when you're ready mitt sees the court my name is tim backfilled representing the lions for a rockies today when a guy in chuck montana wants to go hunting he puts on his tailgate put agree with the forest service as to the interpretation of the linear miles of toll roads then would i affirm as to compliance with the the n f m a i think your honor if if you mean it seems to me this case boils down to linear inter a linear miles of toll roads if you lose on linear miles of toll roads then they're in compliance with the n f m a they are in compliance with the  and the incidental take statement and that's the say i think you're right ok i sort of didn't i just want to make sure you know that's the way i read it and i didn't make sure i was on with you it's a domino if they're right on one thing on the right all of them and so the the whole point here is that the forest service says we get to we get to say what we want to about our own forest plan you must defer to us and what the alliance contends your honor is that when you're dealing with the same list of species that that deference doesn't apply what they must do under t v avi hill and connor b burford is the benefit of the doubt has to switch and it has to go to the protected species let me ask another question which goes around some of the arguments but nonetheless gives a way for us to decide why isn't linear miles of toll roads ambiguous well i think it is ambiguous because l f it's ambiguous and must i d to the forest service reasonable interpretation no i don't think so your honor because you in that case you have to defer to you have to give the benefit of doubt to the species so that's precisely it but just a minute it seems to me in these particular matters if i'm going to say that term is ambiguous and as long as the forest service is interpretation is reasonable i have to give deference to that don't i in if this were just a nip and if a cont but because it's in the essay context the answer that is no in this situation and i think what we have here is a situation where the the the linear miles of total roads is defined somewhat differently in sin different places throughout the record so that it's i when saying necessarily the same big us what i'm saying is it's defined differently in different places i understand that i'm not i'm not even asking priority but i'm not talking about that now it seems to me that sold them for a service and now they've got an ambiguous statute and they have to make an interpretation therefore and courting the according the species the highest price and priority they make their determination and then my question is do i defer and i don't think there's a case and says i don't differ so i think you have to make your case pretty strong when they compete you have to define what's compete and that hasn't been done and that you know that same provision is in this forest plan as well it wasn't just in the flathead plan itself in the clinton plan and that is when the you know when i think the the because it doesn't effectively prevent motorized access they're not following the guidelines that that's actually true your honor and so you're actually true that that they can't do it or they won't do it that they can't a berm will not prevent motorized access  well then they better does not miles because as berm guardrail or other measure and the other measure they're doing if they're closing this road that doing it in such a way that provides that allows motorized access they're in violation i agree so you're saying they're going to violate well the point is unless they re contour and revegetate which is what the reserve very cover plan requires three move roads from the database then that's the only way to prevent motorized access because the simple matter roads are there people use them what offset but that would still leave the berms in this particular site yeah and that so the idea is to make sure that the road that they're creating can't be used and that's why they're putting up burns or berms or whatever now if maybe that you would have some complaint that they're not it fits in with the your reliance on the interpretation of the road you're on or that in the analysis unit is the boards so that the boers unit in this case it's the clark four corners so that twenty miles of road is limited is has to be accounted for within that bores so in this case if if they're going to buy build new miles of road they would have to obliterate a revegetate a similar number of miles of road s within the borders and so it doesn't have to be necessarily within the project area in this case the children project but it has to be somewhere within the borders of the total miles of road within the borders is limited but it would still be the site that is being affected by so that's that's basically telling the implementation of an action well there's another question that you raise by your argument and that is i go to the temporary roads there permissible so long as the newly constructed roads are gated during the duration of the project and are closely m e are closed immediately upon completion requiring use the roads by  effectively prevent the motorized access and will not require motorized taxes for at least ten years why is your argument as to what happens afterwards any different than what happens during the temporary use because this access standard to be specifically allows for that temporary increase during the pendency of a project well but that what they have to do even in that case is gate them keep people from using them as best they can i'm having a tumble trouble finding why they getting them at temporary time is a different than what you're saying berm guardrail or other measure because it seems to me that what they're doing in the newly constructed temporary thing is they're keeping everybody off except what they will allow there and then afterwards they're trying to keep them off totally  guardrail are not going to have it gated they're going to do worse they're going to put berm guard rail or other measure and what you're saying that isn't enough either that what you're saying the in the difference is simply in the in what the access  a louse so i can ask the forest if they do more than what the access them allows so if during the pendency of the project why i worry because the access amendment allows the berm guardrail or other measure but not after the completion of the project after the completion of the project that the linear miles of roads have to be no net increases in any bores about the baseline of stated so in other words then it comes down to as you noted at the include roads beyond that behind barriers so that the simple matter is that in the r a d which is the operative document in this case it says increases in linear miles of toll roads and not be permitted addressing the standard require reclaiming or making hydrological neutral any new construction upon completion of project activities so it's different definitely a difference between dependency of project activities and the completion in the standard to be allows for that the forest service can have temporary increases but after project is finished they have to bring it back down to baseline and what we're talking about really already are kicking about as i understand it is whether  forest shall ensure no increases are you with me yet that the four shown ensure no increases in permanent linear miles of open road right well that was we're talking about were temporary roads open on the open roads so i'm sorry say that again there's a center to be doesn't have a limitation on open roads that's only for standard to say how i see which sank ok but the footnote to standard to be says linear miles of roads includes roads that do not have restrictions on motorized use that's right and roads that are close to public motorised use that's right but that's what we're really determining is it not that's right and what we're really saying is that what you're saying is bermed guardrail or other measure effectively preventing motorized access is not enough that's right those those are roads are closed to public motorized used and it's included within the and roads that are closed is that bold or is it either i think it's right in the destructive so it's did strike jumped of there certainly restrictions that was my biggest part question it seems to me that they do have the restrictions on the motorized use they have a berm they have a guardrail or they have another measure that's certainly a restriction even if not post right your honor that's why i said that those that do not have restrictions ok  when got a list let's hear from the other side and we've taken you up to time but we'll give you a chance to respond  morning honors may please the court my name is tech lance and young and i represent the forest service and fish and wildlife service i think it would be really helpful if a court turned to page a c r for sixty of the of the supplemental excerpts on that page it shows a picture of what these berms look like they are it's and it's in a contract that is required and that was submitted in the record in the district court they are three feet high and three feet deep so a total of six feet and they are steep and they go across the full length of the road opening so to the extent that there are any concerns about people passing these berms those concerns are unfounded and i spoke with for services week and they have had no instances of unlawful use on these roads either while project activities are occurring or after they're close with berms i also think will be helpful for the courts look at four sixty to four sixty two in the record which  is the remainder of the contract in the dick's plains what contractors are required to do to close these roads when they are done with project activities the roads first of all are dirt roads they have culverts install to protect water quality and they have ditches and water bars as well also to prevent sediment runoff and they are gated and locked with keys during the life of the project activities which are short usually only lasting one or two seasons at most as soon as they're done within two weeks of project activities being finished the roads are closed by the contractors and what the what those pages show is that the contractors must scarify the roads which means turn up the soil to loosen soil reseed to receive the dirt bed and remove the culvert where the culverts were they have to re contour the road to restore natural stream conditions in the places where water would have flowed and that protects water quality water quality fuel me and and then that and then these berms are constructed the berms are also seeded and the areas revegetate within one or two years vegetation starts growing they are completely access in the forest because the harm to grizzlies occurs from concentrated use along roads that occurs as a result a motorized access you could walk but you're not going to get as far as you would get with a road with a with a motorized use of the road excuse me another important thing for the court to think about in the context years that this project is a good project and the plaintiffs have not actually challenge the environmental soundness of the project of far as its benefits it these dying trees and pine beetle infested trees that pose huge fire risk in the forest there was a catastrophic fire there last year that consumed about two thousand and this project is designed to reduce the fuel load there's a controlled burn as a part of this project that reduces that risk of catastrophic fire as well as removing the diseased and dying trees while they're still economically viable which also helps  e the local economy this project is also good for forage for grizzly bears and the planet hasn't disputed that either it's good for forage because it bears aspen stand clearing which promotes aspen shoots to grow grizzlies like  to eat the shoots and new vegetation that occurs after perscribe burning this is all good for grizzly bears and another important thing for the court to realize is that this project is occurring in a bears outside of recovery zone area so it's not in co habitat and so there's a lot of good things about this project that helped promote the the habitat for grizzly bears we're not even sure if the bears are using it but they could use it it's available for them the players hav challenge that i think we all know that the question on appeal so the only question on appeal then is whether these rows are somehow a permanent increase in total roads and that is not supported by language a standard to be the plain language clearly allows a temporary increase in roads and even alliance for the well rockies is not disputed that that these roads meet that temporary increase standard what they are suggesting is that even though the roads meet that plain language standard they're gated to prevent public motorized use during project activities they are close with a berm after the project is complete and made impassable to motorized use and they're left in a waste they will need to be accessed again for ten years while i'd sort of suggested that even though it even though these roads meet that standard the fact that it still takes several years for them to be restored to creep creep project conditions violates the the language it's just not supported by the plain language here and even if it was ambiguous which it's not the forest service would get deference on that point and this court has made that clear numerous cases one of them is the earth island institute case it's a site in our brief and the site is six ninety seven s third at ten thirteen there are several other  lot because first that's a new argument that was never raised in the district court or on appeal in the opening brief right to spend a lot of time looking at that to prepare for argument today i think the scorch and i consider that argument firstly secondly if you look at where this language appears it appears in a response to comments in the record of decision as he argued word is yes it is not in the language of the standard itself  thirdly looking at this language it appears as though it applies to the offsets part of standard to be so you can meet the four service can meet access amendments standards by either offsetting roads are setting new roads or or falling under this temporary increase provision the requirement to reclaim or make hydro logically neutral or road appears to apply to offsets only and let me just explain what led to what only offsets only let me explain what reclaim or make hydrological a neutral as that means obliterate the road completely from the surface of the forest so you have to re contour the whole thing not just where the culverts are and you have to plant new trees there so there's six of the supplemental excerpts the for the access amendments don't even require that level of reclaiming or obliteration of a road in core bear habitat which is more managed and more protected because bears are actually using it so it would make no sense to interpret stener to be which applies to bears outside of recovery zones habitat in a way that makes the management there more strict than the management in co habitat and the reason why it's not necessary is again or why why it why the forest service is not in the fish and wildlife service haven't hasn't required this more restrictive standard even in core habitat is because it's not necessary because again the purpose of the access amendments are to prevent motorized use which can be accomplished through a barrier to road and my last point on this is that the roads here will actually be partially reclaimed and made hydro logically stable so not neutral which means you know the ground water flow would have to be the same as it was previously but stable meaning the runoff will be protected and there's a chapter in the us for the project dealing with hydrology and that is starts at a r two thirty eight forty six that wasn't included in the excerpt because we didn't break that issue and there's a monitoring requirement in the record of decision at a r two forty three forty eight which talks about how the forest service has to get out there and look at the roads and make sure that they are following best management practices and that  running off these roads finally i would just like to say that if if the court finds that the forest service were to lose on the on the the the first question i think that that your honor started out with is it a sort of a cascade if we lose on than if i claim to be losing everything else i'm not sure that's true because i think there was a section nine s a claim there would be if there is no evidence of take that has occurred here so there would be no section nine violation doesn't seem to me that if in fact there's not any increase in linear miles of toll roads that there can be take that's correct yeah i mean i think that's correct but in order for there to be take there would actually have to be a barrier that was harassed stand right saying but yeah before i do rebel with the take yes i just want to make that sort of technical but but i think the other side already said listen if we conclude that there's no increase and roads above the baseline then the take argument goes away yes i think that's correct because the project then is consistent with the take statement for that for the access amendment of the so the whole focus is the argument  that seventy five percent of the bears in the company i keep the system have home ranges that extend outside of the recovery zone in other words those bears home ranges extended to the bores that's why it's important she also found that there are about forty  the update so why is this important because roads kill bears i mean it's really that simple that's what the u s official i service found when they created the recovery plan they know that roads probably close because the most significant threat to grizzly bear habitat so the whole reason  to not have roads on the landscape is to prevent access for humans because it's humans who kill bears generally most of the bears that die in the in the kaviak are killed by humans so i think it's  when you when you challenge a monitoring a claim against a forest service you lose the scores are determined that that you that that's sue a thing it's a discretionary function so you don't have they don't have to monitor if they don't want to so even though we've asked for the m would show that that that there are motorized violations there's that's not a cause of action in this court so what do we do you challenge it when they create a project like this and so that's what we've done is say look we know that from the past that you that your your monitoring is not effective we know that your berms are not effective so this is a time to challenge it here and now not later because there's no ex post facto review thank you thank thank you very much alliance for most thankful sage for their arguments