my name is andrea san syria and i represent the plaintiff a problem i'd like to reserve for a minute i'd like to focus my time today on two significant agency violations that the forest service committed in connection with the idaho for wildlife predator derby first the agency violated its own regulations by failing to require special use permit for the use of forest service managed lands in connection with the derby so i can the forest service violated the national environmental policy act by failing to prepare any environmental analysis to evaluate the potential impacts of the sturdy and i just pause for a second i want to make sure i understand what is the relief that you are relief that the forest service cannot permit another derby to move forward without requiring a permanent ok so that's the first part the declaratory relief that you're seeking the derby's understand if there was one in twenty thirteen correct there  challenge just twenty fifteen durbin and then there's a one in january of two thousand and fifteen correct those are now over and there's no there's no one seeking any compensatory damages or anything like that in this case correct correct so how do we have article three standing we'll get to the injunctive relief here in a second but on a declaratory relief how do we have article three standing in a sense too a pine that these derb from a few years ago were illegal if normal we have to redress an actual injury and so so what injury are we we dressing if we were to go your way in this case sure so first i'd like to there would be an actual damage award that we were reviewing but if it's just i think an agency violated the law normally that's not good enough for us we have to actually have an injury we can redress and i say this because the supreme court is has  in the environmental cases on article three and i want to make sure that we're in good standing here yeah so there is effective relief that can be granted in this case i think declaratory relief that the forest service violated the permit in permit with terms and conditions that could you know mitigate the harm caused by the previous star because this this case is also falls under the myths acception for capable of repetition yet evading has is there anything in the record that i want you to get back to your presentation but is there anything in the record suggesting that there is going to be a no other derby well there are a few things in the record your honor  executive director submitted declaration to the district court and in that he said i do hope for wildlife has not yet determined whether it will hold another derby which implies there would be a possible future derby idaho  minute and you know even if i had a hope for wildlife for some reason doesn't hold another future derby other sponsors might hold derby use in idaho and i would point you to alaska center for the environment f complying with nepa and the in that case the specific permit he could not apply for another permanent but the court found the case was not moot medicine ninth circuit case because the other guy could still apply you so i'd like to start with discussing the plain language of of the regulations because i think that really is where this case hinges plain language says that especially use authorization is not required for noncommercial recreation such as hunting and less the proposed use is a noncommercial group use so notably here the forest service could have exempted hunting from the purpose requirement s but it didn't do that instead it expressly included hunting as an activity that may require a permit if it is group use group uses further defined as an activity conducted on national forest system lambs that involves a group of seventy five or more people you participate or spectators this language is clear and unambiguous they require nothing more than a group of seventy five or more using forest service managed lands for the permitting requirements to kick in the forest service here intentionally chose a numerical threshold to determine when a permit is required describing it in the preamble to the final rule of purely objective non discretionary the fairest and most objective standard i don't hope for wildlife application requests to be used for a service lands for up to one hundred fifty to two hundred people to participate in the sturdy that's clearly constitutes group use under the plain language of the regulations my concern is the you the regulation actually talks about use of a certain area so the plain language actually just says national forest system lands there are some areas in the preamble but talk about use of an area but the regulation itself only says national forest system land but yeah i mean if you want to talk about you know congregating in a certain area i think that you know in the preamble this might be what you're referencing your honor is the forest  service state that the rule will apply to a group of seventy four seventy five or more people that request to camp in the same area even if they intend to camp far apart from each other but derby participants actually spencer they're going to be staying close to salmon they're hunting in the winter there's not a lot of daylight hours they have to be back at six o'clock to check in their their animals that they've they've killed so i think it's a practical matter there are going to be congregated but importantly i think congregation is not stated requirement in the plain language of the rule and for good reason i think a congregation requirement would be almost impossible to implement consistently one would ask how close two participants have to be to each other do they have to be fifty you know within each other thousand feet you know this is the reason that the forest service chose and numerical threshold which is subjective and is easy to implement consistently and that's why the forest service chose that determine when a permit i required so requiring a permit for the derby is also consistent with the purpose of the regulations here the forest service could implement terms and conditions to allocate recreational use protect public safety and prevent adverse impacts impacts to the forest service all of which are implicated here so for example the forest service could you know suggest that derby participants avoid certain areas where there's you know maybe a family reunion or a dog show taking place to protect public safety they could simply ask idaho for wildlife to post signs in the forest so that people visiting the forest know that th occurring right now there is no public notice to the service or to the public so that the forest service their interpretation would have there would be public notice and a permit for a girl scouts c religious gathering that has seventy five or more people but no public notice for this derby that could potentially have more impacts to other recreational users and public safety then i would argue the girl scout camp  at like to also talk about the national environmental policy act a little bit requires that agencies prepare an environmental impact statement problem major federal action significantly affecting the quality of the human environment  council on environmental quality regulation specifically state that actions approved by permit generally do constitute a major federal action requiring compliance with me in the forest  issuing a permit for this derby it prepared an environmental assessment to comply with me but i think the forest service should do the same here and i would like to reserve the rest of my time for a bottle very well good morning your honor and may please the court my name is christine england i mean assistant u s attorney with the district of idaho here on behalf of the government i'd like to start with the issues concerning just disability and then move on to the merits today as your hono pointed out the last derby was held in january of two thousand and fifteen that means we've gone through three seasons with no other no other derby of this event proposed by by any group that we're aware of and no organization has suggested to the forest service that they would hold another one and so because of that plaintiff's challenge to these former derbies the one in january of twenty fifteen and in december of twenty thirteen are moot and any request for future relief is simply on because there is no current proposal before the forest service to consider a future derby this is how it is the how did the parties ever get a resolution of this issue because you know the organization files a lawsuit in whatever goes away one way or the other and then there's an appeal and it's moot because there's not going to be another derby that's least not on anybody's schedule problem well so let me take that into parts i guess first i think it is possible to obtain review in the plaintiff's did with the first derby they have they filed a motion for a temporary restraining order they had that motion heard and they chose not to appeal so i think that there was the opportunity there to have the issue reviewed before and the derby was held and before with an actual proposal in front of the forest service in terms of having these issues resolved i think for all the reasons that the court chooses to determine or by the constitution hears live controversies it makes more sense to hear a case on an actual proposal where the court knows what's being proposed to the forest service because the facts facts matter when the forest service receives an application or receives a proposal of some time it has to consider the specific facts proposed by that organization to determine whether it falls within its regulations and here or there to the twenty thirteen derby your honor this group filed a motion for a temporary restraining order and her and had that motion heard and decided by the district court before the tw derby and they elected not to appeal that denial of the temporary restraining order in twenty fifteen the group did file suit before the twenty fifteen derby i believe they filed in november of tw but elected not to seek of a preliminary injunction or other initial relief and so did not obtain review before the twenty fi were able to or obtain review for the twenty thirteen derby and chose not to for this for the twenty fifteen derby as i explained they don't understand why that's relevant i mean so they  right exactly they did they they filed suit it with time to seek a preliminary injunction and potentially seek appellate review but chose not to so how does that there on the legal issue i think that shows that the boat with respect to both prior derby's they were capable of obtaining review so if in some future year which at this point would be unpredictable by anyone someone proposes some similar event the plaintiffs or whoever might wish to challenge it in that case would have time to obtain  it would really depend on the facts of the case so here with respect to the twenty fifteen derby the the applicant i hope for wildlife submitted a permit application in august of two thousand and fourteen and so and the forest service determined that no permit was required also in august of two thousand and fourteen so it would be possible that if put it plaintiffs are and again any group wishing to challenge it could have challenged it sooner and could have obtained review on not a preliminary basis but again it really it's just so dependent on what the facts of a future event would look like that i can't say for sure for sure and i think that that's exactly why this case presents these just disability issues and and as judge owens pointed out at the district court we framed it as a standing issue because of the problems with progress ability and here we're looking at the same thing from a moon a center right in this perspective because we just don't have something we're looking at and having a wedding in the forest that day and all of this and a bunch of guys and t v s and guns come running through it ruined our wedding day we want compensatory damages for that then that would be that would take it out of this move this problem well yes yes and it would certainly be redress of all because there would still be alive controversy in front of the court to answer which is which we just don't have here now did any party or i guess it wouldn't be the government here but did the plaintiffs in this case that they seek any type of stay pending appeal with the district court no not in either the twenty thirteen or the twenty fifteen in the twenty thirteen they didn't seek an appeal at all and then twenty fifteen the derby had taken place by the time the district court issue an order i believe the district court's decision was in january of two thousand and seventeen and the last or be again was in january of twenty fifteen if if there are no further questions regarding to civility i'll  that it's as well as i can as well in that that executive director for idaho for wildlife submitted a declaration in the district court that they have no plans for a future derby that sort of leaves open it it could happen and it could not it again if there are no questions regarding just justice civility i'll move on to the merits  here the forest service here determined in response to the twenty fourteen application that the idaho for wildlife the applicant was not seeking a use of forest service land and so its regulations did not participants were not using the forest participants are not paying organizers to go on to the national forest to hunt and organizers are not offering equipment or services to facilitate hunting on the national forest participants in the derby may hunt anywhere they wish they are not limited to an area of national forests system land nor are they being specifically invited to an area of national forest system land and that's in the excerpts of record at one fifty five in class reply they said well the fact that i don't for wildlife submit an application assumes this use but i think that you have to look at the application that i hope for wildlife submitted to consider the use question and if you look at the application and that's an excerpt at one forty six when ask for the location and description of national forest system lands and facilities that the applicant would like to use i don't for wildlife replied not a political because they weren't planning to use any specific forest service land and when in the operating plan what how many acres of the national forest would be would be used and that's in the excerpts of record at one forty nine they responded that none would be needed so even based on that's why based on the application the forest service determined that what this applicant was proposing was not a use of forest service lands and did not implicate did not implicate the forest services regulations if the court determined that there was in fact a use and that this application did seek a use of national forest system lands derby organizers here did not propose a group use because there was no group using the forest just individual hunters as the center siri recited the definition for for group use of the forest is an activity conducted on national forest system lands that involves a group of seventy five or more people and the problem with plaintiff's interpretation is they were read that reword out of the regulation they just say it an activity with seventy five or more people but that's not what it says it says involving a group of seventy five or more people and the forest service has reasonably interpreted that term to require some sort of concentration or congregation that is reflected both in the chief of the forest services explanation in the excerpts of record and at one twenty seven and in the federal register that you pointed to judge lefkow and this interpretation is is entitled to substantial deference this is an would because it's an interpretation of their own regulation it would be our deference but i think not not only not only is that interpretation here earth would you would you enforce that without some sort of congregation or concentration are you going to stop individual forest users and say hey wait a minute you have a gun are you are you hunting with this group or not with this group or hey wait a minute you have a patch on your shoulder that says idaho for wildlife are you participating in this contest it requires the sort of arbitrary enforcement of it harassing individual forest users potentially based on what they're doing and so the concentration interpretation is again not only a reasonable use which is reasonable interpretation which is all that's required but here it's the best interpretation and with that if the court has no further questions on the merits to go back and address mootness just one more time to make sure we're clear where we stand on this you know this case is absolutely capable of repetition and yet evading review and i pointed to a few places in the record where i don't hope for wildlife to executive director stated that they might or might not hold the other derby in the future they haven't decided yet but i also like to point you to a news article that we submitted and asked for judicial notice and you know this and other courts have taken a more liberal view of permitting discovery or extra record evidence w considering jurisdiction of the case so i think it's appropriate to look at this news article and that is exhibit a to documentary thirty seven and in this news article just  months after the district court decided in defendant's favor i do hope for wildlife executive director stated that because they had won and district court he was considering future derby on forest service land in idaho is very likely and i think it's also important to point out that if this court finds that no permit is required and  warranted and not necessary then in the future we're unlikely we're unlikely to have any agency action you know derby contestants and organizers will not apply for a permit from the forest service because they will be under the impression going forward they don't need one we won't have any agency action and the public will have absolutely no notice reading into the plain language of this regulation the forest service chose the numerical pressure of seventy five or more people and that is all that is required and i think it's important to point out that the forest service included hunting as an activity that needs a permit if there is group use so if this is a group use hunting i don't know what is so with that i would ask that this court reversed the district court's summary judgment order in favor of defendants and grant relief to plaintiffs may be appropriate thank you counsel thank you to both of you for your briefing in arguing this case this matter