it please the court i'm jennifer best on behalf of friends of animals i would like to reserve two minutes for rebuttal will have to help you directly think this case challenges permits that negatively affect barred owls and spotted owls in an area of energy wind federal state and private lands specifically the federal government approved an experiment on federal land to study the feasibility of killing bar dowels to open up habitat for threatened northern spotted owl let me just get right to the issue that i would like you to address because we're talking here about standing and i definitely just you know speaking for myself i think there in the two areas i had some difficulty not with the coast ranges area but with the klamath area and there's only one declaration about that if i am not mistaken and the declaration seems pretty nonspecific it's in sharp contrast to the discussion of coast range where she says i been to this campground and i've stayed here and it struck me in particular that it talks about traveling across douglas county taking her through the study area and if you look at the map high five goes through the study area and across douglas county so i mean it's so nonspecific she doesn't even say she stops there or  i just have difficulty seeing that with respect to the klamath area its official only particular artist could you respond to that yes your honor she does say that she has new numerous tram travels for camping and for hiking and bird watching so she does say that she stops and goes in the air you know she doesn't she says she travels across douglas county for camping and hiking and it's taken her through the area it's seems very carefully worded to avoid saying she actually has spent any time in those areas and particularly when you come contrast it with the way that she describes her visits to the other well ya know i believe what was intended when she said she travels through for campi hiking was that she camps and hikes in that area should also never save it also your honor if to help explain what's going on in this area if you look at the actual maps in this area for example in the supplement of the record  page nine you'll see that it is very checkerboard throughout the entire study area the fish and wildlife service explain that the parcels of land are sometimes less than one square mile might be cover both federal private and state land so she basically explained that she goes through these areas is showing that she is going to private state and federal when the fish and wildlife service also explain that the entire purpose of this experiment w within the area yeah right and i was getting at is that she travels there to camp and hike in the area and going through the area and seeing that she has an interest in a specific area is sufficient to establish standing when areas so intertwined and when they're killing bar dowels throughout the entire area and in fact the th circuit previously turman that mrs ducker in fact did have sufficient interest in these areas to sufficient and one of those was miss sucker correct but that was focused on bar or barred owls that are much more prevalent right now we're looking at the permits and whether she has standing to object to those to clarify this the standing here is still her interest in both barred out based on her interests in both bar dowels and spotted that the only permit only affects the barred hours that are living on the lands that otherwise the government couldn't get when and when she was there and i plan to visit these areas next summer and the campgrounds and so on and the contrast between that and the very in passing declaration about the klamath area seems to suggest with wish she doesn't say she stops she says she goes through it for hiking and camping but the hiking camping could be somewhere else entirely that it probably is o the klamath area which is drive thru it someplace or other with all due respect you're on to the case here does challenge five separate permits and four of those permits are occurring in the organ coast range study there where she is much more specific and a larger portion of the area does occur in the organ coast but when you don't care what you know i just want to clarify in theory it is possible that she has standing with respect to the coastal area and not klamath or vice versa depending on what so it isn't an all or nothing proposition am i right about that correct runner in theory it's not all or nothing she could have standing with respect to for permits and not however as i mentioned earlier this th circuit already determined that her interest was sufficient in both study areas to establish standing with the identical declaration or do we know the answer to  i believe they were similar but i cannot for sure say if they were the identical declaration that declaration was submitted before their argument to this would be number one we did look at it and it wasn't just that the government didn't contest it it's that the court specifically said we satisfied ourself number one number two there isn't a law that requires a citizen who enjoys things a birder to ever pinpoint the precise error especially in a case where fly and they fly along way so that assembly of facts is your argument she's shown sufficient injury to be able to make her argument exactly or on a she has shown sufficient injury difficulty the does district court had its focus was not on concreteness i don't think its focus was on these  theoretical owls that may come in the future in fact the whole thing is an experiment so therefore it's contingent it has to be not impending you lose well there's two issues that i'd like to point out there st of all what was overlooked by the district court is that it's not there radical at all that they will be killing bart owls on these permit areas that is imminent and that was never disputed by the fish and wildlife service or by the district court and overlooked that as soon as these permits issues  wildlife started shooting the barge out and it continues to shoot us today about if suppose we found standing on that basis i mean don't you then lose the merits automatically because you've already lost the merits with regard to killing the ba confusing the marriage and standing which are slightly separate for example the supreme court said in bennett vs speer that one doesn't have to have an interest in a specific endangered animals to have standing under the endangered species act in that case the plaintiffs weren't interested in any animals at all they had economic interests and water so you're telling me that if we concluded that her only standing was her concern for bar towels that the rest of this merits case could go on even though it's really about spot and l's yes your honor the stand he is her all that is required for standing is that the plaintiffs show a sufficient interest in the affected area or animal that is injured by defendant's conduct that met here but by both their interest in bar towels and spotted owls which each are sufficient to establish standing but if you are concerned about the interest in spotted owl she also sufficiently demonstrates an interest in spotted owls to demonstrate standing i'd like to talk a little bit about that defendants kind of indicate that there's a very high burden for standing up there you know you have to be a little literary certain that the harm will come about but that's not the standard articulated by the supreme court or the th circuit in fact  supreme court said that it does not require plaintiffs to demonstrate there is certainly certain that the harms they will come about and it mentions that there is also a significant risk standard this has been affirmed by the supreme court in susan b anthony and also by this circuit when it saying that if there is a significant risk that the harm will come about that is sufficient to show standing here it's not disputed that the permanent tease will actually take would be likely to take spotted owls it's enough to meet that significant risk or credible threat notably it is not the highly speculative fear a highly attenuated chain of possibilities that was discussed in clapper rather fish and wildlife service admits the entire purpose of these is they think that spotted owls will in fact be taken and their habitat will be permanently destroyed and it emits in its answer that this is likely this is exactly the significant risk or the credible threat that the th circuit and the supreme court have how that is sufficient to establish standing there for our members who have an interest in both our species either one is sufficient to show standing but both is is more than sufficient to show that they do have standing to question  standing we should reach the merits or not reach there's here's your own it is the discretion of the court to reach the merits you know that that's what yes we think they are they are fully briefed and we are concerned that ours are being that is why we didn't brief it in our opening brief and we kind of understand if the court were to remain on it to fully address those and i was going to mention one second until i just asked them well they're rather complicated questions i interest it's a very arcane issue about a specific category of the essay problem about this particular kind of permit and so on which i wish i'd never seen before and i don't know there's any case law yes your honor if they do not have sufficient briefing in front of them and we would ask them to mandate back to the district court but it is i realize i'm running out of time it is a fairly straightforward issue i would like to get to the merits if i had time you know saying that they completely disregarded the requirement that there be and that conservation morning your honour's may please the court my name is rachel heron on behalf of the u s fish and wildlife service with the court's permission i'd like to just start by clarifying what's at issue in this appeal and what is not what's not at issue in this appeal is  experiment it's that experiment which is drawing down the population of bart aus throughout these very large study areas that the plaintiffs say they have visited what's also not at issue here is the underlying recovery plan for the northern spotted owl mean i don't understand that at all because without these permits you can't kill the barbells on the private land correct ok so she likes to look at bard she's had a whole well your honor i think this is the issue without these permits the service can't access that private land and killed the barge how while it's on that land that is accurate and they fly they had the campground within their flying range she likes to see those out however the campground that she is on on federal land the owls are also subject to take when they are on you know i'm just like talking about the ones that the government wants to go and shoot that they can't otherwise shoot that's a now she w then these permits were point there's obviously a reason why they want to shoot these fardels there and not wait for them to fly there one of them being they may not fly there certainly honor there is no question that it is easier it makes the as stated in the record several times more efficient shortens the potential duration of this experiment which under their coverage plan is urgently needed these results are supposed to be injured c is trying to get them as quickly as possible so being able to access this i'm just we're focusing on whether she has an injury or not yes and so i think the issue then if the concern as you stated is being able to see these barbells on these particular  plots of land assuming that you know the service wouldn't be able to get to them in some other way if we assume that that's true the issue is whether they've in fact shown that their members are going to these plots of land well they surely have shown that it seems to me with me that your argument requires considerably more certainty than the standing cases require with respect to the coast range well your honor i certainly agree with the that the coast range is the much harder  case in terms of the year sorry yes i think with that with regard to klamath there's nothing at all close to that kind of specificity and i agree with you that it is a very specific showing that we are saying is required here date the plaintiff has said that she has at these campgrounds that are either a half mile or a mile and a half away the issue is that she is not specifically said that while she is a mile or a mile and a half away that she is actually either going to those very close by lands or that she is observing the wildlife certainly it can mean these are if as you just say they they they fly and they certainly fly a mile well that's correct i can fly but i think then we run into the issue that was discussed before that if they fly onto federal land they are subject to take on that federal to removal excuse me on that federal land if there are if they're being killed on this land that's a mile away then they're not going to fly a mile because we're going to be dead that's true your honor but if they end she also specifically says that part of what she enjoys bird else and search for northern spotted owls i don't know how much more specific you can get them well i think that the greater specificity would be some were referenced to these particular parcels rather than reference to locations as we've said the other declaration from mr harris we have said that this court should give little weight for separate reasons but he does point out specific and we don't dispute that he's mentioned specific parcels that are which are don't have that in front of me right now but i would just to clarify on this issue of the one thousand nine hundred and fifty eight case and it means we don't dispute for the purposes of this appeal the question of whether he was competent to testify o question the issue raised here is given that the testimony is in how much weight does that testimony receive the night damping purposes if we have to take it as true and he is a competent witness he visited these areas you just said he visited these rare areas so what discounting we're supposed to pretend that he didn't visit them i don't even understand what it means to discount in this context well i think it's not like three people said the light was green and he's one of three who said the light was red where you have to balance something this is that's a jury confusion issue the jury's told well this person has interest you can take that into consideration when you have a percipient witness who's a lawyer that's involved but with as with this issue of jury issues whether this rule turns on the presence of the jury that rule is not come consistent with the one thousand nine hundred and fifty eight law you case from this court which in fact dealt with testimony that was given to a tribunal without any jury present and still the fact testimony from the lawyer was discounted so what what is your other theory for certainly your honor the other issue with mr harris his testimony  is that it refers to visiting these particular sites in years after the complaint was filed and come standing as assessed at the time of the complaint there was then a supplemental declaration filed in which mr harris said that he had forms the intent to go earlier in the process of deciding they were going to bring that case but then further says that didn't actually take that year in two thousand and seventeen which was the year that it was planned so if  we don't have to reach any of these issues about mr harris because he did not support anything with the climate study or if that is correct your honor you what's your thought on the earlier footnote it involved correct but we don't know what her affidavit said that's correct i think the bigger issue here is that the challenge in that earlier case was not to these particular permits it was with regard to the experiment which affects the entire study area and the government didn't challenge in that case that she had said that she was in that study area exactly here you know if i think the standing case with regard to climate certainly and even with regard to the oregon coast ranges it would be a closer question certainly for standing if what they were challenging here was the experiment as a whole but i'm a little surprised that you're spending all your time in this as opposed to the immediacy question which seems to me to have a little more feet although i'm not sure i totally buy it but at least it's so what you would say but that certainly your honor so i think that judge akin correctly found that with regard to the northern spotted owl which is the species that's driving the merits claims here as the courts pointed out at the time of the complaint the plaintiffs offered only speculative theories as to whether there would be northern spotted owls in these particular fardels from the treatment areas are likely to result in some currently unoccupied sites or areas outside of historic sites becoming occupied by spouse i mean that's the whole premise of yes it is it is the hope of the experiment likely and that's certainly hoped for that there will be some hours that do come into the study northern spotted owls that do occupy these current these areas that were unoccupied at the time as a result of this experiment the issue is in tracing it to these particular locations that are within these parcel areas and then specifically within the locations in those parcel areas that the plaintiffs have been here in environmental cases generally army always dealing with a risk problem it's never that maybe no grizzly pair is really going to be affected at all and doesn't seem to bother anybody in any of these cases the there's never been a notion that you have to prove that a grizzly bear is actually going to be affected before you can go forward i agree i don't we're not arguing here that they need to show a certainty i think that the cases that discuss credible threat and risk the appropriate line that you can see between them in a case like for example clapper is whether all of the sort of necessary links in the chain of causation have already occurred but for the injury isn't an environmental case you know it's also a case in which something actually happened we just don't know what it is your honor i agree with the fact that this case is not on ressources so i don't think clapper is particularly helpful it seems to me we should look at the environmental cases where you're always projecting the future always and the going to return i do want to be clear to the court that based on some preliminary findings that have come out that i've become aware of since the complaint was filed there may be some good news the experiment may be drawing some s of these locations but the question was the judge akin had was at the time of standing had they shown that it was sufficiently imminent the risk and she found that there was this gap in the causal chain that i think rare though there are cases that say oh we've got scientific evidence this predicting it is just future but it is scientifically predictive that's why we're doing it most of those cases involve human intercession where the causal link has to be this person w ill do something and we just don't know what people do but here it's a scientific prediction that's and now you're being commendably frank it's working they're coming back well i don't want to overstate me available information but there are maybe some signs of that yes and i take the point that that is different between sort of scientific prediction but i would point out as well that the reason that this experiment is going on is because there is considerable uncertainty about what the effect will be if the agency was you know quite certain that this was going to result in a boon for the northern spotted owl population it wouldn't have been necessary to do this as an experiment st and i can't emphasize on that we know that barbells are going to get killed that's correct that bartle's there is sufficient right to the issue there with bartels as we've said is not a and imminence issue it's a causation issue with regard to whether it is the experiment itself or these permits that are causing the specific harm and i would agree that there is a question with regard to a disconnect between that barred owl potential harm to the extent this court deems it sufficient and the m said i don't know how that plays out but it's certainly certainly your honor the only other points that i would make to your honor as i see my time is running out is that st to the extent that this court deems that there is sufficient standing with regard to the oregon coast ranges we think that any further consideration of the marriage should be limited to oregon coast ranges we think that at the very least we do not have the kind of specificity with regard to the klamath permit that would be sufficient to carry forward on the merits and with regard to the court's question of whether it should address the merits while we did reach the merits and we certainly agree that the court has that discretion the united states would understand if this court would prefer to send it back to the district court to let the district court make an actual finding on those issues in the st instance thank you counsel that's why i ask you have remaining time next paragraph she explains that during these visits she enjoys viewing wildlife including viewing bar dowels and searching for northern spotted owls and she explains and her visits to both areas she do views wildlife and looks at both owls therefore she does explain that she is stopping in viewing wildlife when she's going through the calamity study area and that's on paragraph seven of miss suckers declaration next i would also like to talk a little bit quickly about how this there is standing based on plaintiff's interests in bar dowels and also in spotted owls regarding bar dowels as the court has identified environmental cases they court has never required and search indeed at the harm will occur and here fish wildlife service itself admitted that this was likely notably this is these permits are ten to thirteen years long so it was very likely never very credible threat that they will in fact take spotted owl habitat an really about to happen at primarily right is that when they're going to just dry the habitat after the birds were gone after nesting well i noticed my time is now but i would like to answer your question yes it is about yes the destruction of habitat and also the ability to take the spotted owls while they're not nesting both are issue and notably the permits do not require any waiting time they allow far to also i assume you said taking spotted owl they authorize them to take spotted out when they're not nesting correct there they're killing both owls under this permit and there is no waiting period under the permit they can destroy the spotted owl habitat and take spotted a hot spot it out was immediately the most actually authorized the killing of the