environmental policy act first that the first service violated lipa by failing to to prepare an environmental impact statement in the meadow valley lugging project in the plumas national forest with other similar logging projects implementing b quincy library group act pilot project and that are in the immediate geographic area of the narrow valley project the claims are related because they had to do any i a s because of the cumulative impacts and other reasons and the existence of the cumulative impacts is a factor triggering the need for an environmental impact statement the legal context your honour's is that nepa provides a very low threshold for preparation of an environmental may be significant impacts and the plaintiffs in an e p case do not have the burden to show that significant impacts will in fact occur only that they may occur that was the law then in one nine hundred ninety eight and it's been consistently reaffirmed by this court most recently in ocean advocates versus army corps of engineers just this year so given that very low threshold this project the middle valley project just on its face is a major federal action significantly affecting the quality of the human environment this is a big project your honour's that involves logging of sixty four hundred acres of timber land that's ten square miles about six times the area of the golden gate national park here in san francisco moment it also has significant impacts on the california spotted owl and on public health and safety but before i get into any further  detail the the need for any i a s in this case i'd like to spend a minute or two talking about the case that this court decided a couple of weeks ago and that the government submitted to the court just last week as a supplemental authority and that's the case of the native ecosystem's counsel versus forest service although the court in that case reached a different conclusion from what we're asking the court to to do in this case the facts in that case are very different from the facts in this case first the area to be lived in a case was relatively small but seven hundred twenty acres as i recall compared to sixty four hundred acres in this case secondly claim in that case was that the logging would harm a single pair a single nest of a single pair of northern gus works which is a species that as this court threatened or endangered species may be warranted that federal register notice is not in the record because it came out after the decision below but we have attached it as an appendix to our opening brief bendix northern gaza sachs primary did not have a good work old growth of course yes ok and the court in that case specifically noted that the logging in this case by contrast  will affect some for over four thousand acres of suitable spotted owl habitat and will render all of those which is very big and usually a very old tree and in fact if necessary for reasons of quote operability which means moving heavy equipment around and they can cut trees even that first service offered a quote an extensive analysis of the cumulative impact here is the quote articulate and careful cumulative effects analysis was quote detailed and quantitative again by by sharp contrast in this case your honor the with respect to past and present projects other lighting project the forest service that best simply listed those projects in the environmental documents i gave the number of acres to be logged and the lighting method to be used but did not gauging any kind of an analysis of the cumulative incremental synergistic effects of the impacts of those projects with each other or with another valley project well  there would be no necessity to provide foraging for the birds and therefore the cumulative projects would not have an impact i mean the other probably wouldn't have the cumulative impact was it wasn't was their position and i wasn't thinking on the basis of conclusions or speculations but based on the experts that they chose to believe as opposed to your experts that there are also plenty of l nests right outside the boundary of this but by my count there's twelve or thirteen so while the first service says that they based the includes an area from each of the p l z nests and gives each of those nests sufficient area well again that but that's not the case that's the lied but first of all so that so therefore that's their their evidence is faulty and now i'm going to ask you why it is faulty because first of all they don't  so has spotted all habitat areas are no longer use that was a designation that does ignition has not been used by the forest service since one thousand nine hundred two i believe they do use the acre area any of them are misrepresented on the map now so they each have three hundred acres around the nesting your area of each of these spotted that's right that's right and it's not going to be any logging  another circle your honor of the home range and the forest service completely failed ignored the existence of the home range the home range area is about twenty percent of the larger home range core areas where they conduct about sixty percent of their al business but there's a larger home range that's about seven five thousand acres in the plume this national forest which they did not consider in drawing their wildlife analysis area that extends the whole range extends way beyond the boundaries of the wildlife analysis area and would extend  whole range area which is larger than the home region core area that's exactly right and that the government experts give faulty evidence because they did not because you can't really consider the impact upon the spot on whether the home range area as well as a whole range core area is considered right ok and that shows four or five other projects these are future planned projects in the immediate geographic area of the matter valley project these are all in the pipeline and some of them had been approved are less fire resilient there's a large fuel load on the forest and there's just a problem with forest health and a real and real risk both to owls and also to the local communities of a standard placing fire a catastrophic type of fire so the local communities environmental groups and timber and stations got together to discuss how best to approach the situation and took a proposal to congress and congress  study it congress that knowledge that this is an unusual way to manage forests and that it doesn't want to do that all the time but it wants to see if these types of silver cultural treatments can actually make a big difference in this area so it's give us a limited geographic scope give us a limited time frame give us a lot of monitoring and an ability to adapt your management if you see some problems occurring we want to see what's going to happen and that's the context within which the metabolic project arises you know what would you have done if you didn't that's very difficult to answer but here you had a that was there was a scoping process before the was prepared there was first of all it's a consensus based proposal so you have the local communities are very behind it and you had a that was scoped comments were considered comments were very hard look at the whole it has a specific biological assessment and biological evaluation that looks at the cumulative impacts on now and i wholly disagree with the characterization of the cumulative effects of this project that my brought to the court this morning in his brief this this is nothing like the cases where this court found that there was no analysis or there was only a list there is true analysis here and i'm going to turn directly to the point that we that the forest service wildlife biologist determine what would in fact encompass all tensional cumulative effects on the owls it didn't just drop along the home range core areas that would be impacted by the project it went beyond that to the to the next home range core area and it did that based upon alba havior and the potential for there perhaps to be competition between owls in one area and in another area and the statement by my opponent that there was no effort by the forest service to look at the actual home range of the spotted owl is absolutely wrong as we explained in our brief it page thirty one and as the record demonstrates the fore service formulaically modeled how we would expect spotted owls to range from this area and the way that it's equal to twenty percent of the sum of the average breeding pair home range plus one standard of error and forest service wildlife biologist determined that that is an appropriate measure of actual ranging activities for the spotted owl this is very similar to what this court addressed in the selkirk case where the court looked at whether the agency could have limited its analysis area to a bear management unit approximate and this court said you don't have to know exactly where the mother bear is going to wander you have to approximate that basic home range and that's exactly what the forest service did they modeled it this is scientific i'm explaining that what what the forest service did should approximate what how a typical breeding pair might forage from its next area it was looking at you know you might have one group that would go further one group that wouldn't go as far so the forest service determined that for an h r ca to determine how many acres you should have within that home range core area that the average breeding home pair plus one standard of care for the wildlife analysis boundary in the meadow valley project the forest service went beyond that twenty percent look to the next h r ca beyond my twenty percent were this twenty twenty percent of the arrears well it's not just looking at twenty percent of your particularly for this analysis because that goes beyond the first time range kori area it goes much further than that and also you have to look at the way the forest service looked at analyzing the impact here was you do have six thousand four hundred acres of project treatment and what the forest service want to look at is within the eighty five thousand nine hundred nineteen and now acre analysis area what is going to really happen what fire resilient staged and give you better larger diameter trees that are going to be able to provide better habitat for the spotted alman long term looking twenty years fifty years one hundred thirty years ahead just as there are some long range aspects to this project very similar to what this court looked at native ecosystems council i mean this goes let me ask you this we've been talking about the next area you know three hundred acres around the nest area and then we talked about the home range korea or the which is the next seven hundred acres in concentric circles if you will ok and then you're saying that the forest service looked at  can then they drew their line in the eighty five thousand acres in which they were going to make their study yes that's correct yes according to this formula yes now then i looked at the math which is selkirk where so the agency was found to have discretion and exercise it appropriately to choose the relevant geographic range for the species let me ask you why didn't you consider that made a good faith determination at the time it was planning for meadow valley that there was no overlap with the with the with the project units when it found that there was some it pulled those units but the reason why it was ok for the forest service not to do a larger analysis that would have incorporated the basin or empire or the other projects was number one because it did take a scientific based live effects analysis area which was appropriate for the spotted owl and to to look at yes that said here's what would happen if we we did implement all of the the pilot project units and so it was all of this is done in light of the knowledge of the impacts on the well from full what's also important here is that perhaps it's the plaintiffs have brought these particular projects if these were important to them during the administrative process and have brought them to the forest service and said hey look we want you to do some more on this they would have given even to the opportunity to do that but if you look at the comments submitted by the plaintiffs in this case they were asking for not please look at part of the basement project or all of the basin project or part of empire all of empire didn't mention th their comments and i'll either quote the king live impacts regulations or what's very telling and this is what they also stated to the district court during the hearing in this case at six twenty one of our excerpts they defined the foreseeable even if they weren't even given the opportunity to try to present more discussion in the record were guarding their effects analysis this is very similar to the to the argument that the plaintiffs are making an inland empire they're like hey you've got to look everywhere and this court said no you can look at the watershed you had a twelve thousand acre project a twenty eight thousand acre watershed and this court said that was fine because it was biologically sound and that's the same issue here if they had as one approaches the air lines with the basin project area and the entire project here seems to be at least one square mile of distance between occurring here and there for spain new approximately you know how much acreage might be impacted based under the entire act when they were developing the meadow valley project said we're going to look at what will impact the our how where what might they move if there's competition if the group selections take away a little bit of the foraging habitat and the four and the priest go to the edge as well that caused one breeding pair or perhaps to move encroach on another breeding pairs area and caused competition between the two which might lead to a less productive breeding pair and in determining where that competition might lead the breeding pairs of owls it through the area in that area there are thirty protected centers for owls only sixteen of them are subject to treatment under the project and the the areas that are subject to the most treatment are areas where there hasn't been a breeding pair since  and there has been sighted in at least two years and there's only one one home ranch kori area where there's even a moderate risk of impacting the viability to to the spotted owl so there the forest service looked at this project the significance of this project that the tensions significance of the group selections and defensible fuel profile zones and said how might this make the owls move and that's how they drew the boundary it's also important to recognize that the forest service took into account one very important aspect and i mentioned this before but i mention it one more time is one of the most damaging impacts to spotted owl habitat could be a catastrophic fire and the whole purpose behind this project was to try to stop that from having happening in this area and i have out of time my oh i get you one question apparently back to even the casco guidelines and an all of the program matic analyses along the way for the owl group selection and that's that's the treatment that would leave some openings is considered inhabiting the group areas earlier and the swirls might move to the outside of the areas but ultimately if you look again to the long term benefits of the project within twenty years foraging have that would increase for both of them we reasonably to future foreseeable future projects which include those that are on the map in item thirty three of our excerpts of record the basin project the empire the what flapjack and so forth the forest service completely dropped the ball there was no mention of any of those projects in their environmental analysis so they not only failed to take a hard look at the cumulative impacts of the case that i referred to in my opening statement blue mountains biodiversity project versus blackwood and just quote from that opinion quote nothing in the tearing regulations suggests that the existence of a program ma in which this court made the same point that tearing to a program at it cannot save and environmental assessment when there is when the program matic document does not have any site evaluate site specific impacts and they leave that to later to the leader site specific environmental documents in the one nine hundred ninety nine quincy library group posed a serious risk to the viability of the california spotted owl the meadow valley project is the first of the quincy library group projects that allows logging in suitable california the these projects are all interconnected interrelated they're all part of the quincy labor group pilot project the first service clearly when it plans one of these projects has in mind the other projects that's already done in the future projects that it's going to do and it's critical that the cumulative impacts of these projects be evaluated owl's in meadow valley don't know that they're only supposed to be in the m early analysis area in fact they fly in and out all the time this is just a line on a map drawn by some for service planners not a fence in the forest the as we discussed earlier the home ranges of the extend far beyond the now under ease of the analysis area they may extend into the basin project area they may extend into the empire project area and so locking in those two projects just as an example may very well impact netto valley spotted owl habitat so that's why the cumulative impacts are important and need to be on that point mr sherwood i had some recollection that i but i mean typically it typically will travel within its home range which is in the planet's national forest about five thousand acres around the nest site and again that that area extends way you see it was what they did not consider that only did not consider that in those areas extend way beyond outside the boundary area of the the meadow valley your scientists would have considered well we did submit declarations that's right you're on a jet fighter you you ask didn't they lay out units of the base and project area within the meadow valley project area they did indeed that came to light during the course of the proceedings below and the fire service was something of a red face i imagine had to admit they made a mistake but that's evidence of how interrelated these projects are and also it's evidence that the first service failed to take a hard look at the cumulative