good morning if i may please the court my name is david brinkley and i represent the paradise ridge defense coalition some of the members here in the courtroom today it's a beautiful place it's a little bit of heaven on earth i think they would say it's also a  the remnants of a unique ecosystem that is said to be the most endangered ecosystem the country once used to be grasslands through the in the northwest and the few remnants left many of them are right  here the idea of putting a five lane highway along the base of this paradise is offensive frankly to many but that of course is not this court's decision to make we're going to present the some issues of law that we believe the agencies have where agencies have made errors yes q to rule on those and i'm going to start with the error of law related to the executive order eleven nine ninety dealing with wetlands where frankly i think this is the cleanest legal issue presented to the court deals with the executive orders command that agencies if there are several practicable alternatives choose the alternative that does least damage to the wetlands and the agencies here frankly miss understood the standard and misstated the standard the agency's said that there was no practicable alternative that had less and that had no impact to weapons inside they didn't say that there was no practical alternative that had less they said there was no practical alternative that had no the the language of the executive order is not as dispositive as it might appear in that the agencies can balance a range of factors  correct so there's two reasons first of all in dania beach the court found that the alternative that had a minuscule less impact that was one one hundredth of an acre difference but the court it was not a practicable alternative there's been no finding by the agency here that the alternatives to their selection need to are not practicable they never said that they said there's no alternative that has zero impact the wetlands but they didn't say there's not an alternative with fewer impacts that's that's not practicable and in fact in the context of the clean water act they said all of the alternatives are looking at are practicable but for the executive order purposes they never made a finding that there's no practicable alternative with fewer impacts they just said there's no practical alternative with zero impacts and that's so that's very different than dania a new beach let me move on to the e i a s issues the first one i want to discuss is the pollution ecosystem in the dangers that this highway project poses to the those remnants the agency acknowledges that this is an important vanishing habitat for wildlife that it's one of the most endangered ecosystems in the united states that the that the road will be a conveyance belt if you will for weeds species that will invade this these are remnant ecosystems and that the alternative they chose has the most impact of all the alternatives they were looking at it comes closest to the largest remnants of any of the alternatives they say that they will address this by through mitigation and in a case like this where you have such a significant impact to such as endangered resource it's important that the agency do a good job of disgusting the if expected effect of this of the mitigation in the that your argument and knowing more that they didn't do any so more than zero yes so they so there are advantages that the b a s the finally i asked included a list of medications measure is that they that discussion is going to vary depending on how important the mitigation is to the overall project in cases where one of the cases they cite for instance the okanagan highlands case where the impacts were quite the court said well you don't need to do much in the way of discussing the effectiveness of mitigation but in a case like this where the impacts are significant you have been an ecosystem i go out of existence entirely and they've acknowledge that they're going to spread weeds and do it here mitigation plays a big role and there needs to be a a adequate discussion of do you think this mitigations going to work or not this is not the first time a highway project has been build and is going to lead allow for weeds to come weed seeds to come into an area so the agency should have some information on how effective this mitigation is going to be at what's the track record has it worked or not in the past and frankly at if they simply don't have a track record they should say that so the decision maker knows that this is kind of a thing in the poke so if they have information on how well this medication works say it yet you rene if they don't argue that it's not very specific here they did list some things but then they also said they're going to develop a vet of their mainly relying on a vegetation management plan which they have not specified the contents of that at all but it's not really a question of whether they're specific about what the mitigation measures it's will they work what do you expect out of these are we putting our these mitigation measures a hail mary and we're hoping their work but you know guess what guys nine times out of ten they don't do a very good job or is there i is there information available that says these measures work you know we've used them in sixteen other places and fourteen times they work beautifully in two times they work very well i mean there's no information like that so it decision maker who's saying ok am i going to pick this route that's going to create the most danger to the remnant ecosystems of any of the alternatives and my staff tells me well but we're going to impose mitigation and the decision makers need to know well how effective is that medication going to be and  a requires that and it's just not there the on the i also want to talk about the safety issue another key issue in the case where the agency  zero point three accidents per year this year chosen each two alternative better than the next best alternative we pointed out that zero point three is many meaningless in statistical terms and the agencies basically concede that now and the district court did as acknowledged as well and instead they've come up with a new argument they say well the modeling was only a piece of it we also exercise professional judgment but when you look in the s you do not find any indication that they exercise professional judgment all you find is reference to the model know i don't know that there was a better model but i think they needed to be take i think was misleading for the e i a s to say the two is safest based on a model that they have pretty much now acknowledged can't be model yes they should have used the model i don't have a problem with them using a model i have a problem with their characterization of the results of the model they take the model came out with basically it's a wash zero point three we don't we can't really tell that there's a difference there apparently not as best as we can tell from the record be the model does not allow them to come up with a standard of error of the way they applied it in this case if they had it it gets complicated should have been used but it wasn't useful because it doesn't show the margin of error i'm a totally understanding the argument no it's fine that they used the model but when the results came out so close to one another they shouldn't have said the two is better than the alternatives because the results were too close to one another to make that determination and i think they've conceded that now they've conceded that and then at that point they should have applied length slope and curvature of these are engineering judgment assessments are already considered in the model and then it goes on to say weather conditions and microclimate are already considered in and reflected in the predicted crashes so they did not exercise independent judgment they noted these factors but instead of using engineering judgment to evaluate them they said we don't need to think about them they've been addressed by the model and then they misrepresent the results of the model that's our problem if they had been honest about this your honor and if they had really been looking at a subject of engineering as testament they would have noted not just what made the two safer in terms of fewer intersections and things like that they would have noted in the i asked what made it less safe which is there's a larger section of the old highway that is preserved in this alternative that old section of highway is relatively unsafe because the need to alternative includes more of the old highway it becomes a less safe alternative if they had done a subjective engineering analysis in the e i a s it would have been a discussion of that and they would have said are on the new section we're going to have fewer intersections but on the other hand we've got a longer stretch of the old highway on balance here is our judgment that's not reflected in the ice that's what should have been there if they were going to do as they claim they did of using engineering judgment i want to i was going to try to address a few other issues but i think i want to reserve the rest of my time all right thank you good morning may it please the court and some ringo's for the federal highway administration with me a counsel table as gary luke from the idaho transportation department he's available to answer any questions the court may have for the state i'll begin with the safety analysis argument the point here is that the the highway administration and idaho transportation department used the best possible model of vailable to them to complete the safety analysis at the time the highway safety manual presented the most current and accepted knowledge and practices related to safety management do you acknowledge the opposing councils as you now acknowledge that you can't really make a distinction on the safety of those slim margin the rest of the analysis shows and the agencies determined in their expert expertise that the two would be the safest because it's the shortest it has the shortest period that runs through the suburban  turn lane there are various points in the record i point to s c r thirty five to thirty six yard to a six to twelve to thirteen in one thirty six through thirty seven where the agencies explain in detail why the crash calculations make sense yes they are close but the record also explains why it was reasonable for the agencies to determine that it would be the safest so the the other point that opposing counsel makes is that although you're now saying that you used also used independent engineering judge and it's not reflected in the e i a s what's your response to that i respectfully disagree and the pages i've just cited  doesn't require the use of confidence intervals the agencies also explained that because the same factors were applied to each alternative the confidence interval would be the same for each result and therefore wouldn't provide a reasonable basis to differentiate between the alternatives i guess and in layman's terms the question is whether the information he i asked was actually a meaningful and showing to the safest route and i think underlying comment is it's not meaningful you can't really tell if it's the state as based on the application of the highway safety manual i disagree as i've explained the highway safety manual as the best tool available to the agencies to provide this information the calculation showed that he too was safe by a slimmer margin but the agency's also explained why that made sense given their expertise and that was certainly reasonable and i'm sorry can you had addressed the argument that  and the report explains that we do mitigation measures are expected to reduce the widespread dispersal of weeds dramatically ultimately though the purpose of the mitigation analysis is to ensure that the agencies have disclosed the  impacts of the project that they're considering in the agency's did that here they explained that the project is not expected to directly if in fact any rare plants are police per year eminence and that the greatest indirect effects to police p spread of weeds the agency didn't try to hide that it explained those facts but it also explained that various mitigation measures existed that given at this early stage in the in the project implementation process the agencies expected would be productive those measures include for example using weed feet free construction materials receding exposed soils with need of plants using a special seed mix employing best management practices and as my posing council has acknowledged developing a vegetation management plan but the agency is not required at this time to explain the specific inputs for that plan it's  this is what the plan could include and we will develop the specifics when it when the projects being implemented i'd turn out to the executive order for wetlands the language of the executive orders says that the agency must determine that no practicable alternative to to going action and what lens exists in the agencies did that here the the white lines order exists to ensure that the agencies consider wetlands impacts in their but it doesn't create a specific duty above and beyond what's required by nepa this critics planed a national wildlife federation be adams said five ninety one that the executive order extends a broader protective clean water act a lead analysis that section four for analysis to the extent that it's required will come later the corps is not involved at this time and the federal highway administration isn't required to make the least environmentally damaging determination so the opposing counsel says that you had to make a finding that it was not practicable to select the route with fewer impact and at instead of making that finding you only there wasn't a practical i'm with zero impact the agency determined yes that there was no practicable alternative to construction at wild lands there were a variety of project alternatives that were considered early on mass transit that wouldn't have involved wetlands impacts that they didn't meet the projects purpose and need the agency determined that each of the alternatives considered would require some impacts to wetlands but it complied with the order because it explained that that was the case and it also identified a variety of mitigation measures designed to diminish the effects to wetlands also city of dania beach is on point discussed at one thirty two thirty four and one fifty two fifty three fifty three of the executive record or the excerpts of record and also in the supplemental excerpts of record it thirty to forty and there are a variety of measures that capricious i will address briefly the animal vehicle collisions issue again the agency disclose that to travels through an area with more wildlife but it also explained that given mitigation measures that could be implemented by the two didn't need to include in the way that the crash calculations didn't need to change for this selection clearing roadside trees and brush has proven to be ineffective mitigation measure as is using fencing to direct animals to appropriate crossings and i agreed to implement those measures here i'm happy to address other issues if the court has questions but if your honor one thing i want to emphasize with the review of any i asked is that the court reviews the gas and not other documents in both the briefing and in argument there's been reference to statements by the government that are found in their record of decision in support documents this week study for instance the issue before the court is whether the environmental impact statement provides a unbiased analysis and objective analysis and as we've said we don't think it does the on the issue of the model the government says we're not conceding that the model isn't predictive of a that he too is safe if if they are still holding that position a that i don't know if the district court disagreed with them on that one but for but for good reasons for the reasons we set forth in our brief at length the as zero point three difference between these routes is something is too small of a difference to be viewed as significant given the model's constraints it's just not that accurate and it's like taking your kid's temperature and if it's ninety eight point six one day  ninety eight point seven the next day it is temperature going up or down you don't really know at that level of accuracy and we describe that in the briefing and in much more detail if the government is at hearing to the idea that as zero point three difference is statistically meaningful and i just ask you to review the briefs on that we went into that in detail on the issue of mitigation and whether there's been an adequate discussion of discussion of the effectiveness of mitigation measures is not there when you turn to the e i a s you will find the mitigation measures on a little table where they're listed and i understood them to be saying that it was necessary to discuss the well if if that is their argument then there contrary to this circuits and the supreme court's rulings in the robertson case and the supreme court which i got to argue many years ago the court announced the mitigation measures have to be discussed in the admitted the effectiveness of the mitigation measures has to be discussed the amount of detail of the discussion is going to vary depending on how important those mitigation measures are to the decision to be made and again to repeat but in the  one of the cases the government cited the okanagan highlands case the court said the impacts are forecast to be slight therefore we don't require as much detail in the discussion of the effectiveness of the mitigation and they contrasted that with the cutting mountain case where the impacts were more significant and the and this court quired a greater level of detailed analysis of the expected effectiveness and so you know it's if the government is arguing that there's the court and there where the government talked about where we have the right to balance various things safety and environmental impacts wetlands and the rest that all goes into the determination of what alternatives are practicable and that's part of the teaching of the dania beach case the court there said well because the alternative is not as safe or not as this or that it's not practicable turn it of and therefore it's taken out of the equation the agencies never made that determination about the other alternatives in this case they never said the other alternatives were not practicable and in fact in the clean water a context he said they were practicable and as the court squashed into the government indicated that the government which they government didn't answer quite clearly but i think they basically agreed that they applied the test of finding in the us and there was not a practical alternative that would not have lessened impacts in wetlands and that would have been the correct standard to apply thank you very much ron you know we appreciate the arguments