well you're coming up i'll just ask we have courts have a motion to dismiss the endangered species action portion of the case my understanding is that the forest service agrees alliance for  disagree i see so you're not objecting to our not arguing it today you're just saying that when when we act on this we simply direct the district court to dismiss it is that  a issue it sounds like you go on have argument on the say because everybody's not there still i think we all agree it's moot and i don't think argument today is necessary but the disagreement is over whether the district court this court should vacate the decision of the district court that's the dispute that still in play on that because it's moot should that this court vacate the lower court's decision as to that right right portion  k thank you very much you may it please the court my name is claudia newman i represent the appellant's alliance for the wild rockies idaho supporting congress and native ecosystem's council i will reserve six minutes for narrowed down primarily to the m p c five point one five point two issue if your clients had their way what would the court do what's the ultimate result that you are seeking the court would reverse the district court's order on summary judgment and remained with an order to vacate the final record of decision for the loss creek boulder creek project and that remain and would include an order directing the forest service to provide sixty day notice to plaintiffs of any intent to implement the law street project so that would be for pull any potential preliminary injunction motions including timber sales or ground disturbing activities or other actions that of the of the plan is currently exists right we would want this court to give us the right to have sixty day notice before any of any of the projects are implemented for this project and finally the alliance requests that the court  said vacate the final record of decision but also indicate that the police may seek an injunction from the district court for any specific actions that are taken in the future if necessary and appropriate that time so we're not seeking an injunction at this time but only seeking an injunction if this court reverses the decision to approve the project and vacates that decision either you're saying if if we do what you want and then they disobeyed our order you want a right to get an injunction you do that anyway would you well we would have to prove irreparable harm and i'm to like but yes i think it would be pretty straightforward i doubt frankly that the forest service would  disobey the decision being vacated in the first place and that would be done by the district court correct any problem and we're not addressing any injunctions in this appeal at this time we're would be sending it back to the forest service to do additional work that we're requesting which i can also expand on if you like help me understand i understand you know based on the briefing and everything that i've reviewed that there seems to be a switch or change and replacing five point two with five point one and that seems to be sort of the main area that is our main issue but it seems to be switching it from you know the to restoration versus what seems like you're the alliance for the wild rockies that right you're the life yes ok i just help me understand i'm just perplexed initially by by that right i understand your why what the impact of that is must be something the i'm not seeing here that maybe you're seeing there's a lot of coal references here or there is an enormous amount of information in the record from the alliance for wild rockies and the other appellants that are putting to scientific studies significant information demonstrating that this methodology that they're proceeding under this which is their turn by the way is restoration and i want to make it very clear that is their label and a label is one thing you can call it restoration we have very significant controversy over whether indeed this is going to improve and restore the forest there has been a priority spatial prioritization it's called the the wildlife conservation strategy is this idea that the forest service has decided to prioritize the white headed woodpecker over other species and coincidentally the white headed wo requires a very low canopy of trees so low canopy means fewer trees and there has been a conclusion made that more than any other species more than the goshawk more  than all of these other species that may actually need high canopy or may need a completely different management of forest to keep their habitat safe the white headed woodpecker has taken priority as a policy as a policy compare it to zoning for example and i have provided you with an excerpt from the record a map and that is you are one sixty seven i don't know if you have in front of you but it's useful because it's in color and it shows the outline of the project and a stance for management area which is just the forest plans assignment of different areas by numeric value and the color coding inside of the project shows the management prescription categories which are basically the closest the courts often compare forest plans to zoning and the closest thing i can say is this is owning like zoning where they have assigned for example if you look at all of the the light green in the m e three that is approximately thirty two thousand acres and that is supposed to be managed for a commodity but it's been essentially zoned by the plan saying this is how you must manage this part of the forest for commodity production where you explain only to me the commodity production to me indicates an increase or greater effort logging then wrong it is no your honor that that is not wrong ok so that's correct but you're concerned that if you move to five point one they'll be more logging really talking about the type of law you write not the fact that there will be logging what the central concern for us and i want to point out that the there is no analysis that's been done and that is one of our main problems here the environmental impacts well the central concern for us is the desired conditions for commodity production the way the forest is supposed to look the management of it is actually a higher canopy and different trees size the desired conditions are can which one for commodity production one point to yeah there's a higher canopy and what's important for the appellants is to see an analysis which hasn't been done of what are the impacts to wildlife not just the white headed woodpecker but all of the wildlife if you have a project in that area and me three that implements c five point two commodity production what does that look like does that have a lesser environmental impact on the habitat as compared to the what they're planning to do with this project is five point one which is  restoration and i know the labels are confusing but there's really what matters is underline what the plan is that they're planning to do and we don't know if you're serious i gather that because the forest plan originally contemplated these other things it's kind of a violation of the in quotes general plan of that what you're saying right now and i wouldn't even say in quotes original two thousand and three plan a two thousand and three plan is the law it's like zoning it says you must manage this area for commodity production and this project blatantly is not doing that it's and the argument is well the forest service has a right to tweak desired conditions to the extent they want first if you accept that argument then you may as well throw out the whole forest plan because what they're saying is we don't have to pay attention to the management prescription poetry's how much flexibility is there let me just observe that in my time on the court there been some horrendous forest fires that are simply not containable and one of the problems has been that the canopies were such a level that once you get one started and one of the reasons why people want to change it is because not just the animals or effect but everything gets affected yeah is it your position that because the two thousand and three plan does not contemplate what's involved here if they want to change it they need to go back and amend the plan and go through all of the environmental analysis required to do that they're just your honor i think everybody agrees that there are critical things that need to be done to preserve the forest but right now now there are a lot of conclusions being made that what they're doing is the right thing but they haven't done the review to six substantiate that we disagree with their approach but we do agree with the goal and there's no there's no i know there's some de minimus flexibility but nothing along the lines of what talked about here right the flexibility is the goal stays the same so in that light green area your goal is commodity production you might be able to change different components of desired conditions those are canopy trees size snags there's different components and you might say the forest service could say well we might go a little bit lower canopy in commodity production because we need to aim for that tree size desired condition the end goal doesn't change so they there's a what i'm getting at i'm probably being a little vague but there's a guideline it's v e g u a one which is really what the arguments it's x s c r so supplemental excerpt of record which is with the federal defendant's brief and that's one fifty five thank you and it it it really doesn't give when you read that language i urge the court to read that very carefully that language very clearly does not give the forest service the right for a wholesale throwing out the entire m p c category that very clearly states that the whole goal is to move all the components toward the desired condition for commodity production there's a goal it's like as i go back to the zoning there's a goal of single family zoning and you can build a commercial building there but maybe with single family zoning you can make tweaks but you still have to and at the same goal it's that's not a great comparison but let me ask you i want to ask about the old forest issue right  because it looks like they've changed the definition from what i can tell yes and i just want to ask you is it enough that the definitions change because it looks like under the c f r thirty six section two nineteen point one five definition is not one of the components for which consistency is required  it seems like we would need a standard or guideline for example before we could find consistency and i just want you to elaborate on that if you could the old forest is don't i don't actually like the idea that a definition is not something that you have to resolve consistency with i'm not sure i would see that in the regulation but setting that aside the regulation c f r thirty six to nine hundred point fifteen states that goals desired conditions and objectives that the project must be consistent with the goals and objectives and desired conditions and standards and guidelines and i would put the crate the definition of old forest criteria as a standard or as a goal or as an objective because it's it's part of the  six is appendix a to the existing force plane the two thousand and three force plan and the definition or criteria for old forest in the current plan that applies now is in the desired conditions chapter sensually so it's part of the description of desired conditions if that does that it's a question is not it's not a definition it's a criteria for desired conditions and so does that i guess what's the effect of designating a forest as old forest use it's really to put it simply you know you're probably more familiar with the term old growth and it's really this idea of what is old growth and what is not old growth because there are certain expectations that you're going to preserve old growth so how much our old forest is something you want to hold on to because it's it's really really good habitat and so the question is what is the policy decision criteria for determining what is old forest what are the tree sizes how much canopy is there what kind of trees do you find and the new the water the wildlife conservation strategy set forth this criteria that if you recall the one of the forest service staffers said nothing would be called forest under this new criteria you know this is not and so what that means is if you're saying this criteria is so difficult to me you're not going to have much when you go out there to log trees and you say is this old forest or not you're going to more often have the answer no it's not all forest so you can log these trees and four hundred one and say yay for us we decommissioned sixty nine road sixty nine miles of road that's not what you do what you do instead is you look at what's the minimum amount of road we need and to have the least environmental impact and so if the minimal amount a road that you need is three hundred or actually two hundred miles then you shouldn't be celebrating for sticking with four hundred miles what they assuming for a minute they had followed the proper procedure from your perspective they the commission a lot of road but not enough the right to be doing more yes your honor ok according to law this isn't our opinion this is what the law requires time fifteen minutes for myself five minutes for mr feit ok and if you're i'll try to help you but if you've seen if you watched this morning you know how quickly it goes how easy it is to be disoriented right  do the switch five point two to five point one and there's not a whole lot of explanation about it other than we can do this and it's outside  scope can you talk to me a little bit about that yes this is exactly what the four supply contemplates and let's go through the forest plan and various forest plan provisions and you're talking about the two thousand and three plan we doesn't force going on first of all what the forest service did is use desired conditions for five point one and five point two lands and this is contemplated by the forest plan itself i would ask the court to turn to page four twenty five ers we are supplemental excerpts of record and we see that the achievement of desired conditions are stated as a long term aspirational goals that the forest service should work towards over a period of decades it goes on to state that current conditions deviate strongly from desired conditions and that the plan merely offers guidance on how to consider desired conditions these numbers in the default tables are guidance we can flow with respect you know we face as in all different areas contain certain areas that are designated by one others five point two and each of those has a consequence well let's talk about it and you you need to follow certain procedures if you're going to change that the force of the t a these desired conditions represent default ranges that may be adjusted based on new scientific information on historical conditions that is exactly what the forest service is doing here there is science that shows there is much less low to mid elevation ponderosa pine habitat as compared to historic conditions then you're saying that based upon that appendix a that if you have new scientific information that you could make substantial alteration in the plan itself without more well it's important to note that these desired conditions as we saw page four twenty five are just guidelines right there aspirational goals they're not meant to be binding and  twenty five goes on to say is that there may be exceptions to desired conditions that may occur as a result of management direction and other resource areas and we'll take a look at those other resource areas in just a second but four twenty five goes on to say often times management area direction may have different overriding goals competing goals and for twenty five goes on to say all of these competing goals all of this information needs to be considered when we design our projects the desired conditions are general conditions that can be modified at the project level based on site specific conditions so let's turn to the management area direction in the forest plan for management area three which is the only management area at issue that has five point two l and in particular the court looks at page two fifty four of the supplemental excerpts of record you'll see the standards and guidelines for five point two lands and the court will notice that the only standard that pertains to five point two lands pertains to wildfire the forest is required to suppress wild fire in five point two lines you'll also notice a couple of guidelines at page two fifty four that also pertain to fire but what the court will notice is there are no standards and there are no guidelines that pertain to wildlife or to vegetation and this is important because only standards are binding limitations on the forest desired conditions are long term aspiration goals that are not binding on the forest if the court turns it back one more page to page two fifty three of the supplemental excerpts of record you'll see the very first sentence there says that in addition to these  specific standards and guidelines for management area three the forest service needs to also consider forest wide goals so let's look at the forest waggles and in particular if the court looks at page one fifty four of the supplement or supplemental of record and this is the force of force wide management direction for vegetation at page one fifty four of the supplemental excerpt the record vegetation goal number one instructs the forest service to maintain desired conditions for plant communities and appendix a so this is where the goal to follow the desired conditions in appendix a comes from but notice it's a listed as a goal not a standard not a not a guideline but it's only one of many many goals the forest service must consider when planning a project i would also urge the court to look at vegetation goals number four number five and number six vegetation goal number four instructs the forest service to five one five by switching from the by point to two point one no this will this will make the project area more resilient to wildfire in the future because it is aiming for fewer trees but larger trees and less canopy and because there are fewer trees there is less competition among them or remaining trees for sunlight for nutrients or for water that allows reducing the risk of disturbance events and five point two areas what's your best statement regarding consistency because it seems like in the you have to show that this plan is consistent right this project i'm sorry it's consistent with the original plan and there you know just assuming away the five point two seems rather traumatic know it and perhaps if you know scrutinising an end run around the failed project that occurred previously in two thousand and eleven and so i'm just trying to figure out where she's your best statement regarding consistency you're pointing to different you know excerpts of records here fourth plan are not binding they are just guidelines they can be adjusted at the project level this is what the forest plan contemplates and i was explaining that the forest plan contains a number of goals that need to be considered not only vegetation goal number one which pertains to appendix a but also vegetation goals number four five and six council let me ask you this i i want to be on the court eleven and a half years five handle or a lot of environmental cases and i don't ever remember seeing a case where the forest service has in effect rewritten based upon aspirational goals some parts of the plan that are you know basically agreed to and part of the original plan can you point me to any case that did what you're asking us to do in this case no but i can tell you the forest plan is this is exactly what the  respectfully i understand that i know about the national forest match with ag but it as as as opposing counsel indicates my understanding is been basically this is like a general plan and the general plan has certain things that you can do there's certain flexibility but some things you can't do without amending the plan which include and it sounds like you're moving the requirements of subsections around on casters or you're rolling around on roller skates to decide whatever you want to do and there's no set rule and i did i that's why i ask is there a case i've never heard of a case that allows you to do that kind of thing well this is again exactly what the plan not i understand that your perspective right i'm saying if that's so clear show me the case who are court of appeal has said you know you're right that's exactly the way this is supposed to work well maybe no other plaintiff has has has challenged it because what again is going on exactly exactly what the plan contemplates now not only does the forest service need to consider the other competing vegetation goals but also the wildlife goals we can look at those as well supplemental excerpts of record page one forty nine and wildlife goal number one instructs the forest service to provide habitat capable of supporting viable populations of species wildlife goal number four instructs the forest service to provide habitat that will keep region for sensitive species from becoming listed and the white headed woodpecker is a region for sensitive species before service has to consider its its welfare when planning projects let me ask you let me ask you this so let's just let's just say hypothetically that there was in one of these aspirational areas something that says you know the it's the highest goal of the forest service to you know protect this certain kind of woodpecker but within a particular sub par of a forest plan says pacifically that area is you know from this location to this location down to this location is a critical protected habitat for this kind of woodpecker would you based upon your aspirational goals and the views of department scientists be able to change the geographic location of the habitat is based upon your internal decision you not that i think we got that wrong i just change it well  a fourth plan contains a variety of different kinds of provisions oh yes standards and objectives to goals and and guidelines and the forest service has the discretion on how to implement long term aspirational goals is nothing bind as long as y and z you're saying i don't care the aspirational goals say we can change that that's really what this case is all about i thought in the again i sound like a broken record here but the this is exactly what the force my concept contemplates is that the desire   not right it's different how how much oh force habitat existed previously and why is there no ok on forced under the the project let me let me explain ok forces generally having certain characteristics such as large trees large snags in abundance of course debris that definition is at page six twenty two of the the mental excerpts of record now the proposed plan amendments contains the exact same narrative definition and that can be found at page sixty one bought the what the proposed amendments were what they do as they add some quantitative criteria under which for example a large snag is considered to be more than twenty inches in diameter so what would the four services doing is using this sort of criteria as background to flush out the plans narrative definition and it's really an application of the best available science because that's what that criteria summarizes the criteria in the appendix of the proposed amendments is from the wisdom two thousand study and from the hon one thousand nine hundred seven study as explained in appendix e so and there's nothing wrong is not inconsistent with the forest plan and using the sort of quantitative criteria to flesh out a narrative definition now in the larger picture i think your opponent took issue with describing the changes as a restoration what do you really want to achieve by this change so what the forest service is aiming to do is to restore habitat for family one species represented by white headed woodpeckers so the forest service is aiming for fewer trees but larger trees and less canopy because that's the type of habitat used by white headed woodpeckers i think your co counsel would like to come up and speak so he's anxious thank you good morning your honour's and may it please the court lawson fight here on pay half of adams county idaho and the payout for its coalition and i want to emphasize at the outset that a really broad coalition came together to support this project and includes conservation groups local governments and industry if you look at i s o pages thirty three and thirty four that shows the substantial and ongoing involvement of conservation groups in developing this project and if you look i had page forty of the i s e r that also talks about the coalition's bylaws and how the coalition is an open and transparent process and nonmembers even even the  desired to would have been welcome to attend but they you know some of this council i guess i for one applaud the fact that you've got a bunch of people together trying to make this work i've seen it in some other circumstances and that's that's important to the court but you still have to comply with the law and did anybody in your coalition meetings talk about anything more than you know working within the existing plan other words a need for perhaps a new house and meant to the plan anybody talking about that i think your question your honor really goes back to well you know everyone gets together but you know you still have to comply with the law  but i want to touch on the nif main issues there are there are three three types of forest plan direction there's standards guidelines and desired condition and standards and guidelines are both recognized as binding desired condition is is the aspirational goal of that well let me let me just yes comment you know goals of any nature are still subordinate to the expressed requirements of the plan with respect to particular geographic areas whether or not they are how i want to make wanted one side point there which is this project does not change any element of the forest plan it does not preclude any further management and the forest service but wait a minute i've perhaps misunderstood but i thought your opponent was saying that canopy for example is one of the issues it was going to be changed substantially they're concerned about a particular kind of bird that does well i think she said years i would say more the trees here right right the remove there will be removal of smaller trees and the largest of the large will be remain will remain the large trees will be enhanced will be given more space to grow and then understory will fill in and you site to mr claus ners white paper when you're talking about these short term trade offs but the white paper states that the change won't preclude achievement of the plans desired conditions in the long term but mr closers seems to suggest from my reading of this that there would have to be another agency decision to return back to the plants desire conditions and i don't see any thoughts as my colleague here is point not months any time limit on this project and there's no guarantee that the agency would go back to the to the plan's desired conditions  it's a good question george and if you look at the final page of the record of decision it's a ten year project except for the prescribed fire conditions and so longer term after ten years well we'll see what happens i think that white paper that you refer to is really important because it talks about standards and guidelines for our desired desired condition for large tree am large trees and canopy cover and it and if you look at if you analyze it with a five point two six lens versus five point one you have to make a trade off between the amount of large trees you can either move toward the composition of large trees that you want or move toward the type of canopy cover that you want and what the forest service did using its flexibility and the vege you will one standard is we are in the short term going to move away from canopy cover and we're going to prioritize the large tree component of five point let me before we would unfortunately out of time but i did one question before yes and do you know of any case that allows the forest service and any coalition to do what you propose to do here i have not seen a case that rests on consistency with desired condition no known if mckay's has ever invalidated as far as i know a project on the basis of an inconsistency with the desired condition particularly with a forest plan has the flexibility that we see ok thank you i believe you have some rebuttal time c thank you the main point here is that that entire area on the map under the forest plan is supposed to be managed for commodity production the whole purpose of a forest plan the whole what a forest  plan is directing the forest service how to manage the forest that's what it's about and so the forest plan here the pit forest plan says we want these thirty thirty two thousand acres to be managed for commodity production that's m p c five point too this project is going to manage that entire area with the goal of restoration and maintenance a completely different goal you may as well just throw out the entire forest plan if the  if the court upholds this decision and says that the forest service can just ignore the direction of how what the ultimate management requirement is for an entire part of the forest why have the plan at all i mean the same question but it can mean that a different way do you know of any case law that would bar what they want to do what no i don't your honor but you know to actually switched t insert that they gave you no plaintiff has challenge this was what you heard i would say that this is so egregious sometimes there are things that there's no case law because it hasn't been done because it's so obviously illegal and i think here the idea that a forest service would actually implement a project that's completely opposite of what the forest plan is directing is so egregious that it hasn't there was any new view of the question is really not a factual question whether or not it's inconsistent with the plan the question is whether they have been already to implement the changes which are inconsistent with the plan actually your honor the first what you said first i say this is inconsistent with the plan what they're doing because they're going to manage thirty two thousand acres if they were actually so if we accept that then the second question is do they have authority to implement these changes which are inconsistent with the plan i assume we're going to and let you know if they're right they're right if we are right that's a different issue whether this is the right approach before you go i just want a five not affected correct yes your honor i'm a five only because there is