and i was a very excited about the case at that point for infractions had been charged hazardous and dangerous statute had not been invoked by the government and so we had the initial appearance and i was speaking with mr vander wagering just at talking to him about where he saw that case going in and informed me that very poor service was interested in to restitution and that i think was the most important aspect of the allows restitution to be imposed when probate what do you think is your strongest argument on appeal right here and i think that what i'm getting to your honor is that i don't think that anybody the government the forest service anybody are out in the open and everybody saw in fact they were seen by the helicopter expert at four o'clock in the morning when he drove by the protest site on the very first day at that point  the trees to that since where they were up on the trees had only been set up for several hours the ropes were there for a few hours so the first chance that anybody ever had a chance to see these ropes they were seen in the dark and you know the statute says specific and congress in its wisdom included a long list of examples and they all are things which have then dangerously modified for and were placed in some way that they're hidden in the legislative history bears that out to have talks about things that are booby traps things that are hidden and therefore dangerous because somebody doesn't know about them now if you see the word lines or wires in the definition if this becomes a grammatical question certainly know actually your honor as also was talked about in our brief they're worried about the sharpening of wires and lines right when i use the word lie and i don't really think of rug necessarily so much as a metal metal wire has taken place since in b c greece and there are devices that now are still being made to sharpen wires and person puts it in a timber operation right smack in the middle of the timber operation place we've got helicopters flying around doing timber harvesting so i agree that if it's lines and wire isn't that part  analogy is suppose five points that instead of doing a tree said had gone there and protested with signs and they had maybe set up a sign they're there to obstruct the harvesting of timber say this is not the right way to log this very forest and they've got signs there and a logger runs into their sign or tails himself accidentally or on purpose as is that sign it is that with the statutes meant to i mean to capture and and certainly would fit into the here's the problem the to the position where they were the place where they were to become a logging helicopter landing site but because there were trees there and this is the unequivocal testimony there is no way that any helicopters logging helicopters could use that site until those trees were removed and i was going to require before seeing the trees done bulldozing the ground so while those trees were there there were not going to be any logging helicopters anywhere near that was sure they were half a mile away and there were other stands of trees that were being logged in those logs were being dropped at other logging helicopter sites but this was just a proposed landing site at that point and so you know the middle of the trial we certainly hear that well actually the helicopters that we're worried about are the medical evacuation helicopters that didn't come out of discovery we didn't know about that and suddenly we have the helicopter experts testifying that  know you're out of the testimony was had to do with helicopters that were trying to use that site whether they were logging helicopters that were pulling a lot of a lot hanging from the from a rope and then that log or the helicopter to get one of the wires start one of the ropes at issue in this case there was the testimony where those helicopters were going to be anywhere near here because the trees were still there and also everybody knew the few that my clients were in the trees to the headliner emergency landing else and whatever my clients are and also there are the people they protest with they're very i mean they study they they studied all of the force they study policy they did they've looked into this and they knew that there was a proposed landing site but there was no public documentation or records that this was a designated emergency landing site they had no knowledge that there was any chance that a different kind of helicopter might come or be back and called to this five there is just no whoever put them there is to me it's just symbolic as it is anything else but the testimony was clear that there weren't going to be any helicopters logging helicopters there while the trees and or persons in the trees were there so there wasn't there's no way t designated emergency site i just want to point to some sort of evidence that there's a lot of evidence that no one else knew that this was this was a danger either to like i said two and a half months before the superseding indictment came down after their arrest and it happens a lot in felony cases and that i mean this is a these are for infractions that turned into a class a misdemeanor for some reason the ropes were there for fifteen days before they were cut down now if they were really a danger to helicopters whether they're logging or emergency it seems like somebody would have done something before that and when they actually work that down they were cut down by a deputy who was going out to try contact with such device subsequent to the assembly or placement so in other words just for somebody just to break the law they actually have to set something up works of possible that somebody that another person is going to come into contact with that if they know these elements of the sentence would have been beyond the guidelines well the t to get back to the restitution issue normally if restitution were mandatory i'm not sure whether there would be a because in this case it was not mandatory it was imposed under the probation statute and it's something that is above and beyond whatever other aspects of the senate's in there are that are you know in a sense that's required by conviction so i think that the restitution in this case is more a fugitive in the sense that the judge didn't have to impose it and i mean of course we don't agree that it was rightly advised anyway because they were whether caused by the defendant's actions was conduct but i also think that because restitution was it was discretionary and it wasn't found by the court that they had caused the government to starve them and you hydrate them and therefore incur medical costs and they congress here has prescribed a very particular kind of conduct they said you may not employ these dangerous devices with the intent to disrupt a large scale well that's precisely what these defend boundaries of the proposed logging scale they chose it because two vision of selves there would effectively disrupt a larger area because in the helicopter landing site you can bring your helicopters in the problem with mr avery's argument is it leaves us with the question well how do you explain what those ropes are if not to disrupt helicopters and that i think ultimately is a jury question but i'll address it since he's raised in his brief the question of the presidency the evidence if there's only one explanation for the yellow pollack propylene ropes they're not affected his climbing ropes one of them was well over two hundred feet across the landing site and that explanation of course is the third there to prohibit or to stop helicopters from coming in i think that leads us to the next problem with fairness argument which is that there's actually plane the two elements against each other here suggesting that if the hazard if the dangerousness of the device is evident that is to say if it does its job there might stops the lockheed sale you can't have convicted us mr avery seems to be danger it is not necessary for instance if instead of doing this they had built three concrete pilings and put them in the road where the truck perhaps if these ropes had been in they go and more obvious they would have been here since i can't think of a way that ropes could be not hazardous to a helicopter strung between trees there as they were i suppose i could envision if you could somehow completely cover the sites in a blanket or ropes or something like that then you would have an obstruction as opposed to a dangerous device but i think ultimately that's a jury the ropes for a ten you can see what the purpose is what the intent is as congress put in the statute of course to keep your head up and in that regard i think his grammatical error with respect to the statute fails to because the the very two items on either side of lines or wires in the statute are not items which are normally hidden or which are designed for dangerousness sharpened stakes for instance you use with your chance to hold the tent down they only become dangerous when they're employed in a certain fashion so when a lady lives with whips attached have perfectly legitimate uses and are only and but could be used as the stakes could be to present dangerous confidence that the teller would disagree with that it's it's a form of extortion and that's essentially what the protesters are doing here they're saying if you don't stop blocking your helicopters crashed and that of course is that's how they achieve money go they purchased drugs and let the money go then wanted restitution this court said you got what you paid for you want to buy some drugs and you got it and then i states contention here would be as the united states did not get would it pay for the medical care in fact went to these people they're the ones who got the benefit of this caution so it's very appropriately used as are very probably ordered as arrests or just as a another aspect of the sentence that i'm concerned about and that is that there was a an order to stay out of national forest during the probation period and counsel says that that was a violation field to preserve the record  released we have to look at it from a plain error standpoint we have the wise case which apparently requires that to know to speak of what's your response  remember if there was what the pre sentence report might have said about that possible apparently there's nothing in the p s r about staying out of the forest if i play understand the argument correctly we can hear from  particularly in this case since the defendants at least one of the finest asked for a modification of the court's general order to stay out of the national force we agreed to that modification that they could go in for recreational purposes as long as you're honest and i'll try to demote all the records because i just get to the last point that you are first were inquiring about and what happened was there was the condition that first the proposed condition was that they not be allowed to go in them at all for the next three years and one of the defendant subjected to that and then the court said and the specific objection was well they can't then get to wilderness areas because you've got to go through force system area to get this area and the judge said ok well then you can go through national for system to get to wilderness area so long as you ask your probation officer first and then after that the other defendant said i still object and was it was subjected to on behalf of one but not the other i have checked it on behalf of my client and my co counsel objected on behalf of her client but the point is when i made my objection that was out of ignorance again as i like the beginning of this argument i just assumed that you can't get in at the wilderness area unless you go through the national forest system that's not true and so i may i made an objection on the cuff ok but when the modification i made my objection thinking you can't get to wilderness area unless you can see national for system these people are you know they love nature they need to convene with nature and what they got the remedy they asked for well that's because i didn't have time to say  talks about how just the question of whether or not these ropes were dangerous devices was submitted to a jury but we're talking actually about a legal question whether or not the statute is big as applied to this case and so the jury doesn't get to decide whether or not that's that's the case whether it's unconstitutionally applied that's a legal matter the court supposed to decide that we brief the court round after round in argue that you know in between trial sessions and we were appreciate your example of the concrete pillars because that's exactly what's going on here these were things that everybody saw from day one the forest service spokesperson said nothing illegal is going on it was in rivers reported in the newspapers and she was referring to the the protesters and also the roofs and and so everybody knew what was going on here it was just after the fact that a more convenient statute was applied thank you counsel your time is it so hard the case just or you will be submitted