two issues to discuss this morning are ours the biological opinions analysis of the destruction of critical al habitat and the failings of the incident take statement i'd like to turn to the first issue the fish if it were in an interesting position and this biological pinion is of the same era as the biological pinions reviewed in that court and it relies on the same regulation that the gifford pinchot court found was invalid as applied to those biological pinions we did not raise and as applied challenge to that regulation and our challenges rest primarily on the plain language of the statute not the regulation and where they do talk about the regulation on a different portion of the regulation the adverse modification portion not the survival in the recovery process now having read good repin shah and looking at our by pinioned i would say there are probably very similar issues but at the time that was not what this case focused on and so we are in a situation where the regulation has been held invalid as applied we have not raised that challenge and our issues do not necessarily require that regulation to be in play in order for this court to rule on  them in that situation it's an interesting situation because it is in fact an invalid regulation now according to this court but they did do a harmless error test which we wouldn't have here because we haven't been briefing that issue on the issue however s with respect to the other issues we have in still take statement claim which is not raised or addressed at all and different we do not raise similar claims about al tracking so those issues are not around but there is  fundamental issue of the regulation being invalid again our argument is based on the plain language of the statute more than the regulation but if this court feels that the invalidity of that regulation causes the  northwest forest plan there are two others which we have discussed in our briefs the most important and one to understand that underlies sort of everything here is the failure of this biological opinion to look at understand whether or not you've actually adversely modified critical habitat and let's be very clear this is a peculiar biological pinioned this biological opinion allows the destruction of over ten thousand acres of designated critical habitat so the question of are we adversely modifying critical habitat at first glance seems obvious that it's being cut down but then there is the need for the services to look at the site specific impacts of that and that is what's missing here the northwest forest plan itself was very clear and that's so that's the first place the second place comes from sort of an idea of how we're going to look at impacts on the ground at all how are you going to consider cumulative effects how are you going to consider concentration of the facts if you don't look at approve something which is adverse modification or destruction of critical habitat and those units grappling thanks i do and i do with the help of this court's opinion and pacific coast federation association versus national fisheries service which dealt with a similar biological pinion which looked at sales over a large large space full scale the scale of a watershed and found that when you look that large you miss the aggregate you miss the tiny the smaller impacts from site specific projects using that exact language and in fact in that case the sales were even identified here we don't even have again a fight sales we have sales that can move across the landscape capped only by watershed does it does your when one talks about the specific critical habitat units and and it's important to go look at the biological pinion and see exactly what they do talk about there when they talk they're still talking at a gross acreage level and not looking particularly and what's going on within those habitat you know which again are thousands of acres in size the two what we discussed is one that we talk in our brief that's the critical habitat unit at the effects but if you look at the table on page five to which i mean sorry table five at page thirty two which they point it's just presenting an already degraded baseline there's no analysis there's no real look at what's happening on the ground and this is the last time the service is going to look at the sales the sales will now go forward and without the site specific look you're going to miss the impacts that you need to see you're not going to look at the relevant factors identified by the have a thousand acres to be cut across a watershed in small clumps versus a thousand acre swath right through an important forging area vastly different impacts and you're going taking which is to kill or to harm the species here to occur this court has held in arizona cattle growers that incident take statement has to contain a trigger that when it's reached shows that the analysis of the impacts from a particular project and it allows a way to stop the project and we initiate consultation if there are too many protected species being harmed or killed the easiest way to quantify take is of course to have a number of animals that can be harmed or killed but that is not the only way and the service here has insisted that it no longer counts als and the case law makes it clear that that is acceptable if there is a proxy or a surrogate that can two thousand acres of suitable al habitat that is the same amount of suitable habitat that is planned to be logged it is not a surrogate for the number of als it can be taken it is simply restating the project scope and therefore something to which you could travel late that must mean that there are more else being harmed or killed than the service anticipated but when you make it the project itself you never get that check you the independent the independent check will never become performed because you will finish the project and the project will be finished my example that i've been discussing with my colleagues is if you have decided to run a marathon but the doctor is afraid for your health but he thinks you're going to be ok the doctor doesn't say stop running when you finish the marathon because that would provide no check whatsoever on your ability to run the marathon and still be healthy instead of the dr says stop running when your pulse rate reaches over one hundred sixty beats per minute or when you feel faint or some independent check on the wisdom of you're going to shoot the marathon that's the same thing we need to have here we need to have that independent check on whether the service has made the right a the collapse then going to be too late to do anything about and say we should reinitiate consultation the whole point is to stop the project to reinitiate consultation to take a new look at the impacts now that we have the new information that the our population has collapsed it will be too late after what this incident i'll take permit does statement does is give a second approval for the project and for service and b l m don't need a second approval for this project they have that in the body of the biological pinion what they need is a trigger to stop the project in case the anticipated impacts are too great and that trigger they don't have your honour's we would ask that you reverse the decision as a district court and declare the challenge biological issue and i'll get to that issue the reason is that the disk the the aspects of the provisions of the regulation in question are several that is the court can do a its biological opinions whether or not it was dirty it was legally required to do so is a provincial matter and we believe that the analysis recovery in this opinion is legally sufficient and that this court can afford the pinions critical habitat reserves and the fifteen percent standard outside of the critical habitat units and that's not right those are provisions that are prohibited from being cut within the critical habitat you know they're protected areas that no one can occur there and they provide especially survival but to analyze recovery and survival you have to analyze dispersal there's no other way that is that the pages forty forty one with a critical habitat are they reach a conclusion about survival be the biological opinion to look specifically at the question of the number of hours affected for example in the al reproductive health that that question is being analyzed by looking specifically at demographic studies range wide to very example the agency later ones that there's more old growth forest there than they thought they have to redesign the project to reinitiate consultation it's it's a real constraint and it's a constraint that really generally speaking the hour is actually quite tolerant of modest disturbances so if you make a worst case assumption you know where the projects going to be and you can say well this project is isn't going to have and usually disproportionate effect lot of detail about these three areas of concern are the i think guilty slate and not actually areas of concern which is one of these actually emerged in the course of analyzing this data they've just said gee we've got our dispersal problem that's that's honor i have i have a few points for the point that opposing counsel has discussed as far as this case being different because on the issue of whether or not late succession reserves in the northwest forest plan were used as a substitute for looking at critical habitat and council says it does not have the same flaws as a den of fighting g p taskforce i would respectfully disagree and think that the most important place to look is of course the biological painting itself and i would point you to various pages page twenty six of the biological opinion talks about late succession reserves page thirty six does as well page sixteen there is a discussion of the northwest forest plan in the critical habitat section forty nine actually talks about how take will not reduce habitat in late succession reserves not critical habitat the actual conclusion of this document it was two reasons why they decided this programme was not likely to destroy or adversely modify critical habitat the first conclude it is that quote the amount of spotted all habitat removed will not significantly reduce the amount of suitable habitat available in late succession reserves the second liston reason talks about the redundancy built into the northwest farce plan this biological pinioned just as the ones in different pitch a task force rely on the northwest forest plan for saying that the critical habitat destruction does not end up being adverse modification and jeopardy and therefore jeopardy as well in there it is not that these factors are required of these factors are mandatory or found in some regulation it's that when the fish and wildlife service itself designated critical habitat they identified these factors as what needs to be looked at and now they've gone back on that and instead are relying as i said previously on the northwest forest plan it's not an argument about counting else it's an argument about looking at the factors that the service himself has identified as the important thing to look at when you're talked about how in take statement doesn't operate in a vacuum it's part of this comprehensive scheme we are allowing the affirmative killing and harming of als we better know whether that's the right amount to do before we allow the project to go that anticipates one of the going to be the impacts on the hour it cannot be the same as the projects go though because then you have to simply give the step of having a check at all and finally your arse g p cannot be read to address our claims that uncertainty in the location of these temper sales is a problem that was not an issue in that case that the mr smith is talking about the portion of the opinion that talks about analyzing jeopardy not the actual destruction of critical habitat that's already been designated and then if mr smith says that it's not a problem because we know about these highly targeted timber sales no they do not know where these timber sales are in the case we believe strongly that the interest of the f r c asserted in these projects that we've been talking about this morning is adequate to justify intervention if this case goes back to the district court those projects may be modified those timber sales have a combination of critical habitat harvest units and non critical have to harvest units and there may be some modification of those and we believe we have an interest that justifies intervention ownership there the private lands if r c members own are intermingled with the forest service and bureau of land management lands and they are concerned with the management that will be going on and these b that's an interesting point that the that the cases don't seem to be consistent on within what is the yes there is press the issue and they addressed it differently in one breath they say well are you going to enlarge the issues in the case therefore we don't want you in because we don't want to hear from you in the other breath they say well if you're just going to argue the same think the government is why do we want to hear from you and i would submit that ultimately well the applicant has the burden of demonstrating inadequate representation by existing parties the burden is minimal under the supreme court's decision and the applicant need only show that the representation may be inadequate and maybe is a key term here because in this particular case it is the issue of intervention is the threshold in corrie where we were at the time that the case was filed was that a motion to intervene it's been timely filed the plaintiffs have filed their motion for summary judgment the government hadn't filed their answer they filed it simultaneously on the same day as our motion and therefore assessment of the adequacy of representation in this case necessarily needs to focus more on the analysis of the concrete interests rather than an evaluation of the unknown arguments that parties might or might not make and unless the applicant's interest is adequately represented by the  agree that there's a presumption of adequate representation when parties have the same ultimate objective or the government is a party to the case and as far seen in the fish and wildlife service here do not share the same ultimate objective their are different interests in the context of the issues in the right and there's three interests that differ from the fish and why life services much like in the burg case where the developers and san diego they arguably shane shared singing ultimate objective you know holding the biological opinion but the court in trying to address that presumption and to determine whether there was adequacy of representation referred back to the interests our interest here are in the contracts and the projects that the parties have been discussing they are in the land right next door to these projects where we have planted trees and thin trees and want to maintain the health of those trees and want to see the overgrown force next to it managed well also and we discussed that in the affidavit of tom parker which we submitted with the just records in the record and then the third interest that is different than the fish and wildlife service we don't want to opinions at the time this case were filed are living breathing documents that are tied directly to these projects they were sold temper sales that they have farsi members had purchased and were operating and continue these contracts they do not only the land that the b l m owns the land and so the fish and wildlife service is the government agency least likely to represent f r c s members contract interests in these projects and in the bourke case and even in other cases the court has recognized that when you have an action to basically affect the contract that the contract holder has a right to intervene and that's what we would argue here and affects the durbin there's not going to be a settlement in this case you're absolutely right but what happens is there will be a following to remain and arguably some injunctive relief issues these projects are li projects we're working on those that are important to the mills in southern oregon and two years of ten percent of projects get swept away in their entirety that has one of fact in effect our interest in one regard yes they  out the critical habitat units that has a different effect we would like to be able to have a say so in those issues and that it made it lead to this point the case has not address those issues but again the the supreme court said that your interest may be affected and in this case it looks like the way the panel's headed that it will be affected and we would respectfully request in summing up here your honor that your honor if you were to remain back to