to begin with a little perspective as somebody from montana if you look at the very st page in the forest plan which was established in and seven the galton now a national forest is a national trust i would go even further yawners and call it a national treasure because i know that's how the people of montana feel towards  plan recognizes the significance of the greater yellowstone area in which the gallatin a situated and has been designated to compliment the management of the entire greater yellowstone ecosystem according to the plan reflected the highest levels of public participation and concern with how wildlife habitat would be managed and that it represents an almost sacred pact between the government and the people over how this national trust would be preserved for future generations council could we move to the particular project that issue here and what your particular objections are to the project so let's begin today by considering addressing today and the issues that we're pressing on appeal are under the forest act and in a triggered by the clean up amendment to the forest plan the project plan that how many but it's triggered in the clean up amendment so the clean up and i don't know the circumstances the clean up amendment as amendment to the forest plan standards that will be discussing today and if those amendments are significant in relation to the original plan standards then they have to supplement the environmental impact statement for the original forest plan so the project that we have this michel's project is the st project implementing those that that's the framework we're looking at yes ok and so we'll be getting into that particular issue more in the next case and this case it's it's not necessary percent standard measured at the mountain range scale for the original ten percent standard which was measured compartment by compartment but what does that mean to be measured at the mountain range you're going to have to ask for a service counsellor what short term you're bringing you're saying that this change triggered the obligation to do further study so what about that change in definition that's when i sway to you that there is a difference if if if we have to ask the forest service what it means on the end we can't except your argument that there was a meaningful change i felt tell us tell us what the change island habitat apart from other parts of the national forest and so so they say well we know that there's more than ten percent at the mountain range scale of the entire crazy mountains in other words you're going to look at the mountains as a whole as opposed to compartment by compartment that your that's your complaint well they're going to when you say look at what they're actually saying is that we know are we're going to tell you that there's more than ten percent but we can't tell you where it is right but i'm just trying to clarify in my mind what the the range is perspective fights are you know so compartment to compartment as opposed to the entire mountain range much and so under the original forest plan which was based on best available science for ensuring ogram species viability and decades of precedent from this court applying that and all different for us what we know from the science and as applied by this court is that species viability is ensured or provided under the forest act by making sure there's enough habitat well distributed throughout the forest those are the two components that are very clear in science and that to ensure species viability you must have a minimum amount of how the tot well distributed through the forests so that you don't end up with islands stands of species that can't find each other for reproduction if you have if you don't have proper distribution then species become individuals reproductive individuals become isolated and then the genetic diversity is compromised and that puts a so this is pretty standard science and it's incorporated into all the original forest plans so with the mountain range scale if you ask the forest service ok you have a minute you have the adequate amount of amount of how t in the crazy mountains is it well distributed they can not to answer that question and so what did they rely on in adopting their new standard did they just come out of put out of thin air and say this is what we're mountains they're relying on nineteen plots that are each a th of an acre and size so they basically sampled a total of seven acres and this is a national database which they extract and then they extrapolate that to those nine plots they say are represented up of this area of the forest so they and their basis for that the foursome and tori analysis and we just went with the ended up to that extra there has but it will not tell you where the habitat is located and that's what's wrong with the amendment that's part of what's wrong with the amendment the nd part of the  that as i said the original moment measured ten percent and each temper base so where they were logging and said we're going to have a minimum ten percent there in addition to the old growth we don't know where the old growth is it may be all outside of the entire temper base and maybe all in wilderness and on road areas so under the original plan we know there was more than ten percent viability for species now they're saying all we have to provide is ten percent and it doesn't matter where it is so that ten percent could be entirely within a wilderness area and that would permit them to eliminate all the yes they were by standards right so so basically we know that there's some amount that under the revised standard implemented without regard to the amount of zero growth in each  and each chamber compartment in this case we don't know how much old growth there is in the summer compartment because they haven't told us and they don't have to tell us they and when you ask them for maps of the inventory like where is the zero grow h they say we can't tell you let me let me just make sure i understand this argument that the i get focus is on the amendment to the to the forest plan is that correct that is right and your argument is it doesn't match up to the healthy forest with no no restoration act no it doesn't measure up to the environmental impact statement and all the assumptions of the original forest plan all right so we go back to that so now we get back into that into  s there was an e i s here there was not any ice that's what we're asking i'm sorry there was an i s o rigidly for the forest plan and we're where asking them to supplement the house for the forest plan and order to address these issues and they're saying it's not a significant impact don't worry about it we're not going to we don't have to supplement the environmental impact statement for the forest plan even though we're no longer with a significant change yes we don't know how significant are you are you and if the amendment that's true yes how far along is the project i'm sorry how far along is the project well i can't say i know at the time that we've asked for injunctive relief from the co her you know throughout the herd's range the previous standard their biologists acknowledges it was based on science that set based on a fifteen year study before they adopted the forest plan that alec need two thirds are good how kaba htat is two thirds hiding cover based calculate on the basis of total area that's known in dispute bad or poor habitat is when it's all the way down to one  rd hiding hogger based on total area how that hurt in the project were challenging it's thirty four percent and they're saying they could actually reduce it all the way down to twenty five  percent because they're not under the revised standard they're no longer calculating two thirds hiding how they're based on total area even though the science and the environmental impact statement that that is acknowledging the a rebuttal yeah i just want to make one last point make it me on the security they also an appliance they didn't amend the security standard for alka they basically are stating hiding cover is no longer leave they basically if the elk do not feel secure they go to private ranches nearby out of reach of the hunters so we have a situation here where the herd is three times its target three times the size of what fish wildlife imparts with wants it to be they cannot control the population of the elk because they're leaving the forest before hunting season because they're not secure and the forest service is saying that hiding cover doesn't matter for that we don't even have to we don't have to include hiding cover in our calculation of security and they say in fact elk must be doing great because this tree times of alco population than what fish wildlife and parks which like and that that is exactly the opposite of what the science and the facts  good morning your arse may please the court my name is tuck my handsome young and i represent the forest service this michelle to project here is an important project because it is designed to treat approximately one thousand six hundred acres of dead and dying trees in order to avoid catastrophic wildfire risks the project was developed collaboratively with extensive public participation it's located in an area that has been identified by local community wildfire protection plans as that severe risk of wild fire and it has the support of the state of montana in what respect and noticed that there was a an amicus brief from the department of natural resources montana but there was not one from the department of fish wildlife and parks what's that all about this the department of fish wildlife and parks also agree with the well the  departments participated extensively in the development of the project i can't speak to why that department also didn't file an amakosa brief but in the amec it's brief it does talk about how the state as a whole supports the projects just curious to me that the apartment of did not file a brief in support of the project if you would like i could contact you no that's ok it was just curious to me that it wasn't there and i can't speak to that but i if with the amakosa brief itself does express its extensive support for the project right from the department of natural resources on behalf of the state but i and i think the support for the project is also expressed in the notes for the project itself  which are reproduced in the st volume of the supplemental excerpts of record that discuss the how the local community participants were appreciative of the project and the treatments that it would provide focus here seems to be not so much on the project in fact it's probably a project may have been completely knows i don't know that the project actually isn't complete underway but it's underway that's correct so his focus seems to be not so much on the project but on the next level up right he says the project is teared to the amendments well that the project has to be consistent with the forest plan amendments to qualify for the categorical exclusion under the itself concerning old growth is to dismiss those arguments because the project itself doesn't affect any old growth in the forest so how do we know that we know that because the forest service field surveyed all of the treatment units that it proposed to treat and those those surveys appear at s c r to twenty five to three hundred and sixty eight and it excluded any of the units that had old growth so old growth is classified by the forest service using certain qualifications that were developed in a study you refer to his argument is that the amendment using when you say there is no old grew up the amendments so the class of pieces of old growth didn't change as a result of the amendments it was simply the scale at which all growth would be assessed but he says that is a change because it gardner where the old growth is located as as an initial matter the crazy mountains which is the land the mountain range that was it analyzed here has seventeen percent old growth according to a vegetation database of the forest service argument is that we don't know if this meeting the compartment by compartment if you say the mountain as a whole has temper sent that's not the same they think each compartment has ten percent  we know as a result of this project is that none of the treatment units will be harvesting any old growth so now even if even if the forest service had analyzed the percentage of old growth at the timber compartment level there would still be no old woodberry raises is contingent on the fact that this project would have to as he acknowledged himself ohio forestry requires that the amendment be implicated and have a nexus to the project at issue and here if the project isn't have isn't impacting old growth there can certainly be no significant environmental impacts resulting from removal of all growth that would require additional needs but also so your your position is that even if we were looking at the if through a compartment by compartment analysis for all growth there would be no effect on old girl at this project that's correct because this project does not result in the removal of old growth and that is well documented by the field surveys that the forest still culturists conducted he went out on the landscape and identified areas that that would be treated and any old growth there and they extend the forest explicitly excluded any old gro tree so what are we supposed to do then with the amendment if the amendment allows a different calculation of zero growth and it would make a difference perhaps not with this project but with the subsequent project how do we resolve that issue then i have to response that my st response would be if the court would be better served by waiting until a new challenge to a different project is raised that actually implicates the amendment by nd answer  even if the court wants to dive into it now it should find that the amendment itself didn't result or wouldn't result in any significant environmental impacts that would require additional nepa analysis because the change in the scale at which old gro assessed doesn't result in see if it can environmental impacts and let me explain why the forest timber a timber compartment is just a unit of forests that the forest uses to manage to ember so would be typically much smaller than a mountain scale range the old standard itself didn't require any geographic distribution of old growth it did not require the forest to maintain old growth in a certain distribution the to get at this geographic distribution argument the plants rely on language in the us for the forest plan which refer to distribution being necessary to help maintain species viability but important to maintain species viability so what is the change made the change was made because assessing old growth at the mountain range scale is more reliable the forest has better to eat at the larger landscape level  scale than at timber compartment scale and when you try to get down to narrowly to the timber compartment scale the models are not as accurate because the compartment to compartment scale used by the fore years i don't know the answer that i can i can find out and submit that in a twenty no you don't have to find out i was just asking because you said it it's more accurate to do it the mountain range and i just wondered why it's just now being changed if it if it be other measuring device has been used for for a number of years well let me know better now that while i get in the data the two types of data before service relies on which is a vegetation database that dates to two thousand and fifteen and then and then the plotting method which i believe is actually existed for a very long time it's just found to be more accurate at a larger scale the others to other reasons that the forest gave for changing the scale from timber compartment to mountain range and one is it's actually makes it actually makes more sense to  at a landscape scale because that that is what matters more forest and in assessing species viability and then the other reason that the forest service gave in its environmental assessment for the amendment was that it would actually probably result in more old growth being retained than under the previous plan language and the reason for that is if you think about the requirement that the temper cent of all growth be maintained only at a timber compartment level that timber compartment is actually smaller and the forest is only going to look at the timber compartment that's going to be treated by any given project so all it has to do is require is maintained ten percent in a smaller area but if for every project the forest has to look at and maintain ten percent across the entire landscape that's going to ensure that more old growth is purser across the entire landscape doesn't it presuppose that this species are dispersed randomly throughout the mountain as opposed to a particular happy location not necessarily mean that that the this this  this reason that the forest gave that there would be more likely to lead to more old growth being preserved as simply a new numerical look if you're looking at a smaller level you only have to concern yourself with what you're saving at the smaller level but if you look at a bigger level you have to ensure you're maintaining it across the whole landscape and also species travel throughout throughout the landscape the species used some do some don't that's true but the plaintiffs haven't alleged that any particular species here would be adversely affected by looking at the timber compartment level versus the mountain range level and i don't think that they would have the scientific support to back that up but well ask when opposing counsel comes back if i thought that was the whole point that it would lead to less old growth which would be less opportunity for the species to to thr argument i think what he was arguing with respect to the species viability related to this geographic distribution requirement which again was never intended to be interpreted as the distribution language in the e i a s which was never intended to refer to geographic distribution but was intended to refer to six national stages and each class diversity well do i understand that the services categorically exclude if the project doesn't maximize the retention of old growth as an answer to that as well it does maximise the pretension of old growth because it doesn't actually remove any old growth it can't possibly fail to comply with that standard if it doesn't remove any old growth whatsoever and again he challenges the forest service the scientific determinations that no old growth would be impacted but what he relies on is an actual record map which the district court didn't consider and also photographs in the record that do not demonstrate the existence of old growth but were used to show cover and also are pictures of a stand that was excluded from treatment because it would be if it was thinned the remaining trees would be at of being blown down by high winds so not not no evidence in the record undermines the field surveys that the forest service dead walking the ground and documenting old gro also would like to address the plant dress mr boyd barry's argument that the forest plan amendment somehow changed the previous requirement because now it only applies to lance class of foot on lands that are forested as opposed to lands that that contain suitable timber it's a language distinction without a difference to the previous amendment the previous plan language applied to lands that contain suitable timber and now it applies to lands classified as forested so it always only applied to lands that contain trees and that is no change in that i would also just like to say there is no requirement in if the healthy forest restoration act or in me that would require the agency to provide prepare maps of old growth and provide maps to the public and that's even more so in a case where the forest service is actually walked to the ground and looked at all of the units that will be treated to identify existing old growth and make sure that it will not be removed let your position on the cover and security the plaintiffs are incorrect when they argue that the plan amendment substantively change the hiding cover requirement because their argument erroneous lee assumes that the old plan standard found that the agency had been applying it incorrectly the agency developed guidance that's refer to as the canfield two thousand and eleven white paper and that's reproduced in full as the r five hundred and forty nine to five  which explained how the agency thought forth guidance on how the agency should apply the standard going forward and b which is to say that the the forest has to ensure that two thirds of the baseline amount of hiding cover is maintained at all times and the baseline amount of hiding cover includes acreage that has been previously disturbed so it includes acreage that has the potential to be hiding cover but was previously logged or was disturbed as a result of fire or what not and so how did the plan i'm in how did the plant forest plan re before them in the forest land basically it's simply said maintain two thirds of hiding cover associated with key habitat components over time and now the plan amendment says vegetation treatment shall maintain at least two thirds of certain species so that identify certain tree species  national forest service lands with at least forty percent can canopy cover to function as hiding cover for l at any point in time so it still requires that two thirds of existing baseline cover be maintained and and we can see that the forest service applied the standard correctly here to this project by looking at the elk analysis unit which is about eighty seven thousand dollars acres it modeled the amount of hiding elk analysis unit and determined that there was about thirty thousand dollars acres of existing cover and about three hundred dollars acres of previously disturbed cover that was an existing but had the potential to be hiding cover it combined those two figures and found that so there would be the the baseline that it measured was thirty thousand dollars about thirty thousand three hundred dollars acres the project would result in the removal of nine hundred and eighty dollars acres of hiding cover which is well over two thirds which which leaves well over two thirds of the thirty thousand base line which is measured against is that what it was measured against before mimic yes it would have been measured in the same way before the amendment according to the canfield two thousand and eleven white paper which the forest service issued to address the happen or decision before the  was previously disturbed and included in the count after the canfield white paper in two thousand and eleven and before the amendment previously to serve land was included but prior to the happen  the inclusion of previously dyster land in the calculation of hiding yes and in fact it directed the agency to ensure that it that successive projects wouldn't whittle down the amount of hiding cover that  available for all and there's no dispute here that in this project area there is ample cover hiding cover and security areas for all the project in fact won't impact any secure security areas forty seven dollars which discuss how the project purrs are both hiding cover and security areas by ensuring that roads are for example not open to the public during hunting season  there's the language in there that says something about wiggling away so it would be in the paragraphs around that language where but this this court was concerned that the project at issue there wasn't taking into account be the fact that previous projects had resulted in the removal of cover and wanted to ensure that the agency was actually make not going to successively whittle away the amount of all cover over time  but i don't see where it talked about inclusion of previously distort landscape and i don't think it is i don't think it included included that precise language but the court was concerned with the issue that over time if the agency didn't take into account previous projects that it would result in a way to link that's a different thing than fanged now we can amend the th plane to include within our calculation for all c previously disturbed parts of the floors i think it addresses what the court was concerned about which is that i think what the court was concerned about in happen or is that if the agency didn't consider what it had previously removed what cover it had previously removed it would be allowed to say it would be allowed to keep to comply with the forest plan as long as it kept habitat they're actually entering previously designated colegrove how that's hot and if you look carefully at the record at the arguments of why isn't that all growth habitat anymore to take a younger they basically said well we're no longer applying the lodgepole pine which were the big old trees classification we're changing the classification and when you ask well why aren't you counting  habitat anymore it was all growth habitat in two thousand and six they say well there was a mountain pine beetle attack and most of the lodgepole pine trees died ok so that then they point to the regional criteria which only requires ten dollars to twelve dollars living large whole pines per acre to be classified as old growth and actually requires a high level or a permit a high level of dead trees because that's valuable to all grow species and they did not count the number of trees per acre they can't tell you they haven't been basically acknowledge why it was all growth before and why it isn't now but as far as applying their criteria they didn't do the homework they didn't tell us how many trees per acre there are for lodgepole pine so that it would no longer qualify as a l what's happening is a classic succession of oprah which is that the higher story of lodgepole pine dies out and then the dog fur comes up and takes over and it becomes dark fern eventually while they're saying all the duck hasn't quite got there yet we're not counting the lodgepole pine anymore and the doctors not quite old enough yet so therefore we can clear cut it excuse me but it's not all growth species analysis that sort of a cultural analysis being used to basically justify logging what they previously had set aside as old growth habitat and that is just one example and the record of stands that were previously di's noted in disclosed as on maps as old growth habitat which now they're saying it's not all growth opt out actually they drop one in response so there's no way she can stand up here in say that there's no growth there they're not cutting any old growth habitat in this particular project is because they've changed the classification and change classification without justifying it without explaining why it no longer meets the criteria for old group for old growth that they used before ok to classify them as i need to we need to move on to the next case so thank you so this case