seventy five thousand acres of logging dispersed over twenty five thousand acre area this is a huge watershed meeting it was set aside in the northwest forest plan not s be likely to have a significant impact that we're not adequately does disclosed in the environmental assessment that it is this sale does not comply with need but the disclosure statute there is also court's interpretation of it there was a challenge to whatever they did in terms of the methodology or whether in fact it qualified as a cause or obviously there is you can you can study that you could stud the most has to do with the fish or because there was more done on other things than on the fish or but my understanding of their argument to some extent is that the fish are lives in the same place as the spotted owl actually use a lot of undergrowth and some of the actually the fuels reduction component of this project will also have an impact on fishery as well as the logging component whereas the l's are not really affected as much by the removal of undergro i guess i guess what i want you know that i mean our job here is that we have to you know when it's enough enough right it's not uncommon to have people appear in front of us that say someone in your position would always say you want them to do more than they do and that may not be required it may be anough what they're doing and they're going to say but there may be instances here what more could they have done with fisher service had not yet come out with its federal register notice on the fisher which stated this animal this species is warranted for listing under the endangered species act as either threatened or endangered that's how bad the status of the fishery is but i've said that listing is precluded at this time by other priorities that we had so the information in that very lengthy and detailed federal register notice was not something that was before the decision maker however the information itself i should say the federal register notice was not before that the information leading up to that decision was definitely before the decision maker because our clients had raised the current study status of the issue and said look this species is being considered for listing as threatened or endangered it's in very bad shape and number  just say we don't know we're going to do any in the few cases where they have been allowed to say we don't know that's one of the factories where they are required to do an environmental impact statement because of the do i necessarily have to find that they didn't take a hard look well ok first of all the issue of nothing ology if that's what we were hearing about it might be a different and more difficult case we're not arguing about what methodology the no methodology  significant intensity factor could be enough but what we have here is an actual lengthy list which i was going to go through but i think i mean i can do that but in the brief we've gone through that we've got impacts to the northern spotted owl the adjacent private parcel that was recently of three hundred four acres fifty to eighty year old trees directly adjacent twenty units which was totally glossed over entirely glossed over in big issue these are factors that pile up to create a very clear view that this project quote may significantly impact the environment that is the standard in this circuit the burden is on the defendant raised several of us in their comments the government responded that those would not satisfy the purpose of the project this court in luckless said if there's only one alternative that will satisfy course there could be more alternatives and they could still make money to do the fuel management narrowing it down to one alternative one action alternative is that is a red flag that there is that alternatives were not is not a consideration of an alternative when they simply reject them yes sure and i thought that was a position that if it were that easy to just brush them off without any analysis then that's what they would do all the turn which does known as primarily designed to move the project area which is currently overstock to get healthy capacity and at high risk for wildfire to move that project area towards the desired conditions identified in the forest plan those conditions are forests that are resilient to fire insect outbreaks and disease and these four project is also another purpose of these four project is to accelerate the development of old growth forest and to accomplish these objective assessment the removal of this competitive and typically suppressed understory component is designed to enhance the health and vigor of the remaining trees contributing to an increase in stand health and resiliency to the two disturbance the overwhelming majority of trees proposed for harvest are between five to twelve inches in diameter and nearly all trees are under eighteen inches in diameter and again there be no harvest of old growth forest because it is for a project is designed to even though it might be in support of the project so it's not enough to say the project is intended to do all these wonderful things you have to look at the impact on the environment but it's true and the forest service did that and determined that there would be no significant impacts on any endangered threatened or sensitive species and just do i'm not sure it's maybe eliminates confusion you could have been proposing a hypothetical but there are no new roads proposed and over i was a hypothetical but you have made a general statement that as long as we're proposing to do something wonderful it doesn't really matter how we do this when i heard you say that's not what i meant to say well i have you know i i know that you have  i have problem seeing what your methodology and here ok well i think i have to ask your question after back up and i think after explain a couple things and the first thing is that i have to explain the one thousand and two regulations and the populations of management indicator species to assess or estimate the effects of a project on species viability however the ninety two regulations have been repealed is to be used as management indicators to assess the or estimate the impact of a project on species diversity so as relevant to this project and to answer a question with the forest service that here is it sent people out into the forest it looked at the habitat it then analyzed the impact of the project on that habitat it concluded that there was impact to be insignificant in overall beneficial for that habitat and therefore ground send people out there and analyze the habitat and the potential impacts is there any data or anything do we have any well the forest service describes the fact that it went out there and looked at the data and  wildlife report i believe and also in the ok so we're not that's enough if you just go out and what can you say now impact looks good well i guess i don't understand your question on it oh you did quite a bit on the spotted owl but that's an endangered species right what did you do on the fish or well for the fish or now i think we're talking about the fish or the was compared spotted owl habitat which is very similar to that of the fish are compared spotted i will have a tat or analyze about it i'll have a chat and determine that there be no significant impacts on that habitat and then use that she determine that the there be no impacts on the laser i saw a picture of the fisher and a fish or doesn't look like the spotted owl i'm assuming that the fishers not up in the top of the trees there or anything along now is what's what is the evidence in the record woody to breathe per acre will be retained in the fisher habitat area and moreover there will be no old growth forest that will be touched in this project and so because of that and the fact that this this project is not designed to improve use alternatives and they're saying that the considerations of alternatives were not only insufficient it would basically not exist so what's your response to that first of all a case in which they'll be in significant impacts to the environment and when in such a case it doesn't make much sense to require the forest service to consider more environmentally friendly alternatives when the alternative is going to have an insignificant effect on the environment and many events and i think the case is that the cases that are cited by the epic and i think mentioned by council here today involve and yes not any way in that situation it was determined that the projects whatever was being challenged was going to have a significant impact on the environment and therefore that trade triggers the additional if if that big succeeds in showing that there may be a significant environmental impact then it would show that doing it was contrary to law i guess that's correct think cites to support its assertion that no private projects were proposed in two thousand and two is the two thousand and four wildlife report a document which was prepared to years after the two thousand and two document and which incorporated information discovered subsequent to the two thousand  wildlife the way by two thousand and two a project on private land had been proposed and as discussed in our briefing is found by the district court the forest service took into account the human of impasse caused by this private project before issuing its fonzie i think what is determined of of this question is that in this reply brief when challenged on its failure to raise the issue it's not cited anything in the ministry of record showing that in fact raised this below and this is despite the fact that its letters to the agency and its priests and the administrative proceedings are in the record next the information on the northern spotted owl contained in the two thousand to wildlife was current at the time of the forest service is april two thousand and four decision in the forest service about environmental impacts i wonder if you'd have time if you'd look at that case which it just went on the website yesterday so you may not have but if it was significant if you were a position t comment at this time on your honor i'm aware that that case i was decided yesterday but i was on a plane most today and i did not get a chance to read it so i guess i'm not in the cave we need  factors which we set out at fifteen zero eight point two thousand and seven impacts that may be both beneficial and can be significant a significant effect may exist even if the federal agency believes that on balance the effect will be beneficial ask that you do not consider this argument and be arguing now that the new and my us regulations retroactively apply to the sale and your honor so if you do consider it we would just submit the they cannot apply retroactively to th seventy eight for that position that's their brief at forty four but what they talk about is looking at for example the north american breeding bird survey a huge broad survey  general breeding birds are located one thousand nine hundred eighty eight black bear management plan these are generic very general studies some of them from as far back as the mid ninety's these are not habitat surveys they did not go out on the ground and look at the habitat the fisher may be versatile immobile but it is currently warranted for listing as endangered or threatened it its primary direct threat to its continued existence is logging and fuels management those are the two primary threats the burden is on the defendant once the plaintiff has raised significant questions as to whether the project