where some of this coal mining is taking place i'd like to reserve if i can three minutes of my time for rebuttal i mean this case ultimately is about water in a thirsty land and even though the ranchers cannot undo the split estate they can hold b l m to the highest standard that need imposes i want to begin with the cumulative impacts argument because the district court erred when it said that the cumulative impacts are simply hypothetical and that they don't need to be analyzed by cumulative impacts here i want to distinguish between what we call the life of the mine area which is  indicated on e r ninety two and the cumulative mine area which is the area that we call the mirror image mine to the north and that you know the total amount of land  there is twenty thousand acres we're dealing with a huge chunk of land and it is undisputed in this record that this area to the north the cumulative mine area has not been analyzed in any sufficient detail and if you will take a look at s c r to  it's a map from that was submitted it's part of the record here and it shows these long wall panels that extend the southern half of the map is the existing lease area and it's simply a straight shot to continue those panels into this cumulative mining area that has never been analyzed and the reason we contend that that is reasonably foreseeable is that it's the same coal seam with the location of this new lease they have a straight shot with their long wall mining equipment it is adjacent to the existing mine facilities it's adjacent to a thirty two mile rails or so transportation is no problem b l m has expanded this mine since one nine hundred ninety on a continual basis and we think under ninth circuit case law which says you don't have to have a plan as long as it's reasonably foreseeable that there can be some level of analysis that would look at the big picture and that's really the problem here your honour's is that b l m has piecemealed this beginning in one thousand nine hundred they didn't eat i asked on a land exchange but there was no analysis the state did an analysis hundred ninety two but you can't tear that analysis we've done the state has done some piecemeal e a s every time they upped the permit and in two thousand and eight they did the e p a on this but there's never been a big picture look and my clients obviously are concerned about water and subsidence we know that there are going to be impacts and the case law in this press in this circuit has been clear that you know this piecemealing  is not the way that needle was designed and the big picture could certainly be taken a big picture looks for this cumulative mine area and the district courts just simply said the cumulative mine is  hypothetical and therefore we don't that they bought the argument and that's not the test in this in this circuit the b l m zone handbook says that you can't limit reasonably foreseeable actions to those that are have been anything could be hypothetical and so they're not required in those instances so why is this instance different you're saying it was foreseeable and so forth what do you what do you point to that either missed or misconstrued the same coal seam that two shows the panel is going straight north into this cumulative mining area that the facilities are in place if you look at the the jones case for example which is where they said acumen of impacts analysis was not allowed in the jones case the plaintiffs are saying look at these other chromium mines in the ninth circuit said you know the the same company doesn't own the mines there are other insurmountable permitting and land use obstacles and so forth so that you know it's that's not reasonably foreseeable here but this is federal coal the facilities are in place and there's nothing in the way and indeed if you go back and look at the record when it first started looking at foreseeable development mine plan which has already been conceptually developed and shows potential additional arguments to the north developments to the north of the existing mine plan so here's b l m saying on the record and there's a number of a cites in our brief where the agency is saying we need to look at this now before we lease one hundred thirty million tons of coal and open up the potential to lease you know another two or three hundred million tons of coal now granted the agency can change its mind and just because in the process they said that you know we're not going to you know we're going to  circuit case which said it's ok for the agency to switch positions in that case this is a quote from the from the court it says in addition the state prepared a supplemental draft  that resulted in modifications that reduce potential impacts and the court had no problem discerning why the agency changed its mind and that's my point here is that there's nothing on this record to show  said we need to do any and we need to look at human of impacts for this mirror image mind to the north and then they had a meeting with the coal company and then they came out and said we're going to do an e a and term that it was which has been anticipated that whatever happens in that area north will mirror what has been happening under the current condo model that's going on now you correct me ok and i would disagree with that look back your honor because we have streams we have springs we have underground aquifers and so forth that in general the impacts of coal mining are going to be the same but in terms of what needs to requires is some specificity in the analysis and until they actually look and see how the hydrological patterns are to see where the springs are to see what the subsidence might be because the surface changes relative to the coal seam you don't know and what need to requires is a hard look not just simply to say well the effects were like this here so they're probably going to be like  this you know it in the mirror image of mine and so i agree with your point your honor in a general sense but i need to requires more it requires a hard look and that isn't present here are you relying on the response to judge the question just following up  it sounds like you're relying on the failure to look at the specific layout of the land as opposed to a change in the technique to be employed is that right that is correct yes it has to do with the that in this north area the topography is different the drainage patterns are different the surface ownership is different in terms of you know the ranching operations and so forth and i worry about the different methodology we are not worried about the different  just want to also touch on this supplemental environmental impact statement issue because the district court frankly was wrong on its analysis and the b l m has sort of talked out of both sides of its mouth here they said  hundred two and that is wrong as a matter of law and it's not a trivial thing because when you strip away those earlier posts because they were not properly tier two then the two th i'm i'm curious to know what you think we ought to do by way of defining here it's a defined term and yet in the case it's used pretty inconsistently well i think the c e q regulations are a good place to start ok so because i think that's uncontested as well and i accept your proposition your legal proposition about why that ought not to be tiered to what i'm looking for is how you think we ought to interpret our case law and the regulation regarding what it is to tear to something so i think the best analogy i could give would be when the forest service creates this forest plan covering like three million acres and they do any i a s and then they implement a timber sale on ten thousand acres and then they can properly t context the term seems to be you're used to simply mean incorporate by reference and sometimes it means something more than that and that's what i'm trying to get at ok i think it means something more than that i think it means when they tear that they actually can use the data the analysis and the facts and just sort of carry it whole cloth into the e a a and apply it so they don't have to go back and redo it because it sometimes is used just to mean incorporate by reference i'm wondering about this argument you're making that it is wrong as a matter of law for the district court of reference general sense in or the words they've been incorporated by reference and i think we point this out in our brief that when you look at the actual record the environmental assessment here if it really was tearing in the same sense of what the regulations would require and what you'd expect to see somewhere in this record is something along the lines of we have this is this a fact and we're tearing it to previous analysis you don't see that the only time that these are that these documents are mention is an just saying here's ongoing analysis that you've been engaged in since all this is going on i'm going mining these documents are a reference and i had gives when you look at the record it gives an example of why that's important why they're being referred to but then you never see any other mention of those documents later on in the environmental assessment so that's that's my point to say look there there was no cheering even if the court were to find that there was a hearing i think that you have to look at the regulations that we're prejudicial impact on the outcome here this environmental assessment was based on ongoing updated up to date information it's clear in the record that the agency was looking at not just previous information it collected but information it collected since ongoing mining operations have been occurring all mountainside and we know that since two thousand and nine the long wall mining has occurred as predicted in the earlier environmental analyses subsidence has also occurred and we know that because the as the coal seam is mine the surface state does go down and there are effects of that no doubt the agencies are monitoring those effects the signal peak is required to engage in ongoing min monitoring and to the extent that anything would occur then they would address that but since two thousand and nine we've yet to observe any negative impacts and that's an important fact because that's why the agencies had a finding of no see i have impact here now when we're talking about cumulative impacts analysis and i think this is important first and i think we explained this in our brief as to the cumulative impact analysis i think plaintiffs we think plaintiffs are wrong on the law they have not read the case law correctly but even if you were to adopt their reading of it they are ignoring the record here so we pointed this out and this is at excerpts of record ninety and ninety one where you have the the cumulative impacts analysis and so first on the law we  not required to to look at the northern deposit of coal and the reason why is we don't know what's there and judge levy you're absolutely right to suggest look they're calling it a mirror mine but how do we know that it's going to be a mirror and we don't the nationally thought there would need to be in the us and that that was a contemplated project and you know your opponent is arguing that was the position of course he's acknowledged that they didn't he's entitled to change its mind but that it's changed its mind and hasn't told us why what is your response to that so your honor i think that a couple things one these were initial meeting notes that i think we explain this in our brief that look these were the initial under the regulations when when the  and says look we want to continue mining they have to come up with a draft environmental assessment or they have to engage in a dialogue with the bureau as to what the environmental analysis is going to look like and absolutely we acknowledge at a first impression there was a someone from the bureau who wrote at based on the meeting and then a subsequent letter and suggested that yes there may may have to do an environmental impact statement and that may have to look at this conceptual northern mine but then in the same documents that they are relying so heavily on in those same documents it's the civically says you know we're going to continue to work with you to develop our analysis and so when you look at the record here what you see is not a definitive position as to this is absolutely what has to happen but in other words to say look we're going to engage in this environmental analysis with you as we go through this analysis if things could change right and that's exactly what happened i think the initial draft environmental assessment was something like fifty pages the thing that ended up being produced in the end was two hundred twenty pages so to the extent that the analysis needed to be done it was here and so i think the agency absolutely explained why it changed its mind because you can look at the environmental assessment and see exactly how it addressed the concerns and here in particular this is my point that like what else would you us do ok so we don't know what the mirror image mine looks like we don't know what the geological characteristics of it are and we certainly don't know whether long wall mining would be used to the extent that we do know anything what we do know is we know based on ongoing operations and based on ongoing operations and we say this in the record is that if mining were to occur at that northern mine it would look a lot like the mining that's going on right now and we know that and so to the extent that it would be cumulative complaining about effects that have not been observed that the agency was very clear if there were future mining it would look a lot like exactly what's going on right now and in terms of the case law you know i point the court to the jones decision that we disagree on the reading of that but in the epic case it was a four service case talking about agencies requirement to analyze cumulative impacts and in those cases stand for the proposition that we've articulated in our brief which is agencies are not required to do the impracticable and to the extent that the agencies are required to to get engaged in this kind of analysis it would look exactly like what what the agencies have done here and the bureau lays that out in the record  out in our brief context matters ok matters where you talk about mitigation this is in no way shape or form a mitigated environmental assessment the extent that the agency talked about now if there were if there were some kind of effects that were observed that under montana law there's a montana permit in place for this mine under montana law that means he would be required single people be required to mitigate those effects we've yet to observe any effects to ground water or to the surface water so this is not a mitigated environmental assessment and the agencies have not in any way shape or form shirk their responsibilities here yes it has that requirement for mitigation strictly so my understanding your honor is that the lease itself has certain requirements for monitoring and then lays out requirements that that signal peak would be required to take if there were if this ongoing monitoring showed that there were any effects they would have to take those actions but you know under the under the surface mining control reclamation act where you have a sort of cooperative federalism so you have both the federal agencies engaging in approving in this case a leas you also have another federal agency within the interior department that would approve the actual mining operation you have the state of montana that permits the mine so across the board for all of the mining operations that are going on going here you have mission so far no your honor and the reason why is because we've yet to observe any effects so to the extent that that there's been rockslides to the extent that we've seen surface cracking we're aware of all of that we talk about that week it was predicted we knew subsidence would occur we have yet to see any impact to the ground water or to surface water and the reason quite frankly is we're talk it's hundreds of feet below the surface that the mining is occurring and between that and this just maybe the  geography here but there's sandstone there's various levels that are protecting that surface water and it we're not seeing any impact so there's been no need to do any kind of mitigation ok thank you thank you your honor i represent signal peak and i can tell you as a matter of certainty that there is a bond let me also add that this is something that is a function of a federal statute albeit it's implemented by montana dean  so you know hopefully that response to the question if i may just by way of background my name is john martin and your honor i represent signal peak energy and i'd like to talk if i may have about some of the issues judge leavy that you've raised in your questions one of your questions was what about mitigation do we really have mitigation in this instance and i don't want to get caught up in a home week later because i agree with mr beale art we haven't found it necessary to do any physical mitigation anywhere on the mine but what we have done as mitigation that is of the sort that your honor that is judge leavy you decided in the panel in greenpeace action back in hundred ninety two that is described as mitigation we have monitoring that's been undergoing now for roughly twenty years at present we monitor at one hundred forty one different springs and seats in the area of the mine in addition to that your honor we've done topographical surveys they're required both by the state permit and they may be required by the stipulation from b l m but certainly they're required by q we've done seven topographical studies of the mine so we have a great deal of data already beyond that we've also prepared a groundwater model in the area so again we have a level of detail that's relatively unusual quite frankly particularly for an area of this nature let's talk for a moment or more about cumulative  impacts the focus of plaintiff's argument now is the northern deposit in truth what's going on there is we don't know if it will be mined we do know that there's a deposit there we don't know the extent of the deposit we don't know the nature of the mining that will be done we don't know when it will be done this is not one of those situations of the sort that one addressed for example in the cutting mountain case where there were actual remember you pointed out the panel pointed out that there needs to be an identified proposal before the obligation to evaluate in detail cumulative impacts you pointed out and approved a regulation that required active preparation to make a decision we don't have that in this case there is no proposal there is no active consideration on the part of be a lamb or for that matter any other agency of mine in the northern deposit this plainly is not something that should be considered in a detailed cumulative impacts analysis let me also say that there is a risk associated with conducting it at this point in time you feel them more to evaluate this at this stage there's a sincere risk that they would make a mistake they don't know the nature of the mining that will occur they don't know when it will occur and they certainly can't evaluate the environmental impacts from it let me say that this is more akin to the epic case in two thousand and six that was an interesting case because there the court said we do have some amount of information about a timber sale that might occur in the future and so what the court approved in that two thousand and six decision was what it described as a reasonable discussion here we have a reasonable discussion of what could transpire in the nature of the impacts that could occur if that northern deposit were mine with that your honor i see that my time is running out thanks very much and obviously if you honour's have questions of me i'd be pleased to answer any question you know thank you thank you very much clients would strenuously disagree with that today but that's not part of the record for this case but i just need to note that in terms of mitigation and the success and the impacts already had the i think the essence of our case is that there's never been a big picture analysis of what could happen in this area and council said you know we don't know enough about the north area the mirror image my we don't know how much coles there we don't know what the hydrology is and so forth and that's the point that they haven't taken the hard look at that and if they did then this is not just an idle request to create more paperwork you know my client says i said you know what water is the lifeblood of ranching and if the  takes a harder look it's our hope that they will impose some real mitigation now the mitigation is simply if there's a problem we'll try to fix it and as far as the bonding goes the bonding is for the reclamation we would m to put a bond to require the company to make good on its word to replace water there's no bond in place to absolutely require the replacement of water the mitigation in this is set out in our brief if you look at it it's really very vague and it's our hope that if they do in e i a s they will impose mitigation that is far more specific for the surface owners in terms of the argument that b l m actually has done some kind of a cumulative impacts analysis i would encourage the court to look at our e r ninety one which is the the e p a at page four das fifty six the cumulative impact analysis and you know we're talking twenty thousand acres potentially mining is a couple of paragraphs we think the impacts are going to be the same and as i said at the end of the day is all that my clients really have and i see that i'm out of time and if i could just finish my sentence i'll sit down you can certainly finish your sentence but we're not necessarily ok thank you you know at the end of the day it is all they have there's nothing illegal about coal mining and we get that but we your schedule today we're going to go ahead and stand in recess and conference this case and then we'll be back at ten to hear the remainder of the arguments on the calendar