although obviously the forest service and the intervenor will probably have more up to date information then my clients public nonprofit environmental organization our understanding at this time is that the black berr completely logged at this time and our understanding is that hauling of those trees are is underway however there are other aspects of this project that were authorized within the record of decision such as there are additional encourages eighteen thousand one hundred acres of inventory grow this areas that the forest service has given permission for logging and  and yes and as of the last time we were in front of the ninth circuit the forest service was unable to say that they were done logging and that actually it was regarding least exceptional reserves not the inventoried roadless areas but even in the materials that the interveners submitted to the court regarding the governor's case incentives disco they still have not been able to conclusively state that this is it that this is the end and because the rod does authorize additional activities there if this case was mooted as a result of the two timber sales that are on the chopping block right now that in the next tuesday and there could be additional sales that were only less than two percent of inventory of roadless areas in the country and so any diminishment of that amount is harm to the public as well we've brought up issues of replanting and prescribed burning and many of the other mitigation measures that the forest service has promised but yet delivered on those issues are still open to discussion and would also lead to harm as well right now the forest service has indicated that they don't plan to do any of their prescribe burning until two thousand and seven this was an essential mitigation matter that ties very closely to our argument of the increasing fire risk unless they go in and do these mitigation measures the increased fire risk i keep even if even if we were to conclude that he didn't use discretion these other issues issues related to litigation and whatnot even if they put down all the trees could still support your argument that the did minimus and the judge's ruling on this was to say because these two cells are such a tiny part of this five hundred thousand acre project that there was no harm and we believe that that is incorrect and not based on the law our regard list of how large the forest service proposes a project does not in any way reflect on what actual harm will occur from that logging if it happened to be in an area of intense spotted owl activity that harm would be very severe regardless of how small or large the area is also it's not feel that that's dealt adequately with the issues on the table which it is since two hundred two and when i explain this to people i say if you wouldn't want to doctor using medical science from fifteen years ago if they were going to do heart surgery on you and we have some of the eminent scientist fact the issue two separate statements explaining why they were going to go ahead and do the supplemental in burma now why was their decision did not actually deal with them marriage or yes fashion part of that reason was this raised to large before the rot would destroy the economic value of the tree it's the second thing is the need requires scientific controversies like this to be disclosed to the public and we have science that is one hundred eighty degrees different from statements need by the decision maker in this case and to give you a clear example of that the decision maker said that it would take for ever forecast for regeneration to occur in these areas our scientists say that about fifty to eighty five percent of these areas are already fully stocked and have regenerated the reason that's important is because it is logging and other activities are allowed to occur that natural regeneration would be destroyed so not only do we think that the science was not dealt with adequately but it wasn't dealt with are over arching honcho for this project is our expert now so we have forest service scientists as well as other very now and scientists who study in these studies that the overwhelming consensus as published in major scientific journals on this topic stated that everybody now has come around to the understanding that post fire logging in a commercial stance like this is very very damaging long term and particularly in growth let's areas and i think that the growth of this ruling that recently happened in san francisco kind of points to that which is these areas less than two percent of what we have left are incredibly important for habitat and for recreation and all of these other reasons and whether you helicopter a lot of it or whether you go in with a tractor and large it that damage is done for hundreds of years and cannot be and undone and part of the reason that these reserves were set aside by congress were to create further wilderness designations when logging occurs that will never happen and that also goes to our home argument that we don't feel that the corps adequately like to turn directly to the status of the sales and let the court know where things are as you requested with respect to the microscope staleness reagan is correct all of the the trees have been cut and ninety ninety five percent i think that julie wise can tell you more about what her her operator said as far as exactly the time frame but the prediction from the force of his that was that by today it would be approximately ninety to ninety five percent and there is no these will be the last sales so i mean i could provide the court with some type of declaration on that if they would if you like but i asked that question specifically in response to this court's order and i the preliminary injunction appeal as i read their complaint sought to enjoying the advertisement sale and the logging operations on these details even under those facts it's moving towards moodiness but the appeal is probably not  that the preliminary injunction appeal what they sought to enjoying if there is no relief available for that particular portion of the three i appeal that might be moot their case is not mood i don't think their appeal is moot today seventy two where the court said that at some point a project will be so far along that it may not make any sense to prepare any supplements document because there's really no weighing that the agency could do  then there were other states by the timber operators to permit another briefing within the context of the california one of its real cases cetera so at that time you know she didn't make a decision on whether we reach that point but he may in the future but the other relevant question that marcia answered is what do you review when judge posner you have pointed out that there were two evaluations formal evaluations done by the forest service on all of the information that the pla submitted to the forest service and the supreme court made very clear that the review of those decisions was to determine whether or not the agency made a clear error of judgment and once and judge can or was sixty seventy three sixty eight and what this appeal is largely lacking is any attack on those findings by the agency if you know what you're talking about a reasonable probability of success  do active management after a fire should you or should you not go into inventoried roadless areas where there's been a fire to take out trees is that that's not what's before me what's before me are two small sails that's what i have to success but you do have a reputable arm so you're saying if they could win or rather if they lose you're going to suffer irreparable harm but they have no reasonable probability of winning where does that leave us i think a good example of where that could leave you is exactly what the california just to court it now is brought to your attention in a twenty two letter there the court found on a different legal claim actual success on the merits and with respect to t and the balance of the harms to environmental groups that are also involved in some biscuit sales and one group that's involved here the court said i'm not going to enjoin them because based on where they were in the process the harms to the public harm that doesn't necessarily mean there needs to be an injunction it's our position that they haven't really stated any harm beyond generally that if you cut down trees that can be harmful and i think in some circumstances  where that exact heard in the recovery or there is no there's no salvage but here what we have to remember with respect to snags is this fire created millions of snags literally millions of snags and on originally as the project was configured on ninety six percent of the recovery there was no salvage at all it was very limited now it's ninety nine point three percent there is no salvage that has occurred or will occur and the limited salvage respect to fire risk none of these studies that where you have limited salvage logging and you treat the slash that there's going to be any risk of increased fire is under spewed at that the  this issue commits to treat slash and in appendix b and i apologize the a rod which has some tables that are also helpful i did not provide those or not nor excerpts and i just realized that in preparing for argument i can provide them tables that show that the slash levels are are reduced because slash will be treated and the suggestion that the forest service didn't look at any science after one thousand nine hundred two is directly with you to buy them the references in appendix am of the past and in fact i could go through and tell you the forest service relied on numerous references that were relied on by these new studies because some of these new studies were simply a survey of literature and really what the case boils down to in the new information boils down to and it's all within the evaluations is that as an ideological matter these plaintiffs don't want active management after a fire and as of ideological matter certain other folks think that you reasons particularly given you know basically a century of fire suppression and management of national forests that one when you have a fire such as this there are going to be some areas where you don't have seed trees there could be some areas that five years down the road aren't going to be regenerating naturally and you've got to remember that ninety six percent of this area is going to naturally regenerate but in areas that were salvaged were salvage was operated and also owners were there wasn't any salvage operations but perhaps where the fire was so severe there are nice new trees left the forest service committed to go in and look and see if if there is natural regeneration if it's sufficient they also want to make sure that they put in fire resistan trees so that they can avoid perhaps a catastrophic fire in the future and put in disease resistant quarter for it's either and other things so the forest service has taken the position that taking an active approach makes sense but here we believe they balanced active versus passive acknowledge that there is a scientific debate reviewed all of the information that these plaintiffs put forward and made a reasoned judgment and there was no clear error of judgment under the standard for supplementing an the fact that the court should uphold the district court's preliminary injunction decision first however i will just say a little bit more about the status of the sales you heard from mr jones that mike's gulch is essentially done and there are  on black berry the logging is approximately ninety percent done and you're right your honor it's ongoing so it's somewhere between ninety and ninety five percent done i want to say logging i'm referring to the falling of the trees it's proceeding at a little slower pace right now because the bloggers actually work at the bottom of the sail area and then they move up the hill for safety reasons so that a large doesn't fall down in a beautiful down the hill and injure a log or now that they're up at the top of the sail area for safety reasons if you are fillers can actually work in the area so if the remaining five to ten percent of the sail will take about two weeks that's the estimated time to complete the remaining five to ten percent of the falling of the trees in black berry very little has occurred yet and the yarding is expected it might actually go into december some of that is going to depend on the weather because the helicopter can't fly during fog of weather but  part of the secu national forest they have heavy snows in january and february and that likely will shut hauling down and there won't be anything that happens until spring time so that is an idea of the of the status of the of the larger actually silver three cans the timber company has about forty five million dollars invested in the trees that are on the ground in black berry right now we don't have a declaration to show you for that but which ultimately would have to be paid regardless of whether those logs are removed from the forest and a return on investment can be achieved before addressing my two points i would like to address one point a judge thompson made and that was the if there is no reasonable probability of success what happens and judge pander addressed that in his opinion and he said if there is no reasonable probability of success if the plaintiffs are not going to prevail then that's the end of the story he did not have to do any balancing and in addition to the case the judge pander cited he would refer to the far west federal which was a district court case i believe also sports form international is a ninth circuit case that stands for that proposition and i apologize i don't have that site with me but if there is no chance of prevailing on the merits the inquiry can end at that point the judge panel didn't and at that point he went on and he looked at the harms and he looked at the public interest information that says there's going to be a significant effect on the human environment that was not considered something different that was not considered in the original document arguably on the facts of this case as we have gone so far towards completion we have reached a point where it is no longer reasonable to expect the forest service to supplement in the e i a s because it could serve the purpose of informed decision making and informing the public at some judge pander with had before him was the thirteenth on the fourteenth of fourteen sales there will be no more sales and arguably we have reached the point where it is moot in a sense because under marsh we have are the point where there's nothing right you're right your honor and that's an argument that would be made to judge banner but i think it also is relevant in terms of thinking that an injunction has to be nearly tailored and even though just the fact that a timber sale is completed doesn't mean that the a preliminary injunction decision is afforded very limited in deferential review and in this case we demonstrated that the district court judge got the law right that was that was thoroughly briefed and in terms of the balance in the judge balanced the harm to going into one one thousandth of the inventory growth areas that were burned against some some real public benefits in terms of jobs in an area where the economy is not doing so well and enjoined and he also talked about the public interest in terms of jobs and in furthering the economy in an area where that was important to the state of oregon so we would urge the court to affirm the district court's opinion thank you  remove those logs from the land if they would not be able to just leave them there and you certainly can't put them back into a forest because that would be in jeopardy would have to drag the logs back across the forest i suppose that's just not something you can do you just left or you're going to strike a bonfire wilderness areas the north and south county abscess and they're very very world renowned there world biological reserves and very very prized i want to start with the last comment that you were discussing regarding whether or not to be left on the ground and science we submitted and i think the forest service would even agree that large trees are the most fire prone trees in the forest and they are the best habitat and will go back into the soil and replenish it so that the soil will remain productive for generations it is the small leaves and one that leaves about branches and what they call fine fuels that when logging occurs that is what is being left on the forest floor and that is what greatly increases the fire risk so right now in black berry they've taken the butt logs meaning the most valuable large parts of the trees and they've left all of the t on the ground and they've done that and several other sales historically including the silver fire which occurred in the ease in the same exact area they never treated the slash and it became a massive bonfire when th natural wildfire went through if you look to our declaration of rich very banks who is that for a former forest service head honcho of this project you will see that he has said that it is unlikely that this clash will be treated appropriately and that is part of why we are just saying that regardless of what happens here the increased fire risk from leaving these fuels behind will need to be dealt with regardless or we're going to have a repeat of what has happened i wanted to make a couple other comments number one there is a tree a rare cedar called the porter for its cedar that my opposing counsel mentioned it's object to a devastating alice this disease is transferred by the hauling of trucks and logging equipment into areas one of the main reasons that the environmental groups opposed logging roadless areas is because those areas are pristine they have not been encroached on by man when man comes into these areas the threat of these diseases also coming into these reserves is exacerbated in previous biskit logging we have had this spread of tough there a ladder alice into areas that never had it before once they come into a watershed because of it because it's closed and water it will be spread throughout that entire area and we could lo that entire type of trees and so the fact that there may have been blogging done but there is still hauling to commence this is a serious future herm particularly because as we've briefed numerous times now the forest service has we've a restriction that was in pleased for a bit of them from logging and hauling in the wet season which basically is anytime between june and september one starting september one the wet season started and of course in oregon especially in this mountain area we're getting a lot of rain and started to snow right now the fact that they are going to continue to haul trees out of these areas is a continuing threat that we would like to have addressed also i wanted to point out that there is a fifth record of decision that is still to come out in this sale within the records a decision has come out so far the agency officials says i'm going to issue a total separate record of decision in dealing with prescribe burning f m z construction which is the fire breaks that they are proposing and some other some other factors mostly geared towards mitigation and restoration so we have just promised separate an additional decision that we have yet to see and so there are actions that need to come up that the science that we're asking the court and the agency to consider will become relevant again particularly because our primary claims are what's going to happen with regeneration and what's going to happen with the tree planting and what's go happen with the increased fire risk these are the bases that the agency sold to the public as why we needed this commercial logging in areas where commercial law you had never before occurred and so if they can't prove that this action is going to actually do what they said it was going to do we think that this new science is a very intentional part of that and because of the we believe that there will be a live controversy and finally i wanted to just point out that there is a lot of case law that we've included in our briefing that says that the economic short term harm to the timber industry or to the government does not weigh as heavily as permanent ecological harm to species and habitat and the environment and not to mention the harm that occurs is a prestigious will error has occurred in the new process so regardless of whether it's ninety or ninety five percent logged we do still believe and like you did mention that maybe issues on the merits for a judge can are but we do believe that there are still a lot of unknowns on his table and there are a lot of decisions that are said that can still be prevented from continuing the harm that we believe will occur thank you