advice and i was wondering if you have any questions or not the gate sure i think one area that you wanted to start with this case is the jurisdiction i think that i know the government has argued quite a bit that there is no jurisdiction this case and so why don't you start by explaining the whole panel can jump in here why we have jurisdiction on the denial of the or whatever the district or did with the preliminary injunction explain to me why you think we can review that decision really is was the the summary judgment ruling in favor of defendants and so the ninth circuit in a case called andersen versus all state said quote subsequent events can validate a prematurely filed appeal so even if the government argues that the appeal was filed prematurely the ninth circuit has said that subsequent events can can why do we have jurisdiction over the summary judgment in this case the district court denied the claim of the  left to do in terms of the merits of the case so that's why this court has jurisdiction over the merits of the appeal in terms of the injunction the district court on april sixteenth said that it was treating our motion as a injunction pending appeal as of re consideration of permanent of relief permanent injunctive relief the ninth circuit has said that it takes a pragmatic approach to finality that's been versus law offices six eighty eight three d ten fifteen in that case also says it events subsequent to an order that's arguably premature can then give the ninth circuit jurisdiction on page twenty four of the forest service brief it explicitly states that when a district court denies injunctive relief explicitly denies injunctive relief that the ninth circuit has jurisdiction we were asking for a permanent injunction pending appeal right and that's what the court treated that motion as a reconsideration of for a permanent injunction and the court explicitly states in his april sixteenth order i treat this motion a motion for reconsideration of my denial for permanent injunctive relief and so your argument then is that the actions taken by the district court after the notice of appeal was filed in a sense retroactively grants us jurisdiction review of this and you've prevailed on your claims and you've already appealed the one claim the last there's nothing left for me to do now absent that order would you is that would there be jurisdiction the answers i mean from the way you relied on it now i'm taking the answer would be we don't have jurisdiction my my i want to say that we don't have to decide that because there is a subsequent  relief in this case that deferral is practically speaking out in iowa because we have members who are seeking to use this area who are suffering irreparable harm and so that denial is  essentially denial what the case law says that even if it has the practical effect of the nylander carson you have to go to whether or not the order has serious perhaps irreparable consequences yes i mean what would those be in this case so in this case we have members who are we have one member who sought to use here and couldn't and submitted declaration and he said this is harming my interests in my interest my interest some wildlife and then we have that member died we have another member who said this is probably my last season season i'm never going to be able to go to the syria and so that i would argue is pretty serious last season and i'm going to be able to use a syria and say oh this is his last chance district court ordered the forest service to prepare supplement only panellists s and the forest service is still not prepared that analysis that's why we asked for a permanent injunction pending appeal the district court explicitly denied that permanent injunction and said you've already prevailed on the merits of that case on the merits of that claim so that claim is done the claim where they re mandated is that the claim you are referring to your honor so the district court ordered the forest service to prepare a new analysis that he didn't he didn't salmon he required them prepare a new analysis and sell that i think is a bit different than a remained worrying of the forest service i'm maybe i'm splitting hairs here it makes a difference because if it's a remake and and you know there's expectation that they'll come back to court and this can be the injunction can then be resolved the claim is still open the litigation is still ongoing y so in district court we asked for reconsideration the permanent injunction the district court judge said ok i ordered you for service repair new analysis by october twenty seventh teen here we are february twenty eighth march twenty  seventh done and you've told the public that you're not going to have a complete until october twenty eighth in syria year late and at that point the court said i'm going to explicitly deny your permit injunctive relief so that was if you have no other questions on the move to the mares so ok so in this case the environmental impact statement says that the forest service used fine filter analysis for species in which the public had viability concerns that i put in our brief is you are sixty one but we also submitted other sites that are at supplemental excerpts of record volume three pages one in three so all throughout the process gallatin wildlife association some of the comments regarding viability of big horn sheep the forest service told the public in its environmental impact statement we used fine filter analysis when there were viability concerns so galton wildlife association express viability concerns the forest service to not use a fine filter analysis that's a pretty clean violation of nepa your honor so i'm guessing that the defendants are going to say even if these guys didn't use you know isis is harmless error because they did this other now assess and  the defendants tried to argue harmless error in the district court as well on another claim that they lost the district court rejected that harmless error argument in this case the ninth circuit should reject the same harmless error argument for three reasons well firstly this record is already rejected it when you're denying the public the opportunity to participate underneath it's not harmless error the second reason is i'm here basically you're making a sham of the whole nepa process you can't tell the public you did something they're not doing me pose a procedural statute when you tell the public that you've done something you should have done it and the third reason is that there was a dead big horn sheep found and that deadbeat quorn sheep was never discussed in the course filter analysis i actually have a question about the jurisdiction issue i had a chance to look at the case that you cited versus law as a nickel and in that case it appears that what happened was that the  ckel was arguing there was no jurisdiction because there was a partial summary judgment but the party in that case evan actually was appealing the final judgment that case here on the nose appeal was filed you were appealing to marshall summary judgment correct yes or no it seems to me i'm not sure it is exactly like this case because the time evan knows of appeal that was in this i guess what i'm concerned about maybe there's a case that makes my concern go away but when the notice of appeal was filed that's there was a certain situation there and then after the nose would be a was filed this is a court date certain things do you know of any case that actually is like ours where after the district court after the note of people's technical construction of that finality going which was alternately what's going to happen is that we're going to remand the case back and we're going to the judge is going to say what he might say we don't know because he's going to this and so we're going to have to come back up here and in the meantime we have a member who's afraid he's never going to get to see this place and so that goes to the considerations that the court takes when turning whether or not has that in a case in r t c vs city of los angeles page twenty four the ninth circuit said p twenty four the government brief that any time you have an order that specifically rule that a summary judgment order that decides liability but leaves the issue of relief open for further proceedings is not final under twenty eight u s c twelve ninety one in this case the court issued partial summary judgment to the forest service on one issue issued a remained on to specific issues to judge wardlaw as question on one of those issues the additional analysis on the allotment management plan the forest service completed its review late last year on december twenty seventh on the other issue that was remained of the supplemental us on regarding the memoranda of understanding the forest service issued a final supplemental earlier this year and a draft record of decision it's in the middle of the objection resolution process on that mandated review appellants of actually participated submitted comments and objections and in fact there is an objection resolution meeting scheduled for next week in which appellants have been invited to participate and a case like this the cases of this court in the supreme court are clear that because the question of relief has remained unresolved jurisdiction doesn't lie under twelve ninety one when it happens next with the with respect to the issues that were on remain and what happens next once the agency finally resolves them is returned then to the district court for him to decide whether or not that was set in stone three that's right your honor the district court has ordered the i guess permanent injunction denial of the permanent injunction we do argue that twelve ninety two a one which is this court is recognizes a very narrow exception to the general final judgment rule doesn't apply here because it only applies in two circumstances when an order specifically denies a request for a permit for injunctive relief which didn't happen here or as you mentioned judge owens won all three of those requirements and carson brands from that and we would argue that this court can stop at the first of those whether an order has the practical effect of the nine permanent injunctive relief because the possibility of granting permanent injunctive relief remains request for a permanent injunction does not constitute a denial for purposes of the carson test not that we're not implying that there is some sort of magic words requirement but  district court did explicitly state that it wasn't going to weigh in on that request and would defer a decision until the forest service completes the mandated review on administrative romanow is that your position then then the april the test the winter test applied in interlocutory circumstances and in fact on page ten of that order it explicitly states that it is not going to reconsider the request for permanent injunctive relief because it's on appeal to this court now i briefly like to note that the district court in that order in the april order of this year did characterize the order on appeal this partial summary judgment order as having denied a request for permanent injunctive relief that issue wasn't brief because the brief in this case had already been submitted at this point and we're happy to submit a supplemental briefing if the court would like but it's our position that first that the settled rule as the supreme court has stated that it just records label for its own action doesn't control the question of appeal ability and we'd argued that that princip should be given particular weight in this circumstance where that label came in a post hoc characterization two years after the order being appealed and the order being appealed fairly plainly of the district court's intent on the injunction request is at the bottom of page thirty six of that order where the court says that it deems it appropriate at this stage to defer a decision on whether to enjoin domestic sheep grazing until the forest service has resolved the deficiencies in its analysis that seems fairly clear to the agency that the district court was going to take up the permanent injunction request after the  rule that in administrative remain and is generally only final for purposes of twelve ninety one with respect to an agency appeal because it's an agency whose for whom review would be foreclosed as a practical matter and the district court and that under twelve ninety one and administrative remain doesn't create finality with respect to other parties but we think the easi district court was deferring a decision on the request for permanent injunctive relief it has three the district court has three times denied requests for  appellants have alternately decided not to pursue appeals of those denials in this court on one of those they want they did file an appeal and voluntarily dismissed so there are pathways there are other routes for seeking review before this court appellant simply hasn't sought those who could also seek fifty four b a certificate i think that there are some other hurdles to one being granted in this case the point remains that because there hasn't been a final decision there has not been a final decision and because the court the district court has not much the panel has specific questions about the one issue on the marriage that has been appealed those arguments are in the forest service brief so soon and we ask that the that th panel dismiss this claim for this dismiss appeal for lack of subject matter jurisdiction and in the alternative affirm the judgment of the district court thank you permanent injunctive relief on its merits there is no evidence in the record which supports the conclusion the district court abused its discretion injunctive relief is an extraordinary remedy and when imposed it must be carefully tailored as justice ginsburg wrote in winter flexibility is the hallmark of equity jurisdiction like the forest service when implementing its multiple use mandate courts when determining if relief as demonstrated by the permit declarations the grazing allotments are essential to their way of life the quality of the wool produced and the economic viability of their ranching operations are several salient facts to this case that the court should consider when analyzing the balance of the harms of the parties and the public's interest these facts also demonstrate why it's important that district courts are entitled to considerable discretion and their management of litigation and in fashioning equitable relief these facts are as follows first grazing has been occurring on these allotments for over a century the permit to use families have been grazing on them for four generations therefore issuance of an injunction in this case would be altering the status quo second the two thousand eighteen grazing season has already begun the permit to use trailed on to the allotments in early july over the course of the next three months the permit tees will be rotating sheep on the allotments third proximately fifty five thousand to three point three million acres within the forest service boundary are utilized during the three month grazing period and significantly the appellants are not precluded from using the during this cruising time fourth the district court ruled this spring in response to the appellant motion for an injunction pending appeal the day do not meet their burden of proving irreparable harm or the other winter factors there is no evidence in this case the big horn sheep have been removed or have died as a result of coming into contact with domestic sheep from these allotments nor is there any evidence of this case in this case fifth and finally the forest service is supplemental analysis on remand will be completed this fall appellate have participated in that administrative review process and will have the opportunity to challenge that review process the lack of use argument that the present that there is a lack of use by some of their senior members your honor argument they present is that that the won't be able to that they're in a static interests are being harmed they are allowed to access the allotments during the grazing period the allegations they have made is that they don't like to look at domestic sheep or that they're scared protect the dogs that are protecting the sheep our argument would be unbalancing in the harms that the harm to the permitting of a permanent injunction outweighs the harms the recreational interests that the opponents have articulated in conclusion should the court find that the district court effectively had denied the appellant's request for injunctive relief the permit is respectfully request that this court remain on the issue of the injunction to the district court so they could be given the opportunity to address this question in the first  the harms to the defendant and in this case because there's been no harm to the point it's according to this report the harm was never placed in the scale so once we find there has been harm we then say well we have to reweigh it and now because it was already too close now weighs in favor of point ifs second reason why the balance of harms doesn't make sense on the second reason why the balance of harms now weighs in favor of point if it's because  the harm the talk about viability it's clear that big horn sheep are suffering irreparable harm because of the domestic sheep dr david mattson who used to work for the u s g s for thirty plus years as a federal grizzly bear biologist been here one hundred years so you can't show irreparable harm and that is confusing irreparable harm to the species with the balance of harms just because we've been there hundred years as a mean they haven't suffered irreparable harm that's like saying before the nineteenth amendment that women could never suffer irreparable harm before they were allowed to vote because they never were allowed to vote before so you never suffered any irreparable harm and that's not right that analysis is not right every time a plaintiff's member wants use this area and cannot they've suffered irreparable harm now whether that outweighs the harms to the defendants is another factor that needs to be considered and in this case is this record again already said that the balance of harms is too close or is off so once you start analyzing irreparable harm to big horn sheep to grizzly bears to point just members in the balance of harms fact favors the point called pig horn mountain the reason we don't have big horn sheep on big horn mountain is because a domestic sheep montana fish wildlife and parks has said that it would restore be corn sheep on to big horn mountain into the gravelly mountains if the domestic sheep or not there are thank you very much council thank you thank you all council for your argument this case this matter is submitted and after my or think you going to catch that plane very well