morning members of the court kelly smith for appellants sprawl deafened sierra club this is strictly speaking a case of mootness it's our position that despite the amended record of decision that the remains a live controversy regarding eucalyptus thinning versus removal in conjunction with the catastrophic fire protection program of fema in the east bay hills the complaint read as a whole continues to state that controversy the project continues to be fully funded and the prayer in the complaint clearly request a full and fair discussion of what is what remains fully funded the the entire amount of the funds will be used by the east bay regional park district continue to do what was identified in the project of but fema withdrew its funding the proposed proposed the environmental impact report upon which it's based the environmental analysis all the analysis what analysis there is regarding thinning eucalyptus its impact on endangered species impact on  whether whether it works to to prevent fires at all what long term benefits and just to clarify the the areas that had part of the berkeley oakland project are no longer going to is still in place the e r is what we challenge this is an action it challenges the underlying environmental analysis and the complaint well let me back you up just just just a little bit i want to  as i as i understand there were initially two different approaches correct there was that the east bay approach which was more sinning over time ok right and then there was the oakland berkeley approach which was standing just not have been in was more on removal correct that basically i might just focused on the oakland berkeley area well the right of the methodology doesn't change the two components that you already identified it was that you know when i read the record and i read your your understand what i read what i mean so if i didn't read it correctly tell me sure and i don't think that's a fair reading your honor i think a fair reading of the complaint and and our i wish i was talking about your motion the summary was a unified methodology what they called the unified methodology now i would submit that that's nothing but a handle for the tweaking of the original project by requiring the university of california at oakland to include some thinning in there so that they could call the whole project unified so the thinning as i read the record it's like oakland berkeley would start with thinning but over the period of five to ten years would result in elimination so it was still a distinct project is that correct yes it is it is and whereas the east bay parks calling it a unified methodology in fact nothing changed and in fact and i will refer to the court to page fifty in our excerpts where fema note states that in the comments in the public review process that there were concerns that this unified methodology would make it difficult to review the e i a s underneath because it was confusing to people and they said it doesn't really matter we don't have to do any supplemental work because it doesn't change anything so that introduced this unified effort all of the for the oakland and ear word you can't introduce this approach without having a period for some public comment well was wasn't that the thrust of the argument at that point no it's not well first of all again we were addressing the fact that it was in the record decision at the time and so our complaint was focused on the the the vagueness and the evasion of the true underlying issue the true underlying controversy between the thinning and the restoration of native habitat by the use of this obscure term and and so the fact that we had to focus on it in the in the summary judgment argument was because it was in the project at the time our point here now let me ask you this what's the challenge then to the east bay project the same your honor it never evaluated thinning versus restoration of name native habitat still hasn't that that and now it was a part of your original complaint was no it absolutely was wrong i think if you look at you look at the prayer of the complaint  d to make it clear that the that the the controversy was this thinning versus removal of eucalypt the just because obviously people get very confused by the fact that it's in there and simply removing it our argument is that that doesn't change the project the fact that it's funded and that it goes forward so you know it's not a substantive statute that is it doesn't require certain results and of course certain process absolutely are you're absolutely right and that's what was the what was deficient in the process with respect to the  east bay methodology that really highlights the deficiency here and that's the lack of a full in fair argument of these two alternatives in the i r and so when they added the you know what they call the unified methodology they said we don't have to go back and look at it because it doesn't really change anything well so let's they've removed that they removed let's say they they say they removed the unified methodology rights and standards and i wrote the unified methodology didn't really mean anything i just what if they don't take it out what is wrong what's the procedural deficiency with respect to the east bay you know analyze for the purposes of nepa thinning versus native habitat restoration it never did and the public was thereby deprived by this little shell game called it was going to take ok another if i take another careful look at the complaint the first amended complaint which i believe is the operative complaint correct that right is if i take a look at that first amended complaint i'm going to see  oh i mean this controversy as it is is very significant your honor white hot in fact hundreds of people testify when they come to this on either side it is the issue and it was stated in the complaint it stated throughout the record it's again a fine through the out the record and it's our position that all the team is doing is trying to evade that controversy with this big unified methodology and that that to to remove that term and somehow say that that controversy is gone is is a grave disservice to the public participation and and and notification process that need to really yes it's a disclosure document and this evasion undermines it completely i'll reserve the rest of my ok tha in this case that's for all the plaintiffs brought this challenge to themas review of the unified methodology and that methodology was a very specific vegetation treatment plan that applied to two areas two sub areas within the university and oakland sites and that was what they were challenging your honour's are correct that the unified methodology is different from what is happening on the east bay a park district lands the unified methodology involved thinning and phase removal of the trees over a ten year period with the ultimate effect of removing the over story of the eucalyptus sprawled f plaintiffs brought this case because they were unhappy with the unified methodology they believed it wasn't drastic enough or fast enough was no more that was not going to be happening and that's when the sprawl the plaintiff's case became moot i mean is there concern about the just about the methodology thinning versus clear cutting or no i think timber one they were not trying to attack that they were very specific in their complaint but also in the in the subsequent litigation their briefs but the what they were challenging was the unified methodology and only that methodology on the specific sub areas of of u c in oakland and i think it's not true to suggest that the unified methodology is a vague term that nobody understand because what's important here is that the plaintiffs understood it and in their briefs they actually described and find what it was an they said that this is in their summary judgment brief this is at c r three thirteen they said plaintiff's complaint is not with the whole project across one thousand acres plaintiff's complaint here is with the unified methodology the unified methodology applies only to the four critical university in oakland areas and then they even have a footnote footnote to s e r three thirteen that defines the unified methodology and the same way that the environmental impact statement defines it so we were all talking about the same exact treatment method that was happening on those on those summary judgment briefs i thought were very clear that the focus was on the berkeley and oakland areas but there are some more general statements in the complaint as opposing counsel indicated where they say generally that there was a violation of due to the failure to properly describe it evaluate alternatives as invasive native over story species in the creation of long term stable native plant communities and i take it that's what opposing counsel was referring to when he said there was at least a general claim of a failure to consider alternatives for thinning vs native plants restoration then the complaint goes on and talks about  berkeley oakland areas but what what do we do with these general statements of the complaint so we make two arguments your honor first we we agree that the district court with her construction of the complaint and i think that those statements that you point to are simply labels and conclusions they say that underneath you have a duty to evaluate alternatives and then they vaguely talk about invasive species but rather as a whole it is clear that what they are alleging the specific failure the agency failure that they're pointing to is with the unified methodology and under ashcroft not enough to just simply point to general statements but you have to identify what it is that the agency did wrong and all of the statements in the complaint that actually pinpoint wh we did wrong and that they're pointing to you all relate to the unified methodology we also argue that you know at a minimum if the complaint was vague the plaintiffs have construed as narrow and so should this court they have told us in  papers and also at the motion to dismiss hearing when the judge gave them another opportunity to say what their claim was they specifically and this was the i think final opportunity to argue that they might have had a different claim but at the motion to dismiss hearing this is that t r three ninety three they say that quote nothing's been changed in the e i a s it's still refers to a unified methodology and that s e r three ninety eight we're not going to bring in other arguments against  won the case is about that yes it still says unified methodology so i think given their own statements and their own construction of their complaint it was correct for the district court to view it that way and i want to also address and judge paez asked a question about the thinning versus over story removal again we think that their complaint was limited to that specific unified methodology treatment by but the record is clear that thema did consider the controversy between thinning verses over story removal and s e r one zero seven two one ten there's actually a chart that's in title tradeoffs between thinning and over story removal we're female went through in terms of the entire project it looked at what would happen between complete over story removal versus thinning and they looked at it in terms of the aesthetics of effects on erosion and landslides effect on fire hazards effects on vegetation and all of those things and they bring in the well this was an assessment of just what that what the different methods the impacts of those methods overall and they also looked at it in terms of the unified methodology areas and that's at s c r one sixty one to one seventy one and again need but does not pretty pick a particular alternative it requires that we looked at the alternatives and here there are a variety of reasons depending on the landscapes that you would choose one method versus another and for a park district where their goal is to retain a certain landscape that makes sense but i would add that what happened here was that they needed you know for need you need a hook you need to be able to point to procedural violation and it seemed rather compelling that the unified methodology was another alternative that wasn't thoroughly vetted it wasn't it was sort of sprung on the public and that provided a clear argument for them to argue that that they should read go back and re do this  but that's been removed and so the question in my mind is what what what are they challenging through respect to the east bay and i was trying to take a look at that that particular charge i think that they don't have a claim with respect to that to the park district what they have argued to the district court was that because the environmental impact statement sort of still exists out there and there's still a description of the unified methodology in that environmental impact statement they argue to the district court judge that their challenge should still remain live but this court had says has said that in the rattlesnake decision and the in the oregon national doesn't cases that are standing alone in the analysis and yes standing alone does not tied to a decision is not an agency action that you can challenge so what they told the district court was just because yes says unify methodology we still have a claimant and they don't because as a district court noted it's not it's not its job to allow plaintiffs to bring hypothetical the funding has been withdrawn and there is a there is a challenge in the district court that's been brought by the university challenging the withdrawal of that funding but that's a separate case that was pursuant to a settlement as there was a settlement agreement  when the different play a different group a conservation group brought a challenge again to the unified methodology sites and that was a settlement that occurred yes your honor i want to ask and i would like to leave the remaining of my time unless there's any other can you know just the microphone because it seems like it was going in and out ok thank you good morning your honour's may it please the court tamar gallanter on behalf of the east bay regional park district and i'd like to use my time this morning to provide the park district perspective on the issues before the court the fema grant funding at issue in this litigation will allow the park to ship district to partially implement its wildlife hazard reduction and resorts management lamb and the park district offer this plan way back in twenty ten after a multi year participatory process and environmental review under the california environmental quality act no throughout this litigation sprawl death has led the park district to believe that its concern was over the unified methodology which would be applied on only twenty eight hers not even all of the acres but just twenty eight hers within you see an oakland and notably it would not be by or within the park district now sprawl have had multiple opportunities to raise claims related to the funding of the park district's work and bet it every turn sprawled have confirmed that their lawsuit challenge only the unified methodology first in the complaint and if you look at the introduction to the complaint in the first paragraphs it's very clear what plaintiffs are challenging they are challenging what they view as the last minute switch in the in the work that was going to be done to the unified methodology and i agree with justice paez that this was yeah this was an excellent legal hook for challenging the us but then the motion for summary judgment briefing confirms that reading but even if you could read the complaint to challenge the funding for the park districts the removal and thinning of flammable trees the summary judgment briefs made absolutely clear what sprawled up with challenging namely the decision to change the treatment method on twenty acres within u c and oakland and you know from from the participant perspective you know eagerly looked at the opening brief and what we saw was that there was no challenge to the funding for the park district all the arguments related just to twenty eight acres so in our cross motion we called that out we said would want to make sure and we said s e r two fifty nine quote plaintiff's lawsuit does not challenge the park to six plans to remove vegetation in its treatment areas and we repeated a similar statement at s e r two sixty six in our brief so this was really surprised us the opportunity to say hey no you're wrong this case is more than about the unified methodology we care about what the park district is doing and the thinning methods it is using but plain just reply brief did not do that it did not contest or correct the park districts characterization of sprawl death breeds but it went further than that because it wasn't silent either it actually explicitly conceded that its legal claims did not relate to the removal of vegetation in the park district and i just want to repeat the quote that was in their brief that counsel for fema also claim because it's so perfectly clear and then in the next paragraph it's spall death concedes that quote the unified methodology applied only to the four critical university and open sub areas and quote and this is it s e r three one three and notably the word only is underlined so given these clear representations even if the complaint could be read to include to include claims broader than the unified methodology for all deaf with their procedural devices to resolve the case that is everybody was file your for your motion and raise every claim you got looks those let's resolve this case on summary judgment exactly your honor as in with most cases this case is disposed on it's based on a record and it's all decided through these cross motions for summary judgment so there wasn't going to be any airbreathing briefing anything that needed to be made need to be made in these briefs and i understand sprawl that made strategic decisions about how t this case and then that didn't pan out but the park district should not be penalized because these decisions did not prove fruitful after this is when all of this happened and even the summary judgment review had been completed should the district court of granted them leave  it found that leave two men would not be appropriate because there was undue delay and prejudice to the park district and maybe i can touch a little bit on that on that prejudice it would be the  prejudice would be that you know to allow for all deaf to now that he claims it could have but chose not to litigate during the past two years would mean we'd have another two years of litigation and it would mean the parts just tricked would not have the certainty that it needs about funding it won't know whether it will ultimately have the funding it needs to fund this critical fire management work and as a result it made very specific decisions about work on the ground in terms of implementing its fire plan based on knowing that it would have funding and it made budgeting decisions about where to direct its resources the district court would likely have to amend and here's what we will do got new counsel and started negotiating in this other case with hill's side conservation network we had no part in that it probably in conjunction with that theme of then delayed a number of the sprawled in any way greatly so your honor again this is a very controversial project now in oakland especially and yet i want to point out that oakland berkeley is where the real fire threat is the park district has lands further inland now these are cumulative projects they were brought into this project because there were can cue military impacts and considerations of fire jumping into these other jurisdictions where lives were lost in oakland at the last major fire where these canyons that you see house fires will sweep down close to the homes and lives and so forth and and so  the political aspects in those jurisdictions especially oakland again is critical and when you have the i r process remember they were talking about other yars done the state environmental review that those are lengthly controverted project we did not sign off and we were not involved and there was no unified methodology when the park district did its state level e i our member that didn't come up in till after the draft amendment in the final and nothing was changed until then and so it was really a last minute tag on that that we had to address and then is pulled out from under our feet when we tried to do so your honor you a that as the project as the alternative it's not an alternative the alternatives are then versus native habitat restoration that's in the record of what the project is it goes to what this project is supposed to do a limited  alternatives in the story is that the way thema identified the alternatives in the not and that's our issue it did not address them as alternatives look and analyze them head to head and provide the proper let me ask you this what  first the first argument is to the the project as a whole in the thing in the native habitat restoration the second one is to the unified methodology walk aristos bird for example beard  this circuits case says that when you address that subsidiary argument you aren't somehow abandoning the the underlying theory of the case an underlying theory is