vulnerable to wildfire especially given the horrifying fires that a blaze across northern california in recent years since two thousand and five university of california has worked her move the non native trees and vegetation substantially increased the premise that the university abandon the original project pursuing a different project that critical inclusion is a clear error and is contrary to the plain language of all evidence regarding their vies project that was considered or university's appeal essentially raises three questions for this quarter result one is the university now pursuing a different project did the macaws the injury complained  with one key exception they're advised project does not include work in critical species habitat subareas within those two strawberry in claremont canyon areas work in those suburbs is prohibited by females unlawful termination because that sherman asian took away from the university the biological kenyan and take permit under the endangered species act all of the evidence before the trout word confirms that universities are proposing to remove the prone non native vegetation in the same area studied by fema using the same methodology and for the same purpose reducing wildfire risks to people in property in the east hills the dismissal order ignored the with regard to the methodology let me just discuss that evidence a little bit there are four pieces of evidence that were before the district court all of that evidence came from the university the federal emergency management agency fema has made  very clear it play no role with regard to the revise project nor did any of the other parties in this action so there characterizations of that evidence is not entitled to any deference further i would also point out this was the only substantive hearing in published in november th that was provided of course that bad document was released of the public after the briefing was completed it was submitted to judge beeler ahead of the hearing judge appeal or affirm really differs from the language not only in that grant application but certainly in the public document in which the university described to the public exactly what it proposed to do in these areas the transcript of the hearing shows the judge dealer had significant gaps in information with regard to this project she opened the hearing by saying oh it appears the university is no longer pursuing work in strawberry claremont canyon's and we attempted to correct that and of course the evidence each of the documents all for the dogs certainly if you define the scope of the project should be clear universities or by his project includes more than simply the strawberry in claremont canyon areas it's a it's a project that includes the entire eight hundred dollars acre field campus area where one canyon and strawberry canyon are two of the most critically impacted areas with regard to fire risk because those are the areas that have over time turned into judge beeler made in this case the university is not pursuing a thinning only methodology with regard to the claremont instructor kenyon errors and so let me let me address that specifically if you look at all of all court documents that relate to provisions only to selected language out of the cal fire agreement that was cited to intervene as brief as we mention even has no responsibility with regards to their bodies project and even ignored language in the same document cited that talks about tree same scope to work which is removal of the eucalyptus trees now let's be clear i think so you propose to promote its arguments suggested that there is a black and white distinction between tree removal on one hand and then he in in claremont canyon but it also includes simply sloped areas hilltops areas that are inaccessible by roadways and so universally recognized and the both the us enterprise project recognize this there are different techniques that will be used to eliminate the flammable education in some instances they can use certain types of equipment and tell the trees and in other areas because the topography is different because the trees are different because the density of the non native trees versus native trees is different they will be calling selectively in both instances this is work that will be done by a fire management professional again the best evidence is the current environmental documents are the description of th that's the fundamental error that really underpins all of judge peelers decision because she essentially says these are different because there's a different methodology here universities now abandoning what has been proposing since two thousand and five  pursuing something completely different that certainly is again factually we think that we verify that that's not the case but that error is what leads judge beeler to also conclude that she can't does she cannot redress the injury because it's a different project so be relieved of her quested restoration program funds sure but also restoration of the environmental species act take permits that's necessary to complete those we're no longer applies because university is doing a different project i think when when your owners go back and look at those cajuns be areas are the same the methodology is the same the purpose is the same if the only distinction again with the university and planning for the project work that was going to have been in late two thousand and sixteen during that there's a there's a relatively narrow window i'm something of a fall when this work can occur based on the species issues based on the climate conditions does so the federal nexus disappears from this project and the incidental takes they've been no longer applies if that instructs university not to move forward with any work in this area until it obtains a separate take permit and as we know  revise its argument in our use of this chord that this is a primarily thinning project and the language that it cites in the e r notice on that it does not relate to the claremont or strawberry canyon projects it relates to work that's being done in other portions of driving the evacuation support and fuel brake treatment parts of the overall project that the university is moving forward with that is separate from the fuel fire hazard reduction projects that the that are being proposed for clermont and strawberry canyon so again the methodology issue the language in in all of these documents is madeley and i'm citing from the scoping notice page you are one hundred and twenty five manually and mechanically removing high fire hazard done the sequel obstacle is taken care of and we are back to going forward with the same project again the university has been working on since two thousand and five and in fact you know it was developed long before but had but applied for this grant in two thousand and five so university at that point will be ready to go if you are shows that there the university will be able to complete that we're in the next three years so if we look at the original project here the federal project had a ten year time span even if we pursuing the university has removed all of the other obstacles with the take permit restored the university concluded can complete the same were studied in the field approved in the raw and within the timeframe allowed by the ema project spiritual park district your honor this case is moot for four reasons st the university rescinded the original project that was the subject of this second university then replace the original project with a new revised project rd no effective relief can be delivered here for the university and th fema did not cause the university to rescind its original project beginning with its st point your honor the case is moot because the university project the state court granted the preliminary injunction and it wasn't until after the injunction was entered that the university made a strategic decision to rescind the original project it did in the document in which  this case is moot is because after the rescission university replaced the original project with a new different project you are the st project here dating back to two thousand and five was for two areas in strawberry canyon  the project it started a new revised project and that revised project used a different vegetation methodology vegetation management methodology used the methodology did not plan to quote cut down twenty two thousand trees plants use the binning methodology and this scope of work entered into with hellfire provided for thinning the forests removing ladders fuels removing the understory and creating a forest of widely spaced tall trees it did not call st specifically eradicating th project and that did provide for the building methodology although it would result in removing over story within four to five years i believe but your honor the reason why these projects are different is because they have profoundly different implications and what this methodology is actually due to the natural environment and you can see that your honor in the biological opinion the biological opinion developed by fish and wildlife make specific findings for endangered species based on these different methodology and it finds that for example the the clear cutting the eradicating of eucalyptus provides new scrub habitat for endangered species such as the alameda with snake that  and seventeen that has a very beneficial effect and that's how fish and wildlife got to incidental take statement for the biological agent in the original project here but the revised project is using more of a thinning methodology and when the biological opinion looked at spinning in the context of a different project it found that thinning would not benefit the alameda which day and it did not create the stand type of habitat that your honor we can see just in the environmental consequences on the ground the projects had different results and also and your honor that you know the logistical and technical differences between the projects you should not post over them as well i mean the new revise vegetation management about two hundred and fifty dollars of those eggers whereas the original project is just for ninety nine dollars acres and the new revised project as provided by cal fire would require a three year project by i believe tw was original project is going to be on a ten year time on all of these differences here your honor that i've discussed were found by the district court they establish all these facts and the differences between the original project which is focused on clearing over story and the revised project focused on clearing understory and finishing all of those facts your honor facts established and it moved this inquiry by the court are subject to and of course that is it's a noble inquiry for a legal question about supplying facts to law and you wonder what these difference this established between the projects is the university abandon the original project and when the project does the subject of an action is abandoned the case is moot i want to move on now your honor to an affective relief this is really the hallmark of news whether any effective relief can be provided the university is asking for the amended rod to be rescinded and is asking for grant funding to be restored and the biological opinion to either be restored or the university's ability to rely on the biological and be restored none of this relief is available because the university rescinded the original project and replaced it with a different project as for the grant the grants were provided to the original project that cannot be provided to a new revised project which will add to the university already has funding for from hellfire the original project also falls within the scope of the e i f developed by fema over many years almost dating back more than ten years the revised project is no longer within the scope of that ye would not restore the grounds here but your honor the crux of this case is really the biological opinion that in the district court is what the university said it was pursuing this project for and the biological opinion of the described earlier in terms of the differences in habitat creation for the alum you know with stank it analyzed the original project and the methodology of you know removing twenty two thousand trees typically eucalyptus trees and how that would benefit the w snake but with this new revised methodology being implemented by the university in the revised project you know the fish and wildlife has not developed the biological opinion and studied the implications of this new methodology pain in the basis of its opinion is rooted in the old original project which has been moved on for and that's why your honor the biological opinion here the regulations promulgated by fish and wildlife and the case fall in the circuit all provide when the underlying project changes a biological opinion no longer applies the project cannot be used for the project and that is why the biological caon cannot be restored so what this comes down to your honor's is whenever an agency does any type of environmental compliance work whether it be through an eva whether it be through the e s a whether it be the many different regulations  for analyze and incorporate into the raj year the agency relies on a record the agency record and that agency records here is developed for the original project but because the university has moved on this for sinden that old project moved on to a new project the agency record can no longer be relied on and it cannot be restored the no relief here can be provided i do your honor want to briefly talk about some of the of maybe mushy factor test to decide which trees but in the project areas of who would like to take down that sort of multi factor test and looking at all these different aspects of whether you should take the tree down is much different than the eradication perspective and which was promoted in the original project you know taking down twenty two thousand trees is not the same as talking about you know whether it's trees too tall one healthy or two fire prone to maybe original grant here university proceed with its project to proceed to litigate against the agency and state court injunction and during those proceedings for the alameda county superior court it made statement that it did not want to delay the project this is after it had lost in the grant funding and it was only until after the polygamy injunction was entered that the university then made the strategic decision to move out this case by resenting the to the contrary state federal statutes explicitly retain community for callow yes the fema the turning to the young exception the university is required to do three things that it did not do st it's a complaint needed to specifically seek to establish that yes is committing a specific ongoing violations of federal law requiring prospective relief instead the university asked for declaratory judgment whether calloway has properly gave consent five years ago clearly language it e r eight hundred and seventy one to eighty seven to the language that was quoted by famous council describing the criteria for maintaining trees in the in the revised project is virtually word for word identical to the criteria for to determine how best to ply the methodology used to the very odd or b s and different fire characteristics across what was a definite in your early one thousand acre area with very different characteristics so you must attempt to  approved here i would just say very quickly the language from the evidence in regarding their advised project all for document c i r scoping notice talks about manually mechanically removing high fire hazard vegetation trees that or not the projects are the same it is essentially the argument that he was making i would point the court to the two cases discussed by judge bueller with regard to the suppose of voluntary abandonment two very different situations but the p c case in particular talked about in both those instances you had the problem in the party that was advancing the project or it in one case standing for election deciding that it would no longer do so in coming to the court and saying we no longer see this really application for a similar proposal i think the court this court recognized that a similar proposal could continue to be rolled in for this court to consider with regard to this i will also let me just address quickly that the point that the risk university is rescission is the cause here it's not the cause it's the symptom the university is rescission occurred several months after fish and wildlife service told the university it could not advance its work there's obviously well established case law that it that identifies that when an endangered species may be impacted take permit must be in place or it's all lawful for the work to proceed he must terminations again several months before that rescission the rescission staves we have lost the funding that's the viva piece of it and we have been stopped by the by the state court yes unquestionably there was a strategic decision to try and limit fees and and we could not go for at that time we rectify the c p s and it's important to the court again we can provide you judicial notice the final yar that's the sequel compliance to address the state courts so university now has dealt with the state or process to be able to go or now all that remains is the hurdle of obtaining the take permit this court in graham released ever allowed that work to start this year and be completed in the absence university will be forced to go through with our district has said that this court is a ten year process and that ten year process could hold of work not just for the thirty percent of the acreage where the species occur but all of the surrounding areas in claremont and