good morning mit please the court my name is rebecca smith era present the appellant alliance for the wild rockies i would like to start out today by addressing what is the primary issue in this case which is the agency's failure to reinitiate and complete endangered species act section seven consultation the northern rockies links management direction after the designation of links critical habitat national forest lands as the court is aware in the opinion in cottonwood this court address the same legal claim and held that the agency's did in fact need to reinitiate consultation on the northern rockies links management direction of the links amendment to address this same issue and so in cottonwood the difference was there was no site specific project challenge in cottonwood and so there is an issue with injunctive relief the legal claim was established but the the court essentially what the court did was it vacated the district court to denial of injunctive relief in cottonwood and then remanded so that the plaintiffs could have an opportunity to establish whether there was a specific project that was causing a reparable injury and so post cottonwood the takeaway is that the plaintiff is entitle to summary judgment on the consultation claim and then in order to determine whether injunctive relief is warranted the plaintiff must establish that there is a specific project that can cause irreparable injury let me ask you this question why does section seventy at the say apply here work consultation on the east reservoir project is complete leon county ought have been as well as as far back as connor of rebirth heard this court has repeatedly said that when the federal agencies reinitiate e s a consultation on a large plan that's going to plan say for the viability of an endangered species e s a section seventy applies to prevent site specific projects from being implemented let me ask you this just the government agree with you on that but they say that you waived it is that is that what if let's say if the government were making the argument that you waive this would they agree with your interpretation that seventy applies here your honor i'm not sure what the government is going to say and the reason is that in our opening brief we raise d s h section seventy as an alternate grounds for injunctive relief so just to step back under cottonwood this court said if there is a project that causes a reparable injury such as a timber sale project then that project can be enjoying the court did not but you do have to show there is a specific project causing irreparable injury so cottonwood is the controlling case it's the same legal claim the district court erred did you really read the links amendments type absolutely your honor and it was litigated in the district court yes your honor if you look at the district court opinion and you are twenty eight as well as e r thirty three first the district court says plaintiff well the district court recognized that there is three distinct links claims and the district court said first plaintiff contends that the forest service must to reinitiate consultation with the fish and wildlife service regarding links critical habitat before proceeding with any logging related project within that habitat etc then he said second plaintiff argues that the conclusion that the project is not likely to adversely effect is our being an arbitrary and capricious so the district court acknowledged that there is two distinct claims one of consultation for the links amendment and one a separate claim challenging the project analysis that was at twenty eight than the district court went on at e r thirty three and in its conclusion it said cottonwood does not present a purse a rule preventing timber projects from proceeding pending the forest service and fish and wildlife service re initiating consultation on the links amendment consequently the court will deny plaintiff's motion for judgment on this point that's it e r thirty three so the district court did explicitly address this claim the issue was it conflated the legal claim for re initiation of consultation with the relief requested the remedy and so because the district court did not want to grant us the relief that we requested the injunction it ruled against us on the legal claim of reinitiate of consultation but as a matter of decisis under cottonwood which was decided after this lawsuit was filed as a matter of sorry decisis plaintiff was entitled summary judgment on that legal claim that there must be a real initiation of consultation then the second step is to then determine whether injunctive relief is warranted as a remedy and for that the court has to look no further than the plain language of cottonwood itself which and in that case also remained good for a determination as to whether there should be  they looked at the constituent elements for the links when when the forest service originally designated the forest land or expanded the habitat for the links by looking  sort of match up with they were doing with those core constituent elements no you're on one while the district court was talking about this project analysis and what he's what the district court says is as long as there is a project analysis on links critical habitat it doesn't matter that there is no adequate biological pinion yet for the northern rockies slinks management direction itself and so aside from being contrary to pacific rivers council cottonwood lane county and kind of  burford that's also not true because at five fifty one that is the forest service is conclusion for this project and it says the proposed action is not likely to adversely affect designated critical links habitat this determination is based on the fact that one the actions of the east reservoir draft yes comply with all standards guidelines and objectives of the northern rockies links management direction rex record of decision and the activities fall within the scope of those analyzed in the subsequent biological opinion so if if we found that the consultation that doing a hypothetical here if we found that the consultation on reservation project provides an independent basis for concluding that the project is unlikely to adversely affect links critical habitat are we then compelled to allow the project to proceed no you're on there because there's too many other words the no i get you just i'm talking here because there's two separate claims and the question you just raised to be is the project consultation arbitrary and capricious but we first have to look at the first claim which was the of consultation on the links and so this this court must reverse the district court because that claim is controlled by cottonwood but they also but then besides that the forest service consulted on revised kootenai forest plan of twenty thirteen which considered impacts to currently designated links critical habitat and reaffirm the efficacy of the links amendment why does this not provide a sufficient unit wide analysis to allow the reservoir project to go forward because the links in memon it's still self still doesn't have a biological opinion the cooney force plan incorporated the links amendment but it's the links amendment itself that has to have the biological opinion under this court's decision in cottonwood and i would like to get back to part of what your question was earlier on or it was about whether you can just do a project level consultation i want to emphasize that in this court's opinion in pacific rivers coun l force this is a very similar case where there is a real initiation of consultation on a forced plan and the forest service made this very same argument and said well we've done all of these project consultations and the project consultations mean that you don't have to issue any injunctions and this court rejected that argument at thirty fed third ten fifty six to ten fifty seven and said section seventy two mandates that the forest service enter into consultation on the forest plan its conclusion that these activities i e the projects may affect the protected salmon is sufficient reason to enjoin these projects only after the forest service complies with section seventy two can any activity that may wilder rocky's be christianson which was cited in our briefing and since that decision the district court a different judge within the district meant and has accepted the argument that plaintiffs are making and that was in the alliance for the wild iraqis v martin case twenty sixteen west last six nine zero one two six four and i just want to quote the rationale there the court said the project consultation requires incorporation of  analysis incorporation of a program matic link's amendment consultation will be lawful however only after the reinitiated consultation on the links amendment has been completed the reason for listing links as threatened under the e s a supports the court determination because the fish and wildlife service found that federal land management plans did not adequately address risks to links and that the plans allowed actions that cumulative could result cottonwood and after this court's memorandum disposition christianson which as the district court stated in its opinion in this case it was specifically waiting for this court's opinion in christianson at thirty three the district court said quote the undersigned will it wait a more direct answer before abandoning its riposte approach and it was waiting for the answer from this court in christianson in christianson this court enjoying to two chamber cell projects because they approach to project specific consultations that are conducted with respect to links critical habitat those cases are garcia and christianson but in both of those cases there was a project specific consultation that was done analyzing impacts to links critical habitat and in both opinions the court expressly relied on look to cottonwood for guidance in the discussion of the consultations that have been done on these specific projects in neither case did the court automatically enjoin the projects and in neither case did the court reject the consultations out of hand instead what the courts did is they examined the agency's analyses consultation and if erm the injunction on those two projects as a sidebar there's a relationship between christiansen and cottonwood they were both the same individual projects and the court in cottonwood as part of a standing discussion it made the comment that the agency had relied on the links amendments and in essence christianson just picked up on that language but soon christianson the court enjoined having found that the agency relied as i said impermissibly on  the links amendment consultation but in garcia the court found that the agency had only relied in part on the links amendment consultation and remanded to the district court and i believe you read the language judge callahan similar language remanded to the district court for that court to make a determination of whether the agency conducted a sufficient and independent analysis of critical habitat that would have rendered its reliance on the links amendment's harmless what we have here direct challenge to the agency action of adopting the links amendments and it's not that with the point i just want to but i'm sort of hearing the appellant to take a little more of that that there they say everything has to stop until the links amendment  if there is actually a challenge to the links amendment itself and i would i would say to the court that clearly there's nothing in the record that supports this case is a direct challenge to two agency actions one being the adoption of the links  s and the other being this project it is only a challenge to this project and the basis for my saying this is for example if you look at the first page of the district court's order now this is the fact finder in this case the first sentence of the district court's summary judgment order says before the court or cross motions for summary judgment in this environmental case centered on the east reservoir forests restoration project that sentence and the remainder of the order represents that the district court's understanding aside from the one or two sentences that were read the district court's understanding was that this case challenge only the east reservoir project and tellingly at lyons hasn't argue to this court that the district court got it all wrong in its characterization of our lawsuit it misconstrued the scope of our lawsuit the scope of the lawsuit is the east reservoir project the way in which the lynx amendment is folded in is only with respect to the relief sought they are challenging the east reservoir project they are saying or alleging that the east reservoir project should not go through should not proceed until consultation is done on the links to mn which is something over there it's only with respect to their relief there is no direct challenge to the links a minute here where that can lead me now as to your question about or believe it is your question about section seven if you look at the language in the opening brief it's correct that they raise section seven only with respect to the issue of injunctive relief as we argued in our brief at at the time the opening brief was filed the only determination had to have been made on this case was made by the district court in the district court found there had been no violation of the e s a therefore the question of injunctive relief was premature there's no reason for us to argue what this court should do in terms of injunction relief and so this court rules on the merits so our argument in our response brief was section seven doesn't apply injunctive relief doesn't apply put that aside which is why we didn't address it in our response brief we didn't address section seven but if you look at the language in alliances reply brick they have specific language that indicates that they understand the scope of section seven and they open they understand there's a particular trigger in section seven they say in their reply brief for example now that the forest service has reinitiated consultation on the links a minute and they're discussing their motion that was filed for the court to take judicial notice of the reinitiated consultation links and they're speaking to that saying now that that has happened section seven controls they also say once the forest service initiated consultation on the links amendment on november second of last year two thousand and sixteen section seven was triggered they understand that there is a trigger and section seven is triggered when there's initiated consultation as for this particular project the east reservoir project even before the lawsuit was filed the consultation had been initiated it had been completed section seven had no role in that case or in the review of this case section seven arguably applies to this new development in this new issue which which is reinitiate on the links moment which i'd rather not address because as we said this is not before this court this court is not looking at the question of reinitiate is going to talk about the road who's going to talk about it the road or did you say who would you like me to well it's you there's two of you you know we haven't it's not subject matter you can discuss the roads with whom l i guess then my question would be can you point to any evidence in the record that the forest service compared linear miles of road under the east reservoir project to the two thousand and nine baseline conditions your hon would i'm going to answer your question please don't be annoyed that i'm going to preface it the threshold question for this that would tell me that your answer would be no but you're going to tell me why you know  to make sure i get this satisfied and out of the way i'm going to refer the court to excerpts of record of page five thirty eight which where it which is the biological pinion and it states the east reservoir project does not propose any permanent increase in either linear open or total road miles above the baseline condition with a net reduction of zero point three linear miles of road therefore it is consistent with the two thousand and one exit amendment and the subsequent biological opinion the statement is that and the agency's position is that it can it did not exceed the what was the baseline what is the baseline number for the for the bores area i will get it f r i couldn't i couldn't i couldn't get your own plan says that the forest service was required to to determine whether the project added rhodes to the baseline right now if we don't know what the zero down into the original baseline let me i will i will look for the total miles of roads in the baseline but let me begin with the point that there are documents that could be in the mid ministre to record our argument here has been hamstrung by the fact that we didn't include specific documents in the administrative record and the reason was because alliance did not raise this highly specialized issue clearly the court understand this is not a simple sentence about there going to be an increase in roads this is about undetermined roads definitions the access amendment the baseline in this administrative record you will not find the access amendment itself you will not find for example the g i s overlay that the agency has that it puts over all new projects that shows all of the roads in the baseline all of their definitions and the reason is because it figured out maybe just go back to the district to the know you begin the point i'm making is that it's not in this administrative record these are all  and information that the agency has it is not in this record because it was not raised before the agency this issue that is now before this court this issue that the agency has been called upon to suddenly defend was not raised in before the agency therefore it was not it should not be before the court there was no it mistreat of exhaustion and that's why the record doesn't have all of the documents that i need is and attorney the agency needs as as as an agency to show this court that it did that i thought that the way alliance argued at the agency that the project adds to the baseline number of roads within the tobacco borders reason by adding two point six miles of undetermined roads to the national forest r systems and the federal defense argue that it does not do so because the under turman road already existed so there was discussion about it well  agency because that it's not exhausted right before the agency they have there is nothing in their specific written comments which is the first stage of commenting and there is nothing in their objection to the agency that raise this issue whether there was one document and there was a later document in between when they raised the before the no no there there are all there are two comments periods if you will where they can express their concerns and they are required to by the agencies regulations this is a season party and they understand what's required there are exhausted went to the agency first address the issue well this issue that we're discussing they  can't point to anything where these questions were asked before the agency and therefore the agency didn't respond in the administrative process thus none of what should the bulk of all of this discussion that we're having now in the borders is europe yes in our brief yes you're answering yes and as to your question what i'm going to do your honor is turn is turn your your attention to the only sentence that was raised before the agency about the issue of rhodes and i would like to quote it to be fair and to make sure that i get it correct it is page the interveners supplement excerpts of record at page one thirty two it states the east reservoir project prose is a threat to grizzly bears because it plans to increase the total linear miles of road in the borders period the agency could putt could not possibly understand that it needed to talk about what's rick what's in the access amendment or that it has an overlay that tell them what's in the access them or tell them what's in what's in the baseline or the or how it defines undetermined roads how it defines an authorized road or legal road or how all of this is accounted when it makes actual calculations none of this is in compassed in that single sentence so what i have is a biological assessment that says that the agency looked at the baseline and it as a practical matter the agency when it has a project it goes out to the project area and does a specific assessment of all the roads if the agency ignored the baseline in the access amendment it wouldn't know whether every single road was new or every single road had been there it could not possibly function by not knowing what's in the baseline it takes its overlay it then looks at the roads that are there places the overlay the overlay being the access amendment baseline roads distances categories puts it over the new project and says this road was there this road was an undetermined road when the access amendment baseline was created this one was not that's how it makes its determination and that's what was done here then it made its calculations in the different the whole discrepancy here is because alliance wants to assume that the category of undetermined road somehow  categorically excluded or included when the agency makes its calculations and for this court's edification of free will or for its knowledge the grizzly bears do not care what the category of the road is the  create good don't care who created the roads and actually grilli sleeze don't necessarily care that there's as fault on the ground what they care about is motorised traffic on those roads and when the agency makes its assessment and make not only on total linear miles of roads but for example but it will it will add or subtract roads based on what's motorized it will close roads it will barrier them if they're close if there are barriers they cannot and there's no way that a car can pass through it or motorized vehicle that for purposes of the bears and for purposes of the access amendment and the boers area is satisfied so i just want the court to understand that to the extent we're really hung up on terms and categories here it's not necessarily important to the bear in terms of the terms or categories of the roads ok thank you may i close i just hard taken all  you your thank you your honor as i prefer appreciate the court's indulgence loss and fight representing lincoln county montana and the kootenay forest stakeholders coalition this project is a good project and it should be approved and are there are three main reasons that this project should be approved one is the collaborative history and the unique collaborative context two is the district court properly interpreted and applied cottonwood and three the n l a a determinations were rational and supported by the record following up on the last discussion i do want to address rhodes very quickly and that is if you look at e r three ninety two that's a discussion in the final environmental impact statement that talks about what the baseline is that this will reduce rose from the baseline in the tobacco bears outside recovery zone i also refer to the court to page one twenty five our of our acceptance of record and that is an excerpt from the links amend amendments themselves refers to roads on national forest lands not national forest system roads that indicates these type of roads which were already on the landscape but not classified as national national forest system roads were part of the existing condition part of the baseline as far as waiving that argument regarding roads the alliance's comments they are at eighty two there's there's no indication on that page of anything about compliance with the access amendments on the havasupai tribe they had to raise that issue at the comment stage raising it at their administrative objection was was too late now this the district court complied with cottonwood in a way that this court has has implicitly approved in the christianson case as well as the gar those are memorandum i mentioned i understand your honor but i've been there they are not binding on this court that's correct but the district court got it right and the district court relied on the reasoning underlying cottonwood in the standing discussion of cottonwood the court says these these people are injured because the project specific consultations rely on the links amendments and so the district courts has applied a framework that if there is a reasonable independent basis and there is that here i would point the court to e r for seventy that's the fish and wildlife discussion that terminated informal consultation there's not a single word about the links amendments in that discussion and what the alliance would do at this maximalist interpretation of cottonwood that would insert an entirely new regulatory process an entirely new regulatory burden for no conservation benefit and indeed what is likely to happen is waiting for the links amendments then you have an incidental take statement or terms and conditions that allow projects to proceed within certain levels of impact if you have a project like this one which is a not likely the adversely effect that's a much lower bar of an effect the the fish and wildlife concurrence says scattered and random effects in significant and in fact may benefit snowshoe hare habitat and that this type of analysis was is why my clients who include environmental groups such as the montana wilderness association bought into this project and they're here today supporting the project now section seventy doesn't apply because as judge callahan remarked the consultation on the project was completed by the n l ada terminations it was also completed at the planned level and cotton went says unit wide analysis the only unit in the national forces don't lose if section d does apply there there are two ways one is there is no irreversible or irretrievable commitment of resources from a project that is not likely to adversely affect that's reflected in the seventy determination that the forest service made that determination is entitled to deference i will add also that the plaintiffs haven't put forward any evidence of irreparable harm that is sufficient to clear the bar of cottonwood nor is it sufficient to go back and cite the pacific rivers or lane county cases because those cases cannot any longer be squared with winter months and two or cottonwood those cases rely on a presumption in the second claim county and pacific rivers doesn't it say that because site specific consultation on the project is complete that seventy should not apply or should apply that what does that say exactly those cases your honor and was as a matter of law there was not going to be a site specific cons consultation that so there was no possibility that that site specific pop independent sites with specific consultation could address the e requirement and what what those cases do and that and then it flowed into washington toxics was shifted the burden to the agency under section seventy but under winter of mine the saturn cottonwood the burton the burden is always on the rebuttal quickly address your question what happened in pacific rivers council is that the program matic consultation hadn't started yet so if this court said is right now we're saying you need to reinitiate consultation and so right now we're in joining all ongoing actions however if once we enjoined and we send it back to the district court the agency decides to reinitiate consultation then that would then trigger a section seven d and at that point the district court on remand would need to address whether it's irreversible or either eritrea verbal commitment or resources and and then this court said essentially an dicked and when the district court if the district court makes that determination we point them to link county out of in which said timber sales are per s irretrievable commitments of resources additionally and lane county the court did enjoy a number of timber sales the ones of that consultation had already pacific risk council those timber sales did have consultation likewise in lane county the timber sales had consultation this court remanded to the b l m and said district court decide whether the cases with consultation should be remand or be enjoined the district court said we'll r t and join those in portland autumn in society and the reason that the court in joined him in portland autumn in society this is seven ninety five fed sup at fifteen zero nine quote this court cannot evaluate the risks that particular tumour cells pose to the survival of the northern spotted owl subspecies when the b l m has no plan that addresses the survival of the northern spotted owl so that was essentially on remand from leon county the companion case that did enjoying the ongoing sales that had consultation so i would like to  address quickly the idea of unit wide that's not national forest unit that's critical habitat unit links critical habitat is divided into units and one of them is the northern rockies critical habitat unit that's what we're talking about when we talk about unit wide address seen the access amendment absolutely this court should remand the interveners and government can't can't come up with a single place in the project yes where they assessed the current baseline of the whole tobacco boars incomplete and compared it to that one thousand one hundred twenty four mile baseline which was from the original a fair argument to say that since she didn't really you know adequately exhaust on that that that you're sandbagging them right now but of course it's not that it's not their record because you didn't raise it well your honor that that essentially is an argument that the forest service will only have to comply with its own forced plans if a member of the public catches them because of course this is a forest plan standard and under the national forest management act sixteen u s c sixteen zero four the forest service has to demonstrate compliance with forest land standards in the project yes there is only one administrative exhaustion procedure that's the objection procedure i asked e r one thirty two specifically raised it and said that they're violating the standard said that they're increasing road density in the bores there is no other