maybe i've heard it a little differently when i read the monitoring until such time as they have the tools including validated habitat models to allow them to determine at the landscape level what the effects are on species using habitat but they're not there yet right now they need to continue with the population monitoring moreover in the fish and wildlife services so called range wide update which they prepared in the course of this litigation and extensive record three fifty one to three fifty two the agency  more precisely everything we're not there yet in five years i'm sure you love me back and and i related issue but i'm just a little hard pressed to should tell you and maybe you can point me in the right direction opinions themselves simply list out how many acres of each type of habitat they're going to allow to be destroyed they reveal but if you if i go back and review them again i will not find the science to support a prophecy approach i don't believe you will your honor you find in three of the biological opinions the ones that are on the different show national forests are that the agency in its conservation recommendations actually recommends that the agency that the action agency undertake surveys in order to validate the habitat model recommend there be surveys to verify is but maybe it didn't matter because maybe they have the regulation but they still did the whole analysis properly so that you could have pulled in under the statute would you speak to the second prong i would say that even if you filed the fifth  yes or no where in your view they weren't doing these independently if you look at the biological opinions and i'm sorry i don't have those records that's at hand but when they make the critical habitat determinations the adverse modification the terminations they do it in about a paragraph and in so doing they don't make a lot of distinction between survival and recover so i imagine they'll argue that they've made the distinction however if you look at what they've actually done they haven't complied with what an adverse modification means under their own regulations what they  is we can allow this to happen because it's only one percent or zero point four percent when you bring everything up to the landscape and secondly we can do it because we have reserves now of course you know those don't completely overlap the critical habitat units what they needed to do is look at whether or not the timber harvesting occurring is adversely or altering and adversely modifying those physical or biological features but that we're the reason for that habs have been designated critical in the first  specific level when it looked at the local level in many of these biological opinions expressed some grave concerns about critically habitat units that were being harvested in areas of concern mostly in the i five corridor which is necessary for these were going to move the snail darter just suitable habitat and the supreme court that it doesn't matter if you do that you're not allowed to destroy this critical habitat so the fact that you may have been nearby l s r does not allow the agency to allow for the destruction of habitat you know do the either it's honestly about a paragraph in each biological opinion where they say this many acres will be affected that will have an average the fact but then conclude that it's not a rise to destruction or adverse modification they mention the small percentage they talk about the it looks like survival but it's really recovery or i understand i think if they don't separately analyze it that's a problem as well i think there's a very good place in the record in the it's in the one thousand nine hundred two final rule where the is necessary for the agency special recovery but if you look at the rule we're already operating at what the agency itself is necessary we're already operating at a deficit of critical habitat in that rule the agency determined that  sixty five thousand acres that it was critical to the species recovery but it eliminated because it was something private lands and that was going to have too great of an economic impact so the critical habitat we have is already something less than what the agency thought was necessary for by the by the united states ok let's why don't we get down to the real issue then and that is the first one is habitat proxy and except of course that the forest plan is hopefully going to last us for a few years  best look if we were to try to make a judgment as to whether to defer on the habitat i think the first point is that that it's not just a habitat analysis if you look at the biological opinions they  studies involving thousands of hours for the medium term but there may come a day when our knowledge of the hour was so good that we can actually do away with those studies as well and just use habitat that wasn't endorsement of specific or project afic surveys it's really about but the the quality of the demographic data is really very good at this point your honour's there's there is a feedback loop going on  so some of the statements in the record about trying to improve the quality of the information about the hour reflect the agency's constantly trying to improve their science and fine tune the studies to make sure that we really know everything we can so here i have a question for you  two or three or five years or are you talking about the demographic studies that are going on right now i mean i think this there's the government is there long term studies and there's no plan to discontinue them and i would assume that those studies were changed there to be jurisdiction to bring  to question the basis of the information being used to conserve the out in the review that we're making now would we would it be permissible for us to say something about  and some other points just involve scientists do always want more data i thought it might turn quickly to the critical habitat issues yes the the recovery issue look at excerpts of record one point one twenty one and three hundred ninety seven you'll see some discussion of recovery the modeling that was done there was there was a rather complicated model of our population dynamics that was done at the time of the  controversial nature of the al it chose to design a program that goes critical habitat and the all star scheme which invasions are covered so so it's really not present it's not before the court the idea of these plans is for the species to recover and that's what's being analyzed in these opposing council parts about a paragraph that's actually a page or more typically and then there are cables and you'd have to see is the biological assessments provide a lot more data your own regulation regulations and in the statute you don't call out one by one we don't discuss each type of take not everything is specifically called out in these biological opinions but but the framework is directed at recovery it's actually it's unclear what the planets would invision would alice's particular projects would save we've assessed habitat destruction and the habitat destruction contemplated here will not jeopardize i case by case analysis but it also says that the goal is not to revisit the entire northwest course plan framework which implicitly includes recovery the ideas instead to look at local dispersal problems and other things which affect both recovery and survival at the same time are you them survive but whatever happens they will recover well it's just i would even go further and say there's this there's a single analysis of the facts on the als the grand structure of the als habitat and kind of activity and that really individual that will ensure recovery that's actually right and in the end the the the the focus of the demographic studies is on demographic models directed at achieving genetic inner flow within the species that they're in vision i'll be very short of james walsh representing the intervenor let me go quickly first to the question of the fifth circuit decision i think we have to look at the fifth circuit case trashed number one it was only critical habitat for the search for sturgeon second it was only jeopardy we don't have that in this case we are looking at a plan we're looking at forced sales in the context of a larger plan there is gone beyond where they were with question then becomes does it matter what my view is it doesn't matter because here we have facts that show that in the context of the northern spotted owl it was both survival and recovery we have that fac and we have sufficient information in each of these biological opinions referring back to the context of the plan because whenever you do via logical pinions you pull in everything that's gone before and everything the cumulative and everything is related and you make huge number of other areas that are not critical habitat that were stable for special protections we're talking about those because we're looking at a population we're not here in a minute in this standing section seven we're talking about yes that will take we're going negative down the road but on the basis of your record which we're be reviewing here i think that made neck and what would be the harm in saying that this is sort of a trick question from the years i heard your other  spank the regulation hasn't wrong and the biological opinions on these fields are ambiguous at best they say don't really address the issue so go back and clarify what you what your a look at the record and see whether it makes any difference because if you pick leigh you know we've got a whole was a complex species out there and each one of them is a little bit different and i just don't see that there's a problem that has been created thank you thank you thank you habitat model that's no good what we have here in the record and i'd like to point out at that moment that sort of records three ten the agency the talks about the ultimate day when they will have a habitat model they sa