good morning your honour's and may it please the court i'm david becker here on behalf of appellant western watersheds project with me at counsel table is kristen ruther i'm going to try to reserve five minutes of time and i'll keep my eye on the clock for a bottle  fish strategy to the forest plan for the chalice national forest more than twenty years ago in response to degraded stream conditions the in fish standards and riparian management objectives are intended to promote recovery of degraded fish and therefore forest plants standard g m one requires the forest service to modify grazing practices that retard or prevent a taint of right parian management objectives which are the measurable attributes of good stream good fish habitat namely cold water temperature high pool frequency stable and overhanging banks and narrow deep stream channels now this case is important because if the forest service is not held to the requirements of national forest management consistency when it issues annual operating instructions the none of its grazing decisions and copper basin will be subject to forest plan standards the forest service is not prepared in at an allotment management plan since before in fish was adopted hundred two and none of the permits that are in the record of the ex or this supplemental excerpts of record demonstrate that consistency was done at that point and here the forest service violated the plain language of the national forest management act which provides that each instrument for the use and occupancy of the forest shall be consistent with the forest plan because the agency didn't follow the process that this court's case law requires for showing consistency with four plant standards namely the agency action has to be analyzed for forest plan consistency the analysis must show that that activity is consistent with the forest plan and the agency has to articulate and document in the administrative record that the activity that it's proposing is consistent now annual operating instructions in this case are instruments for use of the forest and the this court is hel in the buckingham case and in the oregon natural desert association case that annual operating instructions must be consistent with the forest plan fact the oregon natural desert association case is emphasized that the annual operating instructions are a quote critical instrument in the forest service regulation of grazing that's at four fifty six f third at nine hundred eighty four and is that this court recognized at page ninety one of that same decision annual operating in such a structure and set the stocking levels and the pasture rotations in response to that years condition and therefore their mo their the most important decision point for ensuring that the proposed grazing for that year is consistent with forest plan standards here the forest service violated because there's no evidence in the administrative record that's contemporaneous with the two thousand and fifteen grazing decisions with the two thousand and fifteen annual operating instructions that demonstrates that the agency actually analyzed and determined that the proposed levels of grazing were going to be consistent with grazing standard g m one of the district and said with a healthy measure of deference to the forest service are consistent so what specifically was wrong with that conclusion two points your honor first this court is acceptable as log as well with the rest of the record you can simply discern the agency's pathway and that seems to be what the district court here so what so why is there there is nothing in the various points in the administrative record that the district court in that the forest service has pointed to that this court can defer to because there's nothing that relates the vegetation monitoring that the agency is relying on and saying now in their briefing and in trying to make their arguments and in the extra record declaration of ranger weaver there's nothing that ties the vegetation monitoring that they do to the trends in the ripe arion management objectives that this court can actually defer to their is simply a series of assumptions that are not supported by substantial evidence and that in court there is there are a couple of different parts to that question i think and i would step back and say that under the way this court interprets the national forest management act it's the agency that has to show that in this case grazing is not retarding or preventing attainment of the right parry and management objectives and the way that they've tried to do it in this case is by pointing to basically three different places in the administrative record that they say they make this connection between the vegetation monitoring that they claim that desired vegetation conditions are more or less being met and the right parry and management objectives which are the indicators of actual fish habitat in the streams they do this through the declaration of ranger weaver which is e r one eleven where she says that if desired vegetation conditions are being met then it is reasonable to assume the grazing management is not prevented attainment of the right parry and management objectives but her assumption that it isn't based on any data it's not based on any connection or study that has shown  on its review of the record and i think that largely that is true but that particular statement by judge reeve weaver is an opinion statement it's not something that is backed up by anything  it has to do you doing so on the basis of studies that it is determined is real are reliable and that the conclusion that it's drawn from whatever methodology have to be explained in the record that's the lesson of lance counsel be mcnair and neither ranger weaver nor the guidance documents themselves point to anything that connects a trend in vegetation to the right parian management objectives there it's really all assumptions judge weaver's assumption the assumptions going back through the two thousand and eight right parian strategy to five forty one back to the one nine hundred ninety five guidance document which had a our four six fourteen under the heaven under the assumptions says that we believe that natural rates of recovery can be provided if we limit environmental effects of those that don't carry over to the following year the same guidance documented six seventeen goes on to say that that assumption that there won't be carry over effects and therefore there will be red parian recovery depends on implementing certain very stringent triggers for example no more than thirty percent wo guidance that gives a general principles that are not even specifically directed towards this forest it's not it's part of the packed in fish biological opinion  this document so so something that can be considered by the forest service but certainly that's the argument that's made but the forest service is trying to have it both ways they're trying to say that that that the conclusion or the assumption that grazing effects will not carry over and therefore there will be recovery depends on these very definite triggers that are specific best of five at six seventeen of the of the excerpts of  record no more than thirty percent would be brows no more than five percent bank alteration on the salmon chalice national forest there allowing up to fifty percent browse nearly twice as much vegetation browse as the forest service guidance document says has to be limited to in order to benefit from that assumption so the grazing that's being allowed on copper basin can't take the benefit of that assumption that there won't be carry over effects and any link that shows that the vegetation monitoring relates to the right period management objectives and in this case the data for the right parry and management objectives shows that instead of recovery over time there has been static conditions the or even in some cases getting slightly worse the data is in the record it e r one seventy eight to one eighty four and the summary table of that data that appears city are two zero eight shows that for example banks to billet over time has decreased from seventy one percent to sixty three percent the percentage of pools has dropped and this court in native ecosystem's council vetoed well native ecosystem's council the u s forest service has said that when an agency relies on  assumption and that assumption does not mere reality and in this case they're making the assumption that if vegetation monitoring is all ok then right parry and management objectives are not going to be retarded by the grazing is what you're saying are you are you saying that we would need to evaluate the scientific record is that there is no scientific data in the record with respect to this linkage between the vegetation monitoring the evidence of their monitoring and the results that they have in the conclusions they draw from their end of season reports and the like but none of that and there's nothing in any of those end of season reports makes the single mention of right parian management objectives is at necessary or do we take their professional judgment the professional judgment has to be based on a factual linkage between their what they're monitoring for is vegetation considered is what the vegeta the vegetation that the cows eat what the standard g one instructs them to look at is rick perry and management objectives so they have to draw that connection with reliable science or some study that shows that event to take action is ok then right parian management objectives are going to be attained or moved to at a near natural rate because there's nothing like that in the record and because the actual facts on the ground show that there isn't any recovery and in sitter for service sites about recovery of vegetation you just think that there isn't a causal connection or they haven't shown they haven't shown a causal connection they simply make assumptions in this court has said in national in that when there is an assumption that is not supported that is does not mirror reality it's a violation of the national forest management act to rely on that assumption just very quickly on the settlement standard i think it's even more clear that there was no analysis done contemporaneous with the two thousand and fifteen grazing decisions despite the fact that on and in four different places on these five different places on these four allotments there was settlement in excess of thirty percent and the  sorry but you're running out of time and i'm just really trying to get in one question between and you did turn to sediment and you know the way i read your record your briefing seemed to suggest that you think settlements be measured much more frequently not that it should be measured much more frequently but that each year when when when when issuing an annual operating instruction and saying that a certain number of cows are going to go out for certain areas for certain periods of time they have to explain why that is consistent with the standard and again you're running out of time to my question if you get me but my question is is it your position that needs to be done annually before each grazing permits that they don't have to measure sediment but they have to explain if the sediment levels are over thirty percent what they're going to do that required an annual assessment not not necessarily in and they're measuring sediment almost every year that's in the administrative record my question is just whether you think they need to do that every year before issuing that this is the twenty fift mean when so the language of the standard is that activities that are contributing sediment will be evaluated in appropriate action will be taken so these levels are exceeded if the levels are exceeded and they saw our service as a parent based on their holistic look a least one sentence at it of rational connection made at the time of the annual operating instruction each year that says this amount of grazing is not is is not going to exceed is not going to cause sediment to exceed thirty percent where we're reducing it so that sediment levels come down below that threshold a reserve my time is envisioned by the multiple you sustained yield act it's envisioned by the forest plan that applies these allotments it's envisioned by the allotment management plans that apply these allotments and it's part it's authorized by the term issued on these allotments i think that's contested but i read his briefing to say that year after year the very same grazing permits are being issued and that there hasn't been even at the there hasn't been you are referring to in your operating instructions right the permits the permits are issued in ten year terms the annual operating instructions are optional but the force you don't sing them yet implementing that that's right but just to be clear grazing could proceed under the permits alone at those authorized levels the annual operating instructions are just fine grain instructions that are used to reduce grazing below those levels the forest service is discussion but when you go to his point yes of course but  so one important thing i want to point to is is over and over again we've heard them say that there's no connection between the vegetation the attention to the vegetation consumption and the attainment of arm the in fish implementation package that was issued soon after and the force was basically instructed itself in how to implement in fish says the recovery of the vegetation component of the right parian system will be used to predict whether grazing will ultimately degrade or prevent our most that's the connection from the very beginning that is how the forest service said it's going to comply but i didn't hear him challenge that i want to hear him tell just something different well seeing as it's based on an assumption could you go to his that's on the sumption right this is this is the direction that the forest service gave about how it's going to manage grazing to prevent that's just a different point i'm not trying to split hairs but he is making a different point well i guess it's just not an assumption i mean if you look at the right hereon strategy it's this entire strategy that talks about why it makes sense to pay attention to vegetative conditions in trying to manage grazing for  our most it's because those vegetative conditions and the stream banks stability those are think things that grazing directly impacts there may be interact impacts on other our most but those are the ways that grazing directly sure well his contention that the forest service is relying on the assumption that it would be helpful to be the right parian strategy it begins at your five thirty six i think sort of the critical part for you is again an extension of in fish itself that language i just read to you was from as you are eight seventy eight and the forest service is then applying that so the the the strategy says we're going to focus on these direct impacts of grazing and if if we can manage sure that we're moving towards these these healthy vegetative communities that means that grazing should not be preventing attainment of our most so what you see in the record is the forest service monitoring for the health of the right period so some so you see the green line monitoring you see the bank stability monitoring and then you see the forest service responding to that so what you're telling me is that there's evidence in the record and i think that's quite a lot of evidence for the record that the forest service is implementing that plan that's what i think a good place to report that sort of led to the twenty fifteen and you know i that's an e r to thirty so the forest service does this green line monitoring about every five years and you know we have four allotments here that they happen to do the green line monitoring for boone creek in two thousand and fourteen so in the twenty fourteen end of season report you see the results of that monitoring in the twenty fifteen a o r for boone creek you again see a summary of the results of that monitoring in the results you see the explains that it appears the from the data that the ecological status of one of the four monitoring sites has declined from a leap several status which is a good lately less good agency you see them looking at it critically saying we actually don't think that probably reflects reality we've looked at the photos this looks like a healthy stream we think probably the data was  doing this periodic monitoring for and again this extends from inefficient self which is of course the source of g m one that we're all talking about on going creek  post decisional but we're here seven years later what you can actually see after the data that's in this record is the poor service did go back and re monitor and guess what they concluded that they'd been correct that that site actually had not  mental status it was now a potential natural community which is the highest quality vegetation and it was doing quite well i you can also see it that the way the forest service is doing this is having good results i think a nice place to look is starts at s e r seven sixty one there's a document i think it's a power presentation that walks through several beastly case studies of sites on these allotments it shows the trends in the green line data it describes the improvements to the habitat not just to the vegetation but to sort of the fish habitat more generally and then there's a night and there are lots of photographs but that bear it out you can see the quality of the habitat improving and then there's a nice narrative explanation summary of what's going on on these allotments and i think that's hopeful i mean it shows that the forest service not just gathering that stadia it's compiling it it's thinking about it it's judging whether grazing is allowing right parian recovery and in that document you see them drawing the conclusion that the way that they are managing grazing on these allotments is absolutely allowing right right  recovering and that is after all the goal that we're all talking about it the plaintiff here is is very focused on the our emotions themselves and the non attainment of our most but you know as we as we set forth in our brief the non attainment of our most is not all that g m one is about it's about causation as we've been discussing the fact that you're not meeting our most of these allotments doesn't automatically mean the grazing is causing non attainment of our most on unmanaged sites in the same area and unmanaged or reference means these sites that are essentially free of human and grazing and other you know impacts from management activities so it's not reasonable to expect that you would have all r r m o's be attained on these areas because all the other parts of this forest are also not meeting those are most there are lots of other management activities that can contribute to pressure on these repairs and systems we have roads in the we have human activities like camping hiking you know other just disperse recreation and so i do caution you to to draw a conclusion simply from the fact that these allotment sites are not meeting all our most there's also nothing in the force plan that requires this kind of contemporary analysis each time the forest allies for all of them every year so you know they're spread pretty thin these are documents that are essentially a communication between the forest and the grazers you know they're  ways to comply with their permit remedy past violations and of course the sequence of rotation through these different grazing units there's just there's nothing that's requires this type of  analysis or really legal conclusion in this document and it's just that's just not the way that the forest service is managing this insead it's developed the strategy ahead of time and it's implementing it now  settlements briefly i there's again nothing that requires the forest service to make these adjustments on an annual basis to its grazing program simply because there's been you know one measurement at one location that is above thirty percent i think the scientific the agency is is relying on the science that says measuring settlements and establishing a baseline in dots and what is obviously they offer anything new i don't think they offer anything new really i think the weaver declaration in particular is helpful survey explaining the the  program you know how you how you're going from in fish to the strategy to the implementation and then summarizing the results i think that's awfully helpful in a case like this where you have such a voluminous record with a lot of just that wasn't a statement on my part it was a message and i am looking for it and i've been looking for it but what's your strongest support for the argument that you really have to have the because i think the native ecosystems council cases  you make that they're connected is belied by the actual right period management objectives that the standard g m one directs the forest service to manage for then it's a violation of never to rely on that  intensive activity but the standard g m one tells the forest service that it needs to look at that grazing when there's not attainment or not even where there hasn't been any upward trend for twenty