so this case is about all growth habitat and the lewis and clark national forest and how the farm bill affects protection of the habitat there's two issues that i would like to address in the palace today the consistency of the most creek not have enough oil growth habitat to meet the forest plans minimum standards and yet under the authority of the farm bill the supervisor approved further depletion of all growth forest as part as this project based on a determination that eliminating stands under ten acres in size of all gro player is basically concerned over the overall species viability in the lewis and clark national forest but you have an organizational plaintive right i'm sorry you have an organizational plaintiffs yes s you have to show some concrete injury to members we have to show an interest in on something that's affected by the project of what species of animal or plant and in this case the concern is overall growth species like you have to show that that at least one of your members is impacted me and you did that with the declaration from dr sarah johnson correct yes let's her was her declaration standing because she had never been to the to the mountain right she didn't you know she had been in the mountains but not to the specific project area she testified that she actually done quite a bit plans to visit the project area if that's sufficient under under the supreme court's precedent play precedent to establish standing it is the strongest case you have for the proposition that a person tie in a way that affects the species viability for us wide and it's enough to have a connection with that species and the forest the force itself without having to visit the project area and that we've cited case law t least half of that she is the executive director for the well as you mentioned he can't just say well you know i'm concerned about the overall forest and you know if you if you adversely affect the overall for it's going to it's going to impact mine joint of the forest i mean i think she has to say she intends to visit and will visit and has visited the forest you may not have visited this particular plan this particular project but she has her declaration there has been no amendment to to this particular force plan you know the question is are they complying with the existing team was playing yes and so the standard says you have to have at least five percent growth habitat and they admit we don't have five percent right and so and then the for the farm bill says of course maximize the you know maximize the amount of okra habitat so there i'm tripping the forest plan standard to say that it's not if it if it's in a stand that's less than ten acres even though in this case those ten acre stands are in contiguous forest it's not like isolated lives there in a forest and there in the forest there's a ten acres or definition doesn't say that the criteria from the regional foerster that are incorporated into the forest plan has whole tables of minimum criteria minimum criteria none of them have minimum criteria for stand size but there's a recommendation and a silver cultural standard that when you're setting aside all growth habitat to meet the five percent minimum you should favor stands that are larger than twenty acres in size so in other words don't go after the best all growth how that's how and save you know growth habitat that might not be as valuable so that's fine not that's an ecological standard that makes a lot of sense they've taken that standard which is an ecological shield and they've turned it into a civil cultural sward and said that means we don't have to protect it at all even in an area of before us that doesn't have enough habitat to ensure the viability of all proceeds and we we've believe that's just not only arbitrary  arguing in favor of the forest plan they're making an administrative decision that because they should favor larger stands of all growth they're saying that means we don't have to  protect smaller stands about which had just doesn't make any sense and doesn't make any sense linguistically logically rationally scientifically legally there's no science to support if you ok it would be about all of the experts your honor if they could point to science that says you know a ten acre stand about how the tot is of no use to wildlife you say they don't have any experts no such science out there  experts aren't saying you know that these species won't use this how to type the word of the ten acre standard come from just arbitrarily plucked out of the air well they're saying anything under twenty acres leg yeah it's a recommendation so you won't find it in the definition of all growth you won't find it in the regional criteria for minimum criteria for okra there's a silicosis rule standard which says when you set aside the five percent habitat for ogo species it's better that you set aside stands are larger than twenty acres than stands that are smaller than twenty acres the assumption obviously is that you have more than five percent there we don't have more than five percent here and there saying that doesn't matter now we can now we can eliminate all that's what in other words you're on or you could have an area of the forest that had five percent but if all of the five percent the habitat was under twenty acres in size composed of stands that were all under twenty acres in size then under the forest service interpretation they could clear cut all of that old growth that would be totally consistent with their interpretation of this recommendation but the bottom line it's not a recommendation it's not a statement or i mean it's a recommendation as part of the civil cultural standard but it's a recommendation that's intended to protect species and to protect  fight i'm going to try to save him six minutes of the time to speak but i and the reason i'm confused by the old growth argument here is that he says it's a forest act claim and that the problem is a failure to comply with the forest plan standard but the opening brief doesn't cite the forest act and the issue is briefed as one of the healthy forests restoration act and the categorical exclusion so i'm a little bit bewildered as to why today it's a forest plan compliance problem whereas up until today it's been a question of whether we've maximize the retention of all growth is appropriate consistent with the management for disease and control in order to use the categorical exclusion of the healthy forest restoration act and so you know i hate to introduce more confusion here because i know that the intersection of  sack the healthy forest restoration act can be confusing but this case was briefed as a healthy forests restoration act case and not a national forest management act case as to the five percent standard anyway i mean if you if you want me to address it i mean it's what the forest has said is that it's not affecting that standard at all because the twenty acre recommendation that he talks about they don't count anything less than twenty acres towards the five percent in the st place and they're not cutting anything more than twenty acres so they're not affecting the compliance with the standard at all in any event and under the picture issue is actually brief the healthy forest restoration act you know the there is a scientific i mean it's the same thing as the previous case we had a scientist who went out walked the area there's thousands of pages of surveys of old growth there's an old growth report in the record that's catalogs you know where the old growth is they redesigned elements of the project opioid old growth removed and dropped the units entirely where there was old growth and retained everything they went beyond what the forest plant standard requires here the recommendation is twenty acres for overgrowth management they went beyond that and retained everything that they found that was greater than ten acres in this project area and there's only a few  small stands that have some old growth characteristics that they found were isolated and not functional as old growth habitat that are included in a couple of units so the idea that they didn't maximum in the standard is maximize their attention of old growth as appropriate to address in to the extent necessary to address disease and insects and they did that here and there and it is it's a it's a scientific determination by the forest service that the title to great deference from this court on a long standing precedent like baltimore gas and electric from the supreme court i do want to address standing briefly here because  don't take lightly in you know or a standing argument slightly within resenting argument in the previous case where the declarations are better but there really is a problem here with these declarations they just don't rise to the level that the supreme court and this court of required to establish standing and it's not just that you never visited the project area but where you when you have never visited visited a project area and you don't have the preexisting relationship then you do need specific facts to survive summary judgment of plans to actually go there that existed when you filed the complaint you can establish standing by saying well i like this forest generally and now there is a project over there  never been and file a complaint that at that point there were no no allegation that she was going to visit only later a summary judgment that she filed declarations that say yeah i want to go there and one of those that i've i've learned a lot about this through this process you know i want to go that's not the way you establish standing you have to have an interest an injury and imminent injury at the time the complaint is filed and these declarations simply don't rise to that level and i prior to been manifested prior to the date of the fall of the case really important yeah i'm not aware of that of a case that makes precisely that point is the intersection of two lines of cases the st which i just discuss which is that you have standing to determine as of the commencement of the lawsuit as a result jurisdiction for federal courts the nd is that you have to have to establish your standing a concrete plans and a firm intention to go there and that can be established i think in some instances where you like the case he relied on the ecological plantation case which was a case where there was a long standing recreational interest in a body of water that they was going to be impacted there's a clean water act claim and then you know this well we have a longstanding recreations we go there a lot we plan to go there more there that's less and when you don't have that long standing interest in a site then you need to establish at the time you file your lawsuit because that's when the injuries determine that in fact you're going to go there and you will suffer the injury from it and it's not good enough to say well we use the forest generally because the supreme court rejected those sorts of arguments and plans need to exist you can't develop the plans after you file the lawsuit that's not the way slightly as opposed to where she had said that she had visited the forest before but not this particular area and rather brings that to make clear it has to be there  with the summary judgment yes they were submitted in connection with summary judgment summary judgment you have to plead specific facts and the other problem here complaint is that well when she submitted that declaration she didn't say that before this fight right this is i had visited the forest i had visited i've been back there several times a plan to go back to the forest and i plan to take this project right this is an area there i wanted to go and now this project is go the lawsuit i don't know how you can establish your standing based on facts that occur later but i don't want to get too bogged down in it because i think we have such a good case on the merits that it doesn't particularly matter but we do take you know the supreme court's standing jurisprudence seriously and the other the other problem is the allegations are conclusory she says i have a concrete plan and firm intention to go but there's no that you can just can't the standard and then end up with standing if you need actually specific facts to get past summary judgment and those are here but as i said i don't i don't think it is going to affect the outcome in this case because that i do think that our healthy forest restoration act case is good and you know the mystery did not address the extraordinary circumstances issue so i'm happy to submit that on the briefs unless the court has questions about that with the categorical exclusion thank you both let mr feit speak good morning your honour's lawson fight here on behalf of marconi montana as well as montana logging and wood products associations marconi's interest in this comes from its interest in forest health in the surrounding area there's a lot of overlap between this project and the county's community wildfire protection plan the industry associations share that they obviously have an economic interest but they also have an interest in a healthy productive for one that can provide for the multiple uses that national forests are established for i thought i would address standing st and not spend well i just make one point i see you shaking your head just as but just one point there the little bell mountains one million five hundred thousand acres the planning area for this project twenty thousand acres treatment for this project two thousand acres so the little belt mountains having an interest in that is not sufficient consistency of the project with the forest plain old growth standard that plant are that claim was not raised in this case it was not part of the complaint plaintiff moved to amend the complaint and that was  that there is the requirement to retain maximize the return of old growth to extent appropriate and the district court held that the forest service was complying with its forest plan standard and that that seemed adequate i would add that if you look at pages one hundred and twenty one dollars twenty two cents of the excerpts of record there is a summary of the surveys of for old growth and they surve every unit that to be to be treated for old growth and said we may not know where all the old growth is in the planning area but we know where it isn't it isn't in the treatment units and that leads to a conclusion that old growth is not being affected by the project the project overall will enhance the ability of the forest to develop late succession will stands it will enhance the ability of the forest to provide to provide habitat and it will affect the beetle missile told me beetle and mistletoe epidemics as well as reduce fire risk regulatory one and so that the statute displaces any regulatory procedures such as the extraordinary circumstances what does the trick with the language of the statute the language of the statute it is in section above a project describing subsection b may be considered categorically square maybe so what is what is maybe mean but it puts it to the discretion of the forest service to determine whether  whether this is the best tool to use at this at this time it provides also those so it's not there's not a statutory automatic categorical ics exception right if it defers to the foreign services expertise and the secretary in developing and applying his projects now if there were a requirement to apply the extraordinary circumstances regulation it would be hard to circumstances just saying it was necessary for to do that correct that's right your honor didn't seem to be a big problem for him to do it or not i mean not in this instance it's  basically the if you look at the way the farm bill is structured it's about expediting these projects because there's a recognize a need you have in this instance in the state of montana governor bullock designated about five million acres is needing treatment and i will say on the on the landscape designation since it's a governor's request that's non discretionary with the forest service and that's why he doesn't it doesn't apply to the landscape  we have a case a recent case yes yes the sunny south project that was a little different because that was a chief designator landscape under if you go back to six thousand five hundred and ninety one a sub b sub one is what we are in and that was sub two that was a discretionary designation by the chief but it in general the the overriding purpose expedite treatment across the landscape of this statute means that the courts should be reluctant to read in procedures unless it's absolutely necessary or or unless it's explicit and so whether or not it was ever it was a hassle or trouble for the forest service to go through extraordinary circumstances in this case it's not provided for by the statute in the court should be reluctant to read it in submitting the supplemental citations earlier this week basically the hot month the court should defer to as what the agency still says on their website which was wh circumstance analysis is required under the farm bill is because congress said you shall do scoping and congress didn't define scoping separately from what the regulations how the regulations defined and in the record of this case there's no they never considered cumulative effects analysis even though this is an area that has been heavily logged heavily a cle circumstance analysis the forest service is supposed to consider the cumulative effects whether or not there are significant cumulative the facts because of past his store called logging or similar projects nearby and so they didn't do that  both all growth and excess of clear cutting has been over including this project now in the past has spent over eight square miles of clear cuts in the project area and the project includes another two square miles of clear cutting so ten square miles of clear cuts in an area that for us that no longer provides food for the needs of wildlife species so far from and in order to defer to the forest service interpretation of their plan on old growth stance size the court would have to find some stand of trees that is possible much surety and showing decadence the last stage in forced succession so are they logging stands of trees that are past full maturity and showing documents yes they're saying but this only applies to stands that are more than twenty acres in size where's the ambiguity of does it say that no so following that definition of old growth there as an ecological definition of old growth forest which begins by standard definition of all growth is for application in the lewis and clark national forests which once again says absolutely nothing about minimum stand size and then even more detailed criteria are incorporated into the forest plan after basically a healthy forest restoration act and let's indefinitely i mean i don't have the complaint but maybe well you know you're responsible for the billing right sorry i said you were responsible for the complaint yes yes yeah and then we did raise forest act claims a neighbor claims and challenge the way we know but the point is what did you raise on appeal with us i mean my i thought this is all how the standards that were set by the healthy forest restoration act that the healthy forest restoration act requires that every project be consistent with the forest plan so it gets us to the forest plain right and so we are arguments have consistently been they're not complying with the forest plan because they're violating the autograph standard so when council said that in the district court you saw to amend the complaint to bring a specific claim under the failure to comply with the forest for today and for the week thank you all very much and then we will after the conference will be back out to talk with the student