i first case this morning a stock very conservation versus the department of interior mr a trails national guard helicopter training flights up to five days a week which will involve takeoffs and landings and low level flight paths at three level hunting dog training in trialing with firearms year round and other special events involving firearms and motorized vehicles the alliance presented evidence from the master plan which was written by the department of natural resources as well as affidavits from four scientific experts all of which showed that these high  activities are likely to cause irreparable harm the district court gave three reasons for its decision much more you get into that and the merits of irreparable harm analysis if you would address the issue preclusion short issue so as a necessary element of issue preclusion under wisconsin state law there must be a final judgment as a necessary element actually is that true in occlusion as opposed to claim  not the same as in claim preclusion the finality analysis is a little bit different i stand corrected your honor so perhaps you could address why this is not precluded right so the issues decided by the state court while they were similar of the case was different in that the state court did not have the four expert affidavit in front of it when it considered the case well it could issue preclusion context slightly differently than in the claim preclusion context and would follow the restatement which permits denials or grants of not specifically held yet the only thing that they've held is that issue preclusion would apply to issues decided on interlocutory orders in the same case but they have not and the court has not clearly held that it would apply rights and that means that we have to predict how the wisconsin supreme court would decide this question that's right and so what's your prediction well we think that the the issues are are different in that before the state court the federal defendants were not parties to that action while the issues were identical and you made the same claim there that you're making here right the issues were the in essence the issues were similar the state identical  but the state court judge balanced all four factors and concluded that a stay or temporary injunction would not be appropriate whereas here the district court judge only considered the issue the likelihood of irreparable harm issue right but why isn't the state courts resolution of the lack of the reparable harm or close of this the same issue in federal court you don't get to get two tries at this that's the whole point of reclusion law you fail to convince the state courts that there was irreparable harm here and so you don't get a do over in federal court right well another distinction there is that they it's the question is whether there will be irreparable harm before the court reaches a decision on the merits of the case but we're considering all the same harms rights well the timeline i think is sorry the state circuit court considers whether there would be irreparable harm before it reaches a decision on the merits and said no there is no irreparable harm here among other things there are other bases for the decision but the pertinent ruling is that there is no irreparable harm here and the court of appeals agreed the state court of appeals agreed on that by declining to hear the case precise question which simply means that we need to protect how would decide the question as because the state supreme court has a long history of following the restatement of judgments in preclusion law and the restatement of judgments would if applied here preclude this second litigation of the identical issue of whether your client's would suffer well as from the master plan that there will be irreparable harm from these high impact activity is what's going on right now so right now all of those activities are authorized to occur in there occurring so to our knowledge the national guard  helicopter training exercises are currently occurring how long has it been going on for several decades you're under no one can yes ok and i don't know where the birds have gone to and from during that time obviously helicopters are noisy us when i looked at this i was sort of concerned or just glanced at that were nine hundred forty two there were eighty farm families that were displaced all right that's correct you know that that would bother me but i guess that's what happens in a war so then they build all these buildings and everything from the munitions plant and then close that up and you know it's something else but anyway that's just sort of curious about the irreparable to what goes on in the winter they don't run motorcycles in the winter do the motorcycle events are authorized year round to connect to events that occurred during the summer breeding season and the other four events presumably would occur during the rest of the year motorcycles and so the alliance presented strong evidence that these activities will cause harm not just during the breeding season which the district court judge appeared to focus on but year round the helicopter exercises as the master plan notes can create substantial wind noise and dust that mean what substantial evidence that you talk about right so that there's a number of statements from the master plan that explains what the effects of these activities would  be so disrupting wildlife the masterplan noted that motorcycle events could result in slow moving species such as snakes being run over by the motorcycles on the trails because the trails are in areas that for the other three hundred sixty days out of the year did not have motorized vehicles on them it can also cause wildlife to leave the area for longer than a period of time that just the event activities result in conditions that attract wildlife to an area temporarily but then create long those affidavits aren't especially elaborately the district court noted that they w however i think if you read the entire affidavit you would find that they do explain i do and what are their evidence is there besides the affidavits to back up the statements of the client sorry the statements of in the plan you said that there was ever the plan made statements of yes and no wondering whatever was there any other evidence other than the what those affidavits said to back up just the assertions of the referenced you know throughout the plan they referenced studies that have been conducted in addition to the  plant and has since been restored over the past twenty years that it was possible that any harms that might occur could be remedied in the future by having habitat restored and wildlife may return to the area but the district court did not look at intellect individual level impacts to animals that might be harmed so even if in the long term the area may be restored from any damage that could occur from these activities it's important to look at the individual harm individual species that may be killed or or damaged or otherwise as a result of these activities so if there is a bird that dies or a snake that gets run over that dead animal cannot return and therefore that lot of birds leave there are some that stay and then there's the issue of the helicopters and how long they've been around and whoever's whatever animals or tolerating that have been doing after a long time start there and other animals are fallible i know some places that if you talk about birds there was one of end up in michigan a long time ago where they really worked very hard to get eagles to ospreys and they've learned to tolerate people which is the way to ought to be so i don't know that there's going to be whatever you're going to do with the actual hearing and what your arguments are going to be when they're developed i'm not i'm mostly not concerned because this is a primary injunction and not it's just going to be for a few months so it may be for a few months the district court judge indicated that he would likely issue a decision on the merits in the spring however there's no guarantee that he would do so before next spring the spring season begins in april and so any of the harms that are you know most severe during the spring and summer breeding season could work even though this year is pretty seasoned has has concluded they could recur and next spring are they using this area of motorcycles or snowmobiles running in the winter i believe still bills are permitted they are i believe so i didn't see where that was mentioned i mean they're kind of noisy i mean that's it's interesting that you know me talk but snowmobiles because there are you know you know what they are trails that do not normally have motorized activity and so those would be farther into the area into the recreation area in areas more removed from roads and other parts that would normally have  motorized vehicles and a lot of noise is associated with them and so in that sense that the harm from the motorcyclists on the bike in equestrian trails would be more pronounced than other motorized vehicles that are turning to the merits if there are no other questions about the irreparable harm issue the alliance has demonstrated a likelihood of success on the merits as well as the other factors  has the authority when the district court has not considered the full factors for plenary injunction and has only ruled on one factor in this case irreparable harm this court can go ahead and consider all four factors it please the court my name is robert oakley i'm here on behalf of the federal government the department of interior and the park service also arguing for apple used today as mr gabriel car crimes on who represents wisconsin around page seventeen eighteen of our brief and you just can't find anything there that amounts to record bahar now contrary to what counsel says i don't know of any case that holds that the death of a single bird or other animal is irreparable harm these bodies animals are not endangered species and counsel is not here representing snakes or purpose snakes and birds do not have standing his clients have to have standing and the standing that they try to establish in their attitude a bit that they enjoy seeing birds and they feel or fear that the activities that will be allowed here will cause  gimme nisshin in the population of the birds i don't believe anybody is a big fan of stakes i didn't see that in the declaration perhaps i missed it but the stakes and into death of an individual snake or the death of an individual bird government and the federal government are wisconsin's response priests are due i believe they were due this week they may be filed x week and the briefing will be finished in december we have no reason to doubt that just reports prediction that he'll decide this case by the spring it again if you go back to the declarations and by the way these declarations were written by people who never been to the site who know about it only through reading documents they never tied to any sort of time period  there's also the inconsistency the district court pointed out that while some uses alliance objects to other uses it's willing to accept it objects to the firing of blanks in the seventy two acre parcel south of motorcycles will only be used six days a year but they can be used surrey hundred sixty five days a year on the roads or in the park and because this park was an industrial site at one time there are no quite a few roads and we cite from the wisconsin environmental impact so i'm not an expert on them but i've heard them and they're there and they can make some noise and i would just again to go back to that the affidavit states they don't talk about this they don't say why is it six days of motorcycle usage would harm the birds they talk about the motorcycle use it's as though it's occurring three hundred sixty five days a year horses not they don't talk about the fact that the class to given access to that and that's where the helicopters take off and land and that's been going on for decades for decades and no one disputes that so if to the extent that well the wisconsin people looked at this and found that that wildlife the birds in fact were doing well that were living under the flight path of the helicopters but to the extent that the helicopters could cause harm it's already it would have already occurred and would have been in place for twenty at least so there's no irreparable harm here so bottom line is that at most they can say noise will harm birds but it does not constitute irreparable harm and given the extraordinary nature of the remedy that they're seeking their inability to either shock to show that they're going to suffer irreparable harm for the judge rules on the case and it's moving right along or before or at really ever because nobody puts a timeline in his or her affidavit morning your honors me please the court system attorney general gave johnson carp in the state of wisconsin it as the court has already discussed this morning the question of the issue preclusion provides an alternative basis on which to affirm the district court's decision well unless the court has any questions about the specific proceedings in state court i would just spend my limited time responding to a few points that the alliance raised in its reply brief regarding that in a play ability of preclusion here the alliance first argues that the wisconsin law would not allow the application of the issue preclusion here a wisconsin lies as the court has already indicated  indicates quite to the contrary the closest case that i was able to find which as as we've discussed is not directly on point there is no case referring specifically to eliminating injunctions having precludes of a but the case of precision erecting cited in our brief is a case in which the wisconsin court of appeals concluded that within the same action before any final judgment resolving  the claims on the merits that issue preclusion could apply there and they are the court took a a very purpose driven approach to analyzing finality for purposes of issue preclusion and asked what purpose would it serve to allow related ation of this issue this issue has been finally resolved in that case it was on a partial motion for summary judgment in this case the the issue of irreparable harm for temporary relief has been finally resolved in the circuit court so precision reacting strongly suggests that wisconsin paul would support applying issue that the best we could tell is that wisconsin courts would apply issue preclusion in this context the the broader preclusion analysis in wisconsin follows three statement generally speaking and what is the position of the restatement on this point your honor i didn't i didn't find a definitive statement but the recent restatement did cite some cases  that's my understanding as well and i believe that that's what the court imprecision erecting was following that the court did discuss i believe it sections twenty seven and twenty eight of the three statements  wisconsin supreme court which is the seminal case and issue preclusion every year on wright was the i'm sorry was the matter of irreparable harm essential to the wisconsin court's determination your honor i think the finding of the no irreparable harm was  think i don't know that it was central which is i think why why we focused on issue preclusion rather than a clean preclusion that the court didn't decide all preliminary injunctive relief that's correct your honor so your response to judge ripples question would be well as i understood the question was whether the irreparable harm was necessary to to its conclusion and i guess the short answer is yes what do you do the court saying it was a close call and what do you do with the language that it was not quite enough that there was not enough presented to establish irreparable harm the fact that the court decided its case on a continuum doesn't for the alliance another opportunity to the the court was the alliance has not persuaded us that the temporary disruption of the habitat and nesting areas of the birds in the limited areas at issue would result in either substantial or  rable harm so we have multiple statements in the record as irreparable harm a matter of fact him under wiscons and i would think it's a question of law that the to findings of fact to suit to support the conclusion would be the findings and the legal conclusion of whether that's reparable harm is a legal determination i briefly address just the the point the alliance made about the existence of the affidavits and those being new in this record that's incorrect  i should say new being in the federal court proceeding those five affidavits that were proffered to the district court were in fact proffered to the wisconsin state court they were submitted  reconsideration brief and we had we addressed this in our footnote nine of our brief the the alliance asked that the courts consider those affidavits in ruling on reconsideration and the circuit court in its  brief order disposing of the the motion for reconsideration noted that it considered everything in the file and there's there's no indication that they did not consider these five additional affidavit it s as the court has indicated there's also the sandbagging consideration that it can't be enough to to hold back some affidavits that would support the same claims and then to bring those honors so i would like to address two issues to clarify the first is that the affidavits were not presented with the reconsideration motion in the state court they were filed the following day with a separate motion that was file d on a separate issue on the merits in that case also it well is it clear that the state court considered them well it would have this it would not have been  appropriate for the state court to consider that because they were not before the state court originally the court has reviewed its decision and the submissions of the parties related there to the last of which was filed by the petitioner on april twenty seventh does that include these reconsideration motion and yet whose fault is that yours well it would not have been appropriate to include them with the reconsideration motion and who's fault is that right you could have submitted them initially if you didn't with the initial motion now you're wanting a second try and federal court on this identical issue of irreparable harm well the second thing i would like to address is that the issue is not exactly identical because the state circuit court judge balanced all the factors and noted that it was a close were focused on the issue of irreparable harm the fact that the state court gave more robust treatment to the other injunction factors i