morning your honor i'm steven sugarman representing talent contest conservation congress this morning and i'm going to attempt to reserve four minutes for rebuttal during my argument this morning i might use a few acronyms northern spotted owl will be referred to as and s so throughout the excerpts of record will be referred to as e r in the supplemental excerpts of record will be referred to as a c r i want to st address the critical fact that has ramifications in this case under both the danger species act and the national environmental policy act and that is the colonization of the smokey project area by the bard all the forest service has a colonization as the most significant short term threat to n s o conservation and recovery part of colonization leads to significant the displacement of northern spotted elves as they abandon their historic nests ites and seek to establish new breeding sites in sub optimal habitat the fish and wildlife service raise this very important issue with the forest service early during the planning process for the smokey project  and when it explained why it would not agree with the forest service is initial determination that the project would not have an adverse effect on spotted dollars or habitat with the project area but is instead associated with significant impacts to the owl and to its habitat the forests the fish and wildlife service noted that the bar dolls had begun to colonize the project area and that this was likely to lead to n s o displacement just as i've described the fish and wildlife service ultimately issue a biological opinion that said that the project wouldn't have dilatoriness impacts on the spot a no no your honor what the biological opinion does and that's a different that is owl importantly in the two thousand and fifteen biological opinion which is the operative biological opinion in this case as the court knows there was a series of iterations of that biological opinion the two thousand and fifteen biological opinion clearly reflects that the forest fish and wildlife service expected because of the forest service had made a commitment during the consultation process that continuous surveys would be conducted for as the project was implemented these are known as protocol level surveys which are specifically designed to detect spotted owls even in the presence of barred owls that two thousand and fifteen biological opinion you're on or was based on the two thousand and fifteen biological assessment that had been earlier provided by the forest service and in that two thousand and fifteen biological assessment the forest service had specifically indicated that one of its limited one of the mitigation measures that would be applied to the sale would be implementation of a limited operating period or l o p the had been developed in the process for the sale back in two thousand and eleven in two thousand and twelve and there are a couple of places in the record where the forest service indicated to the fish and wildlife s commitment was particularly important because the limited operating periods in this case were specifically designed not to be static and to be based on the historic locations of owls within the as you know my client takes exception to that finding we believe that it's clearly erroneous the forest service had earlier explained why it had in district court proceedings had explained why it had adopted that specific  lp which was to provide and overlay an additional layer of protection that had been requested by the fish and wildlife service but judge the board even if that was an air the fact that the l o p was iran asli stated if you believe that to be the case has legal consequences st of all under the e s a the th an action agency like the forest service is obligated to implement the action that it says that it is going to implement and in this case the biological assessment just as i've indicated to you specifically stated restated the l o p that would be adopted during the that was adopted during the environmental assessment in other words the forest service had told the fish and wildlife service in the specific context of the two thousand and fifteen consultation that they would comply with that fellow p did you help me with i'm having some trouble of understanding exactly what you are dispute is with the determination the judge mendez made at the end of the line that his injunction he was going to lift and he was  no violation nepa violation or e s a violation our principal argument that he should have considered the federal funding alternative for timber removal that's one biological assessment has serious consequences under say and we also allege the forest service conducted an inadequate alternatives analysis we also allege that the cumulative impacts analysis was inadequate and finally we allege the forest service is decision not to prepare and in this case was not based on a convincing statement of reasons and that an should have been prepared because of the potential of significant impacts but again just to conclude on the st argument that we were talking about which is the serious deviation from the l o p that had been stated repeatedly by the forest service both in the original documentation and then in the two thousand and fifteen biological assessment and the two thousand and fifteen biological opinion was keyed off of the commitments that the forest service had made and that two thousand and fifteen be a even if you believe that the forest service had simply made a mistake in stating that l o p which judge meant as did that's not the end of the inquiry judgement has said in his final opinion in this case well i've asked the service to explain what was going on here i do believe he had said that the elo peeves are at the heart of the project and his merits order and he said and the forest service gave an explanation they said it was a mistake so that's the end of the matter but it's not the end of the matter because if you go to the two thousand and fifteen consultation which was the endangered species act compliance prague process again the forest service was still saying that it would implement these survey based l p's which are crucially important because of the very fluid situation with respect to spotted owl locations in the area and again in that biological opinion and two thousand and fifteen  and wildlife service issued its biological opinion on that basis so it's a fundamental of e s a law in this circuit that an action agency can't say one thing and do another thing and thereby achieve non shepherd the opinion and that's just what happened in this case your honour's in the two thousand and fifteen biological assessment which is the operative biological assessment in this case the forest said we're going to implement those l o p's just as we set them out in the two thousand and twelve the e p a and the reason that they were set up that way was to account for this very fluid situation of barred owl bardell colonization in the area so and we will make sure that als were ever they are located in the area will be protected by that those ongoing surveys to the forest service said in the two thousand and fifteen a regardless of where n s o's are located the limiting operating periods will which which will be in place and less pro will be in place unless protocol level surveys indicate they are unnecessary that's it conservation and recovery was not even mentioned by the forest service anywhere and it's need the documentation for the project you can look at the environmental assessment and the decision notice and fonzie for the project and there is not even a single passing reference let alone an analysis of the impact of bartle colonization in the smokey project area let me ask you on the federal funding point is federal funding an alternative i mean we don't we have no idea whether or not federal funding would be available or provided or how how is that even something that rises to the level of being an alternative that should be considered well the way the court needs to address that issue is like this your honor the healthy forest restoration act which provides the that the forest service has a statutory obligation to maximize the retention of large trees there's an important table that i didn't cite to in my brief e r to forty six and what this table shows is  about fifteen percent of the trees that are going to be cut in the project area are larger than twenty four dollars inches now in the remain and analysis that the forest service did on the alternatives issue what the agency did was and twenty dollars twenty four cents inch caps we don't know why they selected those alternatives but those were the alternatives that were selected by the forest service it found on the basis of its analysis that the imposition of those particular cap would not allow it to meet its hit for objective and so it stayed pat on its earlier determination that it will or how this relates to the federal funding question the well the federal funding question is at  at some point there is going to be an alternative that will both allow the forest service to achieve its statutory objective and to me obligation to maximize large she retention s c r sixty eight dollars your honor the forest service provides envelop very telling statistics what it tells us is that a five thousand nine hundred and fifty two f that's a measure of timber a volume sale had been would be sufficient to pass an economic viability threshold that was a number that was given by industry yet the forest service in this case provided a temper perform restoration work that the forest service says is required but that it simply doesn't want to fund by itself or alternatively that it says that it doesn't have the funds to fund by itself i'm very sympathetic to that argument  and i read carefully judge noonan's writings on that point i wish the forest service were funded in a different way but i'm not sure we're in a position to do anything about it  only thing the you are in a position to do something about it respectfully or honor in the way that you couldn't get about that is by refusing to endorse a procedure whereby the forest service authorizes timber sales that are unnaturally and unnecessarily large and intense of in large trees so that they can induce a timber sale operator to conduct  restoration activities without the forest service service having to dip into its own purse here the mendocino national forest it's conducting activities that campgrounds it's conducting road projects it's conducting projects at its ranger station it could reprogram its funds if it learns from this court that it is not permissible for the forest service to essentially fund raise for forest restoration activities that aren't in a pay attention to the clock i just like to begin by just taking a step back and just discussing with the primary purpose of projects like smokey is and that's to promote the growth of large over stor the stands and to return these sorts of areas to their conditions before the ineffective policy of human forest suppression of even beneficial wildfires and in so doing what this sort of management does is reduce the risk and severity of the sorts of catastrophic wildfires in this area of northern california last summer and it also improves spotted owl habitat over about ten years the forest service and the fish and wildlife service conducted a thorough review of what the environmental impacts of the smoky project would be and that's documented in a lengthy environmental assessment supported by a half dozen resource reports by forest service specialists  additional internal revisions to that analysis to account for new information discovered during the course of the study of the project three formal consultations between those two agencies and multiple opportunities for public input comment and meetings and they would this was also a case that was remanded to the forest service for additional analysis and at the end of that process judge mendez found that the forest service had adequately examined those six alternatives would meet the pride that primary goal of this project there was also opportunities for public participation during that process and judge mendez found that this project was perfectly consistent with the control and management documents for mendocino national forest the wind resource management plan and the northwest for his plan and the spotted owl recovery plan i'd like to focus on for points when it went back to judgment is you didn't change anything you just provided further explanation th analysis point zero plaintiffs asked the court to require the forest service to analyze diameter kapell turn forest analyze six they ran those alternatives through their forest vegetation simulator module that accounts for local conditions local fire patterns and plaintiffs don't challenge that analysis they don't challenge the data the methodology the force of education simulator at all and they present this new alternative a federal funding alternative into your point judge seeburg that actually isn't a new alternative there is no sort of different environmental impact that would be analyzed through that alternative it's just simply asking that the dollars that pay for this project  e entirely through the federal well what it's doing is suggesting that the size of the project is strongly influenced by a factor that shouldn't be influencing and that is the source of the money i mean that's that's that's that's the argument  of noonan made that's the argument being made here and with respect your honor that that's just belied by the record here they ran the each of those alternatives through the force of vegetation simulator model and assassin particularly pages seventy three dollars through seventy five dollars of the supplemental experts ex urbs explains exactly why none of those alternatives will achieve both the canopy coverage amount and the basal area mortality amount unlike the preferred alternative is project and this is explained in supplemental excerpts but that's because there's an uneven distribution by size class of tree types so if you're only cutting the small trees in this area and you're trying to achieve a twenty five percent  area mortality rate you're going to reduce the canopy cover to such an extent that it will no longer be viable foraging habitat for spotted owl but by doing the more targeted selection the forest service is doing here they can actually maintain viable spotted owl habitat throughout the entire project area while also achieving the basal area mortality goals unlike those alternatives to the extent that so in the reply brief the plaintive state that their federal funding alternative is one in the same with the with the diameter cap alternative and they don't challenge the diameter capsule turner they don't challenge any of that analysis but judge  the government argues in the alternative on appeal that this is actually a new proposed alternative that appears nowhere in the complaint nowhere in the summary judgment brief in at no point was this presented to the agency this is i understand your opponents or trees the most decadent trees in the forest and also selecting understory purge trees with the forest service is doing is creating in the long run much better habitat for the northern spotted owl it's going to help this area advance from foraging habitat  habitat in the long run in freeing up even more areas so it reduces the competition between those species but a few other points with respect to bartels st that isn't that isn't connected to any of the legal claims that they make we make this point record where the recovery plan says that among the most important issues for the spotted owl is competition and stand replacing wildfire so it identifies both on the scent on an even playing field and finally the recovery plan says that the forest service needs to manage this area for multiple goals and it says that active forest management like these projects and dry california for it is necessary for the long term viability of spotted owl habitat because at the end of the day it doesn't matter how much competition with hard hours there is if there are the types of standard placing wildfires that are that have been recently seen in this area and this project as demonstrating that some  some of the supplement to the environmental assessment is reducing basal area mortality in this area from ninety six percent to i believe twenty two percent and none of the alternatives that don't include that would not have included a commercial element are able to do that again because of an even distribution by basal area i'd like to clear up another point that was made in the reply brief about retaining the oldest trees and how this project doesn't do that that  is and i don't say that slightly completely contradicted by the record in this case the forest service is very clear that the primary goal of this project is to improve spotted owl habitat reduce wildfire risk and they do that by retaining and improving growing conditions for the oldest largest trees by reducing competition with smaller trees for nutrient sunlight and water and the record also says exactly how the forest service is going to do that the contractor doesn't make any selections of which trees and there is though those guidelines for how the trees are marked and selected is very clear that the highest priority it's a quotation of this project is to protect the over story that that's  x that the ecologist for the forest service set out so that so there's a very thorough process for actually selecting which trees are going to be removed and furthermore in the commercial units which represents only about fourteen point five percent of the project area here for purchase for spotted owls to restore the over crowded stands by reducing competition for those trees that are so essential for returning this area to its conditions before this failed policy during the early  mid th century of suppressing beneficial wildfires with my remaining time i'd like to just briefly address on the re initiation of consultation point and i just have a few quick points to make the st is that the fish and wildlife service has previously considered the correct one that it operated periods i stated in the biological assessment the two thousand and twelve biological two thousand and eleven biological assessment and the two thousand and twelve incidental take statement of the biological thank you your honor much appreciate it good morning and may it please the court loss and fight on behalf of the entertainer trinity river lumber company i'm joined in the courtroom today by brian taylor trying to river lumber companies forester based in now trinity is a river is not just an economic mainstay in weaverville and rural trinity county it is part of the effort to recover the northern spotted owl and why do i say that recovery action sixteen in the revised recovery plan refers to the need to maintain infrastructure for active management due to the risk of its catastrophic in stand replacing fire particularly in the california provinces or the northwest forest land the court may be familiar with how the northwest forest plan divides the area into provinces and this is a particularly fire prone area particularly in need of active management the recovery plan the northwest forest plan and the healthy forest restoration act all speak in terms of balance balance between short term actions and long term effects and this project strikes that balance what does this project do it has less than it has about nine hundred acres of commercial treatment none of that is in nesting or roosting out habitat that those treatments coupled with the remaining treatments are designed to accelerate the development of late succession all characteristics this is not currently an old growth area or late succession area this is an area that needs some treatment to release suppressed conifer so that they'll grow and become that type of habitat that they all prefers this project will also reduce the fire risk throughout this area in this in this latest exceptional reserve in this part of the mendocino is this project to the fire consume part of reading it is that and that was the i believe the minute i was called the mendocino fire this is a little south of it so the force headquarters is in willows and you basically drive straight west from there the project is up and there it's it is a dry area it's it's an area that's been identified in the l s  assessment as it as as at a high fire risk and the project there of the project was designed based on those parameters the the idea advanced by a conservation congress that a federal funding alternative would change how the project but it would be designed that's simply not correct and the fire did threaten some communities south of routing yes absolutely yes and and then we had fires further south this past fire season and we're really in a new and a new fire paradigm and that's part of what the revised recovery plan from two thousand and eleven recognize that we need to do balancing and do this active management for the benefit of the species injunction is not final in some fashion the the decision to dissolve the injunction as far as it goes is certainly appealable under one thousand two hundred and ninety two the question there is how the plaintiffs have structured their they never filed an amended or supplemental complaint to challenge the supplemental environmental assessment that was prepared after the rematch and so that that limits the scope of the court's review based on the court the project is structured and funded congress has spoken by an acting these types of stewardship contracts in in legislation over the past now thirty years and it permanently enacted in the tw fourteen farm bill so congress is given that direction as the court recognize congress is in charge of the purse under our under our system and i think we understand the area yeah thank you thank you would you put two minutes on the clock  e a couple of points on the merits your honor and then a couple of housekeeping issues so to cut through some confusion there are two sets of peace in this case there are th imposed by the fish and wildlife service as a condition of the no jeopardy biological opinion those were incorporated into the incident will take statements then there are the l o p s that the forest service itself developed to provide an additional layer of protection to the spotted owl above and beyond that which was required by the fish and wildlife service and that was explained by the forest service and district court proceedings what we see here is and then even in the two thousand and fifteen be a the forest service was saying to the fish and wildlife service we are going to go above and beyond what you require we are going to implement our own l o p s which are for more protective in which our survey base and it was on the basis of that commitment from the forest service that the fish and wildlife service was able to use a light touch and its own biological opinion importantly here the forest service has never gone to the fish and wildlife service your honour's to let the fish and wildlife service know that they made a mistake that hasn't happened so the forest service is going to be implementing a project that the fish and wildlife service doesn't know is going to be happening as a result of the two thousand and sixteen letter which will govern the cell for its life not only for this particular year i'm going to go right now to the housekeeping measure i've asked my council my colleagues when the operations might be expected to begin in this particular year so that i could avoid the necessity of having to file any motion for interim injunctive relief in this case and all that they're able to tell me if they've they've made their inquiries and what they're able to tell me is that operations will begin as soon as ground conditions permit apparently there's snow in the area right now i've asked if they would be able to provide me with some notice advance notice of when operations would commence thirty days say so that i couldn't afford the necessity of a really quick motion for interim  they said at least as things stand right now they are not able to provide those assurances so we are hopeful of course that we would get some indication of what the merits ruling would be by the time that operations co