my name is tim back told here representing the mccown two thousand and five and then two years later of course are here but the situation there is it took three years for the court review this today and it but all the trees are gone the trees are cut it's been you know they've been marked and that statute in this particular case in this particular case they were but the and this it is in the forest service agree that that should be the language for the future no they do not agree in fact they specifically said to be included but if you know what they're saying is we're going to agree to this now but we'll reserve our right to complain about it in court later that seems different then we reserve the right to go back to  need to get these trees off the ground now so we need the injunction lifted because the emergency nature that they determined that the trees would get with the generates the point if they had to wait a minute staged that they would generate to the point that they would be harvested anymore so they said  then i think we have a controversy because the forest service there where they're supposed to do business now is to say well in these situations we doesn't it we can have the timber her sister doesn't have the trees now that's specifically contrary to law and that's why  they're going to say well if he's going to step in and say but that's a violation of the statute and they say ok for purposes of this one maybe but there is hundreds of timber sales across the united states every year and s he doesn't monitor every every of the secretary must mark doesn't it the trees not someone else even when the record indicates that this individual who was the target of that particular assertion trees so that was a three step process but there were there were plenty of trees that were marked by the purchasers before the injunction was put in place and what we're asking the court to do is for a declaratory judgment that in the future the forest service cannot use a contract provision such as that as an forest service manual twenty six twenty four forty one with three now is there something in the record which indicates that so far as the forest service is concerned the only marking that they committed to was the marking done by their own employees notwithstanding the fact there might have been marking by the purchasers as well you're speaking after the injunction i presume yes after the injunction the forest first said yes our employees would be the ones  injury well now these are all retired forest service employees what is this injury to them arising out of the marking policies left side well actually it's they're not all retired there are many current for the whole resource for they see the forest where the temperature purser timber purchaser just sees the trees are looking for the timber value but a forest service employee is obligated to look at all the resources wildlife water wilderness and timber not just the trees so when they go unmarked trees they're assessing the value of those trees for their wildlife purpose for their water retention of water quality purposes and not just for their timber value the harm to professional foresters who are concerned about had we had this check voluntarily had to purchase or mark the trees but you know it's the same the same thing happened it was no different that they would have a market same treasons are foresters employees would have so you're not hurt well that's not the standard under procedural procedural part of the statute now there is a procedural right and left because the forest service the forest service refused in this case and still does under the handbook to have that procedural right their interpretation the procedural right  logging itself that's the environmental damage is done by the law not necessarily by the marking particularly where there is no showing that any improperly marked trees were ever so you know your honor that's what the forest service argued and that's simply not correct the forest service employees have a vested interest in having four service professionals be the ones who marked the trees how do they know and there was a briefing about the monitoring and and distance away from f m s trees and things like that that was a subject of different injunctive and different chunk of requests at the district court level so in fact there were some instances where f c alleged the wrong thing had happened on the ground but that's not were marked but that's not what it's what it's what's at issue here any evidence that the wrong trees were marked and then because of the contractor were actually cut down in other words that would i mean something at an event which was a clear violation of the statute yes yes but that's but that's not at issue here so there were instances where the wrong trees are marking they were cut down in violation of the of the and that evidence is in the record in this case it is our so that the to clarify what we are asking is did they did they cut down trees that were improperly mark yes they did so but it's kind of a couple well there are two parts of the answer then in the first place my understanding of footnote three was that we reserve the right to relate a gate at the marriage stage whether it could be whether it could be possible to fit within if my by allowing purchaser marking however as noted as a district court noted when they came to the preliminary injunction i'm sorry actually at a later stage of the proceedings which is reproduced in page fourteen of the supplemental excerpts of record decision in one of the related cases the second cascadia wildlands project clee case we filed declaration from a staff officer responsible for salvage in the forest indicating as much and that case was discussed and neither one is met here in the first place there has to be a reasonable expectation the challenge conduct will occur again the same plaintiff will be subject to the same injury because as i just explained there will be no further salvage sales under the c i s in the biscuit recovery area there cannot be a reasonable expectation that plaintiffs will be subject to the same alleged harm again and the second requirement is that the action be one that is inherently limited in duration so as to avoid judicial review not whether something did occur before final full judicial review could occur but whether the action is that is of a character inherently likely to do to end before judicial review can occur and that was the argument raised contractual language that was not actually implemented in the first place it's undisputed that in this case none of the four seals that issued timber purchasers actually marked trees to be cut and the second place they were purchasers were that leaves open the question then what is the forest service position with respect to allowing purchasers to mark the trees at will not because you i'm not sure what the answer to the question that question is in the context of all future forest service sales what i can say is that it didn't happen in this case and there aren't going to be any more salvage sales under the e i a s and records a decision in this case so i'm not sure that the issue really matters or the court is authorized to rule on it at this point do you agree with mr berchtold that the forest service manual presently allows for the entering into sales where the purchasers do the marking  i should take a look at the language before i answer that question record here that we can't reach that question in this case i think this case is moot because there is no effective relief that this court can grant for any injury actually sustained by the plaintiffs they haven't pointed to happened it would be impossible for anyone to have procedural and i have two responses to that i think the procedural argument injury argument can't work for two reasons you know brief we stated that it is inapplicable here because twenty eight three thirty five describe the process of determining which trees to retain and which to cut we don't think that this provision is analogous to pursue your requirements in the magic example being  the plaintiff is still required to show not just a connection but and this is from citizens for better forestry cases it reasonable probability that the specific procedural violation alleged threatened their concrete interests and so in this case or what the plaintiff here would have been a lot required to show was a reasonable probability that allowing mr hugh herrick to mark trees there was a reason probably that would result in the wrong trees being cut down which was a record is somewhat unclear on exactly what the nature of the supervision was but part of the scheme that resulted in the district court lifting the preliminary injunction was that for each unit of timber sale marked there was a tracking worksheet of don't think that the issue is really before the court but what we said in footnote three of our motion to vacate the preliminary injunction was that we thought that it could be possible for the prescriptions to be so i think that if the forest service can be so fortunately specific in terms of and the there were specific prescriptions for snag retentions in this case  where they should be that even if you initially allowed the purchasers to move to pick out those snags subject to approval by the forest service on the ground would that not satisfy the statutory requirement and we reserve the declaration of some sort in the second cascadia case there was a declaration filed from robert show who is the staff officer of the disk you national forest in charge of salvage sales stating that no further salvage sales would occur would be advertised or sold well we may ask you to suggest that we take your dish will notice and the other side will have an opportunity to contest that of that document to the extent it's already in another proceeding in this i'd just like to quickly make a couple of related points are moodiness argument here is based on the lack of availability of affective relief that is as the district court noted the plaintiffs haven't pointed to anything any harm to themselves from the specific statutory violation alleged here and that's mr herrick marking trees not any other potential marking of trees by anybody else in any other state in the future they haven't pointed to anything that harmed them the only harm they showed was at most a generalized interest in having the forest service follow the law which is clearly insufficient for article three or the other possibility is that they have suffered instead of karma as a result of salvage logging in the project recovery area generally but that the legality of the practice is not at issue before the court here and actually in january of this past year in the related siskiyou regional education project case there was an unpublished decision from this court that appellant salvage logging in the biscuit project area as consistent with northwest farce plan and the national forest management  if i may and i don't mean to belabor the court with this but i would like to quickly go through the facts of who peter you herrick was so that one can actually determine whether it was arbitrary and capricious for that for our service to consider him to fit within the definition of employed for the purposes of this out some of this information may not be in the record i'm not certain but he has a master's degree in forestry he is a skilled farseer from the czech republic who was work record i'm uncertain whether it's in the district court record is why i say that maybe you should stick to things that you wash her record all right he was working as a forest service trainee under a congress and state department authorizes change program for skilled professionals he received housing the stipend from as far as service he worked regular hours at the time of the sales he had had roughly fifteen months on the job training from the car service in this forest including in terms of salvage and he had agreed to follow all services are service rules as part of his j one visa sponsorship agreement by the way it's correct one can only get one g one views in one's lifetime so if you want all likelihood not be back as a trainee he was supervised by the fire service employees in the field on thirty seven you must units for sale and you mark timber for retention in thirty seven units of sales here in thirty four of those units he collaborated with another forest service employee and as i've said all marking was done in accord specific snag retention guidelines based on the biscuit project yes the northwest forest plan and there were tracking worksheets to follow up to ensure that was done properly there is no allegation that he did not follow the appropriate marking guidelines and there is no allegation that he had any harm they had plaintiffs have succeeded on their standing argument that they were in fact injured by the failure to follow procedure no that is not far cers position again my arguments there are two arguments first i do not the of the specific procedural violation alleged i think that if if in other cases such as the citizens for better forestry case there is a careful analysis of what was the procedural violations specifically not what could hypothetically be what happen here thank you counsel your time has expired we will hear from mr berchtold you have some reserve time all circumstances show that there is a substantial controversy between parties having adverse legal interests are sufficient media scenery and reality to warrant issues of declaratory judgment and the court went on to state several cases similar to this where it said yes we can do this even though for the for this case they can't do it anymore and you know luckily it took three years for this case gets to the courts so it's so it's it's moot well suppose it's not in the record but suppose that there were a forest sale in new hampshire totally outside the jurisdiction of the ninth circuit which might use the offending let's say language that that your letter gating would that be covered by anything we could do in this case