forest management act in this case which is the forest service is complete failure to address the elk open road density standard in the project environmental assessment in briefing this issue has become quite clear the government has candidly conceded many of these points for us and the answer brief it twenty four they say quote the forest service did not explicitly address this provision in the response to the twenty seven three motion which is documentary twenty seven dash one fifteen they say quote the forest service did not map my sites in the beaver creek project area or separately calculate road densities specific to this site so not only do they can say we agree which i let's just go hypothetically that we haven't decided this case so i'm just but let's say hypothetically we were to say you lose on your others but you're right on that can we talk about remedy yes and it seems to me that you've moved the ball a bit on what you're saying here and that and i you know at the risk of seeming ignorant i'm going to ask both of you on this point but say we were to say the government's right on everything but the areas for the  and so we affirmed there but we say you didn't get it right there this project's been going on i'm assuming at this point or no well they've got some things happen if you're shaking your head but anyway what does that and now you're asking for an injunction and i haven't seen we haven't talked about any of the type of things that people do when an injunction so what's the practical effect of this there's a new  there's a new forest plan if you win you're already contesting that right maybe haven't you answered james callaghan question you have about ten questions yeah yeah so what yeah so there is actually an injunction in place the  february motions panel did grant an injunction against the project and that was based on this claim and so the question before that was has the project started the project was never implemented and so the motions panel granted the injunction before any implementation happened and so what we want is for them to still conduct the nepa analysis that addresses this forest land standard and that goes to your question about the new forest land that's now in place so so what they analyzed it under the new one or if if we said everything was ok on the old on the rest of it do they have to do the whole thing and start over completely or so that sort of brings up why we as you say moved the ball from our opening what we write that's all that is true your honor that this current right to it and i'm listening what the supreme court said in monsanto was that they prefer decisions be vacated if that is a remedy that gives you the relief that you're requesting here the relief they're requesting is not just an injunction but also that they conduct this analysis and so because that's part of our request that is why this would be a circumstance where vacating the decision would not actually give us the full relief that we're requesting here is a small project and i think your strongest argument for four is if you didn't map the moist sites and i don't have a good since you know it's a small project i don't have a good sense of how tough it is to give you what you want if what you want is do the work show your work map the site and if they could do that really quickly then does that and they're back in the game yet your honor what we're asking really is for the injunction that was already issued to just stay in place on remand while they do this new analysis and it is fairly easy for them to do we filed as an exhibit to both our reply brief and twenty seven three motion analysis from a directly adjacent log in project where they did the exact analysis that were requested was that about the same size ok so can we go back to i think they have a problem because it didn't reasoning so your honor first the district court accepted the four services representation that quote the forest plan does not define my sites those that you are thirty two of them right and then and then the district court went on to say quote the court concludes that the conclusion that the project's moist areas are located away from roads in contain high security is basically he says is not completely contradictory to the forest plan and our point is that that conclusion that noise areas are far away is just a conclusion and need and if my require some underlying data for a conclusion like that and here in briefing they admitted they didn't actually map those my site using peer to opposing counsel want giving up you're going to be able come back to the podium but he's got more than that but regarding just the district court there is what i'm just addressing here is that the district court relied on a conclusion that had no underlying support and this is very similar to this court's decision which was cited in our brief wylder of the guardian's v montana snowmobile association that was a case where the forest service had failed to map big game winter range and instead they had just included a percentage in the eye yes and this court found you can't just give us a percentage we need to know what the data was how did you just determine the percentage and they said you don't necessarily have to map it but you do have to give the public the underlying data so that they know that you conclusion about where these areas are is actually valid and then they discuss at length the need for regulations they discuss idaho supporting congress thomas they say quote the list the percentage wind big game wintering but provides virtually no information about where the big game wintery age is actually located in other words the past does not make public the underlying environmental data nor specifically reference any documentary source that the forest service relied upon in making its determination and that is seven ninety fed third at nine twenty five that's a twenty fifteen opinion that was the closest case we could find because they're actually talking about  just as we are here that you can't just give a percentage or say it's very far away from here don't worry about it you actually do have to give the public the underlying data and that is why we pointed to this adjacent timber sale where they did just that and that is the analysis that we would as part of an eva analysis if there's no further questions on that i'd like to move on to the two grizzly bear issues regarding the first issue whether  sort of a preliminary issue in this case is whether the these objectives are enforceable well since you're going to the other ones that you know why you so but if you win on the what are your advantages if you went on the grizzlies to are what are the disadvantages what what additional benefit would be yes and yes we would get potentially fewer roads in this project area which would impact grizzly bears and provide for better habitat so really the primary issue in terms of remedy for this grizzly bear claim is that we don't want stored roads we want decommissioned roads because decommissioned roads don't displace grizzly bears stored roads do displace so the practical benefit to us of prevailing on the grizzly bear issue would be that they would need to decommission more roads instead of just storing them which would then displace fewer grizzly bears that's that would be the practical effect of this and that would be th a similar effect for the elk issue if they had if they had to do the analysis and then as a result of the analysis find out they had to have fewer roads but the difference is that the elk issue addresses only open roads is the new plant different on the road the new plan is totally different on a lot of issues it doesn't have either one of these standards in place but it already is currently in litigation and so is it possible that they could just say if they you know for a way that whatever the court sattar if they lost if say like they prevail on ninety nine percent but they don't prevail on one percent just say ok we're just going to do we're going to do it going to do it all on their the new plan if the i mean they're not compelled to stick with this right well they are come yet backed out that they could say well what does come up with a new plan under what they could withdraw their if the court just kept the injunction in place and reminded they could on their own accord simply withdraw the project decision and then design a new project under the new plan but the catch there is that it couldn't just be a new analysis on grizzly bears they would then have to apply all of the new standards in the new plan which would basically mean they start at the beginning of the need for process was scoping do the draft finally i asked the decision and i just sincerely doubt they want to do that long of a brand new process for this well and we felt that it was very minimal what they had to do i'm just sort of doing the hypothetical things can we dissolve the injunction and then just say go back and do that and as soon as you do that then you can go ahead or i mean how does the and if they go back and do it what who dissolves the injunction or if we because obviously when you weigh on an injunction you're looking at there are certain factors that we all look at and the likelihood of success and if we're convinced at this point that it's really sort of the ministerial thing and so you don't have a likelihood really of success could we decide the injunction here you could your honor if the year the remedy was going to be vacating the project decision it's either  nominee or just leaving the injunction in place and if you left the injunction in place then the district court could simply dissolve the injunction after the remained was completed which the district court has done in a number of other similar cases having to go back and redo everything under the new forest correct there would still need to be an analysis process a public process that comply with nepa but they wouldn't have to redo everything that all they would have to do is read whatever the yes and i just want to before i reserve my time for a but i just want to touch very quickly on the district court's ruling that the objectives are not enforceable other than all of the statements in the amendment ti thousand environmental assessment which repeatedly said the objectives were enforceable the district court specifically and its order only addressed the summary of amendment one thousand and i'm looking now at e r twenty seven where the court held that amendment one thousand itself does not clearly indicate whether the objectives are mandatory and they're citing there to e r five o four e r five o four says appendix a provides the complete text of these changes the principle changes are and then in the summary that page the district court cited is just a summary and it says our objective is to etc however if you look at appendix a which is the complete text of the force plan it uses different language and appendix a is that you are five thirty one and it says quote the following desired levels will be attained within ten years and within five years the following will be attained and then it you are five thirty two it says specifically the objectives are not discretionary and so i just wanted to clarify here's here's my problem with the mandatory nature of the objection objective as distinct from standards if this project didn't exist it's obvious that the objectives would be satisfied still would be satisfied but rex and to the extent that these this project has any effect at all it's to move out very much but to move toward the fair of the objective of the objectives so you're saying what i mean with respect to it with respect to the objective we want you to leave it alone and make less project progress toward you to more of those objectives than this project would actually do that has made any sense to me we want them to be decommissioning road so that they meet these objectives they did design the beavercreek subunit in this project to meet these objectives at the close of the project it's only the buck holland subunit that they didn't design and that's sort of a fundamental inconsistency is when they argue it's not enforceable but on what for one subunit they are designing it to meet the objective just said we want to meet these standards at some point then it wouldn't be enforceable because it just can't be the case under your view of how this works you'll never be able to do a small project even if it moves the needle some in the right direction you know be able to do it well if it if from the road and then i sort of couple that with them then i'll let you go but that couple that with one moment was try to find really quickly within the area around the my site and what we saw from the adjacent glacier loon project is that means they have to map the moist site map a half mile buffer around the site and then the averages within that specific area and so without mapping the my site we have no idea what the average is regarding me thing you cited at page forty six six percent open road density that's for the grizzly bear standard they also admit that during the project that's going to be as high as thirty percent which then begs the question doesn't that mean that a third of the project area violates the standard but actually we can't superimpose those grizzly bear calculations on to the elk because the forest plan requires two different scales of analysis yes and that's what this court talked about a neighbors of cut him out and you can't use an a giant project as an analysis area when that forest plan required analysis within each woodpecker home and so here the now so has to be the area around the my site not an entire grizzly bear please accord good morning your honest johnson answer for the forest service your honour's this project is designed to be good for forest health and wildlife habitat including habitat for elk and for the grizzly bear plants don't challenge the forest service determination that the project will overall improve habitat they nitpick with that particular standard saying it doesn't go far enough with you with respect to the bear to meet certain for subject objectives in that with respect to the elk that they didn't sufficiently for temporary limited increases in open road density meet this standard with that applies to the summer mo in the forest service look to that definition of noise site what we say in our brief is the term area with moist side is not the fine but the forest the forest service looked to the lie own definition about this distinction you just made they didn't do it's a negative question they didn't do it but what they did do is they used data if you look at the excerpts of record page three twenty five they referenced spatial for stand habitat data which they used to determine where the noise hides were in this project area and then they in a narrative description told the public that these more sites are away from the roads in the project area and they're in primarily the mission out wilderness which has no roads it's a roadless area it has zero miles per square mile road density and putting that together we believe that their briefs to a couple of maps to try to show that there are more sites in the road area the project but that again is contradicted by the the information that's in the project record in the court should be aware that the maps that are in the reply brief the map of the roads first of all roads not simply open roads which is the relevant metric but more just significantly the map of the chosen streams in the right pairing there is not relevant determining elke moist sides because in moist side as is defined in lie own at page seven fifty four the excerpts of record in that's talked about at page three twenty three of the environmental assessment  i can from the district court judges right i don't the rationale you're giving now i don't see in the court all right but this is of course is the novo standard for this court to look at the record and i'm filling in that my here's my question are you arguing something now that you did not argue before the district court and no your honor i mean we're arguing that the record showed that the areas with moist sides were beginning i mean i mean to me that's the same thing we are so if we said you didn't do enough work were does that put you and what remedies are available and then i want to sort of that both sides have a little improving habitat overall and there's no indication from the record that ultimately there would be a violation of measurement that just a court and a better position to ascertain that after you do whatever you're going to do whatever you would do legally that there's nothing legally out there that says you have to do it under the same standard that you did before that's why they've asked for and without setting aside the projects because  they found a violation not issued over set aside the project better as a lot of to proceed with a limited injunction asking for particular information and that's when the normal order not necessarily allowed to proceed in the interim  think the proposal might be the injunction stays until the problem is resolved at which point it can be dissolved but you say the injunction can be dissolved now in the anticipation that they all problem will be resolved that that's kind of submitting something that doesn't happen i just thought of saying had there not been an injunction pending appeal the ordinary case where this court remounts without a baker there's no setting aside it ordinarily means the project can go forward and remain and is due to  them white spots in terms of the new plan and the other project opposing counsel represented that that wouldn't be very hard or take very long i have no idea what that means can you tell us your best guess about what are we talking about here how how how burdensome is this given the size of the project to do the analysis for the moist  for them to prepare we could do that and first the overriding concern for me the underlying concern i should say is the fire season and so what would happen if we could remain this and you think your client have that project or that part of the additional work done within a matter of weeks could this go forward and yet this bring when there are spring timing restrictions on the harvest as part of the project plan isn't required because there is sufficient evidence in the record to show that the moist sides areas with the moist sides are not in the area where the road area project is also stated in the e a a that we use the spatial habitat data and explain that the importance of the sub alpine for habitat to mapping moist sides i want to come back to one more thing  on that issue and that's the glacier loon analysis itself the glacier loon project is directly adjacent to the b recruit project it's just north of the project they share a border if you look at the map of the that map doesn't show the moist sites in the project there it just shows the circles with the cross hatching of the sites in the glacier loon project area but if you look at the legend on the map the legend and it's the designation of the sub for habitat that's associated with moist eyes so this just confirms what we said in the environmental assessment that they use the data that showed where this habit is and said it was away from the roads and what could they have done a more formally yes we can see that but the issue is you know we did what they did was that sufficient and we submit that it was question ok thank you by addressing judge kristen's question regarding whether they could still log the summer the beavercreek subunit because of the schedule is actually designated inactive from twenty seventeen to twenty twenty three and you can find that in the record year one twenty nine where it talks about what sub units are active versus inactive so that means they couldn't just go out and do the logging the summer and the ways because that unit is supposed to be inactive during the non denning season for the grizzly bear so basically once they come out of there dan in the spring until the fall no logging can happen twenty seventeen to twenty twenty three in the beaver creek grizzly bear subunit so the project couldn't go forward quickly this summer anyways regarding the opposing counsel citation to the glacier loon map again that was not anywhere in the administrative record for this project and the public never saw that map and that is just a map of the moist sites in the glacier loon project it's not a map of the my  sites in the beaver creek project we want that map for the beaver creek project and we need that as part of a public process the reason it in your briefing page tonight is because you are saying it's doable they know how to do exactly exactly and i just wanted to close by saying that well first i looked at three twenty five and i didn't find any reference to data about my sites i looked at three twenty five i looked at the first draft of the environmental assessment at three twenty five and the second draft and i didn't see any of the data they just mentioned at that page and finally i just want to end with this quote from this very similar case while there is guardian seven ninety fed third at nine twenty seven where this court said although the forest service asks us to assume the adequacy and accuracy of partial data scarce submitted for decision and look to get a ten minute break and then we'll come back and hear the last