of the by the national environmental policy act is to ensure that federal agencies will take a hard look at the environmental impacts of their decisions and to foster informed of public participation in those decisions that hard work requirement is not a one time requirement there is an ongoing duty of federal agencies to really assess whether or not there has been an adequate evaluation of environmental impacts if circumstances change before that agency action was implemented here it is sequoia for sick people it's contention that the forest service did not take a hard look and did not properly determine that the dramatically changed circumstances on the ground existed requiring a supplemental environmental assessment or a supplemental  under these facts here the basic facts the forest service in two thousand and thirteen authorized logging of one thousand acres affecting habitat  isolated subspecies of mammal called the southern sierra nevada pacific fisher what's the record shows is highly prone to localized extinction and is highly sensitive to changes in habitat four years later the forest service came to the point when it was ready to authorize the logging to go forward and they did so despite the fact that during that gap in time that four year period there had been an unprecedented drought and tree mortality event related to both the drought drought caused insect death and fires that had caused in the southern sierra nevada sixty six million trees to to to suffer mortality despite that change and despite the fact that this is a species that is particularly prone to to change the forest service did not conduct intentional need to review what it did was a prepare a non nepa document called a supplemental information report supplemental information reports have been recognized supporting congress versus alexander that a supplemental input information report cannot substitute for a supplemental environmental assessment or a supplemental e i a s we would contend that the forest service is trying to have this non in the document the s i are a substitute for a supplemental or supplemental e t i yes contrary to what the alexander decision and other decisions have said it could what we are not claiming that you can't satisfy the hard look requirement through the why didn't it here i mean they we took these aerial photos to see how the trees are dying to assess them again they said this is still a project that's a very small area and we still need to do this fire protection and the fisher is threatened by wildfires too so why isn't this a very reasonable because it had the service had evidence before it from the conservation biology institute which were experts that the forest service had voluntarily collaborated with which and in this case i think it's important to read the to read the passage that states there is no available research or direct observations concerning how massive changes and tree cover due to drought and insect mortality including death and even the largest tree classes may affect fish or habitat use or population processes here's the truly key sense there is also no direct evidence and indicating how fishers will respond to management actions read this project being implemented by land managers in response to this mortality of it so there is a but then they go on to say but you need to proceed because we don't know enough to stop you from proceeding and i assume what they mean is we also realise that this whole forest burns down it's going to kill the fish or so i don't understand i mean it's the forest service is really in a bind right i mean they have this problem with fires that needs to be addressed and they've tried to figure out how to help the fisher and it seems like they as experts think that this is going to help the fish or not hurt the fish or you or i would i would not agree completely with the characterization of what they went on to say what they went on to say is that it's probable that while more data is being gathered and there is no question that substantial interest the actual data gaps and more data needs to be acquired it's probable that there may be that it there may be instances where interim forest management practices could assist in the health of the forest it certainly didn't say what you should do that without a supplemental environmental assessment what it in fact said very clearly in the record and excerpts of record pardon me seven ninety two it stated that one of the things that should happen before proceeding is to consider the cost versus the benefit of management alternatives and look for opportunities to modify prescriptions to minimize negative impacts while recognizing that short term risk may be necessary to meet longer term conservation and resiliency objectives that is exactly the kind of analysis that should happen in a supplemental environmental assessment not in an s i our that kind of analysis that the experts recommended nowhere do they say we think there is  information to proceed with a project like the like the frog management project without doing specific environmental assessment in fact they recommended well didn't they also say that there was no data available to measure and makes an evaluation very difficult if you could say that on an island i mean you would never ever be able to log this what are we talking gather data and to do that information gathering the forest service has not explained why it is impractical or improbable but part being practical or unfeasible to gather data like that but isn't it sort of obvious that it's going to take more time and to do a more formal formal process will take more time and as i read what they're saying they're saying look we've got a problem right now that we know is a threat to the fisher and everyone else in the forest and the forest itself and if we don't do something about it we we have a real problem we know and you're saying we should postpone dealing with the real problem we know of because of the possibility that there's more data that might show us something down the line but we could just say that forever because there's climate changing there's three deaths there are all kinds of things that change what the data might look like all the time you could just every time say we need more study we need more study we need more study i don't understand where your argument is weeding us or how it helps even your own cause first of all there is nothing in the record that indicates that the purpose of this project is specifically to conduct management practices designed to save the fish or well but it's forest fire prevention right it's forest fire prevention yes at this project was first proposed in two thousand and one there's nothing in the record indicate that there's any imminent need to have this project that's been in the planning processes for seventeen years that this is not just the fact that facts could change might change that global warming may happen this is a very specific localized event that has happened and is continuing to happen for at least the next couple of years and that is an unprecedented specific tree mortality event that that specific tree mortality event has impacts on the way that logging will affect the fish or that have not been analyzed so but didn't the forest service actually rerun the model using the actual data that had occurred for a particular period what the model that they were and did not do was it did not take into account future tree mortality they the they acknowledge in the us i r that this tre mortality will continue that they have only looked at the actual data that they found but made no attempt to plug in an estimate the impact of the future tree mortality on this action in probable terminus and that is one to three years of future impact of the drought we're not saying make guesses about whether or not there will be a new drought guesses about whether or not there will be something speculative in the future we haven't known a phenomenon whose impacts are ongoing and the forest service arbitrarily  truncate its evaluation of that phenomenon and not make any estimates of the future we would contend that is very similar to the facts in both that it and ocean advocates babbitt the park service had not made any attempt to quantify what the impacts of increased crew ships into the beautiful glacier bay would be and night circuit said you need to you know there's going to be some impacts right here there was data about the tree death that had already happened so it's not like they ignored the phenomenon entirely they looked at the satellite photos and everything of the trade at that already happened and said in the context of this tree death this project is still not a big impact that it still makes sense to do this project i mean yes you're right they didn't go with the next year in the future but if they look at it and see that it's not making a difference in the overall calculation and this project is needed then i don't understand why one more year would make a difference anyway your honor to it not to quibble but it's one to three years and we don't know whether or not it would make a difference and  the the data they were using it to to run their model was imperfect and full of data gaps as the conservation biology institute indicated if i may i'd like to reserve the remainder of our time thank you thank you please the court my name is alan bray vendor with the department of justice and i'm here in the half of the united states for service the frog project is an environmentally beneficial project that will benefit the forest in the wildlife including the pacific fisher that occupy it by thinning overcrowded stands the project will reduce the risk of mortality due to insects disease and severe wildfire in fact fish are experts both inside and outside the forest service have identif severe wildfire as one of the biggest threats to the fisher and they recommend taking actions like the frog project to reduce that threat now before the service approved the project or decided to proceed with the project it prepared environmental assessments finding that the project is not likely to significantly impact the fisher or any other resource and there were good reasons for the four services findings first of all the frog project is extremely small effects only about one thousand acres and to put that in context one thousand acres is less than half a percent of the area and fisher core area two and fisher cory are two is just one of seven core areas in the southern sierra nevada us not only is the project extremely small it's a low intensity we're not talking about clear cutting we're talking about removing some small understory trees to reduce fire risk and to allow the remaining trees to grow stronger and healthier due to decreased competition for water sunlight and other nutrients not only is the project small scale low intensity its impacts are well understood the forest service has significant experience implementing that in projects like the frog project and it designed the project from the start to avoid impacting the fish or it is retaining large trees it is retaining snags down woody debris and their operational restrictions in place again to minimize any impacts on the fish or in the short term and in the long term of course this project is going to benefit the fish or by reducing the risk of severe wildfire which is again one of the biggest threats to the fish are in the region now in light of the tree mortality caused  self of the cedar fire and the cedar fire therefore fragmented that population the fish are in that area from the rest of korea too whereas the frog project is north of the cedar fire and and the population there is just not plowing ahead for the sake of plowing ahead it is looking at the facts in the science before and making a case by case determinations now with respect to the frog project the forest service voluntarily stop the project it gather the new data ran its simulator and then it assessed future tree mortality plaintiff's position that the forest service didn't assess future tree mortality is just plain wrong i would refer the court to excerpts of record page eight thirty three and eight thirty four that is the section of the supplemental information report that discusses future tree mortality so plaintiffs cannot argue that the forest service didn't assess future tree mortality what their argument seems to be to the best we understand  didn't quantify it right that's exactly right they didn't perform a quantitative analysis and there of course there are good reasons for this because c b i that is a non governmental agency that publishes be a fish or a conservation strategy and they document  title change circumstances which is in the record at seven eighty eight to seven ninety three no it's that there's a lack of quantifiable data the data just doesn't exist but then c b i goes on to say that even if such that it did exist there is a lack of a reliable scientific methodology for translating that data into the future and making predictions on fisher habitat so what c b i recommended is that land managers like the forest service undertake a qualitative analysis and c b s recommendation analysis and what that is is the forest service employed its experts its biologists its fish are experts to look at the best available science out there and to render a scientific opinion so what the biologists did is it they they performed in literature review it noted that the best available data indicates that tree mortality is likely to continue for one to three years into the future after the drought and in twenty sixteen they then looked at the impact of the past three mortality occurred at lower elevations they looked at the results of its modeling which does in fact take into account future tree mortality but sort of normal levels of tree mortality they looked at the locations of the project which are at higher elevations which are not which there were not as affected by the tree mortality and they looked at the treatments that were going to occur and from all of this the forest service biologist determined that the project even accounting for the future tree mortality was not likely to significantly impact the fish or so the analysis was done and it was the analysis recommended by c b i so part of the argument seems to be that using the supplemental information report  process it circumvents the need for an environmental assessment can you explain in other words it's an end around the formality and an environmental assessment well  in alexander did uphold the use of us are right and it's because there has to be some device for the agency to determine whether or not a supplemental document is required and the device that agency's use is called at least the for what the forest service use  what the forest service manual states and the manuals are nonbinding document but what the manual states is that a supplemental should be prepared when there are new circumstances or cha circumstances that suggest the former even e a a is invalid for some reason it's a very sort of subjective standard so here we have the situation where everybody agrees that there have been changed circumstances right you have to change circumstances didn't render the twenty thirteen to be invalid and that's that's the important point that the conclusion in the twenty thirteen remains valid even in light of the tree mortality and the forest service knows it remains valid because it under that the project impacts on the fisher remain in significant at all three of the spatial scales recommended for analysis by by c b i how would it have looked different if they had done any and that was years when they were really looking at the data and the tree mortality i don't know if it would have looked different your honor well i guess i guess that's the question is what triggers an e a and seems to me the benchmarks are identical in other words you can have and you exactly what those are i mean i think that's one of the arguments is that doing n s i are allows you to circumvent the regulatory requirements and they apply to an a and i confess i don't know what those are on those concepts that matter  instance the four service to release a draftee a for public comment as it would have to do for any i guess but with that i see my colleague mr feit would also like to present here the remainder of my time thank good morning and may it please the court last and fight on behalf of c r forest products the intervenor defendant happily and the contractor i have mr kent do soon from see our forest products here sir forest products is an important component of the forest is management ability because it's the only sawmill south of you so many national park and so one of the purposes of projects like these it's certainly a secondary purpose in a forest restoration project but it's to ensure that those mills have a steady flow timber so that they're around that infrastructure is there so the forest service can continue to manage the landscape and make sure we don't have catastrophic fires like some of those that we saw last summer but the core issue here and i think judge thomas you certainly hit on it in your in your comments at the end of my colleagues presentation which is was the forest service required to supplement its two thousand and thirteen environmental impact environmental assessment and the test that's articulated in the tri valley cares case the opinion by judge smith is really helpful to that and  that adopts a test from the seventh circuit wisconsin to be weinberger and says a supplemental environmental assessment isn't required unless there's a seriously different picture of the environmental effects of the project and so that properly focuses the inquiry it also it also cabin's the discretion of the agency so the agency certainly has discretion and is due deference asked to as to the conclusion it reaches and here it reached the conclusion there's not a seriously different picture but that also you know that also ensures that it doesn't have unfettered discretion or and it doesn't have the unilateral ability to set aside or vade public participation requirements which certainly the may be of concern to the court as well as as well as to the public specifically here the forest service looked at the project and determined there wasn't a seriously different change are there but there wasn't a seriously different picture of the environment and that that had to do with the fact that the need for the project is only intensifying they looked at the stands and said those stands were overstock ten years ago there overstock now they still are great risk for catastrophic fire which is probably the single largest risk to the fisher and that's that's a fairly common issue throughout the west that catastrophic fire is the number one threat to many wildlife species that inhabit our national forests you know if there were procedures or things they would have needed to do if they tried to make that assessment through n e it what would have looked different if they had made that same assessment that what they were likely would be had would have been different different procedures they would have they would have preferred a full environmental assessment which is a longer and usually more extensive document than  supplemental information report the regulations require public involvement to the extent practicable for the forest service data also indicates the average time to produce an e t a is somewhere on the line of twelve to eighteen months which is certainly would significantly delay the project which has already been delayed several times even after judge bryer lifted the previous injunction against it in two thousand and thirteen some limited  implementation occurred in two thousand and fifteen and then it resumed implementation in twenty seventeen but the analysis here certainly satisfied that requirement to take a hard look at what what the situation is does that does that require us to go back and do a full environmental assessment i think if you go back to march in the supreme court's opinion that you could get into a cycle versus just a cycle of supplementation and you have to draw a line somewhere that's reasonable and with the ranch area project that was mentioned that that's where the forest service throughline they are preparing a supplemental environmental assessment and that project has been suspended since the twenty sixteenth suspension of frog and rancher riya and so that is still ongoing that preparation the assessment is there some time sensitivity about this i gather are you planning logging in august is that right resumption well resumption the project will resume in august however it you know it some logging occurred in the fall after the district court ruled the in august so you probably have to get in there in july at some point or a little you know look a little bit before you have to you have to move up the quitman before trees are actually felled and there will be you know there are meetings to plan those operations  but certainly no no felling would occur prior to august one of this year was it why you didn't stop between the fall and august if they didn't see going to junction i'm a little confused about why it's stopped i'm  glad you asked that just for you and that's because of protective measures for the sake of the fish and because of the breeding time and things like yes exactly the limited operating periods they basically logging ceases oftentimes in th in november december because of weather and then the limiting operating pier limited operating period kicks in for breeding period for fish or breeding in february and then that goes and is lifted in august and so that measure is in place already for protection of the fisher and that applies virtually every project i've seen on this national force that i see him over my time so if unless there are any further questions appreciate appreciate the time  but it's all about process it represented a congressional determination that particular formal processes should be used before the government takes action that could affect the environment there is no such thing in regulation as a supplemental environ supplemental information report it is been it is an informal method of documenting a decision that has already been made that is the key difference but just as a practical matter what would it look have looked like if they'd done this as a supplemental e s a i think mr feit made it clear it is a much longer larger document that sets forth the environmental settings sets forth the way the project will change the environmental settings sets forth the possible impacts and what those sections in this too i mean is there a rule that says it has to be one hundred pages instead of fifty pages or whatever they like this i just a little confused about like what actually wasn't done that needed to be and your view it in my view the key difference is that by its very nature an essay r is results oriented and environmental assessment is supposed to be the opposite and environmental assessment is supposed to be an aim first shoot later document without knowing what the decision is going to be let's evaluate the impacts the s i are on the other hand if justifying why one is going to shoot well i don't think that's quite correct i mean they could have at the end of the day said ok we we there are some concerns raised let's go through with and what's wrong with saying let's  let's study it and do a quick analysis and see if our old analysis holds up but that's not what they did you on or they didn't do a quick little analysis they did something that was really a hybrid and really neither fish fowl but that makes it better for you right i mean i think your response is they did more than a quick analysis no it really doesn't make it better what it does is it shows that there should have been any day and because there were enough impact anough potentials least significant changes in necessary to do these and these new aerial studies to run these models again that almost in and of itself demonstrates that there was enough information that there could be a pro a significant problem to do and  yet instead they did this kind of half hybrid document a kind of enhanced s i r if you will when what they should have been doing under the statute is a supplemental environmental  the requisite hard look why does it matter if we think it's our look well we would i think there needs to be a different city and a different way of evaluating hard  in the context of a decision not to proceed with a need to document than there is in the context of reviewing the need to document itself because i think that the statute contemplates there will be some supplemental analysis to say we don't think it's necessary to do it and here's why and that's what its purpose is thank you thank you all for your arguments the case is heard will be submitted for decision and we will take a ten minute recess