good morning honors may please the court my name is all over stiefel i represent plaintiffs appellants with me at counsel table as christopher winter i intend to reserve five minutes for rebuttal we return to this court on a challenge over the four services explanation that it does provide based on the original records fundamentally conflicts with the scientific evidence in this case and with the factual and legal determinations that this court and the district court have already made now with my presentation today i intend to focus on three issues related to the deer model of all strata issue the deer multiplier issue and consistency with the standards and guidelines of the one thousand nine hundred seven forest plan that's your client believe that it is possible to arrive at a scientifically justifiable deer population yes your honor and the agency in fact used a scientifically defensible version of the deer i don't have the best answer to that your honour's i would point to court to the fact that this court refused the record to know though and doesn't accord any deference to the district court's opinion i can only speculate that there was some judicial fatigue just judged by so i noted at the outset of his opinion that it was unfortunate that the cases said taken so long to resolve and he largely reverted to his original opinion on the issue that this court had reverse original records and it determined that vol strata measures timber volume but that it is for structure and not total timber volume that's relevant to the habitability of a piece of land and i recognize that this court didn't issue an explicit holding on the issue but it did provide the agency with explicit guidance as to how it anticipated the agency would respond and judge hawkins that more than that rather than violating the mandate of this i think technically we're not claiming that there's a violation of the mandate we choke we chose to frame it up that way simply because we thought it was important to tether this round of appeals to the original twenty eleven opinion so with with all strata hawkins just back to this evolution of the deer model on first remained as the district court found the agency had abandoned the use of all strata in it and it used a corrected version of the deer model and when it really ran the deer model and for first re man one of the agency find it found deer habitat numbers significantly lower and this was attributable in part to the fact that the agency has so had substituted the reliable size density data set for the flawed fall strata data set now this really just confirms what the agency has known all along on the original records it's evident as this court pointed out in its twenty eleven determination the agency had already admitted the timber volume may be misleading when describing wildlife habitat and it confirms what the agency has now been telling the public in recent project planning documents that has no correlation to habitat quality and so it's surprising to say the least that the agency on second hand abandon those corrective results and reverted back to the original your model runs applying the false strata set and so it is completely ignored this court's guidance on the issue and it has supplied the court with no new evidence and no new explanations that would provide a basis for this court to return to revisit  determinations about fall strata and so we stand here before the court to ask in this court to convert its earlier determinations about paul strata into a holding that its use was arbitrary  proxy modeling has to be reasonably reliable and accurate and there's no question in this case that vol strata is not really reasonably reliable and accurate therefore the proxy on a product proxy approach crumbles and that's supported and i would say explicitly controlled by lands council the mcnair and lance council the power now that your multiplier issue really gets to this court's holding in the twenty eleven opinion where it held that the forest services use  for services approvals of the four timber sales were arbitrary and unsupported by the record because the agency had failed to articulate a rational explanation for its use of the deer multiplier now fast  agency corrected for its errors in the application of the deer model and that's not just my characterization your honour's that's the characterization of the district court at your thirty six and so on first remained the agency used to a defensible version of the deer model one that corrected for this thirty percent overestimation in habitat capability and once again your honour's that's not just my characterization this time it's the characterization of the forest service itself who in recent project planning documents has stated that the old version of the deer model was revised due to a misuse of the deer multiplier the cross cost a thirty percent overestimation and habitat capability so fast forward to the second remained proceedings and twenty fifteen your honor and in our brief we refer to the what we call the remained memo which was the the memo that the agency prepared in response to greenpeace to which was the district court's twenty fourteen opinion and i provided by the agency runs counter to the evidence before it and so here i just want to impress upon the court two things about the deer multiplier first the deer multiplier represents a constant representing fundamentally it's reflected in the first remained proceedings where the agency states that the areas of the thomas national forest with the most suitable winter habitat for deer could be expected to support up to one hundred  just a few quick points on the compliance with the standard and guideline and she had about twenty twenty five year with the application of the deer multiplier that the agency was using for the original records and on second standards and guidelines of the one thousand nine hundred seven forest plan and specifically today i'd like to talk about the wolf provision which is wild eleven to eleven e three of the one thousand nine hundred seven forest plan and according to this court the calculation or miscalculation of deer carrying capacity affects all four projects so this is significant now in the original records the agency claimed consistency with this standard guideline of the forest plan based on the fact that all four of the timber sale areas would maintain above eighteen deer perscribe but of course that was based on the flawed version of the model so the agency went back to the drawing board on first remained and applying the correct prudence which it asks whether the agency whether whether the court may be able to reasonably ascertain from the record that the forest service has complied with the relevant standards and guidelines of its forest plan here at this late stage in the case the forest service has made no effort to reconcile the two different sets of dear dear modeling numbers and it and it has made no explanation as to consistency with the standards and guidelines of the  in your view if the forest service wanted to go ahead that you would start the process over in terms of nepa and the other environmental statutes correct and so the agency would would likely have to redraw these timber sales because it's effect we would start all over that's right and the agency would come up with what they viewed as a scientifically defensible dear multiplier basis and the recalculation is a result of the abound resume of these particular forests harvesting projects that's exactly right to talk and but just a quick attendant to that all the parties agree now that the agency it has been using the corrected version of the dear model so it has been you well on first rematch so it's already it's already made the they revise calculations on first remained but what it did was explain how the deer model results  consistent with the two thousand and eight version of the forest plan which the district court found was an air because remember that the original project decisions applied the one thousand nine hundred seventy version of the forest plan when did this process  these in brazil he won these timber some projects were approved in two thousand and six in two thousand and seven our lawsuit was initiated in two thousand and eight so almost a dozen years that's it when you say and response to where things would go from here that the correct model is now being used or not list both parties agree on that you're saying it's trying to understand well the problem is is that the agency has abandoned that corrected version of the dear model in there and they're still in there secondly makan remained proceedings i'm going to ask you a question that i will ask opposing counsel is this capable of mediation and resolution to talk in the back to all of the steps and start all over a process that's now twelve years old at the start of your ar ment i asked you if there was a way in which these forcing projects could go forward using an appropriately scientifically defensible method of estimating your population capable of resolution by mediation could the parties sit down together and come to an agreement on their population and come to an agreement on the proper boundary use of these harvesting projects and life goes on i don't know i don't think the parties could do that by themselves i think that this would need to go through the appropriate round of public process which includes need to review and it's not just you willing or unwilling to sit down and try to mediate this controversy i would have to circle up with with my clients we did we did go through the courts mediation process at the outset of this appeal and were unable to successfully resolve it through the mediation program  in house circuit mediators it was your honor now you've answered my question thank you and i am eating into my rebuttal time but before i sit down i'd like to just impress upon the court a couple quick takeaways about this case from our perspective in the first is that the forest service on the present appeal is largely attempting to relive a gate this case based on the original records and on issues that this court has already addressed in two thousand and eleven to the narrow extent that the agency is relying on that remained memo what's most notable about that document is what's missing there's no explanation for the continued reliance on vaal strata there is no explanation as to consistency with the standards and mean please the court my name is michael gray and i'm here on behalf of the forest service it's difficult to see what the utility in a room and back to the forest service would be at this point where the pla conceded that the forest service was using the correct deer model and has used it in this case and the forest service concluded after doing so that it would not change its decision and i think it stems from this idea that we think is incorrect that the forest service has abandoned that analysis at this point for services not abandon it and i think going through the chronology here may help to understand that this court in the previous to appeal concluded only that the that it could not understand the forest service an explanation of the deer multiplier on the first dream and the forest service took to heart some dicta that this court had about evaluating whether a new nipple analysis was required for a form with the current version of the deer model not a corrected version as the planets play but the but the current version based on the evolving science and concluded that it would not change the ultimate decision and that it would not require any further need for analysis and that's because when you compare the impacts of these alternatives to the no action alternative there basically little to none zero to one percent change in the capability of the habitat whether you conduct these for relatively small analysis in the supplemental information reports they show that the deer density numbers are eat or the same or perhaps one less and one of the projects whether you do these projects or  not and so we presented that to the district court in the district court said well you need to show why your initial decision complied with the one thousand nine hundred seven forest plan because you didn't make a new did vision you decided that based on the new analysis no didn't new decision was required and so on the second man rather than abandon that analysis what we did was we said let's gather together the information on the deer multiplier and explain why the deer multiplier when the decision was made complied with the one thousand nine hundred seven force plan and that's the explanation in the room in them and as we've explained the deer multiplier in the previous version of the model before the one used for for these projects interagency process with a panel that said the habitats we think there are habitats that are better than what got the one point zero score on of the previous models so we're going to have the model now go up to one point three but the habitat the mid volume low elevation south facing low snow habitat that had previously received a one point zero under the model that same habitat was still one point zero so the one hundred year per square mile key to that habitat stayed key to that habitat and the in the forest service was well aware it was making that decision and explained it now and i think hopefully to this court satisfaction in the  three recommending incorporating the new forest type stratification scheme into the model that's vul strata and then there was a two thousand and five paper which is in the record supplement excerpts one ninety one ninety nine strata and says since both strata can distinguish timber volume or studies supports previous work that timber volume information can help indicate the quality of your habitat and recommends that timber volume strata should be used in place of volume class in the forest wide model so you have the study recommending it and the forest service said that's what we're going to do that the version will use in our model at the well there may have been other versions there may have been other disagreement in the science but when you're in the predictive realm of science in the expert agencies realm then that's where the difference from this court is at its highest and so i think on both measures both vaal strata in compliance with the one thousand nine thousand plan and on the dear multiplier the forest service is now adequately explain exactly how this works why it's decision at the time was correct  and has now done the model that the plane is that is fine and said our decision wouldn't change because the impacts wouldn't change so we would ask in that circumstance for this court to affirm unless there are any questions i'll see the remainder of my thank you just a couple of quick points and i think that going back to the chronology of this case is instructive and so the forest service approved these for timber sales based on the original record using a flawed version of the deer model where the agency do it went back corrected its errors with respect of all strata and the deer multiplier issue on first remained but it erred because it said these new results are consistent with the two thousand and eight version of the forest plan the district court in two thousand and fourteen said you can't have it both ways you can't approve the original decisions under the one thousand nine hundred seven forest plan and then establish consistency with this narrow part of the project based on the newer version of the forest plan and that's this court's jurisprudence in the incent several cases including the friends of se future case that we cite to in our previous and so the agency went back again in on second remained in abandon those corrected results and returned to the original year model runs so the agency is not currently relying on the corrected your model the agency is relying on the one that it was using in two thousand and six in two thousand and seven which my clients with the which the depart out alaska department official game numerous parties had told the agency was misapplying because of that false rather issues in the year multiplier issues the way you clarify one thing because in your earlier argument i understood you to say that there now is this agreement as to what is the appropriate configuration on the gear model and i misunderstood yes just  but at this point the agency has abandoned those corrected results and his home will you don't agree on anything in the second remain proceedings we don't aren't that's correct and so at this at this point i think the appropriate remedy here is is they can turn these cases this case is being ongoing for the past twelve years the four services now had three opportunities to explain its use of the deer model and consistency with the governing forest plan it has failed each time and we think it's time for the agency to go back to the drawing board and start this two of your prose with us i don't think it's quite that onerous it's simply with the public something that the agency has neglected to do since the original decisions reengaging with my clients reengaging with the experts at the u s fish and wildlife service with the alaska department official wildlife and come up with with a plan that meets its obligations under the national environmental policy act and the national forest management act if the less there are no further questions we escort to reverse the judgment of the district court