you know before we start the clock i have a quick question for you just in terms of the timing i'm under the impression that there's you need a decision from our court bias certain or something like that because i can't remember what the date is and if what the reason for correct your honor if i could just introduce myself my name is elizabeth holmes i may please the court i represent conservation congress i'm from blue river law i will also just add this is my st oral argument ever so  bit bumpy there and i'd also like to reserve five minutes for a puddle if possible and the forest service did begin logging i believe it was september th two thousand and eighteen and they have completed to date approximately sixty six percent of the project ok that's what i want to know i thought that was it ok and the remaining sections are the sections that we have focused on for the preliminary injunction and the reason that it hasn't gone forward further is big because of whether or do you know i understand it's weather and other delays that have not been specified the project is located at high elevation approximately four thousand seven hundred to six thousand two hundred feet so there's been some bad weather they complied with the national forest matt management act i believe that the delisting does have some bearing on the case because as part of the delisting they're supposed to be listing monitoring plan that went into effect in two thousand and fifteen  and there are certain things that come out of that for example surveys that need to be done every two years and according to our calculations there should have been at least one set of surveys that were completed yet that's not something that the forest service evaluated in its decision and so that goes to the hard look the need the hard look angle certainly the environmental assessment also states that they will the forest service will consider future surveys of the modocs sucker to see whether or not the species is still in the area and so our position is that those surveys and that issue should have been addressed before making the decision and this area also concerns three northern goshawk protected activity centers within the church trees and as the forest service surveys have documented they still have some green habitat remaining and enough at least in one of the packs if not two to remap them before conducting timber activities in this area but the the forest service is said that we mapping at this stage could create create some  danger by going back in there what's your response to that so there's two areas that the forest service alleges has some danger one is the roadside salvage logging for trees along there and that's of some concern because the forest service has abandoned the house or tree guidelines that dictate how to cut trees along the roadside and they also have not done a road closure order so we have questions as to whether or not they're actually you know the degree of danger along those roads conservation congress does not object to road side logging certainly for public safety reasons as long as it's done following these guidelines the closer to the interior of the project there's also the fire killed tree guidelines and it's not been made clear as to whether or not those also have been abandoned by the forest service the reason the hazard treat guidelines were abandoned according to the forest service is they were determined to be impractical and so we don't know what that means we don't know who's making the decision about what trees  if it's the contractor or if it's the forest service and what basis is being used to make those determinations do you have reason to believe you so you're reasonably that they're not complying with that is because they said they've abandoned those guidelines but you don't know how it's you don't know how that is being done here is there any reason to believe that the contractors are marking the trees yes i mean that would be if they if they are if they are marking the trees i would assume it's either in conjunction with the forest service that are supposed to have a manager on site can you know that the focus of why we're here today is because we're appealing the preliminary injunction order from the eastern maybe you could tell me what my standard or a view on this for on this order is it's an abuse of discretion standard your honor ok so over some views discretion standard at that point in time question well if it's an abuse of discretion standard that suggests that the district court should have absolutely no evidence to sustain what it's doing because the abuse discretion is tattered so low that if there's any evidence sustain was doing i've got to back it up i've got a firm what i did so i guess i'm trying to figure out if that's my standard how do i suggest that the balance of equities and the public interest prongs of the preliminary injunction standard that there is just no evidence to sustain what the  because i looked at it and i said to myself at least as to a government when the government is a party those last two factors kind of merge together that's out of  balance of equities and the public's interest in those and i'm trying to save how i can ever suggest there was no evidence to sustain what the district court did here i think  that goes to the merits this is because there was obvious but just a minute we're talking about likely to succeed on the merits is one of the prongs and we i mean frankly i think there's good arguments to be made on both of those i'm not sure that you can say there's no evidence there either because i'm on an abuse of discretion but and i might even say you win on the irreparable harm prong but you've got to win on all four prongs so i concentrated on the balance of equities prong and the on the public interest problem and it doesn't seem to me that really you even made too much if you will bite about those prompts you kind of agreed to what the government's was suggesting and so that it is a public interest that the discord said the u s forest service and the public have a strong interest in taking proactive steps to prevent treacherous road conditions caused by fire killed trees falling on and obstructing the public roads they have an interest in mitigating the intensity and verity of the future fires your only argument here is that they favored failed to designate and mark trees for movable that's the best argument you've got and i'm trying to say how does that and do the district court's ruling that the balance of equity tips in favor of the forest service and the public interest is in favor of the force one argument about failure to designate mark trees well i think it also does type back into some of the arguments that were made with respect to the merits for example destroying the skinny on the reparable harm destroying the post fire habitat the fact that the laws that were being address here have not been clarified by the forest service because they say they're following the mode outland resource management plan they also in their documents say that they're  following and hearing to the sierra nevada forest plan but then in argument they say that the forest plan doesn't the searing about a forest plan doesn't apply but their own integrated design features to support the project pull in part but not completely from th nevada forest plan and i think that when a law is not being followed or not being appropriately implemented then that also can tie into the balance of the equities and the public interest in seeing laws  citizens have the right to enforce like need and the national forest management  connect can ask along those lines if they're not it minutely seems in these salvage sales there are some some specialized regulations that kick into play it seems like there has to be and they government  pointed this to some of those regulations if they choose not to follow some of the management plans you're talking about is not an action it's not a cause of action in and of itself for them not to follow that or does it get rolled into an a p a review claim i have two ways to kind of address that the st is that the national forest management act just requires that forest service acts be consistent with the forest plans and that is actionable under the a p a the other angle of what we're discussing here is that even if the sierra nevada forest plan doesn't apply because this particular unit the big unit is exempt if it is the forest service proactively and voluntarily created integrated design features for this project that nevada forest plan requires that the unsuitability determination be made but only if there is no opportunity to remap the packs and hear the integrated design features selected to declare the pax unsuitable but just didn't add in the provision about remapping so they eliminated certain requirements so that falls under an arbitrary capricious argument and also i think it falls under the hard luck argument because of the effects that that has on the  if i find that the dischord abused its discretion at that point do i have to determine if the injunction was narrowly  tailored i don't know which comes st actually your honor i think if you find that it abused its discretion and the the order to mean the oil do i send it back to the district court and the district court would determine whether the injunction was narrowly tailored to do what it had to be done i think given the timing and the ability of this court this court actually could issue the injunction as well how would i do that on a narrowly tailored how would i make that determination whether this injunction is narrowly tailored what we're asking for is in terms of the timing would just be until a decision on the merits is rendered and at the district court we've already started our summary juggle is that tailoring for me i believe it is your honor because the time frame for which we'd be looking at is probably if we're in mid may it would probably just be maybe through the end of the summer so in terms of timing it would be district court i believe it's in the appeals briefing to that in public interest cases like this there's a long history of public interest organizations with very little resources to be exempt from providing a bond for i have secondly whether this is really narrowly tailored enough for the district court to make that determination then for me to make it we did file a declaration in the district court from conservation congress's executive director specifically addressing the issue of the bond the court robert lemon represented for service first thing just want to talk to the staff report quickly was it's e c f docket number sixty nine the district court it explains that it's because of the wet soils and the wet weather the estimate the ok but that's as things stand today that's still the that's my understanding that things have not started that the report was dated march th i have not heard a further update there was no indication i thought for service last week that anything had changed so i don't think we're get started yet but at this point we have sixty percent of the project which has been done sixty seven percent of the timber has been cut down that split between the two areas barbara canyon which estimate on that i think most of it's been done starting you know about a year ago with and it's a work stopped in january february because of the snow so it's not clear when i'll be done have shown a likelihood of success on the merits such that cutting down these trees now at least as things stand today would be illegal i guess i don't see what argument you would have for saying that the the other factors don't tip in their favor the entire project will be done and then you say ok well this is this is basically moot right they have to show irreparable harm to them not to the trees they have to show that they're members there to clarence will be irreparably harmed by cutting down roadside hazard trees and salvage trees and their decorations don't meet that burden even if they did they still need to show two more things public interest tips in their favor and that the balance of that but he steps in our favor and those things do merge in this context they have it on those a lot of part they haven't come close to meeting their burden their their explanation is we don't want this project to happen but they haven't shown irreparable harm to species that they're concerned about the record here is no significant impacts on goshawk because the fire burnt down  two productive activity centers essentially completely and the rd one except for one hundred dollars acres which the forest service is not going to take action in the green remaining acres so they just haven't met their burden here of showing that the project going forward is not in the public interest on the other hand the record is clear that it has restoration impacts it has a public safety and road safety impacts and it were to fire from future wildfires without any few things but one is the surveys now my understanding is the government's position is these surveys are not required can you address whether these surveys are required and whether any were done or whether they were exam under the time frame the easy answer this is surveys were done of this area of the protective activity centers post fire their complaint is we didn't do a nelf surveys and that we should have done remapping for the project  but the record has and we've cited to in the brief the the three surveys that were done before the decision it was signed and those surveys confirm that there was no goshawk activity nothing activity in the project area nesting activity for i think of six or seven prior surveys is that enough to undermine their standing argument there because the only other is a it seems like they were claiming an interest in the goshawk and that interest in are decorations focus on or describe interest as in the forest generally in the coal fire area so not just the project area but the thirty thousand acres impacted by the fire and a couple of there to clarence talk about  the confusion about that which plan applies isn't really confusion here the four service plans are are clear the modocs plan for the particular plan for this forest applies there's also see here sierra nevada force plan amendments from two thousand four and those answer the question where they apply here because it says they don't apply to the big valley sustained unit and that's where this project is located now the forest service has in its environmental assessment and decision notice decided to voluntary borrow some aspects of the more modern two thousand and four dollars sierra nevada forest plan and there's nothing wrong with that it's saying it has better science in places and so we're going to use it  and that's what's happened here and in that doesn't make the whole plan binding as a matter of law just means in this project before services said we're going to meet this standard the district court did not rule on this issue it said it doesn't really matter because i don't find  and they did not present them to the agency during the new draft process so they argue on that point that they didn't you can't waive arguments you can only wave claims was a government response on that there's case law from this court making that distinction i think the way you look at the station is say well what is the effect of what they're arguing and here they're saying in their brief that governments action is invalid because if this plan pro and that may not be labeled a claim in their complaint or it may not be presented to their complaint all but that is in effect the claim if you're asking a court to in a follow date a government action because of a piece of law in a forest plan that's not a separate argument it's not citing a new case or cite you can new regulation that bolsters an argument that you're already making it's a new functional claim and so that's what that's why here when you're saying government you violated the law because you haven't complied with this provision of the forest plan you've got to present that to the forest service during the planning process and you need to present to the district court during the preliminary injunction process here what's our standard and we were then whether the government was on notice that these specific provisions because if they had put you on notice you would have addressed because this goes back to comments that were made to the agency before the record decision was adopted isn't that correct so if they had put you on notice you would have addressed it if they're raising arguments now that are not fairly unless the court wants to and there's no good reason here to do so especially when it's at a preliminary stage and there's merits briefing on summary judgment going on right now that will wrap up at the end of time let me ask another question as a relates to erupt rable harm i'm a little worried the district court may have abused its discretion there on a rep ripple harm as to conservative conservation callers and i worry about that because alliance for the wild rockies reading alliance for the wild rockies it seems to me that in that case the members alleged and i'm only reading what i've got here is notes that the project to remove fire damaged trees would harm their ability to view experience and utilize the areas in their undisturbed state and the courts said that this was an actual and irreparable injury that satisfied the likelihood of irreparable injury quire meant articulated in winter this seems to be on all fours with that i don't know how come the district courts suggest they have no irreparable injury i think the connection that's missing here that the district court relied on is there connecting the dots between this project area and there are recreational and aesthetic interests it's clear that they have a recreational aesthetic interest in the whole area of the fire which is thirty thousand dollars some acres and in the whole area the one million six hundred thousand acre forest what they haven't done is draw that connection between the project area and  and the harm that it harms them to be sure a couple of the to clarence i think dr bevington and possibly hanson had mentioned visits to the to the project area but that's just in the recreational activity every day and players have plans to visit the project area in the spring i think she's talking i think if you read it closely she's talking about the fight the thirty thousand or twenty four thousand acres of fire damage in the forest that she has visited before and the point here is that for services actually it's about seven percent of that larger damaged area so if you're a plaintiff a declarant here now plant is clarence and you're and you have an interest in an area that's not enough you have to explain like no no no the project is irreparably harming me and your if you have just being the nice bugs is for the whole thirty thousand rather than this project because i thought she was really dark ing about the project area she planned to so i have visited with members and friends in northern california and some page here for seventy two and we have used and recreate on the modocs including in the co fire project area so she's visited the forest and she has also been to the co fire project area  but i don't think the connection she is drawn is it's tight enough to stablish that the project work roughly harm her when her interest is more general it's not enough when you're talking about say something like a bird that has a larger habitat area than just you know a confined whatever you'd want to draw on the map it's not enough that you have a general interest in that larger area and you're saying that hey if you do this to this one part it's going to hurt the birds you know that are going to that's what i guess i would assume would be the  is that the project here is in two of the goshawk protected activity centers of their stand replacing fire there's no green trees left or very few acres and the goshawks are going to nest there anymore it might use them for some foraging it might find goshawk there are hard to spot on the wild one and there's a clarence as seen one in the wild in the modocs for isn't enough you have to you have to connect to what the harm is going to be from the project and here the force of research can restore these areas more quickly than if natural regeneration occurs and they don't take issue with that they prefer natural regeneration but they don't have a scientists saying that's wrong that's arbitrary capricious that's irrational the forest service is explained and one of the purposes of the project is to lead to natural habitat outside that activity center it also will be safer to do so because this the snags that will have fallen will be removed or will have already fallen over can i ask a more fundamental question on the irreparable harm our case law does suggest that they have an interest in the undisturbed state but here you're talking about burned land i mean do they have and do they have the same interests sitting inside the goshawk do they have the same interest  could have that interest i think you do have to explain when ninety three percent of the fire area will be left in that undisturbed state why your preference especially the respect of the balance of interest in the public interest b equities and public interest should outweigh the interest the forest service has in treating this seven percent area and that's where i think it's most clearly they have fallen short that they haven't they haven't justified why their interest and natural regeneration and leaving a force in its current state in a slow regeneration process should trump when the vast balance of the area is going to be left in exactly that state and what we're choose to log so there's clearly an interest your client said that they don't have an interest in the other ninety three percent of the burned area only in the seven percent know they do they have an interest in the whole thing but posing counsel was arguing that  that my client's interest is more in the general fire perimeter and not in the pro project itself my clients are very interested in the project area they're interested in the rock itself their declarations demonstrate most of them have approximately twenty or thirty years of experience in the dock and going through the project what's their specific interest and the burned a forest in itself because i don't think they can put in an affidavit that says we enjoyed going to the burn forest because they probably haven't been there yet and since it's been burned actually they have can and do and three of them were supposed to go there because of weather delays they had to push their their visits but part of the interest in the burn forest is that there is a progression of change and development in the forest insects come back once the trees start to flush in the springtime then that and birds come back there's a bird called the black backed woodpecker which is prey for the northern goshawk so there's a very slow chain of events that starts to happen and that's what the government's position is that they're helping your clients out because they're going to expedite the very slow chain of events  it's a different approach and in doing so the government is doing things like taking out snags which are part of the habitat that's essential for the black backed woodpecker and those are parts of other claims that we've raised in the  complaint i do just want to touch on another point that mike opposing counsel made with respect to the issue of waiver we have pages eleven through seventeen of our brief address the issue of waiver and whether or not we've waived any of the issues in our out that in june july th two thousand and eighteen there was an unknown raptor cited in the dutch flat pack that's the one that has one hundred and six acres left and in the dutch flat loop pack which has approximately twenty six acres left on june th two thousand and eighteen there was an alarm called detected and then in two thousand and eighteen the surveys indicate the northern goshawk was present and i also just want to highlight that  there's different behaviors that the birds have nesting obviously but for itching and hunting so those are other behaviors that happen in this post fire habitat but how much of that disruption if it if it has happened is due to the fire versus what the forest service is doing i mean that seems to be the complexity that you have here yes some of this there is a change that happens certainly because of the fire and the surveys even document like the trees that the nests have been and are under burned but not completely burned there's another tree that a nest was in that was completely burned but one of our one of our major concerns with this project is that of the remaining green how the tatt if that's not if the packs are not remapped prior to the forest service going in there then that green habitat risks being cut down so it's the forest service that is causing the harm to plaintiffs and their interest packs i just want to touch if i could  evidence from the room go ahead it's right the the balance of equities one of the things that i did just want to add is that you know we're guarding the safety issue like i mentioned we don't oppose the guidelines but they were abandoned and so that's a concern for the equities issue i know the defendants have mentioned the fuel load and fire prevention obviously it's still important to  protect the area and maintain certain management activities for wildfire but i just want to point out that if my and the mohawk land resource management plan i'll have provisions for when wildfire happens and when there's catastrophic fires that's why it's so important to follow and if me here is because there's provisions r t in those laws to address the forest service has to comply with to undertake actions responding to wildfire  yes your time has expired thank you very much for very helpful arguments in this case because just are you do submitted and we are in recess for today