good morning and may it please the court my name is holly harris and i'm here this morning on behalf of the appellant's in the forest plan case and the big thorn case i'll be dividing my time this morning with mr winter who will argue the third case the cascadia case mr winter will have eight minutes and i will have twelve and of that i'd like to reserve approximately four minutes for a rebuttal this morning i'd like to focus on one claim from each of our cases first i'll begin by explaining why the agency violated nif when it relied on a voluntary habitat measure to ensure wolf i ability that's in the forest plan case then i'll turn to the agencies arbitrary determination to ignore the massive gap between its market demand projections and reality that's the big fear in case turning out of the forest plan case i'm going to focus this morning on the agency's action that was not in accordance with law rather than the arbitrary and capricious claim the agency violated nif my hear on based on one simple premise the agency is relying on a voluntary habitat measure to meet its mandatory obligation to maintain anough habitat to ensure the wolves five believe it's undisputed that the agency's forest plan must manage habitat in such a way to ensure the viability of the wolf our case is premised on the agency's own interpretation of its forest plan that the wolf provision the only habitat measure is entirely discretionary it does not require the agency to maintain any amount of habitat whatsoever as the government admits on its brief at thirty seven it does not provide quote a hard floor that's exactly the problem this forest plan provides no hard floor to ensure enough habitat remains to provide for the viability of the wolf what is the source that you're relying on is it to nineteen nineteen correct your honor greg the regulatory provision is it toni nineteen and that is a regulation as a reminder the court that governs forest plants this forest plan is the court has made clear in idaho supporting congress said and i quote the forest plan must comply with the substantive requirements of the forest act designed to ensure among other things and again i quote viability of wildlife in the forest including the requirement that wildlife habitat shall be managed to maintain viable populations that's an idaho sporting congress at nine sixty now to the mechanics of what we all agree the agency is using habitat as a proxy to meet its wildlife viability requirements as this court made clear in its on bonk macnair opinion when the agency is relying us on habitat as a proxy for viability it must describe the quantity of habitat that must remain that determination must be quote reliable and accurate that's at mcnair at nine eighty eight and ninety and ninety nine the forest plan also importantly must have a mechanism made a means of preserving that habitat indeed the entire premise of habitat by proxy is the agency has a stablished a limit and that forest plan must require the agency to keep that amount of habitat in this instance the agency has no such mandatory limit the agency has not identified how much habitat must mate must remain behind after logging and it has no provision that ensures that requires the agency to maintain that amount i remind the court of the facts at in mcnair the forest plan had a hard limit that's at ninety at ninety eight but each of the cases that the on bank panel agreed and relied upon also had that similar hard limit the forest plan must establish as the court made clear a quantity of habitat that must remain and in this case the agency has failed to do so and has failed to offer a mandatory mechanism to ensure that amount of habitat stays behind the of habitat are you referring to the eighteen deer per square mile in the words or some other mechanism that you would measure there is no other measure so the only habitat measure this forest plan provides is the wolf provision but it's beyond the dispute between thirteen or eighteen there is no substantive obligation under this plan to manage for any amount of habitat the agency here adopted a sustainability provision remember the agency's experts could not identify a viability floor they were unable to determine what that should be or how much habitat would reach would be need need to be retained and so as a result they recommended the agency adopt a higher standard maintain even more habitat to ensure sustainability the problem in this case is the provision stand ability is aspirational this or there's nothing in the regulations that requires the sustainability standard isn't exactly your honor and as a result because the agency isn't mandated to meet sustainability and it doesn't know where the viability floor is there's nothing in this forest plan that requires the agency to maintain any amount of habitat let me ask you a question to incorporates the viability requirement from the regulation as we discussed which will it set as an as an aspirational goal yes to maintain sufficient habitat but the mechanism the mandatory mechanism by which the agency would accomplish that goal is viable the agency here relied on the wolf conservation assessment that conservation assessment according to the agency was quote the best available information on wolf conservation e r ninety one the agency use that conservation assessment as its quote benchmark for its viability conclusions e r seven fifty eight that conservation assessment the agency's own experts rejected that the suggestion that the agency could identify the floor they were unable to do it i would point the court to e r two o three and i'm quoting the agency's own experts we cannot suggest a minimum deer population because we do not know what would constitute a bot a minimum viable wolf population and as a result those experts recommended this higher level here that higher level is not mandatory and the agency is free to depart from it  maintain viable populations elsewhere to ensure that language this court has said the forest plan must comply with the substantive obligations including the viability requirements the plan itself must manage habitat must require the agency to have that one subway describes it these regulations govern forest plans these obligations attached at the forest plan stage the agency can't come back later and say well our forest plan doesn't require it but we've decided to do this in a timber sale these regulations five two three three i'd like to briefly address two issues for the court this morning the first they both relate to the big one project the first is that if i'm a violation relating to the deer and will standard which we were just discussing and the second if i have time is the violation relating to the failure to disclose dissenting scientific opinions so we talked briefly about whether the plan itself complies with not to disclose or to discuss to disclose and respond to your hon the yes your honor this relates i'll just skip ahead because obviously you have questions but it relates both to the opinions of dr person who is the foremost expert on the wolf but also the united states fish and wildlife service who of course is the expert sister agency and if i could just first just reference the center for biological diversity case which we believe controls this issue here that is three forty nine f third eleven fifty seven and if i could also your honour's just referred to a specific example in the record to help distill this issue for the court this is in our excerpt of record page five sixty and this is the comment letter that the united states fish and wildlife service sent to the forest service providing comments on the draft environmental impact statement for the big foreign project the fish and wildlife service said and i quote it is inappropriate to rely on or cite in the final e i  wolf integration as a way to maintain wolves in the project area and this is in response to the forest service is theory that all the deer habitat capability will be far below the threshold is discussed in the forest plan that is ok because we can maintain sustainable populations by having other wolves immigrate into the area from other parts of the forest so the fish and wildlife service wrote a letter to the forest service detail comments said it's inappropriate to rely on that theory the forest service asserts that it responded to dissenting opinions in appendix b of the f b i s and this is in our excerpt of record at page five zero two five five zero if the court reviews that appendix there is in fact no disclosure at all whatsoever that the fish and wildlife service or any other party objected to this critical assumption that wolves could integrate into the area from other parts of the forest the expert agency disagree with that there is simply no disclosure and appendix b that there is a dissenting scientific view on that point and in fact the agency the forest service your does exactly the opposite in response to comments about concerns overload your numbers agency actually relies again on the source population theory in our accepted record of page five zero five the forest service says and i quote load your numbers and one area can potentially be overcome by wealth mobility so load your numbers in one area can be overcome by with mobility this is its source population theory and again there's simply no disclosure that the fish and wildlife service explicitly objected to that and it's comments on the draft yes so the forest service relies on that as a response to comments without any disclosure of dissenting scientific opinions so that's just one i think the glaring example your honour's of how appendix b is ineffective it really alerting the public or the reader to the fact that there were these very severe and significant dissenting opinions both from dr person as well from the fish and wildlife service who has worked with quite closely for many many years but what's our standard review obviously a norm of these environmental challenges there are a variety of views  across even the scientific community what is our role with respect to the specific references you've made here yes yes your honor and i'm sure as the court is aware nepa is a procedural statute and so the obligation on the forest service is simply to disclose to the public and provide a rational response to the dissenting opinions and so under haven't they done that here no you know we don't believe they have because on that first yes i think they responded generally they did not discuss the fork i'm sorry when you say something i generally i don't know what you mean i you know it's for the use of their response whether or not a sponsor the response they provided was not specific i asked you can do it that way the question is not what you prefer the question is whether they have done something that the violates law why is it not appropriate of the number of parties or place concerns about what's wrong with doing it the way they that in the center for biological diversity case your honor this court addressed that issue at three forty nine f third eleven sixty eight this court said that to allow the agency to disclose these important dissenting opinions from expert agencies which are held out underneath the regulations as an important procedural component to allow the agency to do that in the response to comments would quote render forty c f r fifty no two point nine piece or perforce so we just believe that needs to be in a first issue that i was that i started with they simply didn't even acknowledge or disclose there was a dissenting view on that point at all your honour's with that i'll reserve the rest of my time  who is this on the phone your honor i'm tom leonhardt i mean assistant attorney general for the state of alaska representing the state is one of the interveners in this case the first part of the strategy is a series of habitat reserves that's the primary protection for all grow species such as the wolf in the forest are these habitat reserves and then a second part of the conservation strategy for the wolf is mortality management that's the that addresses the biggest threat to the wall of which is the direct killing of walls through illegal and legal hunting and then the third part of the conservation strategy is a series of standards and guidelines that apply in matrix areas makes any likely sense interject a question or two so i clarify the framework of analysis and the u s position first of all as i understand it you agree but correct me if i'm wrong that the two thousand and eight forest plan incorporates by  so the forest plan corporates that then do you agree that under that regulation which the forest service had to follow th at in the forest plan it was required to maintain viable populations of existing native and non native  to great species correct and the forest service is ensuring viability through its multipart strategy and the final part of the strategy was the standards and guidelines in the matrix area matrix areas are those areas zoned for development such as timber harvest and one standard guideline in particular has ignited a variety of arguments from the plaintiffs and that is the wolf population sustainability  metric i suppose that the forest service should have settled upon can you respond to that argument short well first of all we do not agree that there are no mandatory standards in the plan protecting the wolf ensuring viability the habitat reserves are mandatory provisions they set aside a large amount of habitat for overall species such as the wolf and those says the nations are mandatory there are other mandatory provisions both inside and outside of the forest plan that ensure viability such a state hunting regulations now it is true that the standard and guideline for wolf sustainability that applies to matrix land that that provision is discretionary but as this court i think understands there is no requirement that that provision be mandatory there's no statute there's no regulation may not be man mandatory b viability is mandatory viability is mandatory and the four service is ensuring viability by implementing its multipart strategy let me ask you this about that is the record show what the wolf population in the tightest national forest was approximately let's say in the mid one nine hundred ninety s i do not know the exact timeframe was adopted i do not recall the specific number it was a we've perhaps four hundred several hundred yes so does the record show what the wolf population was let's say by two thousand and ten  under the initial forest plan and the two thousand and eight version i do not believe it does ok but that is not a viability problem because what the forest service did here is it submitted its plan to peer review to the experts and the scientific community looked at all parts of the plan all of how all the provisions work together both the mandatory provisions and the discretionary and read of the plan as high having a high likelihood for insuring wolf population viability for one hundred years a full plan implementation and full plan implementation by the way contemplates a much greater amount of timber harvest than has been currently conducted and likely ever will whether the management of the forest service is supporting viability of the well it might be relevant to know for example if there were four hundred wolves in  and there were two or three wells left only in like two thousand well that's why i was asking whether you have any idea what the wolf population and has gone to under the nineteen ninety seven and two thousand and eight plans you know but i don't think there's any dispute that the population there is no argument made by the plaintiffs that the population is not viable they question whether the forest plan is sufficient to ensure viability where one provision is discretionary but there's been no suggestion that the population in the tongass national forest is not viable in fact it is viable they were wearing the record where in the record is there some evidence says that the population in the forest is well there is first of all the viability conclusion was made by a panel of experts wildlife experts and they rated the plan as having a high likelihood of ensuring population by the lady and that big farm project makes the determination that the it is consistent with that determination the viability determination that is what the says now the fact that the one provision is discretionary is not a flaw discretionary provisions are not inherently incapable of protecting wildlife and fact four service is managing the forest to ensure the viability of well the four services applying the plan and again the experts rated the plan as having a high likelihood for insuring  for judicial notice with respect to changes in the population would you like to respond that please we would ask the court to deny those motions this is an a p a record review case and anything that happened after the decision was made is not relevant to this court's determination now to address the arguments regarding wolf population sustainability that challenge fails for an even more fundamental reason source theory but that wasn't a scientific opinion made by the forest service it was just an observation that wolves range widely and that it was reinforcing the scope of the viability standard which is forest why it was not  expressed as a scientific opinion and therefore that there is not a dissenting scientific view with respect to the road density provisions and the mortality of the force there is absolutely responded to discussion with opposing counsel and i best i could understand his position i mean members of the study was that it wasn't enough to answer the substance of the commons i thought the point  there is no requirement to identify the commenter this is a common way that federal agencies respond to comments in need to document the group all some of the comments together and then there is spawning a separate volume or an appendix where they're required to respond to the person coming no they were not because the regulation that we're talking about applies to comments made on a draft yes and there's a formal process for asking for the force of us to ignore the comments of the state of alaska because of some theory of this of suppression and we know up with that put the issues before the agency i didn't understand what you just said well they were the cascadia was not commenting was not raising dr person's views as comments on particular project impacts what they were saying is that the forest service should ignore population decline as well as wolf mortality and the forest service addressed both of those topics in the final yes as well as in response to comments so in the force or so your view is that  you know ok thank you i have one quick question when would you would you agree that if if we determined that the two thousand and eight forest plan was invalid because of inadequate compliance with two nineteen point nineteen that that means that the site specific projects like would have to fall at this time until the forest plan was but the compliance with law no i thought we would not agree that the court would not need to vacate the project decision i think case i think that was decided cause i dos sporting congress be written in that decision did we hold that if there was a size it's not unusual to have our own internal disagreements of experts and i would call your attention to a declaration that's filed in this case by our director of wildlife conservation it's a docket twelve dash three and it's an extensive document that he clearly sets forth the position of the state of alaska regarding its duties to manage roles for sustainability under our constitution it has numbers in it as to estimates of populations and the overall conclusion that there will population is sound particularly with regard to viability the state has heightened some regulations on hunting with regard to sustainability due to some declines in population but the conclusions are there that the population is quite sound council's judge gould if i could question do you have an answer to the question i asked the government's lawyer as to what the record shows as to the actual level of the war of population in the  has apparently gone down over the past few years and the most recent number is in the declaration that i mentioned of twenty four walls per thousand kilometer square i think that works out to just under ten per square mile and i would also point out that in those documents that there were motions for judicial notice which is the united states fish and wildlife services decision not to list the wolf as threatened or endangered you will find some of the same information that there have been some declines in population but obviously they do not think there's any threat to viability at th morning and they have to use the court i'd like to respond briefly to something ms harris said she opened her argument with the contention that the central problem in this case was that there was no floor for viability but then i also thought i heard her acknowledge that the regulation does not require or contain a floor user and nif does not tell the agency how to manage or maintain viability or require doesn't tell the agency how it must maintain viability so at that point i think we are to this court's holding in macnair where it's a matter of discretion with the agency to determine how best to maintain viability and here they have taken a number of scientifically vetted approaches including the habitat reserves which are mandatory mortality management which mr leonard just referred to that is managed by the state on a flexible basis subsistence hunting on the forest is managed by the forest service itself and then there are standards and guidelines within the plan that the agency complies with with respect to management again viability here we have a  proxy on proxy approach to viability and the forest plan f b i s states that the selected alternative in the two thousand plan would retain ninety two percent of the existing high quality winter range habitat for the deer for one hundred one hundred years plus and that statement is based on the assumption that the forest plan will be implemented in its entirety the amount of harvest allowed for would be implemented and that certainly hasn't come to pass to date and i submit that it's on likely to come to pass up sufficient amounts of timber there is currently talk of transitioning from old growth management to second growth management which would have substantially lower impact on your winter habitat  if there are no other questions or if you think you're on your best time we're going to move for barbara very briefly your honor i'd like to respond to three points that you've just been discussing first the agency admitted in its two thousand and eight e i a s quote the most important factor limiting wealth viability is that the agency must protect sufficient habitat outside the reserves e r six eighty one the agency and its experts have admitted over the years consistently the reserves are not sufficient to ensure the viability of the wolf i point you to e r ninety three one sixty seven thirteen seven twenty five judge gold with regard to the number of wolves and whether the agency knows how many the answer is no and that's what makes habitat by proxy so important and in fact it's even more important in wealth habitat because the agency admits it has virtually fully implemented the forest plan in wolf habitat in places like prince of wales e r three eighty let me turn very briefly to the market the man claim in the victorian case the agency has acted arbitrarily in the case of big thorn because it acted contrary to what it said it would do in the and against the advice of its own experts when it ignored this massive gap between projections for market demand and reality in appendix a and i'm quoting the agency explained the weight given to its market to make demand projections quote will vary depending on a number of factors such as how recently they were done and how well they appear to have accounted for recent site specific events in the timber market e r five thirty five this is a but remember the decision being made in this case was for a single year the agency's own expert brackley said the challenge quote the challenge is to ensure that the data put into the model do not become outdated and quote e r nine fifty nine so what might have been approach thing they have to do this on an annual basis reevaluating your honor we're not challenging the model itself the agency acted arbitrarily here because it ignored what its modeling and  projections predicted and what reality actually demonstrates the agency must acknowledge those differences we're not challenging the model the agency is free to use whatever model it wants but as this court explained last year in national parks conservation once there are questions whether i'm a whether a model is sufficient and has accounted for these differences the agency can't bury its head in the sand the agency must demonstrate a rational relationship between its projections and reality unless there are no further questions