thank you aaron good morning may it please the court my name is rebecca smith and i represent the appellant alliance for the wild rockies the native ecosystem's council your honor i'd like to address two primary issues today the first issues going to be the site specific forest plan amendment and the second will be the grizzly bear linkage corridor issue for each of these issues there's essentially to some of the issues that i'd like to discuss and so first addressing the forest land amendment what we have here sis and a failure to do a human of a sex analysis both of these are controlled by the plain language of regulations and so i guess i would like to just start by looking at these regulations that control in this case in our briefing we suggested that the two thousand if my regulations controlled question maybe i'm on the wrong org are you really challenging the u s was prepared in accordance with your honor what were our need to challenges or to the site specific forest plan amendment and so the first meet the challenge to the site specific forest plan amendment is that there was no need for analysis that allowed public comment for the forest plan amendment prior to the decision authorize that ing that amendment and then the second need to challenge the six to the amendment is that there is no thousand and so what that means what a need for procedure is is defined further in the regulations than one thousand need to regulations say that need procedures include the rules policies and procedures governing agency compliance with need as set forth in the c f r that's at thirty six c f r two fifty one point fifty one then in turn the at forty c f r fifteen hundred point one b it says quote nepa procedures must ensure that environmental information is available to public citizens before decisions are made and so in response to argument there was no environmental analysis for the amendment before it was authorized in the government's response brief what they said was at page eleven they said that the forest service quote authorized an amendment to the forest plan exempting the project area from these two standards and discussing the environmental effects of that decision in the r o d and then they cite e r to ninety nine to three zero five so they're admitting that there was no environmental analysis of this amendment intil the record of decision and that's fundamentally inconsistent with need to do the analysis after you've made the decision the whole purpose of need is that you do it before the decisions that the public can help formulate alternatives before a decision  and so the government's only real response then at page thirty or the government's only response is essentially that this is that when the three through twenty five they basically say that the fact that they notify the public that there might be a forced plan amendment sufficiently gave the public public notification and then they cite in part to the regulation but the regulation requires public notification and nepa procedures and so the need is the part that's missing and their brief is really devoid of any explanation as to how that would have occurred because it in fact is not moving on to the inadequate commit of effect analysis again as in the agency's brief what they say at page thirty three they say that the forest plan amendment itself quote discusses the cumulative impacts of this amendment with other prior force s two thousand and six and again in two thousand and nine and then after publishing these drafts the forest service engaged in public discussion in fact they talk about  scoping documents sent five hundred thirty three individuals to open houses were held ninety command comments were received to open comment periods and your honor what you're citing to is the i asked for the project itself what what our argument is today is that there was no need analysis for the forest plan amendment itself and so those are two different actions the forest land amendment itself had no analysis and public comment on the analysis as the agency admits again in their brief at page eleven the environmental effects of the decision of the amendment were not discussed until the actual decision they cite to ninety nine to three o five which is the record of decision so those are two separate issues and we're not disputing that they didn't need analysis for the project the argument here is that they completely failed to do anything analysis for the forest plan amendment prior to authorizing that amendment and if i could go back to the cumulative effects argument again as i said at page thirty three all that they're arguing is that they addressed prior site specific amendments and so again this is a matter of clear regulatory language at forty c f r fifteen zero eight point seven it says a cumulative effects analysis includes past but also present and reasonably forseeable so there's no dispute that they did not your your honor what we presented factually and our opening brief is that we had evidence from another case that there is evidence that the forest service was systematically failing to come to comply with these forced plan standards and that a number of elk the majority of elk units across the forest failed the standards and so that was where our clients concern came for they said well what's going on on the rest of the forest and then in in the government's response to our opening brief they said well you haven't proven that there's any reasonably forseeable projects out there that we didn't consider and then the government even went so far sissay and there are none so that was why in our reply brief we went on the forest service's own web site and said well look here it says the next five ten or sales are all going to implement this exact same site the six forest plan amendment and i mean i would like to emphasize here that the law actually does not require that the repeatedly said it's the agency's job to analyze the cumin of the facts not the plaintiff's job to guess what those cumulative effects might be and in fact into moca try this court address for the first time whose burden it was and specifically said it's the said third at eight ninety seven this is an almost identical case which we've always argued controls our case and i would like to just quote from that opinion at eight one hundred seven it says quote the service argues that it need not consider other road density amendments within the derek eagle e a because the amendments are spread throughout the galaxy national forests we disagree the national forest was the geographic unit within which the forest service chose to set forth binding road density standards and the forest plan all of these sales are proposed within the gallatin national forest and will necessarily have added to the fact within that management unit in less the cumulative effects of these amendments are subject to even though distantly spaced throughout the forest the forest service will be free to amend road density standards throughout the forest piecemeal without ever having to evaluate the amendments cumulative environmental impacts nepa does not permit this now as a result of this project covers a standard will be in fact even less complied with but they conclude that the long term effect of this project will be very likely to improve the cover how do you respond well we fund and i guess i'll just add one more thing and and if it's true that this project will have the consequence in the end of improving it why do we need to do a cumulative effect when in fact we might be able to conclude that this makes the standard better rather than worse and therefore whether those others might make it worse well that doesn't matter because that's what makes it better so how do you respond to first of all you're under the requirement underneath effects analysis does not hinge on whether the impact is adverse or beneficial and so fundamentally under nif may you're supposed to have a systematic land management plan that applies consistently and so a piece mail a piecemeal approach where each specific timber sale that violates the forest land is simply exempted from those standards at some point the agency does have to do a human effect analysis ok and you know our other response is that logging in or moving hiding  well if the trees fall down then they're still there and the al qaeda uncover requires that you can't stand out from two hundred feet so if there's a bunch of trees that had fallen down you're not going to be able to see him out there really says that that's going to be the short term effect you contend that the long term effect will not be to improve well yes your honor because additionally when trees fall dime they provide micro habitat sites that allow other trees to grow and logging compacts the soil and makes it much harder for trees especially in the northern rockies to grow back so logging will have a series of cumulative effects over time that degrade this area inhibit the ability of the forest even grow back but if i could i would like to just just contradictory just there for service judgment they have the option on them when they do your honor but regardless of whether it's a negative or beneficial effect they still do have to address cumulative effects and good morning your honour's and please the court my name is les mcfadden i'm here on behalf of the u s forest service and the u s fish and wildlife service talk about the forest plan minutes here in a second but i'd like to briefly catch the court up to date after this project was delayed by litigation we did have a very severe wildfire on the project area last summer six hundred acres were burned high severity which means ninety percent of the burned areas were lost the understory and the canopy trees all gone the projects now status where all the trees have been cut  nearly all been removed by the units if there's any left out there they'll be gone by the end of next week but we haven't we're not making suggestion of business at this point there is still some work to be done from the field production work left to be done only about half temporary roads have been obliterated the other half are gone and the road decommissioning of the nine and a half additional rows that are being removed as part of the project that happens next summer and then perscribe burning that's part of the project will start sometime in two thousand and seventeen the answer i'm not sure what the viability how the population is doing both at the force level scope and at the scope of the elk herd unit which is the unit which is the scope at which biologist determine effects on the elk is all included in the environmental impact statement the effect of reducing hiding covering both  ocurred units of long term issues short term is covered in the environmental impact statement the effect of the open road density on elk during the hunting season in the implications that might have for the project which led to some restrictions on logging during hunting season and some other mitigation measures is all included in the environmental impact statement is not true that the environmental analysis for the forest plan amendments were not provided as part of the overall need for consideration of the overall project than if the regulations that apply to force plan that sometimes are going to have a non significant force planum in it as part of a larger project and that's precisely that those are precisely the regulatory procedures that were followed here and the satisfactory conclusion of the procedures was done by the publication the environmental impact statement which we are now told there are no need to challenges to the sufficiency of that environmental impact statement it contains every bit of the necessary environmental analysis to understand what the effect of continued non compliance with the forest plan standards will be on the elk and what the effect of removing some additional hiding cover will be on the short term and long term it's all there there is a suggestion in the  of the three projects mentioned in the reply brief as the ones they concede might have been recently foreseeable warm springs stone lawn telegraph are all listed in the i s's table of reasonably perceive electricity's with potential cumulative effects but it was concluded both there and in a wildlife report that was prepared by the specialists in the administrative record that those projects had no cumulative effect on the elk habitat question in this project area because they are completely outside of the big belt mountain range they are in a completely different unrelated portion of the forest and there is you can look at the r three hundred the e i f describes why it is that when you're concerned about elk use to choose the appropriate boundary of analysis and the appropriate boundary here with the two elk heard units the oaks they very closely within their winter range they don't wander the entire length of the forest and so the forest service do you consider affects on the attic scale quadruple the size of the project area about sixty three thousand acres or answer to your answer the council is we of decision that is not in the us which is the discussion of the four past forced plan amendments of the standards in other parts of the forest that's disclosed for the sake of full disclosure and those projects are described but again notice that there are no  you know when combined with this present amendment found in that record of decision and so there's also as terms of the nif in the compliance of this force plan amendment there's been no challenge to the actual legal decision which is the determination that apply to follow them is the only objection is to public notice which is frankly not really tenable on this administrative record i mean the addition to complying with the need for a legal notice the forest service held public workshops and indeed took representatives of these plaintiffs agencies personally on a field trip with forest service officials to the treatment units to see them and on that trip they talked about the potential for us plant amendments and they invited the plaintiff organizations to comment on that and solicit more information this is a public actually in our brief that's the case where in the gallatin is part of the healthy forest restoration initiative is a package of timber sales all put forward together all spread across the force there were a dozen of them the time going for contemporaneously and this court said well you have to look at those because a clearly reasonably forseeable the really can be no question about that but the other aspect of that case that distinguishes it importantly from this one is what for a standard was at issue in that case in that case the gallatin has a fourth plan standard that is a forest wide numeric criteria is a seventy percent elk habitat effectiveness rule and the plaintiffs said that if you're reducing the old habitat effectiveness in any part of the forest that is necessarily going to have an effect on the forests overall compliance with that numeric standard this case there is no such thing as a forest wide numeric standard for elk habitat the big game standards that issue but three and for a are specific to her unit or specific drainage is and that is biologically driven choice because that is where people can find themselves and those are big areas but the helena is a three hundred fifty some thousand acre forest and there is simply no indication of the forest plan that there's any requirement to consider all these issues forest wide the determination is what will the effect be on the elk and that's made at the at the mid scale boundary level that sixty three thousand acre scale that included in the record there are really finds it's going to create new forest the next spring which is going to benefit the elk and that benefit will outweigh the adverse effect of a six percent or one percent reduction hiding congress understood you just said there will be short term benefit to the l short term in the terms for so in a few plenty give me a little more that's not really a great benefit thank you very much yeah if you look at it's sort of record three thirty four that's one place where this is discussed so the forest plan is specific about hiding cover and hiding cover is the key measure but later science the christian article you know advocated by the planets and discussed in the us talks about elk habitat more broadly and that includes forage as an important consideration and other things that are also important and so th looks at the effects that way because that is the more current science and says expressly that the increase in foraging habitat as a benefit of the project is a benefit that will outweigh the adverse consequences of the reduction in hiding cover and in the long term measure on already noted the forest service found that the regeneration of this forest at at a healthy space with the correct sort of the more store expediencies will be more resilient will provide better hiding cover and will in the long term and for the  any way be foreclosed by the absence of contrary expert evidence or any indication that for service overlooked any important project i think that addresses the fourth plan amendments unless your honour's have question about the grizzly bear on the government said it's not in the record but appendix c of the yes he said he represented that it discussed these three projects that's a table and it does not mention at all that there is going to be a site specific force plan amendment for those three projects and that's the issue that we're talking about here today so that citation he gave does not include even an acknowledgement that there'd be a site specific force plan amendment for those projects regarding his representation that now he sort of retracting the statement that the environmental analysis was in the record of decision he then said it's all over the place but failed to give a single citation that we could actually verify to see if there was an analysis of environmental effects somewhere else because there isn't  in he then admitted that only the past for certain amendments had been disclosed in the record of decision so again that leaves out the two thirds of the cumulative effects analysis present and reasonably forseeable in regards to his argument that there was adequate public notification i would just emphasize again that that's only half of the legal requirement it requires public notification and nepa again this environmental analysis didn't happen until after the decision regarding his reference to domme back he said that there was numeric criteria there that were forests wide and that there are reasonably forseeable other amendments we have both of those situations present here that case really is not meaningfully distinguishable at all and then finally regarding judge smith's question about whether we raised this issue i did look back in the district court document fifteen and document twenty one document fifteen at page twenty one through twenty three document twenty one twenty two to twenty four raise the cumin effects issue in the district court and specifically cite and discuss dombeck and then in our open being briefly specifically raised communal a fact that page thirty two raising the full regulation including the language about reasonably forseeable actions at thirty two through thirty three we specifically quoted an address adamek and i see that my time is up