please the court my littlest rebecca smith and i represent the appellant's in this matter collectively the native ecosystem's council and i would like to reserve two minutes for we are here today after several rounds of litigation in the district court which ultimately ended in the district court's dissolution of the permanent injunction against the loan somewhat long in project outside yellowstone national park and what we have done is two issues that plaintiffs lost in the original district court summary judgment order and just to start out i don't know if the court has any questions about jurisdiction but almost the exact was completed and the injunction was dissolved then the plaintiffs were free to appeal to this court so that's the same procedural posture that we have today regarding jurisdiction the two issues on appeal here  first of all there is no scientific basis to exempt six percent of the remaining occupied canada lynx habitat from protections in the northern rockies slinks management direction it must be based on science and there is no scientific basis for that exemption that's a requirement under the endangered species act the second issue is that the gallatin national forest has not demonstrated compliance with its forest plan regarding population monitoring and regarding the viability provision in the forest plan i will first address the sort of more big picture issue which is the six percent exemption f protections under the northern rockies links management direction this is under the endangered species act which requires that sixteen u s c fifteen thirty six eight two that in our endangered species act consultations each agency shall use the best available the best scientific data available and consequently district courts ever played at least said that failing to use the best available science is arbitrary and capricious so we know there has to be a scientific basis for this exemption and as a practical matter the six percent exemption basically means that the forest service can allow unlimited logging on seven hundred  twenty nine thousand acres despite the importance of that habitat to links and so for example in this case over fifteen hundred acres of occupied link's habitat will be l using this exemption despite the fact that it is occupied despite the fact this is a threatened species and they the key here really is they don't know what the effect of allowing all of this logging will be i would point the court to the government's own admission that the six percent number was not actually based on a scientific threshold they said we didn't base that on a threshold of habitat destruction that link can withstand and so that admission admission standing alone means there was no scientific basis which means that it is not consistent with the requirement under the endangered species act there's really no other justification in the record and the government doesn't offer one for how this six percent exemption is going to affect links or why it believed that a six percent exemption would not end up jeopardizing links you said earlier it's occupied you mean that there's evidence that links are actually in that area yes your honor and so just to step back and the northern rockies links management direction applies only to occupied and mapped links habitat and so that's what the exemption applies to it only applies to occupied and mapped links habitat and so that is seven hundred and twenty nine thousand acres of occupied maps links habitat that can be logged regardless of the effect on lng it's under this exemption the closest case that i could find on this issue is actually a district court case that basically this was the case cited in their fish society nine ninety two fed subsecond at eleven fifteen and in that case similar to this case the agencies had just decided that they were going to allow up to twenty percent mortality from what currently existed for these fish and the district court rejected that twenty percent trigger as i betraying capricious saying the use of a twenty percent trigger is entirely unexplained there is precisely nothing in the record that explains why twenty percent rather than ten or thirty or forty is an appropriate target without some justification for the use of a twenty percent target the court must find that the agenc decision was arbitrary as the court cannot defer to avoid and that's basically the same thing that's happening here today the agency decided to just arbitrarily exempt six percent of this habitat from protection without any underlying rationale and that is sort of classic definition of arbitrary when it's just a number that's sort of pulled out of thin air with no scientific basis regarding the second issue today before the court the gallatin national forest failure to comply with its forest plan provisions first regarding population monitoring of old growth management indicator species and second regarding the provision in the forest plan that requires the insurance viability in this case is very similar to the district of idaho case lands council v katrina which was cited in our briefing in which you had a case where the basically were no old growth species laughed and nonetheless the forest service concluded that it was insuring old growth species viability and so in that case the district of idaho cited back to this court's opinion and native ecosystem well where this court said it is unfathomable how the forest service can say it's ensuring viability of the species that's not even present and that's the same thing that we have here today in this case this is going to log almost five hundred acres of designated old growth forest in an era when almost every other national force in the country has stopped logging old growth forest recognizing that it's an irreplaceable resource nonetheless the gallatin is continuing and it is example of fundamentally elevating form over substance because when we look at the substance of this case there's no goshawks in the area they fail to find the pine martin those are the two growth management indicator species we know that  statewide level goshawk i thought to be declining nonetheless the forest service has not actually monitored the population trend it says population trend is unknown and so they're basically saying we're ensuring viability they don't know what the population trend is they're not monitoring the population track and when they go out to look for the species they're no longer there so just as it was a native ecosystems council vetoed well it is unfathomable here how they could say they're insuring old growth species viability when there are no old growth species basically left i think that the one study that the district court cited found three goshawks on the entire forest and we know that when they went out in two thousand and ten they looked at eighteen ites and only eight were still occupied which would indicate a decline of forty percent in the population so the only time they ever go out and look they either find the nests have been abandoned or most of the ness have been abandoned and we know from the adjacent national forest the caribou target national forests that in that case the forest service did go out and monitor population trend they went out and looked at all the nass and then they went to the next after they had been logged and that report the point which was in a peer reviewed published journal found that there was a correlation that the nests were not occupied as much after there had been logging so there is something like a forty percent decline in nest occupancy after logging so we do know from other national forests that monitor that they goshawks are harmed by logging that their populations do decline in response to logging but in a way to avoid that conclusion on this gallatin national forest the forest service simply refuses to conduct the necessary data so that we know what the population trends are and just to reiterate that is a legal requirement under if there is a provision in a forced plan the forest service must comply with that and so in this case there is a population there is a provision in the gallatin forest and eighty five which mandates that the force determine population trends and so they can't get around that is a legal requirement that they must comply with and they admit they have been complied with if we look at for example one eight four service itself admitted quote population trends cannot be determined from existing data so you have this just juxtaposition between the legal requirement which says they must determine population trend data and their admission it was six eighteen that they happened on that and so there's really no way legally that they can just abdicate that legal responsibility there has been a case on th that says if there's a habitat proxy that they can rely on in other words if they can figure out how much habitat a viable population need they can rely on that but in this case they frankly conceded that they're not using a habitat proxy so for example five eighty one they said we have not determined a threshold for the amount of old growth below which populations of dependence species would no longer be viable so they admit they're not using habitat as a substitute but then they also admit they haven't actually monitored population trends and so this is a clear violation of their forest plan which means that it's also a clear violation of nif and if i could i'd like to reserve my remaining time for a bottle thank you good morning me please the court my name is jeff i'm here on behalf of the federal apple leads in this case i'd like to start by just pointing out that context matters i think it's very important that when  council comes before you and talks about some of the quotations that they've that they've pulled out of the record that you take a look at the context of where those quotations are coming from and i think it's important because otherwise it's misleading and if you don't read what the guidance of the for plan says and you read some of these statements and they're taken out of context it can lead you to believe that the forest service is not complying with the statutes at issue in this case and that's simply not true and i'll start with the scientific basis argument they contend that under the endangered species act that the forest service and the fish and wildlife service need to comply with the best scientific standards and that's absolutely right and they did so here they say that there's nothing in the record to suggest where the six percent comes from they misread the record all you need to do is look at the citations that we provided in our brief we talk about how the forest service looked at this and there were comments that were made early on during the two thousand and seven process by which they thinking well what can we do in exempting them fuel treatment projects commentators came forward to the forest service said don't exempt any of the forests don't allow any exemptions in the forest service look then said no we think that there needs to be some exemption and they looked at this wild land urban interface area these are areas of the forest by definition where there are human presence where there's development in this particular case we're talking about have been lake along the west shore of the lake and there there's development there's residential private and recreational and the forest service looked at them they said you know what we need to come up with for criteria how good for going to exempt something in this forest from the treatment standards of the links amendments how can we do that and they said you need to have a defined area where the wild land urban interface provides a defined area we need to be able to monitor the effects of links in that defined area the wild land urban interface allowed that and then the other thing is we need to protect the local populations and people who are going to be visiting the forest in this particular case you have a road there's only one way in and out of the project area so if there's a forest fire the same firefighters are going to have to be coming in are going to be going out the people are going to be evacuating down the same route so  first look at this the wadley an urban interface provides a limited exemption the first service applied that exemption to historical data collected five years worth of fuel treatment projects and then applied the exemption retroactively and what it found was that if the six percent was applied what actually there was only about one point four percent of that habitat potential links habitat that would have been affected by this exemption so the first service then in consultation with the fish and wildlife service went to them and said we're going to apply this exemption please take a look at it and tell us whether it will jeopardize the continued existence of the species and so you look at the fish and wildlife services in their expert biological opinion that they issued in two thousand and seven the fish and wildlife service concluded that this exemption this wild land urban interface exemption limited by six percent will not adversely jeopardize the continued survival of links that conclusion once deference under the a p a this court does not impose itself as a panel of scientists there's not get to second guess the scientific analysis of the fish and wildlife service and here we have not only the two thousand and seven programatic biological pinion but we also have the two thousand and sixteen site specific biological opinion and in this biological opinion your looks taking a look at this particular project this fuel treatment project and there's about project there is about twenty three thousand acres less than three thousand acres will be treated and it's not like they're clear cutting three thousand acres there's a number of different units spread out throughout the project area and the forest service is treating those units over a six to nine year period some of the treatment units are are along the road it is to allow the firefighters to come in if there were to be a fire and let's be clear about this these fires are not business as usual drier conditions on the forest forest fires are starting earlier when there's a canopy that is closely by one another you can create wafting firebrands he's watching firebrands allow the fire to travel over long distances the forest service is not trying to jeopardize the survival of wings as a species and again that is warranted deference the fish and wildlife service supplied the best available science in their brief they talk about coast germans thesis this is a master's thesis written in two thousand fourteen their brief as i said context matters they say that we didn't apply the best available science but they're trying out the thesis that the fish and or the forest service specific wrote a letter explaining and this is in my supplemental excerpts of record why this thesis does not apply here so the the agencies have absolutely complied with with the statutes and in fact at excerpt of record seven the district court as a matter of fact held that the agencies had considered coaster instances and biological opinion as well as the two thousand and sixteen site specific biological opinion what you'll see is there is no trigger here at the six percent exemption is not a trigger by which the forest service is saying we're going to go out and destroy because they're not destroying they're treating some limited areas of the forest under this exemption it's not meant to be a trigger so i think that the council has as misunderstood the record it's misread the right here and they cannot prevail on that  aspirational we explain it supplemental excerpt of record eighty five it defines a goal each forest plan is slightly different it's certainly true that in the ted well case the beaverhead dheeraj national first plan had a girl that girl is very different from the girl at issue in the gallon forest plan it says provide habitat to maintain viable populations to ensure those let that words aren't those words you not appear in the gallon force plane so it is a different g mcnair that says look if the forest plan incorporates that regulation then you have to apply but that's not the gallatin forest land it is very different when you take a look at ted rall case what you'll see is that this court rejected the proxy on when you look at the first plane you see that it's aspirational they don't need to provide viable populations the next provision is this monitoring provision excerpt of record eighty five and this is number sixteen and it says that the first must determine population area and that's not right because context matters the plan tells you that needs to be moderate persuasion and the forest service complies with this requirement the two thousand and eleven report for monitoring indicator species can be found it five ninety eight to six twenty three and what you see in that is that the forest service lays out how does it monitor goshawk and it talks about a two thousand and five study this is a grid based survey of the forest it talks about specific site specific surveys now this is important councils talking about how the forest service had not observed at a project area survey and then it pulls this quote out of context and it suggests that the data that the forest service is relying on that it can't it can't be relied on but it's important that you look at that page because if you grow up a couple little bullet points what you see is that the overall trend of goshawk on the force is that they are stable the population is stable what he was talking about when it said they didn't have data to determine population level it was referring to site specific surveys so look it's true that at a site specific level in this particular project area that the there that the first source has not observed goshawk but that does not mean that at the forest level which is the requirement for monitoring at the forest level goshawk are present on the first and our population is stable this the gallatin has over two  hundred fifty thousand acres of nesting habitat for goshawk this project treats one hundred fifty eight acres the first service an official holiday concluded this project will not have any effect on on goshawk looking at pine martin they say that we failed to monitor pine martin again look at the record excerpt of record six nineteen since one thousand and ninety seven each and every year the forest service has cooperated with wild things unlimited to conduct  surveys of pine martin pine martin are trapped for their pelts in montana we know this it may be that on a statewide again context matters statewide basis martin may be in decline but that's not on this for t the first service here has said that a pine martin are abundant on the forest why do we know this because every year they go out and they survey these animals we're looking at some of the arguments this is council raises a bit of scattershot argument here and i think they confuse some of their their arguments but under underneath under the under the statute they point to this article bipap law and palace studied occupancy rates on a different th she in her report specifically said she was looking goshawk occupancy rates and it's true in la days and unlogged areas but you know how tickell specifically said she was not looking at long term population trends  article she explained that she was only looking at very limited number of nesting sites now council reason suggests that somehow it applies here well it doesn't and the forest service reasonably explained why and it's an excerpt of record eight twenty three  you can see that the they point to canfield's report and they suggest that it's somehow misleading because somewhere else in the record they suggested in response to comments that the population for gossip was stable to increasing elsewhere any e i a s you have find an accurate summary of that report and that's a excerpt record five forty eight the bottom line here is when you take a look at context when you scratch the surface just a little bit on some of the council's i would first like to just start out by addressing the representation that goshawk populations are stable council cited to i believe it was e r six eighteen what  actually says is that the population is stable globally this says nothing about what the population actually is at the national forest level so there's a bulleted lists there at the top of our six eighteen and it says the first book says globally they're stable at the broadest scale and then it goes on down and then it says based on detection surveys goshawks are present and distributed across the galaxy national forest but population trends cannot be determined from existing data and so where they have a clear unambiguous forest plan provision that requires them to determine population trends and they unequivocal admitting that they haven't determined the population trend here are six eighteen that means they have violated the forest plan the next thing i would like to address is the sort of representations about forest fire and you know that's sort of a common theme with for service timber sales every timber sale purports to be designed to reduce forest fire risk and i would just point the court to what the actual four services that missions are in the record about forest fire for example it eleven where the four service itself said quote this project will not lower the the fire there nor the amount of acres burned and so at this and then we're talking about at the scale of the analysis area as a whole it's actually not going to reduce standard placing or mix of air and a fire again that's f e a r alive and that sort of undermines their entire argument here about wild fire and the scientific literature supports that idea that it's not actually going to affect wildfire because these are the higher elevation forests that actually only burnette intervals of one hundred years or more and so it f e r forty three peer reviewed science says that no evidence suggests that spruce for lodgepole pine forest have experience substantial shifts in other words they're the same as they naturally occurred also the scientific literature f e r fifty says quote we expect fewer to fuel reduction treatments in high elevation forest to be generally unsuccessful and reducing fire frequency severe d and size giving the overriding importance of extreme climate and controlling fire regimes in this so there is consensus between the scientific literature and the four service itself that this will have little to any effect on actual wild fire and then the final point i would like to address is just the idea that basically what council is asking you to do is blindly defer to the notion that an exemption of six percent of occupied links habitat that six percent of occupied links habitat can be logged he did not any scientific basis for that exemption and instead just asked this court to give blind deference and this is an a p a case the standard of review is are betraying capricious the standard of review is not blind deference and it is arbitrary if there is no scientific basis at all and i see that i have run out of time unless there's any further questions ok i think think both sides for a good arguments on both sides maybe