is the four services failure to address the right parry and management objectives in its analysis of the east year project the nd issue is the four services failure to abide by its own scientific reports when it implemented the forest plan snag habitat standard so st begin by addressing the project's specific challenge which is the agenc before service doesn't need to address in and yes whether it's complying with its own forest plan or acquirements and so even though the case was clear the statute is clear that a project must be consistent with the forest plan there is actually a regulation that says you do need to address in the e i a s whether a project is consistent with land use planning objectives i read a little differently right at this intersection i read their brief to be saying we don't have to show our work coupled with the fact that i think they're right that their project presupposes that not all of a medical conservation record and conservation areas were in compliance because they talked about some active where where streams are in compliance will be doing one thing where we're not meeting or exceeding expectations will be doing something else so given that that was that's baked in that they weren't across the board in compliance is it is it your position they have to show how they determine yes your honor because that's what the forest plan says they have to do the st plan says any activity in or a parent conservation area must either meet or exceed the right parian management objective and then there's a list of quantified objectives and so the forest service just skipped over that step i don't think they did this is what i'm trying to get at i'm not sure they necessarily did i read their response and their plan to project description to two to presuppose the determination that they weren't all in compliance and if they take the position that they're everything everything's in compliance and none of these activities are going to have any impact at the one thing but i don't think they do that and well while you're on it that's the purpose of is not just for the agency to informants self and so that's where the public part comes in the purpose of need is to for the agency to inform the public of what it's doing and so that is the part where they do have to show their argument that they made and i will tell you precisely on an exhaustion argument it's a waiver argument it has to do with specificity of the objection of promise that you wave as opposed to exhaustion or at least it would be really helpful to me if you could keep those apart maybe address them both if you wan and so the statutes and regulation they say are all exhaustion exhaustion the briefing of course and they're talking about the specificity and so when we address exhaustion in terms of what the specificity needs to be we have to look at this court's  precedent in for example idaho supporting congress versus rittenhouse native ecosystem's counsel of his versus dombeck and those cases repeatedly say that a member of the public doesn't have to address it with the specificity that an attorney would when they prevent when they present a refined legal argument and so bringing up the subject matter is sufficient and i want to point the court to where the plaintiffs did in fact do that f e r eight they said please disclose the results of up to date monitoring of fish habitat and watershed conditions as required by the forest plan now the only place in the forest plan that requires up to date monitoring of fish habitat is the right parian management objective and riparian conservation area standard so while it is where is it required in the forest plan i mean the comment seems to be to suggest ok the forest plan has this requirement to disclose that i looked at the forest plan and i couldn't find it your honor the forest man standard is there a parian conservation area standard this is a so i look at that i'm looking at it right now what exactly there requires publication what christian accurately applied or describes their work so your honor at e r four hundred and seven if we look where it says activities in riper and conservation areas that are not meeting the right parian management act objectives shall include a restoration component that is commensurate with the scope of activity affecting the fisheries so basically we need to know what the condition is before you can propose a solution but  their main point is that this isn't a project that's aimed at restoration of of the waters and it's not a project i think's going to have a material effect on the  and so acting like it's aimed at accomplishing something that really isn't the puzzles may well you're out of the problem is that they're creating the solution before they know what the problem is the forest plan codified these six quantitative right there in management objectives and they say you have to determine for example do quincy meet the with the number of pools tend two hundred and ninety six tw are the large woody debris over twenty pieces for miles per mile is the bank stability over eighty percent stable is the lower bank angle over seventy five percent is the with to depth ratio less than ten what is the water temperature these are supposed to be the diagnostic tools that the agency uses to determine than in the right pair in conservation never area standard what activities would be commensurate with the need to improve the condition so they have to look at the objectives compared to the existing condition to determine whether or not they're meeting the objectives and then if they are not they have to propose an activity that responds to that specific objective and so that's  coming up with generic restoration ideas randomly spread throughout the project area doesn't meet this because this right forgive me you just said something sometimes it sounds in your briefing like you don't know which streams or meeting or exceeding yes your honor you do not sometimes it sounds like that's your problem and sometimes it sounds like you did your objection really is that they didn't show their work as i put it in showing how they were going to in areas where they were falling where the conditions were falling short that they were going to improve and i really can't tell which it is you were getting at at the agency level yes you're in the very st thing that the problem is that they have not compared the existing conditions to these objectives so that means we don't know whether they're meeting these objectives the st thing i mentioned was something different and you're confusing me the very st thing i mentioned is it seems to me sometimes you're arguing that you don't know which streams yes in this project or you're not in compliance yes so it's just notable to me because this feels like a real moving target when of course we are always trying to reinvent you know was this that's the nature of our job what happened below but this is not how the district court described the challenge at all that's correct your honor the district court looked at it as a generalized nepa claim and they and the district court basically said because they took a hard look at water quality in general because the project in general is designed for restoration that's good enough and the district court because the district court like the plaintiffs unlike the defendants can't point to anywhere in the record where the agency actually did disclose the right period of management objectives and determine whether or not each stream met them on page twenty three dollars the district court's order said plaintiffs allege two specific default one the forest service didn't about what the condition of each stream within the project area according to the plan standard scuse me to the forest service unlawfully failed to disclose something very specific the numeric maximum daily load for settlement and peterson creek that's a different claim that's not on appeal this is not on appeal the nd one you mention ok so i don't need to worry that yes so then that's a relief ok so go back to that what the way that to judge describes this your challenge didn't evaluate the condition of each stream within the project area according to the forest plan standards does he have that  you're reading from page twenty three is that right right yes your honor and that is that is the correction if my claim ok so then on thirty one which is you know your reply brief it says the references i think you mean your objections do not specifically cite to the forest plan r standard and i don't think they do mention the r c a standard the conservation groups clearly expressed concern with water quality and fish habitat including a concern that the forest service was not disclosing sufficient information to properly assess the impacts this is this is your argument so your question is does the specific comment that they raise is that a can too or is that similar enough to how the district court characterize even your briefing acknowledges that the comments that you raise the objections that would raise really didn't didn't put this fine a point on it about repairing conservation areas being in compliance with the management objectives is that right now your honor if we could look at the this your your reply brief says that we didn't reference the forest plan r c a standard it was not specifically cited that's correct in the comments and that's why i would point the court back to the rittenhouse and dombeck opinions where this court has said you do not have to specifically cite the forced plan or current so in the rittenhouse case the plaintiffs had raised questions about old gross species and concerns about old gross species the force had a specific standard that said you must monitor the population trends species and the forest service in that case as well said well they didn't say in their comments that they must monitor the population trends of species as required by the forest land and this court said but it's clear to us that the concern was old gross species they don't need to specifically use the language of the forest plan or say it's the forest land standard in order to preserve their right to bring a claim before the court it seems to me of the one thing  if the agency had denied that they were out of compliance and if if they if they had begun from a premise where all the streams were in compliance with the management objectives you would have a different circumstance here but i read their project planned to be clear that some of the streams aren't we don't know that you're on it and so my st question is do you agree with that and the nd that some of them weren't because it talks about in areas where they aren't we're going to meet or exceed we're going to do this and whether we're going to do that and and then this circles back to my i just want to be one more chance to tell me where did i say they have to tell you how they decide which streams were not well your honor i would point to the two district court opinions from the district of oregon and district of idaho that already addressed this exact issue and said they do have to address riparian management objectives and my response directly to you is they don't specifically say here are the streams that do not address riparian do not that your briefing is not clear on this point by my read it may be my shortcoming but your challenge is that they were required to identify which streams and talk about how they had made the measurement is that right yes your honor for any any  conservation area where there is any activity at all the st plan requires them to say where they meet or exceed their a period management objectives they did not disclose and comply and they did that that's might that's my and i don't see in their analysis anywhere for example where they addressed temperature bank stability you know and right and your argument that the conclusion is not enough you wanted to see  yes because the analysis is what shows us where and what type of remediation activities and so we don't know if there is even more streams out there for example something they didn't address bank stability what if there are a number of other streams out there that don't meet the bank stability or a parian management objectives but they've just been swept under the rug because the agency didn't do that analysis this isn't a project that's aimed at that and that's what i thought the point the district court made is that that if you have a project that's aimed at addressing that you know you specifically address that if you have a project that you don't think this is aimed at something else you evaluate whether it's going to what kind of impact it's going to have and i don't understand why that requires the kind of detail analysis here assisting that a project about the from now forgot what the the disease was but  that the treat izzy's necessarily means analyzing each of the streams or ends through because commercial logging affects and degrades our stream habitats and this is a project with hundreds and hundreds of acres of commercial logging with because you're taking this analysis to mean something that i haven't seen specified in the forest plan so show show me where the analysis you're talking about is something that that standard one requires standard one says any activity in right paren conservation areas shall be designed to enhance restore or maintain the characteristics of the r c a by implementing the following requirements and then a b and c say a for example activities and right period conservation areas that meet or exceed ripe area and management objectives must be designed to maintain existing stream function activities and right pairing conservation areas that are not meeting the right parry and management objectives shall include clude a restoration component commensurate with the scope of activity affecting the fishery which trends towards accomplishing desired stream function so the only way we can know whether these areas are meeting the right parry and management object is is this if we have an analysis and so for five out of these fit six factors pool frequency large would be debris banks stability lower bank angle and water temperature we don't know if the streams are complying with these objectives or not and so the district court says that the forest service didn't authorize timber cutting in riparian areas and the only actions that are authorized are what the district court describes as restorative in nature if that's the case why isn't that enough well your honor that's that's false there is timber cutting that is going to occur  within right paren habitat in the dry cottonwood sub watershed the gerard gulch sub watershed the orofino sub watershed and the sand hollow so watershed and the peterson sub watershed and the other half of the district court statement goes on to talk about the net benefit basically i'm summarizing yes if you want to address that yes and that is that we don't actually know what the net benefit is in relation to those five repair and management objectives that they didn't address so we don't know how these that will address banks stability lige would be debris because they weren't addressed in the past so we don't have the analysis yet to know if they're truly restored if we don't even know which streams are are not meeting those five out of the six for pain management i see that my time is running down and i just wanted to see if the court also had any questions on our other claim which was the snag habitat standard we're going to be averaging over the analysis area or also completely failing to address the ten inch mostly due to the mountain pine bark beetle epidemic i'd like to turn to since the court has had a lot of questions about the riparian conservation area standard both judge clifton and kristen have this correct in the issue here is are misreading the r c a standard what the r c standard is intended to do is to address impacts in the riparian conservation areas when there is a project activity that is going to affect those areas in some way so if in this case there were commercial logging in that were happening in they were repairing conservation areas then the force service would be required to analyze the impacts of that the commercial timber logging and then make sure that the affected areas are either already meeting or that if they are not meeting they are most that restorative measures accompany the commercial project here there's no commercial logging that is happening in the riparian areas the only thing that's happening is  because we just had a right a factual question there and i confess i'm sufficiently lost so i can't answer the so please address specifically what we just heard shore so there is a difference between commercial timber harvests and the tree fell and that is happening in this case and will sell the trees by hand not with any mechanical operations and when they fell the trees they can use them to restore the areas in certain ways one way is that they create worm log fencing so they fell those trees and then they put up fences along the banks so that the livestock can't get so close and they cause the bank to kind of erode which then increases stream sedimentation temperature the other thing that they can do is they fell the trees and let them just fall across the stream and when that does it creates pools in the stream so it slows the current and those pools are used by the fish as spawning grounds they like to but maybe somebody who's not as familiar as you are would think oh that's going to create a sediment problem maybe so where do we go to look for to asked for they asked to know about the watershed conditions and so the the forest service explained exactly what happened what was happening in the watershed plaintiffs did not what they are asking for here is they're asking for a specific statement as to whether or not each of these creeks and various riparian areas is meeting works or falling short of the are most right that's what they're asking right there is not a specific statement that would say this creek meets this creek does not meet instead there is a general discussion about the conditions that encompasses each of the our most within the f b i s opposing counsel's argument is that you're required by our case law to make that showing what's your response there's nothing in the forest plan sander that would require that and that's particularly important here because the only thing that is happening in these repair repairing conservation areas are measures pacifically intended to restore and benefit  the r c a s and i'd point again to the language of the r c a which says that any activity in r c a s shall be designed to enhance restore or maintain the physical and biological biological characteristics of the they state that there is no commercial no commercial treatments are no treatments are happening within the r c a s other than restorative so your position is that it's enough for the agency to apply its expertise and make the judgment or as just christian said earlier the state is conclusion and it's not required to go through this whatever six standards and measure this and measure that for each of the areas that for this purpose the mord generic expertise is sufficient to satisfy the standard yes i'm not sure that it's this is an instance when we're deferring agency expertise this is a factual matter that these these actions are not the actions of you know where they contract or let you go sometimes in and says look just the felling of the trees creating pools in the long run has a deleterious effect because it impacts and i couldn't begin to say why because i don't know any hydrology but at what point is it enough for the agency to state his opinion as opposed to trying to gather the the data that would confirm that in fact that it's not going to have a deleterious effect will it if it did do that i mean it discussed what was happening going to do in those areas and what the expected effect will be but they're stating that conclusion not based on measuring before and measuring after or anything else or just saying we know that felling the trees in this manner or creating a worm hole whatever offense you described has the effect of keeping the grazing animals from kong causing the banks to erode and so forth and that that that is sufficient under your view to satisfy the standard yes it is but i'd also say there are quite a few measurements that appear there just not measurements that happened for this specific project so they're in for in a battle to players arguing look at these six measures and you've got to do it for each stream and so on and so forth and you're saying no and so i'm trying to find ok what's the point of conflict and what is the standard that explains whether or not a is sufficient or your acquired to do b yet and again ok so i would encourage a court to look at those sites that i gave because i think you'll see that there are quite a few measurements that happen to use something called the rods grand measurements for stream viability which appear in their lawyers you know oh i know you trust me i know sir is your answer to judge questions question that even if i asked these questions or raises objections very specifically show us that the conditions meet the hour and most would your answer have been oh ok we'll show you our work or would it have been we don't have to see our work or would have been or are you saying we don't have to do a stream by stream analysis i'm trying to figure out whether you did it and haven't disclosed it as opposed to sort of sounding now like you're saying you don't have to  have done that stream by stream well so they did a stream a stream analysis i guess maybe i'm confused about what plaintiffs want here i read it as they want to specific statement that says this is what this the stream is or is not meeting this hour i'm all right here goes so now i'm trying to focus on your position is your position that the stream by stream analysis was done and it may not have been disclosed with the level of specificity of the plaintiff's law but it was done yes that's out today it is we don't have to have done that stream by stream analysis because this project was doing something else honestly it's both they did not have to do the stream by stream analysis because if you look at standard one be it says that that even if the streams were not meeting the our most the standard is met so long as there's a restored of component included in the measure and the bit about commensurate with the scope of activity doesn't apply because there is no you know exactly happening so they have met with the standard regardless just by the mere fact that the only actions occurring here are restored of a nature right to read and i may not be so this is a genuine invitation to correct me if i'm wrong to read your project description as conceding that some of the streams were not in compliance with  period management objectives i think that that's a fair description i think especially looking back at the two thousand and eight hydrology report that was done back in when the force plan was amended there was a statement there that the that most are meeting  best management principles to reduce any potential sedimentation but the forest service is going further than that and actually decommissioning several miles of roads along the riparian areas and they're updating about a dozen culvert to help with that we should read understanding your position to be that we should read the district court's order which may be a little bit of a shorthand to refer to only commercial timber cutting is that right there wasn't any commercial timber company cutting in the where's the where's the requirement what's the support for the requirement that this timber cutting which to me means cutting down a tree whether it's on commercially or not you're telling me that there's a very meaningful distinction where you do have to make that is on one hand and not on the other can you please just give me i i don't have an authority for that i think that the idea is that the that would be an activity under an activity that requires compliance with generally and therefore it would trigger all of the necessity or they both activities their activities percent of the project yes but they're considered they're only there for restorative measures they are not the activity that the contractor has sought permission for i want to provide a little bit better response to judge christians question about you asked about where is the requirement basically that they have to just sort of do this analysis and disclose the analysis to the where why would they have to show their homework sort of was the idea of the question i think and i guess i would point the court to native ecosystems council the u s forest service which is for eighteen fed rd at nine hundred and sixty one dollars as well as ha well which is are those cases pretty specific as to the questions asked your honor i can speak just specificity of both of those cases and happen or vetoed well the issue was there was a quantitative forced plan requirement regarding al kiting cover for service didn't address hiding coverage in the way that the forced plan defined it but then still said we're complying with our forest plan and so this court said you have to actually analyze hiding cover the way it's defined in the forest plan and because you didn't do that we can't tell whether you're complying with the forced plan or not and that was the same thing in native ecosystem's council of u s forest service where there was another sort of quantitative standard to preserve cover and the forest service had given various calculations of how it was going to comply with that standard but they never actually did that in a clear way in the record and this court ultimately said while they're giving us among a bunch of different calculations on appeal we don't see in the record where they