may please the court on michael harris on behalf of the appellant friends of animals as the court knows this case involves a deer management plan for the fire island national seashore off of long island and before i get to the heart of my argument i would like to just bring up the cultural the natural resources and the social objectives now two of those the cultural and the natural resources are handled very discreetly in the plan they're primarily focused on two areas within the seashore the cultural is at the w florida state while the primary and if you go back and i know the government will probably dispute this but if you go back and look at all of the record where the scientists are talking about what kind of natural resources damage is being done on the sea shore they were saying we've got protect that sunken forest and the plant does implement very discreet activities to protect both of them they're going to remove all of the deer from both locations and fence them in to make sure that those deer don't get back there don't repopulate those areas what i think is missing from what what happened below is we're not disputing with this case isn't about those two objectives this case is about the social objective which is the ongoing perceived interact unwanted i guess is a good way to put it interactions between deers and deer and humans within the dispersed communities on the west side of the island our concern is that the record doesn't support what is  scapegoating of the deer up in the eastern side of the island primarily in the oldest wilderness area there is no rational connection in the record between the decision to both hunt and  deer and achieving any of the objectives two of the objectives are taken care of through discreet action and the rd is primarily within the communities located further away on the west resides it's there are more so there is more than those two natural areas at play here there are still a number of smaller natural areas on the western side there are smaller few acres six acres that is would be a large one what i'll say is there's three things if you go back and look at  the long history of scientists looking at this with the underwood reports st of all i thought i had a simpler question and my question was are you saying that the concern for vegetation species sufficient information if there are vegetation problems associated with deer elsewhere but they uniformly agreed that there were no vegetation issues in the oldest pike wilderness area there is site after site after site from underwood to actually a citation in the nd in a disciplinary teams notes that say even at forty six dollars deer per square mile we don't see any impact on the vegetation within the wilderness area i think when you read the sets of notes from the s a t and the id t it's clear that they're focusing on an id t notes are very clear they're focusing on very specific you'll say cultural issues when for the state nach resources issues sunken forest community issues the social issues and they again and again point to the fact that the deer on the eastern end of the island are not causing an issue they have the population has remained stable for more than three decades and that that population is not causing any stress on the natural environment there in fact if you go and look at the sat s a t s and the  and thirty six again at two thousand one hundred and sixty and at twenty two or four they say if in the future we see a problem in the wilderness area we would assume that there would be some type of a new plan it may be based upon this it may follow from this but it's not what we're doing here that's not what we're looking at i thought you complaint was that they use density number for the whole seashore and not area by area it's not necessarily that they are using a density number that's not your complaint i think it's associated with that because it allows them to that's correct oh is that your complaint or isn't it our complaint is that they're taken deer from the otis pike wilderness area and there's no rational basis tied to any of those three objectives a vehicle for doing that you're concerned about some deer being being killed but in order to understand the defect in the us we need to know what that defect is it can't just be the end result it's got to be a procedural defect and i think the proceed you saw try again is the defect that they objectives to be met where they're implementing it if it's if it's a seashore wide number then it covers the whole seashore not according to the s a t s what it means to have a seashore wide number for sure but then you also have to remove gear from the community areas and this plan doesn't do that so this is the problem is and this is really clear if you look at the joint appendix on page one hundred and fifty one dollars there is no direct removal deer within the communities where the social problems  ur there is no evidence that removing deer on the eastern side of the island is going to relieve the social impacts on the western side of the island there's no connection and that's the procedure with the fact is that they have to provide a reasonable explanation of what their proposed do what they're proposing to do removing deer within the oldest pike wilderness area how that is going to achieve the objective set forth in the plan two of the objectives are mile total seashore basis right right because the numbers arbitrary but as it is it doesn't matter if it's zero as a number you don't like normally people come here and say we challenge arbitrary action are you saying is that it's ok i know we're not that is not the problem it really is the numbers not the problem and the fact that it's seashore wide is not the problem is that right the problem right the problem is is that they've chosen to you know if you go back and look at the south there is clear they'd do the i eighty when they talk about a seashore wide density level it's under the heading community social issues when they're talking about it they're talking about in point in a sea shore wide density level within the community active communities they clearly state that they have no reason to remove deer from the wilderness what you said when you said it's a sea shore wide problem focused on one area i just don't understand what those words mean well whether that whether that's true and i apologize i'm not trying to mislead the court but it's exactly what scientific advisory team was trying to look at they were trying to find a way to address these social issues and by raising you know by by placing a limitation on the deer in those communities they saw that as an avenue to at i'm again i think that they're using the seashore identity number as a vehicle in their final decision contrary to the scientific opinions of their own experts to implement this well all right if it's contrary to the experts is that i mean it shouldn't of the nun that well i don't want to be saying that i know exactly what i'm saying is contrary and there's no connection between removing deer in the east and the objective sought on the western side on a different density number for the wilderness area i don't think they're in the scientific team and the id t are clear that there doesn't need to be any removal you could set a density number but that doesn't mean there's any reason to remove deer at this point in the future maybe they might say as they said we might if there becomes a problem you want a density number for the wilderness area no we do not know and can i just say one thing that might shed a little light on this and see what you what you feel it's important that they're not removing deer in the communities even if you remove all the deer from the the wilderness area the problem here and it doesn't matter if there's twenty of them per square mile or one preschool mile this is what the id t and the south were struggling with the perceived problems with human deer interactions ten because by any number of where did the deer come from in the western communities if you removed all the deer from the communities and there are still hundreds of deer roaming the island don't new ones move in to take advantage of the free addressed by the scientists but the scientists do say on the movement issue we don't know if that's true or not the limited data that they have is that the deer are currently on the island have high sight fidelity and that is why th over and over again this is a critical data loss that we don't have to help us get the right decision is the is the government required in this kind of situation to commission new scientific studies to learn all this data no where can they act on the what is what it recognizing these are the known knowns and these are the known unknowns and we're doing the best we can with the scientific information that's available today but the answer corrected or it can't be corrected how it might affect the decision what the unknowns might be without perceiving without that data they don't do that here the district when you know that gave us a burden of showing that it was fatal and that's not the law we   can say i read through all of the notes of all of these meetings over all of the years that these folks were dealing with it and you can can you point me to like what's the best place where the there is even one  expert because i don't know that there is any report that purports to be the consensus of the scientific experts but well there where does somebody say the one thing you don't want to do is shoot deer in the report right and it says the enter just simply team has not identified problems with deer in the wilderness at j and join appendix two thousand two hundred and fifty one the wilderness area does not have an issue not part of the objectives so i don't want to quibble over the seashore wide number because the scientists were not looking at that applied in the wilderness perhaps this is simple as them seeing the wilderness area separate from where the your client's standing to challenge this plan well we're a member organization where we have is there direct injury here to the organization we know where to rely upon members or other is there injury to appeal this court should affirm the lower court's grant of summary judgment in favor of the government and its denial of summary judgment to the plaintiff because the park service is white tail deer management plan environmental impact statement and the corresponding record of decision wholly comport with nepa and the a p a going to let you go on but i want to have of course your response to the issue of standing i take it you don't disagree that friends of animals have standing to challenge the plan we do not contest that i think a national organization with members include in the eastern district of new york and from the beginning of this case have drawn inordinate attention to the social issue components of the plan when as the park service said about to deal  with the issue of deer on the island including force regeneration and the dissipation of native vegetation not only in the william floyd estate not only in the sunken forest but island what and as council has conceded the deer why density argument i'll come to two major points that they largely ignored both below and in front and before this court farland is a mandated as a sh park by congress and its enabling legislation the secretary of the interior congress mandated that hunting shall be permitted in this park and secondly that  scientific research supports the notion that a deer density greater than twenty has a negative impact on forced regeneration natural force regeneration and the park service erred on the upper end of an adaptive management strategy so that if it's finding that it's meeting its goals that it could revise the deer density number up or down on what is being what they are to observe on the ground in terms of regeneration i misunderstood something i thought congress gave the park service discretion to allow hunting here but would you just said was that it is mandated that hunting be but this park is one of those parks where if the park service determined that it needed to hunt this is a park where such activity would run so maybe they're using shall permit is the language an was not in fact hunting going on and that one of the issues that the park service was undertaking to decide is among other things whether they should allow hunt during whatever is the normal new york state hunting season in the preserves of the national seashore or is that wrong i mean have they been violating some laws some and that means of congress to the whatever extent you say hunting is allowed but they haven't had a hunt i don't know what that means a person can't just come on farland and hot there was a sanction taunt in one thousand nine hundred and nine that was challenged and front of judge pl could be would be a hunt in the area assuming the park service comports with new york state law which is what the statute provides but the park service has to make a decision as to whether it's going to allow needed in terms of resource management to have a lot this is such a park there are parks where this may not understand that and this is the process this process that we are reviewing is the process by which they make that decision among other decisions the management of wildlife yes ok wildlife vegetation that's that's again that plan of seems to focus on the social issue there are many issues covered by this plan and is the product of many many years of research study meetings it wholly comports with i say because the process that was undertaken was an interdisciplinary process as nepa mandates and the regulations mandate they did rely on a science advisory team that covered the gamut from botany to interactions between humans and dear vegetation force regeneration everything that all the resources that are that one will find if you go out to fire island was studied considered and informed this plan over many years and plaintiffs again focused strictly on for some reason that there were a problem deer with members of the with folks who might live in the communities and in fairness mr harris suggested that the social thing in the fire island communities the coat for all thing by and large at these on the mainland and and then he says and the concern for vegetation is exclusive to the sunken forest that's not true that's what i was going to ask you about and  can you cite me things the show that he's wrong bluepoint area and the talisman areas which are on the eastern portion if you will of fire island adjacent to the wilderness  best i could make out and i can't again you say i've read all of these thousands of pages of the various reports includes the scientific advisory team and so on seem to take the form mostly of minutes of telephone calls and one person will say one thing and somebody else will say another and in some cases there seem to be two different accounts of the same conference call somewhere in the record is there anything that i s there any such thing as a report of the scientific advisory team that draws conclusions and says this is our consensus and this is our recommendation there was a way when i find that there is a final report of the science advisory team and that is yes and if the one hundred go into the wilderness area well st let me give you one of those areas where there are lots of beaver right more than in the towns they are fairly equally distributed area there may be anywhere from three hundred to five hundred dollars deer on fire island as a whole you are referring to twenty six mile stretch the wilderness is about five square miles  are numbers for deer density and it has a chart and it lists the deer density perspire mile of various different areas and it gives the habitat area in square miles and it to add up all the numbers for habitat area and maybe this isn't the totality of the national park i don't know it's just under five square miles and the number of deer if you add up the number of deer that's on that chart it's about four hundred dollars so that would suggest that in this chart the density for square mile is something like eighty and indeed there are some areas like sailors even sunken far as that have one hundred and twelve  that's kind of the chart that the only track that i was able to find that summarizes this the short answer your question is that the habitat areas that's not the sum total of a fire island property i see it's snippets of particular area  are particular are the number of deer in the wilderness where a mile higher than in the populated year mean that your pens on the populated area but i sed i would submit i believe the answer is f highly populated area it's not the same that's what i'm trying to get at is that i are in the wilderness area it either is or isn't i don't think that's a hard question i think it is not you don't think i wilderness the density in the wilderness areas of last year was fifty three percent where miles and what is it in the most populated part of the sea i can't tell you what the most populated area the seashore is but one community is kismet lonely vill with your seashore wide and the hunters go into the wilderness area and they kill one hundred dollars deer in the wilderness area will that do anything to relieve the problem in the densely populated areas no no none at all and isn't that why in their brief even though they run away from it here i don't know why but in their brief they said you should have used a area density number and indeed many public comments urge that isn't that true the record supports that yes supports that and that's one of the things you decided not to do right in its discretion the park service determined to manage the entire expanse of far like that one seashore density level the reason you gave was lack of data is and that you know that's not true i'll read you this is under the topic areas specific target deer densities public comments were received suggesting that the national park service should use area specific deer density targets ok that's the st sentence then it says however the idea was  d for lack of cites pacific information that's what the report says that's what you did now maybe that's a good enough reason maybe it's not but there's no sense saying that's not why we dismissed it because the report says that's why you dismissed but i submit that there were many factors considered that's not the only one well that's the only one given in the paragraph on getting rid of areas specific target you may have been other unstated ones i think the record also supports a b that's the procedural defect to you you rejected it for unstated reasons that one consideration that can be found i can't give you the cite is that the park service didn't want to have to do an environmental impact statement for each individual segment of the park and i want no no one in this case and that no well that was a consideration as to why they might read that they rejected site specific deer density levels might be but it isn't the one they gave so don't tell me it might be the reason here anything might be the reason you're limited to the record aren't you it's in the record john it's in the record it is and  if i can find it before mr harris wraps up and make a supplemental so be sure know this that the simple thing is and submit a supplemental letter brief no more than two pages double spaced electronically by the end of  business tomorrow and mr harris will have an opportunity twenty four hours later to submit whatever he thinks is appropriate by way of response it is so ward thank you mr harris i've always been is that by doing it that way they have opened up the wilderness area to remove all of the euro high levels in numbers way beyond what hunting would be if you just did limited hunting there in order to achieve a short ride density level that has no rational connection to the objective of reducing the impacts in the communities and that is what we are really concerned about here if they would have done it through a different vehicle but still authorized the killing there's no problem in the wilderness there's no problem in the wilderness there's no problem in the wilderness this is a just like chili hunt in the us this is putting the deer in the wilderness front and center for problems that are happening elsewhere and that sh t never thought that was