must meet to assert your restriction over a road that has been under federal ownership for the past one hundred years and the decision the court makes here today could affect thousands of these right of way claims across the western united states well before we get there m you address the i'll see valley problem because i'm not sure we have jurisdiction if the district court vacated and remaindered to the agency which i assume includes take another look at the r s twenty four seventy seven problem i'd be the agency made a management plan for the entire forest dale area the appellant's here challenge both of those decisions in separate class and separate causes of action the district court resolved both of those claims the district court upheld the jurisdictional determination and reminded the management decision of course the jurisdiction of terminations here is not inseparable from the management decision because the jurisdiction over forestdale road  drives or determines what the agency's options are in its management of the forest hill area the appellant's here can't secure the release that they're requesting without addressing the jurisdictional questions because the very relieves appellants are requesting here which is to close for a stale road to snowmobiles is the very action that the jurisdictional determination concluded that the agency can't to do and the district court upheld that decision can you point to be in the record where the district court did that because that was not my reading of the district court's order i v i'd be happy to do that your honor is there particular language in the district court's opinion from which we can glean however goes on to conclude on the next page which is page six of the decision scuse  me page eight and nine before just the decision to state that the evidence before the forest service was adequate to support a decision by the forest service to decline to assert jurisdiction over for sale road and  in conclusion the agency granted summary judgment in favor of the forest service on the on the two four seven seven decision but doesn't he go on to say on page nine that the final agency action subject to review not to close the road basically is part and parcel of the remain and he does say that however your honor we think that's an erroneous conclusion the requirements for final agency action which which the parties agree on were clearly met in this case the agency's jurisdictional determination was the consummation of the forest service decision making process the jurisdictional determination clearly established new rights and obligations in this case the jurisdiction determined after the jurisdictional determination the forest service stated it no longer had the ability to close forestdale road absent permission from outlying county to do so it didn't have the ability to regulate use of the road without the count permission just so i want to approach the same issue from maybe a slightly different perspective and that is the following let's assume for the sake of this question that the house c v s control and that time to challenge the decision about jurisdiction over forest tale road that we're talking about here your honor i don't know the answer to that question i think there's a lot of procedural  barriers to that taking place what what would happen if this court would uphold the lower court decision is the agency would go back and do a new management plan the one nine hundred ninety eight your stiction determination was upheld by the not clear to us that we can get back get that question back before the court further even if there was the possibility of review later the reason that this case has not been resolved and the main impediment to resolving the  conflict over use of force to oversee a both both in this case and in the previous litigation between these parties has been the jurisdictional question and that's why the parties agreed in one thousand nine hundred seven to a stipulated judgment in the past litigation to resolve the jurisdictional question before making any management decisions for for sale area here the very the lower court decision disallows the appellant's here from getting the relief that they request  remain and that is closure of forestdale road to snowmobile because the forest service claims it doesn't have the ability to do that but district court upheld that determination that distinguishes this case from also and also see the entire management plan was sent back to the agency and the court stated that the agency would be starting from scratch in its management and the appellant so there could secure the relief they requested from the agency remain and that's clearly not the case here because there is no opportunity for the appellant to stick secure the release they're requesting and remained let's take a hypothetical suppose that the forest service decides that the closure is in the best interest of the protection of the resource and to address the concerns that the have been raised with regard to motorized vehicles during the winter what would prevent the forest service from going to alpine county and asking alpine county as part and parcel of the forest service plan to close the road in which case you would get the relief that you wanted and you might or might not then appeal to the final decision by the forest service the forest service certainly could do that in fact that's actually happened as part of the settlement discussions for this litigation the forest service and the appellant's here were very close to reaching settlements the forest service went to alpine county who rejected that settle but the county of course remains vehemently closed opposed to closing this road and the the problem with that aside from the fact that outlying county remains opposed to it the problem is that the issue of accountability here faced with a difficult decision the agency applied the wrong standard with no public process and no public review ceded jurisdiction of forest trail road to alpine county and if this agency is allowed to do it here it will be allowed to do it elsewhere and no claimant will ever have to prove up a right of way claim under r s two for seven seven which is squarely in conflict with the jurisprudence of this court on the burden of proving these right of way cases how do you distinguish all of the cases that talk about the fact that it is the state courts which no support made no effort to to meet the burden of proof clearly established by this court and based on this the forest service stepped into the county's shoes and examined the evidence on its own and ceded jurisdiction to over forest dale road to alpine county this court has been very clear that any doubt in these are as two four seven seven right away case is resolved in favor of continued federal ownership the burden of proof i clearly on the claimant to us to show that they have a right of way this is a very high standard to meet and that's because it's the national policy of the united states as articulated in the federal land and policy federally and policy and management act of one nine hundred seventy six which repealed r s two four seven seven that federal land should be maintained under federal ownership unless it would serve the national interest to dispose of those lands as i stated outplaying county has not met nor attempted to meet the burden of proceedings the current administration has revised the regulations that that had required the closure of the forest dale area that's why in a reply brief we emphasize the court's equitable powers to grant  requested a summary judgment here forest management act claim correct that's correct and what what do you see in the record that proves that you are entitled to me i think the again we would because those regulations have been changed in the course of this proceeding they no longer apply to this case our argument over over injunctive relief at this point is based on the fact that the balance of harms in the public events in public interest here favors granting injunctive relief to appellants well if that's that much what's our standard or review of the district cour this case the district court was clearly erroneous in both its all rest two four seven seven review of the jurisdictional determination and its need to review which found that the user surveys are too subjective to be the basis of a management plan which is squarely in conflict with this court's holdings in northwest motorcycle and bicycle trails of marine case because it reversed a very small closures that the one thousand nine hundred eight management plan had put in a fact and reverted back to the one nine hundred ninety two management plan which leaves the entire area open to snowmobiles are you really asking us to declare by way of injunction that the alternative that you propose should be implemented immediately as opposed to our remaining it back to the forest service to tell the forest service to take another look at all of the available alternative s we certainly would appreciate a remittance to the agency to look at all of the available alternatives that's what the district court did not the district court did remain the decision to the agency however the district court based that decision on the surveys or on the used ability of the service which again this court has squarely ruled is the best evidence of user conflict the district court never even reached our actual need to claims which is the agency hadn't considered a reasonable range of alternatives i'm confused won't the agency consider all that evidence on remain and isn't that what the district court told it to do no in fact the agency stated that the one thousand nine hundred eight management decision is predicated upon those user surveys user servers in this case remanded to the agency that the forest service will now be forced to do a new management plan at some point the agency sent the district court decision two years ago has made no moves to implement a new management plan without the utility of the best evidence of the very conflict that the agency is trying to resolve which is the user surveys let me touch briefly if i may on the merits that are at the heart of this case which is the standard that the claimant here alpine county must meet to assert jurisdiction under r s two four seven seven i that the burden of proof here rests with the claimant and any doubt is resolved in favor of continued federal ownership there's also no dispute here that the proving a right of way under our us to four seven seven requires two things first evidence of construction and second evidence of sufficient public use in the time period required the time period here is from eight hundred ninety three that was the year that outplaying county disavowed any jurisdictional claim to force or for a stale road thousand or two which is the year that the land was reserved i mentioned why this is a high standard the forest service stepping in the county issue is relying on vague generalities and obscurity to mask the fact that there is substantially no evidence to support this to support either prongs of the test for jurisdiction regarding the first requirement construction the agency states that summit city road was constructed by miners and eight hundred sixty three  that road most likely became forest trail road the same evidence that the agency reliance on to state that some one city road was constructed and most likely became forest dale road states that that road is now either a packed trail or blue lakes road clearly not forest trail road there is no evidence of construction of forest trail road in that sense this case is very like adams where the court found that there was construction but not of the road in question and the claim for jurisdiction failed regarding the second requirement public use even if the agency is correct that summit city road did become forest railroad which the record shows that it didn't summit city was abandoned in the eighteen seventies and the record shows that there was little to no public use after that time that is not sufficient to show public use from nineteen zero two season from eight hundred ninety three to one thousand no two the agency instead relies on its theory that hope valley has become quote a hub of public activity during the late nineteenth and early earth twenty early twentieth century that may well be but that certainly is not sufficient to show sufficient public use on forest trail wrote itself from eight hundred ninety three to to to support the county's claim because of all this uncertainty that agency is clear to state in the district court noted this that the that there is a significant uncertainty over jurisdiction of forest dale road stating that the agency states that it's legally inconclusive it appears for stale road is under county jurisdiction so what do you want to do if you want to send this back to the district court and tell the district court in essence hold a quiet title action and put the parties to their burdens of proof and make findings of fact in conclusions of law as to which party wins and who has jurisdiction over the room what we think this court needs to do is to interpret the statute and provide guidance to the agency on the implementation of r s two four seven seven but sounds to me like you're asking us to rule on the evidence you want to look at the record and tell the agency what it what weight it should give to this evidence or tell it that it gave too much weight to the evidence who is going to make the final determination well this is this because this is a ruling of law your review here is to novo in we believe it is appropriate for you to rule that the claimant in this case has not met the burden of proof  good morning and i pleased the court matthew sanders for the forest service i thought i'd begin by addressing the most important issue in this case at this stage in the litigation and that is whether this court has appellate jurisdiction over the friends of he'll from that district i begin by addressing that question first i think the answer is definitely yes on the point of the point behind alcee is that it doesn't make sense to interject appellate review at a stage when a fundamentally different agency decision is plainly possible so how is it possible for it to be fundamentally different i guess that's where i understand in theory what you're saying but the district court granted summary judgment concerning the road  basically said government wins plaintiff loses were done with the road so how could that be materially different after the rain man on another question well a couple of responses first i read the district cour it may not be likely but even even if the forest service does not revisit the title assessment on re manned i don't think that precludes the friends from later revisiting that issue on appeal once there is a final judgment twenty four seventy seven claim is granted so once that legal ruling is embodied in the court's judgment why is that even open for four reexamination that is the judgment of the district court revisit my prior to terminations concerning the title assessment i don't know i don't think that that means that the friends can't seek review of that judgment on appeal once there is a final judgment the point of alcee is that there has to be a final judgment and district court orders vacating and remaining an agency's decision are not final with one exception and that is a government exception where the agency is the appellant the agency may so in that sense it's a final judgment and the question i guess underlying it is whether there were two separate final agency actions as the plaintiffs are arguing or not because there are certain is that there actually are two separate final agency actions one regarding the ownership of the road and the other the plan itself are there two actions by the agency here or is there one action i that there is one action and i would like to get to that but but as a predicate issue it doesn't matter as this course as this court held and national association of homebuilders accused that we submitted last week and a notice of supplemental authority even where there are two separate final agency actions if the district court remains one and up hold another and appeal from the decision upholding the other agency action must still await the completion of the service it's not if the government itself rather well i think it's certainly possible that on the basis of the title assessment a new title assessment or not a title assessment at all the forest service could select a management plan that addresses or otherwise obviates the friend's concerns for example the forest service could select a decision that include that involves a partial seasonal closure of forestdale road which i know the parties are engaged in discussions about now in fact and the that would that would involve working with alpine county on the other hand the forest service could regulate access to forest hill road in a way that addresses or otherwise obviates the friends concerns the point is the final judgment rule reflects the notion that the coherence and efficiency to be had from waiting for a single appeal at the end of a case outweighs the prejudiced if there is indeed any and the costs of piecemeal review that plaint were in the meantime well opposing counsel have said that as things stand now it doesn't really much matter where you agree to because without the county's agreement it doesn't it can't be effected correctly that the forest service has authority to regulate use of or access to forestall road certainly the forest service henri man could after size that authority in a way that addresses their concerns so let me just make that a practical question could you close complete closure without alpine counties acquiescence is probably not possible so that's a no basically to my question no ok well we're the only relief that will satisfy the plaintiffs in this case i think you asked for it that's what they've asked for that's true but i'm not sure that that's in fact what would i not sure that that's the case i mean certainly the forest service could  ownership decision drives everything else and it is final district court said if you win they lose we're done the road belongs to the county why isn't that about us final gets since that turns out to drive everything else the remaining will be would be either different or irrelevant if the road ownership issue was wrongly decided by the district that satisfied the plaintiff's concerns an appellate review now doesn't make sense let me also address the final agency action issue because if in fact the title assessment is not a final agency action the certainly that's the end of the discussion the friends are wrong that the title assessment is a separate final agency action as the district court itself explained it was not subject to review under the administrative procedure act it was neither the consummation of the forest decision making process nor did it have direct legal consequences rather it was one of several interim steps the forest service took to arrive at a final decision in this case that as it had if it had any legal consequences at all they were at most intermediate consequences whose the facts on the friends or other non agency parties were contingent upon the execution of some further and finally agency action in this case quiet title to a right of way over for sale road and we do not think that the that the title assessment meaningfully informed the agency's decision that was set aside instead the agency relied on other management consideration still declare the next time around that the decision was arbitrary and capricious and therefore vacate whatever the new management plan is and send it back i think that's absolutely correct i think let's say the forest relies on the title assessment to conclude that it can't do something with respect to forest hill road again the district court might say i've already looked at the title assessment i'm not going to revisit that issue nothing precludes the determination i think so during the remaining process the friends are certainly free to provide comments and seeks to influence the agency's decision and one of the things that they could do would be to say forest service you must look at this title assessment must revisit the title assessment or you have to use it or not use it presumably the forest service then has to respond to those comments but why but this is the kind of question why would the agency do that if they already are in possession of a partial summary judgment award from judge levy's first in which the government when plaintiff loses on their twenty four seventy seven well they may not get the friends but the friends are still free to allege that either either the forest service didn't rely on the title assessment or if there is no evidence of that they could say that the forest service should have prepared a new title assessment and that is that is subject to review again we're not saying that the friends cannot seek appellate review of the title assessment in the district court statements concerning it we're simply saying that they can't do so right now and that's the point of  if there is even if it is a separate final agency action it doesn't matter the point is the remaining process has to be complete until there is a new decision from the agency well if the point of all of this  standard to be applied by the agency in all respects because the point of letting the agency deal with something henri mandy is to give it guidance here are the legal principles to apply do it over and if we were to think that they've only gotten half of the correct legal standard to apply henri man why is that in service or traditional economy i think i think i totally understand i think that's a very but i would still direct the court's attention to his decision in home dollars in that case the the two rules of issue were under the endangered species act one was a listing decision and another was a critical habitat  if ever were that there were a case where appellate review should have been had before the completion of the riemann process it was that case because if the listing decision is wrong and has to be vacated in re mandated and certainly the critical habitat designation for that species doesn't need to take place nonetheless this court held that it did not have jurisdiction until the completion of the remount process underlying i think the court's questions a concern about what prejudice that the trends may suffer if any if they have to go through this remaining process and again i would submit that the friends won't suffer any prejudice but even if it's the case that they will district courts issue decisions all the time that cause immediate prejudice to parties denials of motions to dismiss discovery orders these are orders that have meaningful effects on parties but nonetheless they're not appealable and that is because as i said earlier the final judgment rule reflects the notion that certain or certain appeals from certain orders should wait until there is a final judgment the french have not made a good case here that there is any supreme court's attention to the supreme court's decision just last term and will be halleck one twenty six the supreme court nine fifty two in that case the court i was addressing whether in order of a district court which would force a defendant to go through trial perhaps a trial an error was appealable under the collateral order doctrine and the court said no it's not and the reason is because there wasn't a substantial public interest that it tach to the inability to seek immediate a pal or review this case certainly doesn't rise to the level of forcing the friends to go through in a trial an error that they wouldn't otherwise have to do with certainly not that kind of prejudice and even that level of prejudice wasn't enough to allow review under the collateral or doctrine so i don't think the french have made a strong case here that even if they will suffer any prejudice that prejudice is that it is of such an extraordinary nature that this court needs to carve out an exception to a well settled rule an exception that does not in this circuit exist in the last  couple minutes if i may briefly address the injunctive relief issue the only basis on which the friends have ever sought injunctive relief to the extent that they have done so at all in this case is under the forest service regulation which requires the complete elimination of considerable adverse effects even in a reply brief the friends do not show any irreparable harm that that result from user conflicts tra encounters with snowmobiles and ra and loss of skiing opportunities in the absence of snow deal certainly is not irreparable harm nor can they show that shifting entirely the perception and burden of conflict onto another group of users will be in the public interest and as for the merits of the forest service has never taken a position at me or user conflict is the same thing as considerable adverse effects und regulations and the friends have never sought injunctive relief on any other basis if the friends really feel that they will suffer harm their remedies are to to ask the district court for an injunction and if they really wanted to appeal the title assessment now they should have sought certification pursuant to rule fifty four b or twenty eight u s c twelve ninety two b nothing precluded them from doing that and that was the relief that as this court explained and home builders association was available to a palance who wanted to see commuted appellate review of an otherwise unavailable or for these reasons the district cour your honor so in my few minutes of rebuttal here let me just distinguish the homebuilder's case that i want submitted on the rule twenty j letter the factors that the court looked at in that case or that the decisions were challenged in a single action the district court expressly retained jurisdiction the administrative record was substantially the same and the statute required concurrent decision making and none of those factors are present in this case the  only forest service also mentions judicial efficiency here resolution of this case is impossible and it has been impossible since the first litigation was filed and the reason for that is because of the jurisdictional questions over forest trail road the appellant's here cannot secure the relief they're requesting on remained without addressing those jurisdictional questions and what will happen if this case or if this decision is remanded to the agency  new management plan will be implemented jurisdictional determination will remain intact and this decision will be squarely before this court at some point in the future there simply is no efficiency in that approach the primary issue in this case is accountability and here the agency is trying to evade accountability for its jurisdiction or determination by raising procedural issues for that reason it's imperative that this court provide guidance to the agency on how to prepare to implement the standards for determining the validity of orris two four seven seven right of way change claims that this court has already established and to preserve the public lands as the congress has inten very much the arguments of both of you on the case just argued you submitted but before you leave i do actually have a question for both of you both counsel during your arguments mention that there have been settlement discussions various times and it might be helpful for the court that if within the next seven days if you would inform us whether you would like us to defer submission to pursue that further either through our circuit mediation program or otherwise let us know otherwise we will proceed in the normal course to decide the case