if i may reserve two minutes for about all her thank you the issue on appeal is whether it was arbitrary and capricious for the department of defense to determine under section four hundred and two of the national historic alternative ground for from it's cracked and the reason why they may not is that this circuit has a rule of practice called the cross appeal rule in which a party may not raise an argument that affects the rights of the parties without noticing a cross really across respectfully we would disagree with that because you think it's across the people that i've got your position i don't want to come up more tough to correct that defendant's argument would diminish plaintiff's rights because there's the information forcing benefit of the statute that comes out of consultation and they would be precluded from suing under section four o two in the future for the just records and it just records opinion is is not presidential be on engage in meaningful consultation so but even if the court were to consider their arguments this court should affirm the district court's two thousand and five ruling that section four or two applies to that you indisputably a cultural property on japan's historical register and that historical register is the equivalent of its u s counterpart the section for two applies to quote a property that is on the world heritage list or on the a political country's equivalent of the national register so to understand okinawa do is there and the japanese equivalency that is correct your honor so to understand of section four hundred and two applies to that you gong that district court correctly noted that both the text and purpose of the statute clearly point to comparing the equivalence of the us and japanese registries rather than comparing the do going to individual properties on the us list here in this case the two registers are equivalent for all the reasons the district court lays out accept of record one of three through one hundred and eight they share similar motives share similar goals and generally pertain to similar types of property they are broadly equivalent in their purposes in this appeal the department of defense argues that while section four o two does not apply because the do gong is not similar to an object significant in american history but the court need not engage in this analysis as the district court properly pointed out the focus is on a property's actual inclusion on a foreign registry and whether that registry is the equivalent of its us counterpart and also the government gave up that on japan's historical registry we agree with the district court's reason that that ship japanese registry is the equivalent of its us counterpart and therefore section forty two applies on the question of whether the department of defense complied with section four  two just to highlight here the text of the statute requires the department of defense to quote take into account the effect of the undertaking and the department of defense noted that affect has both a biological and cultural component there is one source in the record on cultural effect and that is the watch report and here is what the watch report does and does not do the watch report interviews sixteen individuals about gongs historical significance never informing the individuals that the purpose is to understand how construction or operation of this facility will affect the do go wrong and the summaries of the transcripts show the department of defense never discussed the few tema replacement facility with these individuals at all the watch report then goes on after a literature review and visits to some local museums to conclude that there would be little direct  cultural effect on that you gong in arriving at this conclusion the agency has failed to take into account the view of the host nation or relevant organizations or individuals and the district court points out that this is quote a weakness in the take into account process the japanese environmental assessment which the district court points to as a way to cure this weakness is insufficient as it contains no one's views on cultural effects in the department of defense's own words the japanese environmental assessment was quote not expected to address the facts on cultural resources and a manner that this court has determined as required by the defendants to comply with section four hundred and two and this expectation bears out if you look to the department of defense's two thousand and fourteen findings and their discussion of cultural effects the site they don't cite the environmental assessment and they don't cite cultural affected terminations never took into account the views of anyone other then than their own experts i thought they were on your list some of those experts that is correct your honor two of them were on our list and they are two of the sixteen and just requiring the department of defense to consult specifically with plaintiffs to remedy this to if you ask before you finish can i just ask you a question is there anything in the record the explains what they would have said had they submitted declarations showing that they provide cultural tours in the areas around the base and that that this construction operation is making it more difficult to do those tours and the that have an impact on tour on the ability of the viewer and as we stated in our reply brief one of the fall outs of this is that it's making it harder to pass on the do gangs cultural significance to younger generations and if i may just briefly know this is an important question that came up in our two thousand and seventeen appeal and there this court stated in the context of redress ability that it would it would be improper to prejudge the outcome of  would argue that the department defense's position that we can't offer any information that would change their mind prejudge is improperly the outcome of consultation and devalues the meaning engaging in that consultation in the st place so although there are none it is one of the things that struck me when i was reading about this case there are no regulations here is that right there are no regulations on section four hundred and two the district court in two thousand and eight found that there must be though some minimum requirements what does take into account mean right and i would like to just highlight that in the department of defense's brief they do not challenge the two thousand and eight order saying that there should be some minimum requirements here and those minimum requirements are the following that the district court found that the agency must gather and collect information on the effects of the military facility and cooperative partnership with the host nation rather than organizations and individuals which they did not do by failing to engage affected individuals such as plaintiffs they fail to meet even these minimum requirements of the statu and judge patel in the two thousand and eight order arrived at these minimum requirements by engaging in some standard statutory analysis she compared identical language in section four hundred and two with language in one of six which is the take into account as the department of defense states in its own brief similar language or identical language in a statute should be given similar meaning so that's exactly what judge patel did here to find that ok the agency should at least collect information on a fact with the host nation in effect and individuals here the department defense's own experts stated or advised consulting with individuals such as plaintiffs because otherwise their process would be quote really weak  account process until it was over and its findings were complete and two thousand and fourteen well there's no notice requirement for which there is no notice requirement however we would argue that under judge patel's two thousand and eight order which the department defense is not if i understand them correctly to be disputing then they should at least engage plaintiffs give them a chance to comment or or somehow somehow provide their views the i mean these are the folks who are for whom the doing is partially  rests on one key assumption and that is the extremely low probability of gong being in the area of potential effect the department of defense and the district court state that the department defense has a valid data for this he assumption i see i'm running out of arises in the context environmental cases i mean this isn't really a pure environmental case it's not purely environmental case your honor that's correct but as this court stated in oregon natural desert association deference to an agency does not excuse it from ensuring the accuracy and integrity of its analysis so where the department defenses experts are stating that the there is no studies on quote the numbers of view gone using the food tema replacement facility area it is impossible to  s kind of assessment that there are very few do belong in the area that that that there's just no basis for that i mean that is there is there any evidence in the record that suggests this is a you know this is a place where they d don't have the studies to actually know either three to fifty do gone that are remaining and alive using this area with any frequency they don't have the studies to do that i see i'm out of time ok i'll give you a minute or two for we both think you may please the court good morning your honour's johnson also for the department of defense if you're honest we asked this court to affirm the district court's ruling for two reasons st video d conducted an extensive review of the impacts of the food tema replacement facility on the do gong and ways to mitigate those impacts the review was more than sufficient to meet the modest standard of section four hundred and two each of the national historic preservation act and secondly and more fundamentally section four hundred and two does not apply to the circumstances of this case your honest st let me just briefly say that we did not need to cross appeal to raise both of these questions the rule is the bedrock rule of an appeal is you can defend on any grounds defend the judgment on any grounds or argue below the judgment in this case was a two thousand and eighteen judgment that was entirely in favor of the united states and to i just wanted to make sure that i addressed just jack's question about the two thousand and fifteen  judgment that the plaintiffs don't argue here that we had to raise this barrett's issue in two thousand they're saying simply we had to cross appeal from the two thousand and eighteen judgement which was entirely in our favor as the bedrock rule applies in of course when this court decided the two thousand and fifteen decision they dropped the footnote and they explained it was a jurisdictional case in the merits issues really weren't properly present there now we are at the merits of issues this was a rationale that was provided or that was argued below that i 's discretionary with the court if the court finds this is the kind of case that we should have cross appealed on we don't even get to that this question or question but if you get there on your odds for whatever reason we think these these issues are interrelated there was no prejudice to the  countries acquittal and of the national register and of course the national register is a national register of historic places which are broken down by our statute in two districts cites buildings structures and objects all places now what japan's list is is something more than that it includes buildings and structures and places but it also includes plans includes animals it includes books it includes calligraphy includes manners it includes music it includes a little whole bunch of things that we would not considered to be property under the n h p a they're not places so the two lists are not equivalent so what pl say you have to do is you have to take the entirety of the list even though the list are an equivalent but we say that would read the term equivalent out of the statute another way you might look at it you can say well japan doesn't have an equivalent list so none of the items on japan's list included even the places now we don't think that makes any sense because obviously japan does have some items on their list that correspond to our lists we simply say that the reasonable way of reading the plain language of the statute is you take our list of  places to define you know what the statutes about and then you take japan's a list of places right everything on japan's list that's a place corresponds with our list and that is japan's equivalent of our national register of historic places now in saying that you're honest we're not saying now we're imposing some sort of american values on what japan can put on their list right we're just saying they have to be places as well we have criteria that we use for our national register of historic places that apply to the places on our list japan may have their own criteria that are very different than our criteria but we're just saying for purposes of the statute it's a statute about culturally and historically important imposes a burden right on the agency to conduct what the plaintiffs would have us do is essentially and i think this goes to a question that just by a thread that asked sort of you know the n e p is not really an environmental statute but to get a real indication of what kind of impact you're having on a species as opposed to a fixed place it raises a whole host of questions that you know for example if you're honest or familiar with the  species act in the in the obligations that that act imposes on agencies in order to determine you know viability of a population whether a populations actually a separate population a sub population the opposition is as a whole you know whatever the baseline numbers for the population all the sorts of things they're asking us to do in this case are very stringent sorts of standards that if they're applied in the context of section four to either a terrifically increase the burden on at least as the plaintiffs would have the statute applied on united states agencies and of course we have our own endangered species act and we have our own marine mammal protection act the plan is hard relying on those acts because those acts they understand do not apply in the territorial waters of japan and what the plaintiffs are asking us to do is to take a and we're dealing with species and that kind of evaluation is just not readily done under the standards that ordinarily apply to you know the terminations of adverse impacts on places  if the court is interested in in the issues about compliance because there's there's an equally important statutory question there as well plaintiff's counsel stated that the united states does not dispute simply not true and so let me clarify what we're trying to say here is just by as pointed out i believe is this is a statute that has a very few words it says take into account you know adverse impacts and that's pretty much it there's no doesn't apply what i'm saying is if the court accept the notion that the statute doesn't apply right the court has to understand that the statutory requirement is very limited or very modest i guess is perhaps a better way  put it because it's simply that the language of the statute is all you have the plaintiff's theory and the district courts theory is that because the domestic counterpart right of section four ought to be contains the same three words take into account that somehow  need to incorporate all of the consultation and public notice requirements of the domestic requirements but that's just not correct or honest because there's a fundamental distinction between section four a to b and section one hundred and six which governs the domestic  preservation the opportunity to comment and then there's a separate set of rules that governs the advisory council and those rules say the advisory council must include local agencies when they do their comedy process and it  that the advisory council may generate regulations to govern their involvement in this process that is the involvement of the advisory council so the advisory council has gone off and probably gave it a whole bunch of rules to govern that you have to comply with including rules about contacting local agencies and public participation but that all comes from the mandate in the statute in section one hundred and six that says you must allow the advisory council to comment that doesn't come from the plain meaning of three words take into account right to take into account simply means to consider and what we submit to this court is the department of defense reasonably may consider the effects of the few tema replacement facility on public proceeding locally in japan and we also submit your honor says that there's a fundamental reason why right statute has the requirement in the local context and not in the international context and that is because it's one thing to tell a federal agency right to go consult with local governments and state governments do public notice comment within the united states that's something we do standard all the time it's something fundamentally different to say to federal the minimal amount that's acceptable to reasonable to take into account yes to figure out you know what are the impacts and i don't think we would dispute that we need to work with the host nation and that's where i was going in diplomatic international cont the records that the plan is provided there's a there's an article from the congressional research service which describes a very complex local politics of this this issue on the island of okinawa there is not  secret that the people of okinawa and the nation of japan disagree over this and so it would be a very sensitive thing for the d o d to march in and and try to do some you know local notice and comment on what are the adverse effects of facility at the same time japan is doing their own work under their own statutes and we are consulting which upin and what we're saying is that congress didn't dictate that he had to go do these local things because in the international context that would be highly unusual it would get in the way of our standard diplomatic nation in nation relations let me ask you this about the baseline would really understand the effects wouldn't it wouldn't  understand you know is this is this a place where one might find a number yes absolutely and more this is a place where they're just they just kind of you know  three there are other surveys in the record from japan in two thousand between two thousand and three and the point where they started the environmental impact assessment which was essentially two thousand and eight in two thousand and nine in two thousand and eight in two thousand and nine they did a bunch of different specific survey methods they did track line aerial surveys where they just went back and forth back and forth up and down in a systematic way on the coastline they did the entire coastline for the e i a but also with the target they did and they continue to do then these aerial surveys right in the areas all the way from two thousand and nine up to the time that he made its findings and the what the record shows is from all of those surveys is that there's i mean there's just a ton of evidence in the record to show that that's different than saying do we have enough evidence do the scientists have enough evidence to say you know what is the overall population in terms of the do conquer in okinawa in was to do a specific targeted look at this site because again energy is ordinarily focused on places right so looking at this site where the tema replacement facility is being constructed you know are there do gangs and how many are they going to be impacted and what they found is sporadic use these feeding trails but that by and large the vast amount of use was north before you have a couple other questions where you would counsel argue very strongly report and it was archaeologists anthropologists in a biologist working with experts from okinawa in okinawa in culture to identify the importance of the do gong to the people of okinawa it's an extraordinarily comprehensive people and they also weighed that in the findings your honor their what they specifically found with respect to the findings was there were no cultural practices specific to the no go back and there's been no indication that there are from playing this cultural practices in the bay what they  keep referring to are eco tourism right and the area right around camp schwab where the facility is going to be is already closed to eco tourism so it's not going to affect the people that go out into the bay because they can they they will pick and choose which properties to take into account defeats the purpose of this statute secondly we're not asking for endangered species act standards to apply here today we're asking simply that the department defen e take into account is the text of the statute requires as interpreted by judge patel in two thousand and eight according to those minimum standards the department of defense in its remarks today agreed that a minimum effort required is to take into account effects by failing to ask anyone what the few tema replacement facilities effects will be they have failed to shoot take into account the effect  expert dr jefferson specifically rejects that this data cannot be relied upon dr jefferson states that the japanese environmental assessment surveys are do not withstand scientific scrutiny in my opinion the the record could not be more uniform in its critique of the survey methods that dr jefferson states that the surveys are for cites of specific impacts are totally inadequate so the department of defense cannot rely on these survey methods the department offenses own experts say that they there's problems with the