now please the court my name is kristen boyle's and i represent the conservation groups in this appeal and like to reserve five minutes of my time for rebuttal this case is about logging after a fire and let me immediately acknowledge that for better or for worse that fact changes the way people think about this case but saying that this area is burnt is only to beg the questions that need to be answered about the on the the forest service has said that the last two sales that are ongoing right now are likely the last sales but they have not withdrawn the authorization for more sales and so we're not sure that there will not be any more the forest service this decision to allow logging in these previously off limits old growth and roadless areas violates the law in three ways that i'd like to discuss first the forest service has not shown and we believe cannot show area third the forest service is violating the northwest forest plan by allowing extensive logging in designated late succession reserves undermining the very reasons the species old growth forests were protected in the first place points and then turn briefly to the urgency of this appeal as walking in the most sensitive areas is happening right now turning to my first point that the forest service has failed to demonstrate compliance with the relevant soil standards a is is affected by the fact that the forest service reduced its preferred sandwich to dead trees from over five hundred million board feet on twenty nine thousand acres in the drafty aside three hundred seventy million feet on approximately one thousand nine thousand acres in the final part is that yes that that is right you're out of print between the draft in the final the project was reduced i have to say that three hundred seventy million board feet is still one of the largest that as opposed to the helicopter right arm i used to have wrong i believe are using it a little differently i think it's a little differently the tractor logging is going in there with tractors the other two to do the cutting and the helicopter logging is is done obviously they take the logs that with helicopters both kinds of logging has to people have to go in they have to skid the logs to different places there's there are ground and soil impacts from both kinds of logging tractor logging is clearly has more pac then then then helicopter logging but they both have impacts to soils and that's that's pretty important here when you talk about an area that although this fire burned is a mosaic some places are severely burned some places are lightly burned and the severely burned areas already have soil damage which may well be above the fifteen percent standard but we don't know because they didn't look and so that's important when you think about them what put on top whether you're doing tractor logging or helicopter logging another question that i have just in terms of because how i believe that the pallies are you know how they're framing the issue is there any evidence to believe that the recovery project through its employee implementation at the finally i asked is alternative seven will be less than ninety percent of the recovery and touched by any activity as provided by that finally i asked i think that's correct your honor and that gets us to a point that we've discussed in the briefs many times which is the number of games that i believe the forest service is playing here that is a percentage of the entire five hundred they're talking about the percentage based on the entire five hundred thousand acre area of the biscuit project within that area it's important to know that sixty one percent of that area did not burn or burn very lightly only sixteen percent was severely burned the impacts that we need to focus on and talk about are the areas that are going to be logged and when the forest service takes and compares the logging smaller and smaller amounts of logging to larger and larger areas it's actually playing games with what the harm is going to be on the ground the harm to those areas that are being logged is not ameliorated because in some other area of this five hundred thousand acre area there those trees are not being blocked and so we believe that that's that's misleading to keep trying to show that these are smaller and smaller percentages when it's the logging in the areas that we're talking about which is going to be very important and that two decisions that we challenged here were logging in areas and logging in the road this areas those decisions allowed logging on over well over ten thousand acres this is not a small amount of logging and even the logging we have left this summer the two sales going on my expulsion blackberry are on over five hundred acres and have thousands of board feet at stake so this is not an insignificant amount of logging or talks completed at this point i don't know how much is completed your honor i'm sorry because the numbers have varied as the seasons have gone on i know right now with the two sales that are ongoing there about their slightly over two hundred fifty acres each of logging with several well over probably over ten thousand border million ten million ten thousand  dead so we might as well cut them down we're talking about dead trees so much as we're talking about a dynamic farthest the snags in this area and the dead trees provide all sorts of functions from inhibiting a providing habitat for wildlife to communicating soil temperatures and providing shade and protection for the new trees that are growing we're talking about four years after the fire now and this area is in recovery logging these areas will put that recovery back and it is not an unusual circumstance here in this region to have fire if you're i think so because i think our point is made well in the breach as well that the reason some of these areas the late succession reserves were designated as late succession reserves and remain late session reserves even after they were burnt is to fulfill those particular functions in a forest and having snacks the reason why the standards and guidelines in the northwest forest plan require you to keep snags in place is just because the scientists have recognized the importance of those trees dead or alive in growing all the trees that right most of the trees after the fire now even though they're dead are still standing so if you see a picture of the area they're standing trees they'll be not standing when they're cut obviously but  after the cuts the cuts that are going on now are leaves some amount of trees standing however they are clumped and usually on the edges and so there is a there are vast areas that will just be  but ok getting back to i think i'm probably you know obviously you might have a different way that you would like them to do do this but that isn't how you're going to prevail you can't say i would like you know that i don't want you to remove any complete as rather than the pre crime to condition of this whale it is but it doesn't matter because if this case if they didn't look at the areas and find out what the soil standard was they won't know whether they have to know before hand to know whether they are going to violate it they're not supposed to violate the standard says you're not supposed to have more than fifteen percent of the detrimental spoil conditions and that includes burning so compaction disruption and burning in some of these areas that are severely burned they're probably well over the fifteen percent already and we're talking about the activity area as the government has now admitted in the harvest units and when they submitted to this court for the very first time that  reports that looked at the they claim answers our challenge which we had never seen before you'll see that often on those they show will air areas that were already well over fifteen percent and let logging happen in those areas anyways i guess i want to ask you about some of the numbers are using because i'm not you know it seems to me that they're a little bit of an overstatement but i want to give you an opportunity to respond because it i your projection of a thirty six percent ground disturbance and overstatement of the actual soil disturbance caused by the recovery project kind of i just have a theory and i want to ask you and then you can respond there has isn't the thirty my calculations almost point two percent of the recovery area so you know i mean i'm looking at that as a little bit of inflated you know i mean you keep going back to this thirty six percent as opposed to the fifteen percent six percent is the number is a projection used by the forest service for what they were basing their calculations for tractor logging you're exactly right we use that number in our briefs solely for the reason it's the only number you can find in the record before they submitted this amount of material to the court our argument is not that we've proven a certain violation are that then that those numbers i think those numbers tend to show that they were thinking there was some high amount of soil displacement already our argument is they didn't look first they did not look in these harvest units before they went out to know if they were at the fair percent standard they may have done the calculation for those forty four acres that john is talking about but for the other areas it's not there go back to why trees are important but soils are important because that is going to be the basis of recovery for this area this is not a nit picking disagreement between fifteen percent or thirteen thirty seven six percent i think they need to look first i think the standard says they must look first so that they know they're going to have enough soil left at the end of this project that you're actually going to have recovery you're going to have trees growing in that area so we have the next forest produced unless they do that i don't think we're going to get there and when you s it it's absolutely true that the government gets deference and i do not get to say where they should or should not log we are talking about logging and we do not challenge logging in the entire project we challenge logging only in the late succession reserve old growth forests set aside under the northwest forest plan for special protection and special consideration and in the inventory of roadless areas which as the court may be aware of the stuff that of a lot of controversy about protecting those areas from running and logging and so those areas are the ones that we think have been made available in this action that should not have been that shows up in the cumulative effects analysis because they have argued that they matter of law instead of pointing to the numerous cases from this court at least five decisions recently into last year from the forest service that says the the government must catalogue past actions and even do more look at their individual impact instead the forest service is pointing to a two thousand and five council on environmental quality guidance memo that says exactly the opposite that you don't have to catalogue past actions and their reliance on that memo contrary to the clear precedent of said this is a large area they did not burn evenly some areas burned hardly at all or not at all and so the idea that it's all gone and all we need to look at is things from two thousand and two on just doesn't make any logical sense if you think about the actions that might have been happening the fire would not have wiped out affects from road building from roads that just doesn't it can't be that they don't need to look at anything prior to two thousand and two and again this matters because human facts analysis gives you that big picture look at the trends it gives you the look at what might be happening in allows you to learn from the past actions and propose alternatives in a neat but document that might avoid those and if you don't take that look you're never going to get that bigger picture view of what's going on you just get that snapshot in time and we believe that is against the i c m i'm running out of time your honour's i want to address quickly the issue of harm here because i know it's well it's very important to us because there is logging on going right now and i know judge callahan and judge progress and you thought about this issue recently when we had our motion for injunction pending appeal i because of the expedited briefing and argument in this case which we certainly appreciate there is still time to stop that logging the logging at mikes gulch only started last monday august seventh the long of black berr it is the sale has been sold but is not begun and this size of the logging compared to some other randomly chosen metric is not the question here the question really is the irreparable harm to those places to those soils and those undone and i you know certainly they would have an economic interest in this project that that project was built on these projects are built on well knowing the controversy that sort of surrounded this project and that this court was going to hear this issue this week  i think if your honour's are inclined to ruin our favor on any of the issues i have to ask you to issue an injunction quickly and then followed by a written decision and i know that we have been denied injunction pending appeal but  going beyond the thirteen minutes that we've tried to allocate why not there's things that you want to cover and that we're also be helpful rather than just you know being bent on covering what you want to cover to record because like the record here it's clear that the forest service is not only doing exactly what this court has required because this case is very factually different from the cases where soils analyses have been struck down but also more importantly  because there has in decades and decades of fire suppression so you ended up with a forest that didn't have it it had a lot of undergrowth and ladder fuels have a lot of brush so when these lightning strikes ignited they went up and they burned crown and they burned half a million acres on the forest that is not the normal fire regime on the forest so what the forest service is that and this boils can correct me but they would prefer that there be in some instances no prescribed fire and that's what people have been arguing for and against for a long time but the thought was to leave things alone but at the same time the forests ha managed for chamber resources because they are multiple use and there is there has been timber harvest on the forest which is disclosed out the past and so you have a situation where there has been forest and where you have had trees cut down you get a younger forest the composition of the forest has changed and there was a management decision that they wouldn't use prescribed fire and you end up with a situation that now the forest service is trying to change but let me turn quickly to the soil standard so that i can explain what the forest service did here first of all judge how and you had explained that the soil standard seven s two is concerned with post management that's exactly right what the forest plan directs the forest service to do is to ensure that an area does not that they leave a minimum of eighty five percent of an activity area basically in a non disturbed state where the plaintiffs and the forest service part company is what exactly needs to be done before implementation here the forest service conducted broad scale analysis of soils took it down use best management practices to mitigate for any soil impacts and if you look at the forest plan which explains how to use the best management practices it's that as that you do your  of practices when you're implementing the project and you do it through monitoring and when you're monitoring if you find out that there's something going wrong you can either stop it you can cancel the contract you can amend and i suggest you want to get into ads or things before you stand they did do that they were now then looked at the soil condition what are the requirements in terms of their saying you know what legal requirements do you have to do that as opposed to respect or something they want you to do when they are talking about legal requirements i think that they are trying to read legal requirements are to certain of these courts this court's decisions that address different facts lance council addressed a situation where there had no on site verification of the model that was used here the forest service did modeling they've never challenge the modeling in the modeling use these ground disturbance factors the thirty six percent for proposed tractor logging two percent for proposed helicopter logging which by the way does not include getting longer on the ground they were lifted out with a helicopter they're not doing and they're not causing compaction they're not causing erosion and in fact here they plug these into a model which has never been challenged projected what they thought would happen and said you know what we have these best management practices and these are set forth in great detail in our brief we're going to go out there and if we aren't needing it it can't be done but the forest service has interpreted its forest plan and this is invite even the best management practices to say that where you have an area where the past management or where some activity like a fire has led to an area where there could be an expedient of the fifteen percent standard as these standards came into play in the past i guess probably about fifteen years would probably exceed the fifteen percent standard that's not noncompliance that's what's happened on the ground compliance with the standard means going for what you need to do going forward with an activity from this day forward but w ensure that any salvage for importantly restoration activities which is which are activities that could actually improve the compaction from these past tractor logging that salvage and restoration quote will not increase the area of the disturbance and will be designed to move the and if they go out there and they see oh we had for instance they have forty four acres in the u s that were that could be tracked or logged under the modeling with the forest service to it well when they went out on the ground they saw there was more compassion or there were areas that needed to be withdrawn from tractor logging or logging altogether as our as we've informed the corps of the actual on the ground activities only five acres and it up being tracked a so they modify or if they go out there and they see that there are areas there's an intermittent stream that wasn't there at the at the time that they had kind of snapped the unit they set up repairing protections for it and that's part of the reason why as we've described and the reasons that we've submitted the amount of salvage has been shrinking over time because they do do these on the ground implementation changes and that's exactly what the forest plan information i can't say offhand i know that soil specialists went out and surveyed those soils i think you can measure things like dust and litter there are certain ways you can tell if soils are severely burned which just doesn't is a different question than x i think point seven percent of what had been projected based on the deterioration and it was decided that this was the last season where there could be economic return at all from salvage sales and that's why they were offered but there is no expectation  your case law is it minutely a little diversity in the courts opinions on what you need to do the the quality of data the amount of data that you need to do to do an adequate  arbitrary and capricious one and that when evaluated in light of the reasonable boundaries on that analysis as established in the cases and that's very important plenty of sites in the cases often cite the general proposition that general statements about some cumin of the facts are not adequate however there are at least five qualifications of that general analysis that we'd urge you to consider as you evaluate is primarily a concern in the previous tractor logged areas so they identified that they went and also acknowledged that quote information on logging systems the track or the helicopter the cable u in this area is incomplete across the forest and that's on the same record site and then they go on to explain that based on the geographic information system the match stand informations about where you normally would use trac which is on the more gentle slopes less than thirty percent they estimate of that fifty five hundred acres were harvested with tractor now did they have a unit by unit sale by sale analysis of past information they did not but consistent with your decisions of thout planing why they didn't have that and then applying it to their decision making process to try to minimize the amount of tractor logging we think they complied with need but in your cases in the case of with all due respect to the spotted owls the e i a asked in an appendix has a very detailed explanation of what the condition of the spotted owl habitat was by actual spotted our whole range activity area they call that and then they showed what those conditions were in terms of the type of nesting habitat and in habitat broken down on some acres and then forcing habitat on other acres and then they overlaid the fire effects on that they also explained on the snags after the fire because now all you have is the dead habitat where the harvest is concentrated that on in the supplemental excerpts of record on page ninety six  the response of individual cavity nesting species are variable and are known from only a limited number of scientific studies so what they focused on in the e i a s they use data just like your case to say and they pounded and they estimated the number of dead trees millions of acres of the millions of dead trees that were there and they want to step further they said now let's make some estimates in our treatment how many of those trees we're going to remove they went even further than that they broke it down by the type of plants association group and then within that they broke it down by the size because that was important the larger trees are more important than the smaller trees th a boundary on the fumes of the fex analysis is practical considerations the feasibility may limit the effects of analysis and that comes from the supreme court and the clerk the first to sierra club case and here they were dealing with the largest fire in oregon history five hundred thousand acres they had nineteen thousand acres that they were going to proceed so the fact they did a stamp all sampling is is well except in the scientific community you don't have to walk every one of the acres in order to make intelligent choices about what you're going to do the third issue comes from the supreme court the third limit the supreme court's decision in publics to distance itself as in assessing whether the information is required courts and agencies should consider the usefulness of the information to the decision making process and that's entirely consistent with the two thousand and five c e q guidance that came out last year  is that because you are going to get the monitoring that the district can't seem to sustain that there's no indication that you're not going to do what you say you're going to do now how does that factor into all of that that factors in salvage that occurred in that case they went through and they did logging and they did road construction although there's no new road construction in this case and they went out and they monitored and from that they developed these best management practices to have buffer zones along the streams too they concluded that the helicopter logging disturbed about two percent of the area and the thirty percent thirty six percent on the tractor logging came from that analysis  argue that when you use that as a whole they can consistent with the cases here of supply these best management practices as part of the mitigation the record the supplemental excerpt record it page for sixty explains this and they're there summarizing the fish habitat water quality analysis per after the last fire and it said this report concluded that the lack of adverse effects from salvage logging in the that they do that by doing just what they did here where that where they said they've looked at the right parrying there is they've the minimum disturbance through the use of helicopter logging they've gone out where they've done measure and you could you can make a simple find something which you can also do an environmental analysis of the track passes over this it's going to be compacted that will suit that proportion of the area harvested is compacted and that's where they come up with that information now consistent with the cases they could go out there in the order they go wrong the tractor over eighty five percent of the area they can act because in in some ways this whole compaction tractor issue is a red herring in this particular case because they've only done five acres out of the nineteen thousand that they were going to do in the predominate method has been used up by helicopter but in other instances when they do this what they do is they go out and they designate skid trails in other words they will fly get out and they'll go out there in the field with the with the purchaser and say when you take that tractor out gather up the logs we don't want you just running all over the unit and so so they do that they require through mitigation that the harvest occur at a certain time of year they'll say you do that in the summertime when the soil is driv mills i just point out to the court that two fridays ago judges schroeder and rinehart in a related piece on the roadless areas denied an emergency state pending appeal to the extent you see if you're inclined to rule for plaintiffs in this case and you think more thought needs to be given to an injunction we strongly urge you not go there but if you do the appropriate would be to remain in back to the district court to i see i have a minute i think what is clear from the argument of both mr jones and mr horn going on with respect to the soils is they don't have anywhere to point you in the record that shows that before the project past actions when considering the cumulative effects and that's very important in this region that's number two number three they are logging allowing logging in the late succession reserves extensive logging removing the very trees which the northwest forest plan says has to be until the next forest grows for eighty to one hundred years those would be my three bullet points your honor the other point i would make to the court is it's happening right now and if there is any hope of stopping it is right now are compaction displacement puddling and burning and when we're talking about an area that did burn and burnt some places severely you've got to know whether you're already over the standard in those particular harvest units before you go out and look and  says they only looked at thirty percent before they put out the final environmental impact statement this is exactly the case that happened in saying we didn't do enough but you aren't saying there is no legal requirement which is the kind of hundred percent ice ice i say there is a legal requirement your honor in the ecology center case this court very clearly held that to authorize first and verify later and that was the case about a fifteen percent soil standard was a violation of the national forest management acts so in fact i am saying that they needed to look first in the harvest units they didn't have to look everywhere but where they were going to harvest because that was the chosen metric they chose they had to do that first ecology centers directly on point as these new native ecosystems coun minerals that you can't grow anything and it becomes just sand so you lose that layer of that wonderful letter when you walk through the forest of the leaves in the litter and what actually is the soil that can grow the new plant actions especially with soils they've done things that are not according to plan they have to be violated that standard and they haven't looked at those past actions and they have not look human in those past actions and i urge the court to look at the finer environmental impact statement the table that they rely on is table