thing that i'd like you to leave here with today and if you agree with me on this one point all the other issues in the case don't matter and that's the point is this the federal surplus property  conveyance which work in the program of utilization did not include the contested uses that's why we're here today to do we're challenging in a minute meant to the program  government would like to read that provision out of the statute and say well what congress really meant was recreation and park uses but congress uses that language elsewhere in the statute multiple times and has made it very clear that what were the purposes at conveyance and convenience both hunting and snow will be yelling we're all talked about and we're all part of the grand agreement that came about this is twenty years ago now and we're of two thousand and four application so what we are here today to talk about are the things that have been added that our view and the park park service has agreed were not part of the original program of utilization sure i would agree that it was brought there were some problems which there i think frankly common sense dictates that these types of uses wouldn't fall within the list of uses that they were talking about at the time and honestly it doesn't make much difference because the government has admitted and is amending the purse has amended the program of utilization so they've already taken the position that these uses is not part of that program of  statutory language that says the purposes at convenience are supposed to be in perpetuity by changing the deed so for example for helicopter use they have just defeated one hundred and thirty seven acres one of the ma one hundred and thirty seven acres and they say well we're going to allow a helicopter use even though everyone admits the government d n r certainly my client that helicopter training is not a recreational use so they have essentially tried to rewrite the statute by changing the deed it's also somewhat disingenuous that they say helicopter use is only going to happen on this one hundred and thirty seven acres there's a map in the record wish i can give you the cite for that i think is pretty it's not a good practice but the blue area this is the whole property the very small green area is where the helicopters take off and land that is where the deed covers the helicopter issue but the blu area is where they can go down to twenty five feet above the ground in their training so it's somewhat and if you don't know and you may helicopters usually are not allowed to go below five hundred feet above ground and that's with the right area been there a long time that's true but they've been there a long time when this was owned by the army and so of course the army could use the army's property for helicopter training but now we're under different statutory regime and the federal government gave this to the do you know are under specific statutory provisions that say you have to use this for recreational property and recreational or in part uses and so they only did that for that small one hundred and thirty seven acre parcel so that doesn't deal with the fact that they can go down to twenty five feet above ground if you've been in a helicopter i haven't i'm afraid of that sort of thing i would imagine twenty five feet above ground is pretty low in a helicopter but answer your question about the reservation and there's a specific requirement that the secretary make a finding that was never done here and in fact that deed was issued a day after they there's nothing the record that any findings by the secretary are anything that this is necessary for the government's use in addition in the record it's very clear that i think it would be hard for them to argue it's in the interest of the government or i forget what the exact language is but necessary to preserve the interest of government given that they can go to fort mccoy which is twenty minutes further away yes yet where these helicopters are coming from no they come from madison actually so they're at the madison airport i think learned a lot about this fields been pending but they're at the madison airport and so they're flying to sock which is a little bit closer than flying to fort mccoy and that's why they want to do the training there so yes it is the army but it's not actually the language and i can throw more jumping around which is often the case in these sorts of things but if you give me one second section five the one of this is the property disposition act says  property back but i think common sense says otherwise if i did a property to somebody and they don't comply with the deed my only remedy is not the most extreme remedy which is to take it back i can also go to court to force the terms of that i could not approve the program of utilization amendment and say you know this isn't within the confines of what you're allowed to do there are lots of other things yes i agree completely that that one sort of nucular option for lack of a better word which is the government the court we've requested that the court ready order the government to enforce it but we've also said that they violated it administrators see direct by approving the program of utilization of management and that it's not this court could certainly do that  it's no problem with people going there with dogs on leashes that's correct so did the other one we researched about i don't know with that or cyclist it's also learned a lot about that in the time period so we finally got our people won't be on them for i think it's i mean getting to the new issues i think it's disingenuous to say that's the same as riding on a regular street a motorcycle or the impacts are the same don't worry about it obviously riding on news with guns yeah hunting is with guns again that was allowed in vision back twenty years ago when all this was going on but it's in the hunting period and as you probably know that's around thanksgiving that is not a bird bre season and that is not the same thing as saying i can go out and shoot guns any day of the week on seventy two acres and the government's position that the impacts of shooting guns would only be to seventy two dollars acres again belies common sense guns are  application when such changes would cause no or only minimal environmental impact we're just here in the federal register i think it might be in the guidance document i'm not sure it's and then in p s p and book i believe significant environmental impacts in the federal government saying oh based on that environmental impacts they did state did we're going to do the lowest level overview of categorical exclusion and find that there's no animal impacts that reasoning alone shouldn't stand you should the federal government should not be able to rely on that state document that is based on significant impacts to say there are no or minimal impacts your s say well we're going to net benefit essentially all the benefits of the master plan which obviously are a lot because they're taking this property which is not in a degraded state right now it's sort of in between it's been cleared are going to be minimal so it's kind of again double speak they're saying here's the amendment i only have to look at the minute for the particular solution but i'm going to rely on all the benefits i get from the original plan tour that's their target so no one would dispute that this property was highly disturbed twenty years ago when there were still hundreds of buildings and ongoing environmental remediation but today it's open as  soccer recreation area there are very almost all the buildings have been taken out my client has been working to restore prairie there for over a decade so the d n r is analysis in two thousand and nine they did an analysis of the property in two thousand and nine found all kinds of sensitive bird areas of the species so yes it's not the pristine park it will be but really what we're looking at that action in the baseline is kind of a red herring the baseline is and we would agree with the properties today but the action is over the next fifteen years that's what's going to happen over the next fifteen years you have to consider the problem is going to get better in the next five or ten years and what our helicopter training and motorcycle advance going to do to that  to the property that's the baseline it's it has a sense of species on it but the action that we're talking about is a plan that goes for fifteen years that plan and those uses were already approved so you have to consider how helicopter training in it and i'm sorry helicopter training and motorcycle of answers are going to impact the property in the fifteen year time frame of which there's going to be restoration is going to be lots of other things so and again it's hard for me standing here with those are going to be in the government constantly saying the alliance didn't you know put forth any evidence but there wasn't even a public comment period on this amendment to the program of utilization so we i mean you're this is a record review so i don't even know how we can't do that there's a decision which i brought with me called katherine county where there was an endangered species act action and they said well you can't yes you're listing of a dangerous species is better for the environment that  get you out and you still have to analyze the impacts that's kind of the same thing here which is you can't say oh the master plan over the next fifteen years are going to be better for the environment so we can do whatever we want because overall the net benefits are going to be  i'm reading it correctly that it was the government's position that there were medical or minor impacts but they base that on the master plan which was the environmental impact statement that the state did good obsolete over the next fifteen years or so on the property they're you know going to be building trails and there's a nice map in i think the government's brief that shows you what this property will look like and i don't know how long but whenever they get the funding from any other issue the course of this document the state is looking at impacts of other activities other the one then the ones that are specifically at issue here and there are various points where the state does state that it thinks that you know as an overall various places where there and you know our landfills for example but with regard to your question about the competing uses and you know the concern about whether some kinds of uses exclude other kinds of  those are all very valid questions unfortunately they're just simply not questions that are for the park service to determine where this property belongs to the state now and these sort of fine grain distinctions about what kind  is within the broad umbrella of parks and recreation those are all questions for the state now under the property act the question for the park service was simply whether these used were with were were consistent with the uses for which the property was conveyed and the deeds are explicit in the st page of each of the deeds in the record that they are conveyed quote for and in consideration of the  and maintenance of the property here in conveyed exclusively for public park or public recreation uses in perpetuity that is the government the federal government's interest under the property act is simply making sure that we are within this broad a has an interest in continuing these these helicopter training activities in fact as the record shows the army said that it was going to require that they be allowed to continue as a continuation of this deed now yes absolutely they did and i think the idea that interior would then at that point need to come in and sort of nd guess the army and the appropriateness of continuing these training activities which are the army to decide it service did not make a finding with regard to the impacts of the helicopters because it was not underneath but there is no requirement to study an activity that  the interests of the government that's right and here we have that in the record because we know that armey said include this as a condition secretary secretary of interior excuse me was justified at that point in stating army needs this it's in the national interest we therefore put it in the  agency simply don't have to do the analysis when they don't have discretion to to not do and not create the impact that would be studied there is no independent that you know that the secretary was bound to do this that i know is that it may not you know be fully briefed out may not have the public citizen citation but that not just the fact that this does have a contract to be has gone on for so long but because the documents that didn't contain these uses that are at issue here are much higher earlier in the process and they are for example the report that was put together by the badger reduce committee which was not you know it's not an official government plan it was  helicopters at all in specific it was you know four pages and not particularly fine grained but i wouldn't you know it's certainly the thrust of that program utilization was that this was going to be more of a sort of recreational use so whether the helicopter use could go forward it would depend on the army having made that determination about the helicopter going forward at the time of the draft masterplan the army had not yet made that many army conditions in these deeds that are on the record including conditions requiring that the army be able to harvest clay from certain parcels that they use and still elsewhere that their army be able to have access to a cemetery that still exists on one of the helicopters and the deed that the confusion arises frankly because the district court's opinion seemed so thinks that we will waive the arguments because we didn't raise them in a reply brief but our initial rephrased about this determination by the secretary with regards to helicopter training we don't dispute that the statute allows the secretary to make a finding and since we've been talking about a lot i pulled out the language it says necessary to safeguard the interests of the government that's more than just in the interests of the government that's to safeguard the interests of the government so the issue here is not that they can't do it it's that they didn't do it there's no document that they can point to that was a finding that they need to do this that lays out the reasoning at all so we're all up here guessing and the government is saying oh well we have some communications behind the scenes how is the alliance supposed to that have any comments challenge any of that they're just going to sort of willy nilly make these decisions and then also it's an action they're taking that they didn't do any environmental analysis for which you know if they're saying they took the step of action to exclude  from this property and allow the army to go use helicopters number action is probably subject in the post which we've kind of gotten off line here but that because the government doesn't have a document that they can point to to say here's really here are the reasons why we need to do afternoon no that's not there i mean that's what the government says but that's not a fair reading of the master plan and i have to quote you actually went exactly to where i was going to go which is this is the language of the master plan and it's an exclusionary section in the life of the long term increases and population of native species at the area including many rare species that are intended to speed it from habitat restoration and management the uses of the property are expected to have relatively minor and it i think the overall reading is clearly that they are essentially saying this isn't a problem because we're going to make the property so much better which you're not allowed to do underneath but i go back to the point i wanted to clarify one other thing that's related to th which is the government sites and it's brief the highway to a place for the proposition saf the state environmental impact statement can be relied on or categorical exclusion by the federal government but actually in the highway j case that was not an environmental impact statement i went back and looked and i had to pull the district court decision that's a totally different environmental review that was done there so that case is not on point and b doesn't answer the question of whether the state doesn't environmental impact