated it must have many of the same characteristics such as altitude terrain proximity to rose and other access to they all abilities but these properties by the forest service measurements nine miles from an existing road the property is mentioned are not at the altitude of eighty three hundred to ten thousand feet so that helicopter axed input and livestock access to those properties is an expert carious more difficult there's no evidence that those other properties required helicopter access lodges in cabins and cabins and outbuildings on the other properties were already constructed prior to the wilderness designation and that's what really makes this different is it ms johnson wants to build lodges in cabins up on this property but she is forced to take building materials by helicopter which is making it extremely expensive hundred sixty four and that was after eight years of debate eight years and if you look at the legislative record that was because private property rights were a major issue so the act is written subject to private existing private property rights i e one of those being access to your property when that became another issue and not go it was passed again stating that there must be access to it holding the surrounding area are used yes but that goes to if you analyze the adams case it says there must be viable access and the property must be economically viable with that access so if they're saying just because this is well known as you must walk the trail but yet we can't go on the property we can't do anything else with the property but hike to the property and the property or helicopter items in that raises it to another another level and adam says you have to look at that economic  also if you look at the federal register stice that were in the record the department at the time they were promulgating the regulations in the c f r they said the department the department of agriculture before service was cognizant of the fact that it could not under a knocker imposed have stanched really more stringent requirements on access to wilderness than other forest service lands and i think that's very telling that because the government has decided that it's to rounding land as wilderness you private crossed that you private party are not going to have to suffer the consequences you are still going to have access to your property yes there may have to be mitigating circumstances on building the road yes you may have to go through the need for analysis to figure out exactly where the road going to be located in what mitigating factors will be determined yes you have to have a speed limit and other factors that are reasonable to administrate the road yes you have to lock the gate at the end so other parties can i use the road and therefore violate the wilderness a lot is changed as can be seen by the letters back and forth of the trust trying to clear the trail all in one year clearing two hundred dead fall and then trying to clear more trail and the fact that various aspects of the road if changed the fact that you can't find a trail in part in part of the places so we thought well they haven't taken into consideration th i would say this plant is probably capable of building the road at the higher price but i'm not quite sure we look to the client but we look at the property trust has always maintained it would be willing to pay for the road and that's particularly in light of the fact that it doesn't think it will cost one point five million dollars to build the road but if it were if they've staked out their road and they determine it cost one point five million dollars i guess at that point the trust itself would have to decide whether disturb the wilderness is not sufficient the cholo report the johnson affidavit in the sievers affidavit in particular did not give any information that the forest service did not know but it was not apparent from the administrative record then frankly we didn't know until we received the administrative record that there were this many documents compiled in this instance and as we've pointed out in our briefs many of those were after the fact but  debating the mineral value but wanted to get on with the more important are we allowed to build a road here or not the other information as to the steepness of the trails condition of the trails the difficulty of or good morning it was the court matthew sanders for the federal at least two because this case involves a piece of property i would like to direct the court's attention to the third map at the beginning of our supplemental excerpts of record foldout math see i think this math is helpful in understanding the property i'll get straight to the issues that the court seem interested in and that this topic addressed here today and her argument i would like to begin by addressing the legal provisions that are at issue in this case the under an over the forest service alone has technical discretion to determine what constitutes adequate dispute that is sixteen u s c thirty two explicitly says that subject to such terms and conditions as the secretary of agriculture may prescribe the secretary shall provide such access to non federally owned land within the boundaries of the national forest system as the secretary deems adequate to secure for the honor the reasonable use and enjoyment there of at the same time this discretion is limited by the wilderness acts which requires the forest service in determining what constitutes adequate access to ensure that there is not lasting impairment to wilderness and in the a for any applicable regulations the forest service has carried through that mandate and said that it will avoid in all instances lasting impacts who will and that when there is a tension between granting access and impacts in wilderness that will considerations of protecting wilderness will trump u nder this legal framework in this case the forest service considered all of the relevant factors an articulated and only rational basis for its decision now the trust today has has raised both the issue of whether there is adequate access to the property and the forest service consideration of similarly situated properties let me start with the latter first as the forest service found similarly situated properties that its properties completely surrounded imposes upon the proponent of access a special burden to explain why it is significant and pass of road access would be warranted and would be required that is why is the road the only form of adequate a the mineral potential of the property the trust intended uses the m has to wilderness and various other factors to arrive at a rational decision and conclude that other forms of adequate access exist to the property with regard to those other forms of adequate access trail and helicopter asked us are in fact adequate in this case the trust in us particularly in its reply brief disputes that contention that fact rather however there are five national forest system trails that combine form four routes to the trust property these come to within one half to three quarters of a mile of the property and addition there are non national forest system user trails that connect these national forces from trails to the property itself trails commercially or to improve or further develop then it need only apply for authorization to do so and the record is replete with the force service willingness at existing examples and evidence of the four service willingness to work with the trust to improve access to its property i would direct the court's attention specifically to after the supplemental after for the record pages one ninety three ninety five to forty three forty two and three dr trail agreements which are any administrative record at number seventy four seventy eight and one fifteen in addition helicopter access is completely adequate here the trust disputes that fact was citing cost and safety concerns however as a comparison of supplemental excerpts of record pages two twenty five and two twenty nine make clear you could have you could use it you could have a large number of helicopter trips and it still would cost significantly less than a i don't i don't think there is any significance to that but i do think that the cost that very high cost of the road is an important consideration in response to your question just by the cost is relevant because it shows  both it goes both to the reasonable midst of the trust intended recreational uses of its property which we addressed in our pre and also it's of course the forest service decision that other forms of adequate access are available about one hundred thousand dollars to construct five thousand dollars a year to maintain later the change that estimates two hundred twenty five thousand dollars the forest service rick weston information about the cost estimate the trust refused to provide that information however the forest service here used a licensed engineer to determine the cost of the road and again if you look at this map it's very clear that this is not one hundred thousand dollars road again this is designated wilderness and you can't just take a bulldozer to it it's going to cost a lot of money to grade the road and provide cut and fill slopes and all those sorts of things in the forest service has a lot of expertise in building roads it's very clear that it arrives at a reasonable and certainly not arbitra including alaska is a typical form of access the trust would have this court believe that it's a very unique and extraordinary thing that the forest service is saying exists here but it's not at all this property has been accessed by specifically indicates and we we addressed this point are very specifically indicates that trail access and helicopter access do have impacts the wilderness but that those impacts are significantly lower and less severe than in the impacts of building a twenty foot wide road nine mile road through designated wilderness where one doesn't exist so certainly the forest service has recognized that there are impacts that to be had on the wilderness through other forms of access but helicopter and trail access here provide adequate access and the forest service recognized that it had an obligation and has a continuing obligation under now gets provided adequate access but again  adequate and transporting the girls and it's your building materials is completely reasonable by helicopter if you look at for example supplemental after severe eckerd page eighteen that's a photograph of the cabin historic mining cabin on the property that was built around the turn of the century they were able to build a road many many years ago without helicopters certainly transporting and helicopter building materials and vehicles by helicopter makes building a lodge and recreational cabins to the extent that's a reasonable use of the property a completely feasible thing and also look at supplemental excerpts of record pace twenty one that shows a motorized vehicle that is used to help improve trails on properties like this district court did not abused its discretion and refusing to admit the abstract extra record affidavits as we pointed out in our brief the trust refused to provide the information it now says is essential for review the forest service and in reconsidering the trust proposal specifically asked for information pertaining to the mineral potential of the property pertaining to its cost estimate for building the road and any other relevant information that is information relevant to whether its current means of access were inadequate and why they were inadequate but the trust refused to provide any such information the trust argued in its brief and argues again here today that the information contained in those affidavit is relevant to those issues but the trust refused to provide any such information during the administrative process that's exactly the tactic  trust case before you and that is if you look at the application the trust admitted to the forest service for this proposed road sign age of seventeen through twenty one of the trucks excerpts of record what you will see is a very bare bones application there is not one word in that application about the difficulties of existing trail access not one word about why those trails and helicopter access together are not sufficient to build a law as other properties in the wilderness have done there's not one word as to the mineral potential the property there's not one word about similarly situated properties and yet they the entire tenor of the trust case here is that the forest service failed to consider the relevant factors well the burden is not on the forest service if you look at the regulations thirty six b of our section two five one point one one to me states that the applicant must quote provide reasons in that sentence judge if i didn't say it apologize the burden is not on the forest service the applicant has to show why the existing means of access do not provide adequate access to the landowners property and when the force was promulgated that regulation in the federal register fifty six federal register at two seven four one five it clarified that quote providing the factual information needed for the analysis is the responsibility of the applicant now i was keenly sensitive to this point because i can tell you that when we lived through the forest service on behalf of the wilderness society or other groups we cannot win a case where we put nothing on the table and then take pot shots at the agencies alleged failure to consider the realm factors and for that precise reason the trust can't win that kind of a case i also want to address drives there was a point raised about the forest service request for documentation to the trust i think it makes all the more glaring nature of the treasury and even the forest service gave them a second chance and in fact said you didn't do it the first time here's your chance to put something before us that can make a difference they refused and all of the counsel for the trust says that certain of the documents were not part of the forest service request i think if you look at the actual request which is on page thirty seven of the excerpts of record you will see that number five in the forest service the numerated list is any other factual information the trust can provide that it believes i should consider with regard to its proposal so not only did they have the first shot at it they had a very broad second shot at it and they never got the job done and it's not fair to criticize the agency at this point for not having looked at all the proper factors  think you may not be surprised when we think wilderness does make a difference in the calculus we agree that under the terms of the elk a provision access must be provided but it need only be reasonable access sufficient for the reasonable use and i don't think the president made any showing that the existing promulgated the access regulations that you have to be read together what we think it means is that although it may be appropriate and i emphasize may in some circumstances a non religious glance for the forest service to grant acce repeatedly in its brief makes clear that the right is a right to the right of in holders is a right to access or exchange it is not your right to access the forest service here has offered a right of change on multiple occasions nasty taste in ascertaining the congressional intent underlying underlying the entire i know because statute the court took a tour so to speak of the milk of provisions and said we think one factor affecting our decision that the particular provision before the court did not apply outside of alaska is that none of these provisions are meant to apply outside of the state of alaska and they specifically referenced title thirteen of the in elko which is where the provision that the trust relies upon reside to said that when you have an intervening decision from a higher authority that calls into question the rationale of one of the prior panel decision then a subsequent handle can revisit that question and i do think it's o one of the things we just heard is that the wilderness act actually provides no lasting impact yes that is true but again it is subject to existing private property rights that is repeatedly in the act not just in eleven th thirty four about eleven thirty three as well and the forest service also fails to consider this court's directive in adams that the owner must be able to freely access its property being forced to clear the trail of deadfall by non mec it's not really x free access to the property being forced to hire a helicopter which the record shows can be five hundred seventy to thirty two hundred dollars is not free access to the property the record also reflects that it times helicopters are not accessible because of the fire season and if those least in the area of the property that those helicopters are used to fight fires we were asked why i'm sorry so that the helicopters are are not available for use to do this because they're fighting fighting fires yes but that would be i mean there are other times of year that even if you had a road that it might not be possible to get into the property and the fact that you can't get access all the time  i'm not sure the records are not clear on that that was my own assumption the application it merely made a few phone calls to three regions with no supporting documentation or research required is just phone calls what do you know about it do you know of any rows no one was even asked to look at their records we don't even know if these people were qualified to answer the question or even if they had worked at the forest service for any number of years so that they would have this knowledge in their head there were one hundred cases mentioned and as we've said in our briefs the for nothing to research those cases for them are they really similar to this property are they it out to you is that why they had road access prior to the wilderness designation and the trust wasn't hiding in th from the forest service the forest service knows this property is at high altitude it knows historically at the time the property was mined there were no vehicles that was nothing they were trying to hide and as the supplemental extortion the letter where the trust is under no uncertain terms told there they don't have the right to use those trail the type of property we believe that congress in vision and when stating there are going to be times of road access as necessary through the wilderness through national forest lands and it is going to impact those lands but we have to protect private property rights to prevent  farm to the forest service but that's the form the forest service provides you fill out in the little spaces and that's what the trust did then the burden is on the forest service to review the similarly situated properties to review the impacts and we submit that