ok when you're ready good morning may it please the court my name is rebecca smith and i represent the appellant in this case alliance for the wild rockies i would like to reserve two minutes for an item this case is on appeal from the injunction and what it really asked at a fundamental level is what is the purpose of even having a need analysis and the reason it asked this question is because in this case the two key facts are that the agency offered a what it calls a cursory preliminary letter that quote was not intended to serve as environmental analysis to meet the requirements of nepa and then it offered a public comment on that christie letter that was not intended to be an environmental analysis underneath and then six months later it produced its environmental analysis but it did not allow any public comment on the actual environmental analysis produced to comply with nepa and when we look at what the purpose of nepa really is it is to give the public and accurate high quality scientific analysis that fully inform the public and to allow public scrutiny of that analysis before a decision i know you did this in the brief but could you very briefly here till was what was missing in the scoping whether the gun shows up later in the a little material to your argument yes your honor and i understand we've got to but the the sins to the extent where their sins they're roughly equivalent together i'll first start out with the our scope in the under tower environmental analysis so this is the case both of these cases involve a significant amount of logging six thousand acres total and a significant amount of road building and reconstruction over two hundred miles of new roads or roads reconstructed or maintained and so this is also an area where a wild fire had burned through and i am going to get to year question your honor but just before that the reason that this is controversial is because logging right after a disturbance has significant environmental effects and so one of the effects is the soil disturbance the soil is very sensitive at this time of year so one of the issues here was did the forest service discuss soil disturbance in these preliminary letters and so they talk about that in terms of detrimental soil disturbance so in the tower environmental assessment the forest service ultimately disclosed in this is that three forty five this logging would actually violate regional soil quality standards in units ten fourteen twenty two thirty three thirty eight forty two forty three forty four fifty five seventy six that was not disclosed in this preliminary letter they also disclosed in the tower environmental assessment that the project would cost five hundred seventeen acres of detrimental soil disturbance that regarding soldiers servants there we have it three nineteen the grisly environmental assessment states there'll be three hundred twenty seven acres of detrimental soil disturbance that was not disclosed to the public in these cursory preliminary letters  other flaws were that were significant to the public was i'll just touch on two of the main ones one is that this is supposed to be logging that is limited to dead and dying trees but that preliminary letter never told the public what that phrase even means and so it wasn't until the environmental assessment swith were which were issued after the decision had already been made that they finally tell the public by the way dead and dying trees mean trees that we think might die within five years and so that really changes everything because all of a sudden they're not just talking about dead trees they're talking about a log in contractor going into the woods and making a guess about whether a tree might die in five years and if they make a guess calculate not merely how much crown is left but root damage from the heat of the fire hooch and if that's going to be the cause of eventual death you've got to have a sense as to how the fire was one went through there and that's going to be pretty speculative so it may be a tree that looks as though it actually has very little visible damage but nonetheless under the great here you of the me one of the things that can be held it is well the fire was hot therefore the roots are bad yes you're right and it is highly speculative and that's why we wanted that analysis given to the public before the decision was made and so again what we're saying here was that there was an environmental analysis that was  completed but it wasn't done until after the decision had already been made and nepa at its most fundamental level requires that analysis to occur before that's forty c f r fifteen hundred point one b it has to occur before the analysis not after it also says i'm just quoting here from forty c f r fifteen hundred point one b must ensure that environmental information is available to citizens before decisions are made the information must be high quality accurate scientific analysis expert agency comments and public scrutiny are essential and so even the forest service itself is admitting that these letters were not intended to be the environmental analysis that's why they later completed an environmental analysis but the problem is that fundamentally undermines the entire purpose of need when you don't provide the analysis until after you've already made the decision and that's compound in this case because we used to have this case bering strait which sort of addressed that was an opinion from this court which addressed how much analysis neat how much analysis and how much public participation needs to happen on environmental assessment in bering strait this court said basically in cases where there are no regulations that set a public comment period for an environmental assessment here's the standard we're going to apply the problem with applying bering strait to this case is that in two thousand and twelve or twenty thirteen the forest service finally did implement its own regulations that set forth a required public comment period nepa and this is an important issue because the district court did not address this new regulation it did address bering strait but it didn't address the kaviak in bering strait that bering strait only applies if there is no regulation that sets forth a public comment period for an e t a and here since bering strait we now have thirty six c f r two eight hundred twenty five which specific pacifically says opportunity to comment and then goes on to say that the comment period for an environmental assessment is thirty days and in response to public questioning when the forest service issued this regulation in the federal register people said well could you please extend that in cases that have extraordinary circumstances and they responded and said no it's a thirty day comment period on and that's it and so the problem with the district court's opinion in this case is that it just glosses over and does not even address that there is actually a regulatory requirement now not at the time of the bering strait opinion but now there is a regulation that requires a thirty day comment period on an e s a and that undisputedly was not complied with in this case is that a different question and that is one of alongside or near the road and the other one is economic viability of the project i want to talk about the road home i got from we finally get to the e bay they've got three alternatives the one is no action and under the no action a certain number of acreage will be cut for road safety but then when you get to the alternatives one and two for purposes of road safety more acreage will be cut your contention is well but they're going to cut the trees alongside the road for safety in any event even without either of the two alternatives can you explain to me what you mean given the difference in acreage between the no action alternative and either of the two action alternatives with respect to trees beside the road absolutely your honor and i'll start out with a grizzly project here the difference is that in the no action alternative roads that are currently close stay closed in the action alternatives where there's logging roads are reopened for logging and those prior to previously closed roads that are reopened for logging will then have the roadside trees cut down and so the no action alternative is only addressing the roads that are already publicly open where is the action alternatives also address logging along what are now closed roads but will be reopened for logging essentially for the safety of the logging contractors and with the roads reopen for purposes of logging stay open after that are open for their very short period is very that's a very different criteria for cutting yes your honor and i would like to also emphasize that in the district court's opinion there was a clearly erroneous finding of fact there where the district court  gave the wrong number and i just wanted to clarify that in the district court's opinion at e r eleven the district court stated that two thousand three hundred seventy three acres of roadside tree removal would occur and the tower project and that's not correct actually at two fifty six it says they'll only be one thousand three hundred and thirty five acres i just wanted to quickly correct that  factual inaccuracy and also missing from the district court's opinion on that issue is that the majority of the logging fifty seven percent is not a long road side so at the very most you would have only a minority of the project that even goes under that hazard tree prong and i guess i would like to move on then and address the other problem of the emergency situation determination which is the commodity value first and foremost the biggest problem that alliance has with this issue is that thirty six c f r two eight hundred twenty one specifically says that the loss of commodity value must jeopardize the agency's ability to accomplish project objectives directly related to resource protection or restoration the four service has never quantified the project objectives directly related to resource protection so we don't know what objectives those are how many acres they occur on or how much they cost and so in order to know whether the funding for those objectives is jeopardized we first have to know how much it cost that's a number that the agency concedes it never determine and without that determination they cannot say that they are complying with the language of this regulation and if i could reserve my remaining time f please the court alan bray bender with the department of justice here on behalf of the forest service before getting into the merits of these poor mary junction appeals i would first like to address the status of the projects at the time of briefing the forest service estimated that about eighty five percent of the tower project volume and about fifty percent of the grizzly project volume had been removed from the project areas work started up again this summer and continued throughout the summer and as of october thirty first the forest service estimates that about ninety nine percent of the tower volume and eighty percent of the grizzly volume has either been removed or has been cut and is awaiting removal it is also my understanding that northern idaho has received significant snow fall within this weekend within this last weekend and therefore project operations are probably done for the year so that means this is not  entirely it is not constitutionally moot your honor but we would submit that the statuses of these projects further tip the balance of harms and the public interest which already weigh heavily against in joining the projects even further against joining the projects and that is because the work that largely remains left to be done is the reforestation work and the mitigation work so an injunction could not put the dead or dying trees back on the stump but it would prevent the forest service from reforesting the area with native trees which are not likely to regenerate by themselves the forest service or its contractors have planted a few hundred acres of native trees but they have thousands of more acres left to plant when using native trees help me out here i've read the e p a and the e a a is telling us that the trees that were burned are more susceptible to fire more susceptible to disease more susceptible to drought proposed to be put in are more drought tolerant more resistant and so on so how did we end up with the trees that were burned where they planted or where they were the naturally occurring trees it is my  understanding that the project area was not in its historic condition prior to the fire mostly due to human interference in the area the suppression of wildfire or i think a lot of the native trees are highly valuable and so those trees were part of a previous timber harvests so that the desirable trees are you still haven't answered my question the trees that were burned that are now going to be replaced with the project goes forward with different trees with those trees planted or will those trees naturally occurring i believe those were naturally occurring trees or honor but they were not represented in the portion of the proportion that they should be under historic conditions your honor prior and ever stored and is that in the record or are we just talking w much of the mitigation is to be done early some of the mitigation of what you know i have to say this case bothers me a lot because i read the scoping letters and i read the in the eighty's give an awful lot more information on the scoping letters scooping letters there may be twenty pages long single spaced i mean a longish but they're very vague on lots and lots of stuff what prevented the forest service from preparing a either a better scoping letter that might have done that might have  satisfied our requirements under the bering strait case or from doing any a i understand the problem of salvage logging after fires the trees deteriorate and i get that but why i couldn't the forest service have done a better job with the scoping letter because i view the scoping letter as pretty miserable i would disagree or i think the scoping letter is actually quite thorough if you compare it to other scoping letters but you know if but if you compared to be a it's not exact we are not we are not making that argument your honor we would submit that and that the scoping letter is not the same as and a because by its very nature the scoping letter comes at the very beginning of the process right mechanisms that the agency used to inform the public of the projects and to seek public comment because of the timing considerations here the agency engaged with the panhandle force collaborative group very early in the process and they were this group very early on change the forest service proposal among other things did you meet with the adversaries in this case they did not they could have asked for a meeting they did not ask for a meeting so did the forest service reach out to the other groups  yes because those groups are part of that the the panhandle forest collateral if your service is reaching out why isn't it reaching out to the alliance the alliance is every i think has every opportunity to join that's not my question you're obviously reaching out to certain form of the reaching out then to the groups you did reach out was a more than just sending a letter i'm sorry it what was the question i'm asking you the difference in treatment if any and you're reaching out to various groups and i suspect that you reached out in a different way to the groups with you had these consultations than your reaching out to the alliance can you describe the manner in which this reaching out was accomplished to the  groups i want to comparison well with the four service collaborative group the forest collaborative group they work with the forest on many issues and they seek to reach a consensus with the force are you not a national you're not answering the question is could you please answer the question i think i'm trying your honor ok to do a better job i'm asking you what was done to reach out well first of all the the agency published a newspaper not notice of the projects that was available for everyone to see but the agency then put together the scoping letter and it sent the scoping letter to hundreds of groups and individuals that it knew to be interested in the project including the alliance the agency maintain a website for each project and on that website it had project details it had maps it had contact information for who to contact and it updated the website as the documents became available to the agency also help public meetings it and i know you're still not giving me any difference in treatment in reaching out was there any difference in reaching out the forest service reached out to the alliance and the same way we stuck to every other member of the public your honor hold that ok and i guess we'll have the other side of that's wrong ok but your statement is you treated the alliance identically to other groups with respect to reaching out correct ok if that's wrong i guess contact them asking if they wanted to meet that i don't i don't know the answer to that question around and i think you know this is a long time for you to tell me that ok ok well the scoping letter like i said is one of the many things that the that the agency one of the many mechanisms  used to to solicit public comment newspaper notices website public meetings field trips and the agency made clear that forest service staff was available to answer questions that you have to rely on the scoping letter to get the decision and you can't either wait the six months or accelerate to bridge the production of the well six months is not a very long time and he is a pretty pretty complete document much more complete than the scoping letter well necessarily the e a s in every case are more complete than us than a scoping letter no i understand and so what i'm trying to ask us why couldn't you do either a much better job in the scoping letter or why couldn't you have just done the e a a and moved on from there well i did this before so i was determined that because of the timing considerations that was going to seek public comment very early and this is consistent with agencies do not have to release for public comment and in fact in practice that they rarely are now the forest service is what's your response oh but bering strait was based upon a situation where there was no regulation and that you comment on an action to be analyzed in and say and the regulation gives the agency the discretion to determine when to seek public comment and evidence of this discretion can be found by looking at the regulation itself which is found at thirty six c f r two eighteen point two four and when you compare the regulation for us is to the regulation for  becomes clear so i'm looking at two eight hundred twenty four eighty five that is the regulation that pertains to iesous and that regulation states for a proposed project or activity that is analyzed in a draft so it is using the present tense to refer to a draft that is available the regulation then goes on to make the comment period triggered by the publication o a notice of availability of a draft yes so this regulation is clearly contemplating public comment after a draft is available now let's contrast that language with the language at a for which applies to this regulation reads for a proposed project or activity to be analyzed and documented in an e p a so this regulation so this regulation is clearly contemplating public comment before and a it then goes on not to make the public comment period triggered by a draft document as in the us provision but rather simply a publication and of notice in a newspaper so this regulation is not changing the general rule underneath that was stated to bering strait which is that agencies do not have to release draft yes or the equivalent prior to seeking public comment that is the holding of every court of appeals to address the issue and that is why the district court didn't think this issue raised their forwards time runs entirely i'd like to ask a question or two related to the criteria for emerg y situation determination and there are three criteria that are available for service relies on the first and third the first being danger summarizing i just attach a single word in the other one sort of economic circumstances relating to the viability of the project so first as to danger i get i suspect you're going to say that i heard the right answer as to why you cut dick different acreage is depending on whether the project goes forward or not if the project doesn't go forward it's only the public roads that need cutting of the trees of the budget goes forward to countries that are part of the project for the roads that are opened i get that well if the project isn't going to go forward that means that all of the trees that are a danger to the public they they do come down so how much does the danger to the public actually cut in here as  a as a criterion i can understand why you would cut trees two hundred yards back or is it two hundred feet to a member of the two hundred whatever it is back i think it's two hundred feet you know  if it's a public road that traveled continues to travel while you would have some margin of safety about trees not only are there already demonstrably dead might be but not might become dead but why would you have two hundred feet back for logging roads that are going to be used only during the project is to say those roads are going to be closed again so you're not going to have those trees there threatening people on that road once the project's done  time is up if i had no no please answer answer the question so i don't think that's a complete picture you're on or at the ok a complete picture i think what the agency was saying is that in tw there was a substantial number of trees that were an imminent risk of falling and it didn't have any money in two thousand and sixteen to address that problem so through the money it received from these projects and from the emergency situation determination it was able to address that that problem immediately and twenty sixteen whereas under the no action alternative danger trees would likely be addressed at some point in the future to the extent funding became available but funding is uncertain but through this project he was able to obtain the money to address the trees that were at imminent risk of falling or failing in tw and was also able to obtain the money to address the trees that were at risk of falling over three to nine year period the longer term so through this project and through the administrative through the emergency service situation determination the viability of the project viability of the project is because of the way it's structured here are dependent upon money coming in from the logging that's always been a bit of an issue for you of course to judge noonan's separate opinion some years ago saying that we're not getting a disinterested decision maker because the forest service budget is in part dependent upon the money it makes from the salvage logging but this is a more specific version of that  if you structure the project so that money coming in from the project in the ables the project i think you're bootstrapping it so you automatically fall automatically fulfill the criteria but your response to that well i think the on the face of of the regulation the four services reasoning complies and i think the backstop is the a p a your honor all the forest service needs to do is provide a non arbitrary reason for invoking the regulation and i would submit that the agency provided to here the public safety criteria and then the commodity value and what that the agency would say is that if the ninety day administrative objection process was had and even assuming best case scenario that it only took ninety days the end of the process would come at the end of the operating season such that it was very risky or highly likely that the project wouldn't be able to begin and tell the twenty seven thousand season june or july of the summer and if that were the case that the potential bidders were representing to the forest service that they would not likely bid on the the i mean i've heard i've heard that in other cases and that turns out to have been demonstrably untrue in the other cases so i'm saying i'm skeptical of both statements so what's what's in there in the record that tells me that this truly emergency situation determination requests it's both of them state that  potential bidders had been representing that they would not bet on the project and let me explain why i mean first the record is clear that if the project was delayed until the summer of twenty seventeen the appraisal value would would be less than the cost but also has to be understood that salvage sales are risky for timber contractors because the lay causes the value of the trees to diminish so there's an opportunity cost because they would much rather bid on a live tree sale because with live tree sales the lane means the trees go bigger and larger and they increase in value so i think that helps explain why bidders were telling the forest service that unless they could start in twenty sixteen they weren't interested in ok in one last thing i'd like to say i don't sound like it but in fact i'm very sympathetic with the forest service because we all know that when these fires go through if you're going to do salvage logging th produce any significant economic benefit you got to move fairly quickly and are stand there and i'm sympathetic with that what bothers me is that it seems to me that the forest service could have complied more fully with the underlying goals of the environmental statutes and nonetheless done this in a timely fashion i mean is this i'm not saying that the norm the reality is the situation but i am suggesting that the forest service is shortcutting the the the administer of procedure in a way that it did not need to do well drawn into responding you may feel like sure i don't think the four services short cutting the need to process by any means here i think the need for process here was full and i think force made for service made every effort to in fact have a heightened public participation what the four service did here is what most federal agencies do in fact the four service did more than what most federal agencies do on most days thank you you save some time and we took the government over just have a few quick points to address first regarding your question about whether the groups are treated differently out point the court to e r to sixty eight this is regarding the tower project where the forest service says quote initial public involvement efforts were used to develop the proposed action these included meetings in phone calls with the local collaborative group tribal timber industry representatives and county commissioners in november and december twenty fift so that was before the scoping letter and you'll notice that the alliance was not included in those original meetings and phone calls those are meetings and phone calls with individuals and groups they knew would support the logging so there is certainly a difference in treatment  second regarding your question judge fletcher why not just excel or eight the e a a production that absolutely could have occurred instead of spending from the fires that stopped burning in october waiting until june so we're not even talking about and come out in june yes and so why not just have a five month period of preparing the e a a instead of a six month period and then that would have given a thirty day public comment period which would have addressed the concerns here so absolutely that could have occurred and they still could have environmental analysis has to be provided to public comment before a decision and then vironment on alsace was after the decision and if i could just address one more issue i'd like to address my opposing counsel citations to the regulation  what he cited he cited thirty six c f r two eight hundred twenty four and he pointed to the fact that if you look in section a excuse me section this is to eight hundred twenty four say that is analyzed well i would like to point the court to the actual public comment regulation this is just the legal notice regulation the actual public comment regulation is actually two eighteen to five a opportunity to comment part one time period for submission of comments and then if you look at the little law into a little lie the first little i said is about environmental assessment it says to be documented the second two little law is about an