your flexibility or thank you the main issues in this case are twofold one whether an injunction properly lies or whether under claim to review the agency action now earlier in the a p a or the a p a defines to term agency action in section five fifty one thirteen to include a rule and order a licensed a permit or the equivalent thereof those are distinct actions that establish legal rights or obligations and that would assess whether wilderness values were going to be impaired after the and to have a more modest sort of compromise remedy that that's what i thought he was doing quite bringing the fish and wildlife service you know sixty five the year he made findings they were act we're not saying that he doesn't eat and that he would never have authority to act if what we're saying is that if the plaintiffs wanted to challenge the determinations of whether the grazing activity ate in the sa results in substantial impairment that the way they can do that is by challenging the individual grazing permits that agriculture has issued and obtain review under seven zero six two as to whether those permits for issued contrary to law if there was maybe they were ok when they were first issued but then the walls were reintroduced later and there's a failure to examine whether the analysis because of for instance the reintroduction of wolves their remedy is to petitioned agriculture the forest service and say you need to revisit this issue and if you determine that there is substantial impairment or some other change in the environmental impact as a result of an event now assessed then you need to modify the permit and seven zero six two provides the structure for doing that but what they have done here is to bring in seven or six one time and if you look at their complaint what they seek can claim one of their complaint is not tied to a grazing permit at all all i see so what you're saying is that they've short circuited the process and kind of the burden of proof and what they should do is they have to petition for a change instead of  against a program and to compel the agricultural part of the forest service to make these substantial impairment determinations untethered to any particular agency action permit because they violated need but and they didn't do a substantial impairment analysis they can bring that claim under seven hundred sixty two and seek judicial review and an injunction and there would be a waiver of sovereign immunity in that instance that would empower the court to review whether the forest service had issued that particular permit in violation of law but that is not the claim that the plaintiff sprott if you look at claim one they are not their claim claim one which is the only claim an issue here does not challenge any particular grazing perm try to make a product based challenge to an ongoing program let me ask you about something that came to my attention here it looks to me is though there's a sense work of peace so the utah wilderness alliance versus norton that varies on this question and the supreme court has granted through your area yes wondering if what we should do is to lay submission until the supreme court decides that that circuit case our view is if if you are inclined to decide this case in the government's favor that you can do sul consistent with i mean it depends upon how you construe earlier and i certainly cases there are a number of cases that let me make sure you wonder if understand my point i would just assume not make a wrong decision so i'm always happier knowing what the supreme court about this should be on you tube before me  decide this case in the government's favor without having to await the supreme court's decision and and so on but if you do not think under existing ninth circuit case law that the government can back and i think i think you can now let me i think you can decide in our favor and if you think you can i wouldn't i would just ask that you do so for one reason in particular because probably very likely next spring that with my follow up practical question and that is what are the consequences of this supreme court is not going to have its decision and so out before the you just get to that mind mining recollection avi conforming the pleading rule he has essentially that if there's a difference between the claims for relief set out in the complaint and the way the case was there's no question about what church school says that if there's evidence as such that although the complaint fails to state a claim upon which relief can be granted it could be amended to conform to the evidence and  then could not be the subject of a dismissal for lack of jurisdiction i have to judge my question first there's no question the judge gould has correctly advice you along that what i want to know is is there any evidence in this case that although the complaint did not allege any agency action that it sought to obtain a remedy for that there nevertheless was an agency action or w seven or six to that kind of review did not take place here dull and judge when mail in he has to say in the decisions that he's entered in this case made statements such as he couldn't tell whether there had been an adequate substantial impairment analysis he did not make a finding that there had not been substantial impairment analysis with the grazing there are there are twenty eight different grazing allot that are at issue in this case and those twenty eight allotments are laid out in a chart in the excerpts of record tab eleven at page just sixteen through eighteen and shows when permits were issued for the first ten of them so you're saying that that's the only agency action and the judge didn't grant a remedy directed to that agency that's correct what did what the judge did in hi you need to know the other things that you're talking to me about now the judge in his injunctive orders and joined all killing of wolves within the statutes recreation area was there an or if he in fact was reviewing the substance whether there were any adequacy of substantial impairment findings i would say probably yes five but we  permit by permit to determine one whether there was a substantial impairment and alice just wanted to know whether it was adequate now challenged that he may be a violation of finding a violation of federal law in the first place are he should have if if if you was going to take the seven o two approach he should have made specific findings as to the adequacy or inadequacy of the administrative record need analyses they were behind on certain analyses but we didn't appeal the part of his order that relates to the need for work why we're talking about what's before the court is only permit is an adequate that i have reviewed the administrative record and i find i have reviewed the ministry of record for each of these individual permit and i find that that administrative record is inadequate and the following for guards that's how he should have done it under seven zero six two approach that's why you know the judge palmer also has some questions  i do it and actually it relates to the question that school has been asking and you may have addressed some of them but first of all has the forest service determine whether supplemental ok and i take it the plaintiffs did not file seven zero six two challenges to any of those determined that the completion of that supplemental e i a s what it was completed i think the end of september or or beginning of october notification of it of that facility to the district court that was done and in accordance with the schedule in the course order notification was submitted to the district court i don't know whether planets have challenge information reports or other environmental analyses completed or these allotments that consider the impact of the wolf reintroduction we'll talk to mr lucas about whether they're properly challenged or not but i'm wondering because of the fact that some of these allotments have been reviewed and some have not yet been completed would we be better off to remain in this case back to the district court and say look you need to look at each one individually as you're doing in clarify the record here as to whether the action that was taken was adequate and that that is the bottom line plus there were two others that were included in what's referred to as group one there are new there is in there are new environmental impact statements and new substantial impact determinations i haven't actually seen that documentation so i don't want to make a guarantee about this but it would seem to me that that new documentation could be challeng allotment starts to be subject to an injunction that can only happen after the district court has reviewed this new environmental documentation and de question and that is given the fact that some of these allotments have been reviewed but some have not what makes the most sense if you're right what i don't want to do is make a decision that results in basically involve the same legal issues although clearly there will be different facts with different allotments but it would be a whole lot more efficient if the district court could hang on to the entire challenge to the allotment the s n r and they don't need to bring ten new different lawsuits to challenge to tend to terminations they can do that and one last in the context of this pending action well actually well i analysis of what happened on a permit by permanent basis the district court brought in the fish and wildlife service under rule nineteen the district court in determining that apparently  ruled under rule nineteen any determined that the fish and wildlife service was a necessary and indispensable party the district court never made the findings required by rule nineteen a and in our  proposition we for the federal for the federal government's behalf we have always taken the position that the waiver in seven o two is limited to agencies who are alleged to be in violation of the law and in the in the supreme court blue fox case that is an argument that the government made in its brief in the blue fox case but the supreme court was all of that case on other grounds and didn't reach that issue  declaration of ed bangs tab fifteen that explains exactly what the role of the forest service and the fish and wildlife service yes and that declaration explains that there that the forest service does not have a role in making any of the day to day determinations about when walls will be removed thank you thank you very much thank you may please the court laird lucas for the plaintiffs of halley's judge kind filled in the last case i heard you say it's bad judgment to decide things you don't have to decide i listen to mr gilmore talk for thirty minutes or so and not was did he never had need for review that's the upper and lower east for salmon it also addressed the ten prior allotments that had me to review in the early ninety's which we challenge does not there's anything supplemental if i ask this because of the new information zero six one for failure to act because there's a statutory requirement they can see that the judge properly has issued a schedule for those allotments and they're proceeding to do those that's the group to allotments under the judge's order actually group three as well so saying that he granted this partial summary judgment on those two categories of allotments in the first partial summary judgment related to the sell your to do move supplemental you know the focus on one thing and you're trying to tell me about everything i two thousand and three that has expired the second form said go out and do need but reviews for these different a lot less in the first was group one which they have that is not right that is not expired but the second group they've done the first group that's the final actions we're talking about that will be challenging the second group they're not challenging the proprietary propriety either of the jurisdiction or the schedule imposed by the judge that's the group two and three allotments due in two thousand and four and two thousand five  challenge that so you're saying there is no dispute on any of the relief granted there is no lie there is no life dispute on any of the relief granted is correct and it's not capable it doesn't satisfy the wolf injunction par does not satisfy capable of repetition yet evading review because we don't know which one will do he's been very careful review review these sort of things all the time on an interim basis that's been my experience to your order and the government didn't seek to extradite the judge entered  because my gut tells me this is the situation that it's capable of repetition grazing will commence in the spring of next year there will be interactions between wolves cattle continued conflict between the wolves and allies stuff you are certainly i agree with most everything you said that the difference is procedurally things have changed when the forest service issued the it's no problem with the wolves and we're going to challenge that but the fact is they've now taken a look at it and we don't know what judge wills going to say whether he'll find that they were arbitrary and capricious and finding no substantial impairment for those ten that's going to be my burd for ten year period so we've got a bunch of permits out there that presumably have staggering of expiration if the forest service finds a substantial impairment as a result of supplemental or new reviews other ten year permit we've taken another look at the biological issues here and you've got to pull your livestock off that particular line yes sure and that's of course because congress designated this is a national recreation area said recreation wildlife are the primary values grazing can be allowed as long as it doesn't impair that i'm not sure that's true and i have a question to ask you about that but i have a preliminary one it's well why shouldn't we article three it is moot if you take the same thing the other states that if we win you don't have to wait well no i'm not saying that i think you should dismiss the appeal if you don't have jurisdiction i believe i think the appeal is moot i thought i thought it was the district court that didn't have jurisdiction because the case was moot and we have appellate jurisdiction to decide that it's moot and therefore the district court mr smith again you're out of let me focus your attention on what's before you it's an injunction order only there's that and i think it helps answer judge kleinfeld question about that why you shouldn't hold it how sue it is decided and that's in part because we won't see a decision to tell next summer and this controversy under this injunction is even more stale that more than that so it involves off road vehicle use into wilderness studiers and that's also what montana wilderness association the companion case from the ninth circuit involved we don't have and that's where they're saying you can't challenge the day to day management there's no final agency action their motion to dismiss for lack of jurisdiction we prefer expressly every single permit and every single operating instruction that we were challenging we fleshed out before the judge we identified the specific actions not a challenge to the answer your question is no because the permits that were in place have been issued prior to the new information about the wall so to the extent we challenged prior permits that were in exist it was based on a theory that they have to do some more mental e i a that's squarely under president clearwater which this court has said is properly brought as a failure to act you don't have to petition the agency for i get your response now but your honor i haven't finished because i think it's important for you to understand this they have a really candid at the point here it's not whether they follow the law properly the point is whether there's an a t c action that you're challenging and i'm trying to tell you that there is agency action in the form of annual operating instructions which they reference retain jurisdiction over the case but while we're waiting for the supreme court to act renamed the case to the district court because it sounds to me like a fair amount of what all costs cleanup work needs to be done the complaint needs to be amended we need to get some clear findings from the district court of what the status is on these various permits and so on and that when we if there are emergency matters that arise we'll be ready in standing by when either of the parties want to come back should that become necessary when the new grazing season begins does that sound reason i can i believe we would support that i think there is the chance of further emergency proceedings but i think at the based on a different final they can see actions you know pretty things in the district court judge wunderlist looking fairly carefully at what kind of remedies to grab that you know he may not do another wolf injunction he may do something else or we i don't know the answer to that your honor i do know that we cannot amend our complaint to challenge the new analysis that came out this fall and tell the administrative appeals are exhausted and that may take some time and we just we  the real guts of the case when you if you get past the procedural issues is that the district judge enjoying the forest service and the fish and wildlife service from taking any action against individuals w think the basis for serious stuff section three of the management utilization disposal such as grazing it is to be best provided for in so far as the utilization will not says in order to assure the preservation and protection of the natural scenic historic past coral and fish and wildlife values and to provide for the enhancement of the recreational values associated there with the sawtooth national area national recreation areas or by established now two of those values historic and pastore all support killing w the historic value there can't be anything more to start for the american west the wild west as it used to be called and cattle and cowboys and there can't be anything more past oral than managing hurt means managing herds of domesticated animals so it looks as though the grazing and protection of the grazing cow by ranchers is within two of the purposes for which the recreation areas that it is most plainly and definitely not wilderness area it's an area that is supposed to preserve and protect his scar and pastoring values and other values and that based on that i don't quite see how on the record the judge can substitute for the federal policy a preference for wolves over house your honor judge will address this in his first memorandum decision in june two thousand and two and the forest service it didn't reconcile the your interpretation with the further provision that says you can allow grazing only if it will not substantially impair grazing or specifically identified in the statute and said it can be allowed only the difficulty of reconciling  if the grazing with such as two eliminate the protection of these other values of the grazing was so expensive for example that the pollution from the talf filled all the fish so there wolves causes the grazing to be a substantial impairment of purposes which includes a star can passed or purposes your honor they did not appeal wildlife they are back on the earth in our in their part of the reason people come there they have killed the wolves because the wolves have killed a few livestock that has eliminated the walls and we brought the case in brief in the district court they limited all the wolves  was part of his underlying legal rulings on partial summary judgment which can only get to you through an injunction that has expired and to the extent that they challenge that perhaps you can address that but they did not raise that out of anything is that a and even though i might be the only one who gets to this point on the merits issues if i'm familiar with some of the cases involving grizzly bears where an eerie agency grizzly bear community was the stablished with biologists and wildlife experts from you know a host of different agencies is there anything like won we don't agree that it's that we agreed that the prohibition has expired that expired november won but the order itself was really directed at the fish and wildlife service and fish and wildlife was priority and specifically so relief the evading review component refers to not just appellate court review but also supreme court review and i think my in my experience i mean getting  new because as you can tell this is very complicated but here you know there are components of this injunctive order that i think that we think were completely out of bounds and and and it's expired we don't have the power essentially and down for the time being pending either the supreme court's decision in southern utah which means or must under seven zero six one argument or emergency matters that either the government or the plaintiffs might raise starting next spring we have another reason i think it would be a good idea for this pound to retain jurisdiction in that sense and there's certainly president ford you know a decade ago there was the ni not all the litigation the injunction here enjoying all with killing throughout the entire recreation area it wasn't tied to a prohibition on killing on on a specific allotment square violations of law were found it was to the entire recreation area including in that chart allotments one thousand nine hundred twenty eight which had not been quite an issue in the litigation so it was overly broad the second thing is the injunction in