good morning may it please the court my name is rebecca smith and i represent the appellate alliance for the old rockies i would like to save three minutes for about all i would like to start today by addressing the issue that we raised in the supplemental briefing which was the district court's opinion that was just issued this month in alliance for the wild rockies deprogrammer to because the district court has now held that the agenc a consultation on the governing force plan access amendments that triggers some other legal repercussions namely under pacific or risk counsel the thomas and leon county out of n v jamieson a timber sale cannot go forward while the consultation on the overarching forest land management standards are pending is it correct appear that the district court limited its ruling to compliance in the boars area is ecker act yes you're out of the district court found that the original sixty day notice to the agencies didn't adequately raise the issue as to the recovery zone whether the there were ineffective road closures in the recovery zone and that the six day notice focused on whether there are ineffective closures in the borders and so the districts were interpreted that so that the consultation claim was only about the boers and he proceeded to address the various ways that reinitiate of consultation was required based soley on looking at the boers under four o two hundred and sixteen a b and c so with respect to the  hearing from two actions in the recoveries is that affected or not yes your honor and that's why we also just filed another twenty eight day letter just this week because we found a case that was directly on point that was the oregon natural desert association vetoed well seventy six team feds up nd at ten o six what that court held was that even if they found that only a portion of the project area violated the incident take permanent the agency still had to reinitiate consultation on the entire agency action and so in that case there was only several grazing allotments that violated the incident take permit but the whole entire agency action was thirteen grazing allotments and so the district court held that because we have to look at the effects of the entire agency action because this court said that and kind of the burford a biological opinion has to be coextensive with the agency action that meant in that case specifically even though there is only exceeded incidental taken several grazing allotments because the entire agency action was thirteen grazing allotments the agencies had to reinitiate consultation on all thirteen because that was the entire agency action and there are other district courts that reach a similar position and basically the underlying thinking there is the agency itself defined the action it analyze the effects of that action in its entirety and to then only require re initiation on small portions of it would basically allow the agency to cut up the action into smaller portions none of which would ever violate the e s a this protection against causing jeopardy and so that's in that's in the oregon national desert association case it's also in the endangered species act regulations both the new regulations and the old regulations they define so so biological opinion has to address the effects of the action and so then that begs the question what does effects of the action mean and so in both the old endangered species act regulations that were in place prior to mid september of this year and the new regulations effects of the actions include all interrelated effects which means not just this one portion that we're talking about but everything that is in or related in the project the new regulations specifically say at fifty c f r forty thousand two hundred and two that that includes areas that might be outside this immediate area of the district court that far but you're saying it's required by these was something of linear miles and insufficient monitoring and the same issues don't don't occur in the recovery zone which is looking at the in city of use and has all these different monitoring the way that e s a section seven d applies because e s a section seven d says while initiation of consultation is pending you cannot take any action that is an irreversible or irretrievable commitment of resources which this court has found timber sales are per se irretrievable but getting to your question we don't actually know what the reinitiate of consultation on the access amendment is going to look like so we don't know what the reason i'm pretty measures are going to be as a result of that and that's why many district courts who have looked at this have found you do have to enjoy now the timber sales you can't just argue they're not going to be affected by these future reasonable and prudent measures because we don't actually know what those are reasonable and prudent measures are you what does this  in this decision three weeks ago ordered renegotiation of consultation on the access amendment and ordered re initiation of consultation on the site specific project that was part of that notice was inadequate to its cases limited to or as area it was it was pretty much this is a boar's case and the problem in the sense i get out of this is that you want us to respond to the district court's order but to effectively expand it there's some tension there yes and the reason we weren't we couldn't raise the same arguments regarding remedy to the district court is because the site specific project in that case was in compass in the borders and so this issue of yes the claim was the boars but if you order initiation of consultation does that apply to the access amendment as a whole it didn't actually come up in that case because the site specific project was entirely within that borders area and i do understand that this is a lot of information and detailed facts that came sort of in the last minute or used to be the theme of this morning the case is a whole chain i felt a lot better after watching the last argument because i don't feel like  o the order before us is that district course is solution of a permanent injunction and aced on the information that was before the district court was that the access of and were in place and at the environmental the as a compliance to tear it off of that so what do we do about the fact that the case before the district court and the case before us doesn't include this new ruling by the district court which boateng chile could be appealed as well your honor i do want to look right at that dissolution order because it's important and i'm looking now in the in the record e r well it starts at eight but specifically e r ten through thirteen so the district court the dissolution order in this case was issued about a year ago and so it was before the district court had before it the evidence of unfermented incident take that it just decided this month and so i want to look at ten through thirteen you are correct that in the dissolution order the district court specifically said that there was a relationship between the access amendments and the miller was fisher project and the district court held that there is no evidence in the record no an alliance  statement from the access amendment and this project tears to that that therefore this project is lawful and the court said quote whether subsequent agency action adversely affects grizzly bears is measured against those baseline conditions in the access amendments don't take statement and so that decision in this case was premised upon an assumption that they were complying with the incident take statement so why isn't the correct approach to say this this new information that was before the district court wasn't before this record at the time of its opinion and we normally do not look at new evidence on appeal and if things have changed then it's up to the plaintiffs to go back to this record and request additional consideration yes your honor and we do believe that that would be an appropriate result in this case if this court were to ramp remand to the district court for reconsideration there's a number of cases where when there's an intervening change significant change in facts or law in the pendency of the appeal this court remands the district court for reconsideration because it is the same district court judge i feel like that's even more appropriate look and the case you know i understand that position and i'm sure will be directing some questions on this to the government's counsel but if our view was we don't want to consider this at all because it wasn't before the district work or your client's prejudiced i mean are your clients able to simply file a new action based on this new information that was not available to the district court when it dissolve the prior junction we would certainly try to do that your hon if the court ruled that way i have no idea how the district court would react to that but we could certainly try to file a new complaint and noted that the recent decision has a civil number starting with eighteen so i presume it was a recent filing is there something else that would preclude based on subsequent events preclude your client or anybody else from filing a new action the only thing that's complicating in this case is whether there would be a residue to  issue because the original claim in this case about this particular area was that there was no incidental take statement for this particular area and so our original claim and summary judgment was that the agencies needed that there was illegal uncommitted take because of the high road densities and that they needed an instant take statement and so in a way we did raise that same claim already in this case and so to try and file a new complaint raising the exact same original summary judgment order where the district court did grant us an injunction on that claim and found that the agencies did need to prepare an instant i'll take statement because of the high level of unpermitted in sanaa take then  and they incorporated initiated yes and so on remand the agency's prepared and said i'll take statement and then the dissolution or the district court said ok they did what you wanted and now a year later it turns out they're actually violating that instead i'll take statements so we sort of have come back to square one where again we have illegal unpermitted take that's undisputed and no incident i'll take statement and could i reserve the rest of my time for about a yes thank you good morning and may it please the court i'm summer ingles here for the united states and we ask the court to affirm before i turn to the issues raised by judge malloy is recent opinion like to remind the court that the miller was project was designed to improve grizzly bear habitat to create new forging opportunities to reduce the risk of particularly severe wildfires in to create a more secure habitat for the bears are the arguments we've raised in our merits brief remain true today and judge malloy is opinion is not something that the court needs to be concerned about at this time ultimately it raises new issues new facts that should be brought in a new proceeding and the district court in fact  limitation to the ability to bring a new proceeding not that i'm aware of your honor i haven't studied the reza judicata issue i know that alliance has already provided the forest service with a sixty day notice of intent to sue arguing that a number of projects including the miller west project should be stopped while re initiation of consultation pursuits of council how would the united states be prejudiced if instead let's  for this new information we would've been inclined to affirm how would the united states be prejudiced if instead of doing that we remain ended for the court to the district court to have the ability to reconsider whether these new if new facts would affect its decision how would that prejudice the united states if if we simply affirm the plaintiffs the plaintiffs could bring this in a completely new action it would depend on what the court orders in terms of operations on the ground if the project were allowed to proceed i imagine that the district court could address these issues with little prejudiced to the government our primary concern at this time is that the project be allowed to proceed because thing activities that are planned for this december are limited in time the project includes limitations that prevent the forest service from conducting harvesting activity activities in grizzly bear core habitat during the years so am i i'm sorry so my hearing you correctly that if we ourselves did not grant plaintiff some of the relief it seeks on appeal that is reverse reinstate the injunction if we didn't order any injunctive relief but merely re mandated for the district court to be able to reconsider if it chose to that that wouldn't prejudice the government materially at this time i don't think it would although it's an issue that i would be happy to submit supplemental briefing on our primary concern as i've explained is that the project be allowed to proceed so that the project is proceeding based on it as a compliance based if the basis for that we believe it's something that we can submit st to be submitted under penalty of perjury it's extra record of events to be sure we're not providing it to provide additional support for the agency's decision but rather to explain what's happening on the ground in the courts able to consider this type of information when when evaluating a remedy or in this case the scope of the decision we provided the declaration to provide support to explain what is happening and we wanted to provide an official document from the for a supervisor to say what was happening ultimately the district court's decision judge will is most recent decision was limited specifically to the boers area opposing counsel says although it was limited to the borders area by force of law the forest service will have to initiate consultation on the entire access and since it's a single agency action  your response to that that's something that the forest service needs to evaluate on its own the district court's decision was specifically limited to the boars areas and if the forest service determines that in the course of evaluating take in the bores areas it should also look at the b m use or the recovery zone that's a decision for the agency to make but at this time the agency the forest service the fish and wildlife service the expert agencies responsible for managing grizzly bear habitat and grizzly bear as a species they've decided that the borders areas and the recovery zone should be treated and managed death differently so so if we if we did  suggesting that i guess the declaration could be considered by the district court for well in connection with the scope of whatever relief it's it would give that's correct but what's the status of and how to call it because it's and you're telling us this case is now called prober so all they say that the district of montana case recently adjudicated is that on appeal has there been any attempt to obtain a stay order from our court but there's nothing going on there that's a decision that the government is currently evaluating whether to appeal it's not a case where we have filed the stay at this time or have filed a notice of appeal are i understand if we give any consideration to the declaration the timber harvesting is like a month away so clocks kind of ticking and i'm struggling to figure out how best to let somebody who's in a position to consider the things that have been made available to us very recently considerate and i'm somewhat more coherent or comprehensive fashion and i'm and practically  speaking what do you think is the best way to accomplish that i well two things st the activities that are scheduled to decide to start in december are going to be occurring while grizzly bears are hibernating and therefore a lot of the concerns explained in the record page seventy seven dollars that when activities occur during the winter those activities will not harm the grizzly bears i think there is time to evaluate what should happen here but but again i reiterate that judge malloy's opinion was limited to the boers and the activities that are scheduled to start this december are in the recovery zone only and therefore a number of the concerns that he raised simply don't apply with with any force to the areas that will be treated in the in the near future their other point is that activities in the recovery zone the recovery zone itself is managed for grizzly bear health and habitat that includes large blocks of core habitat that habitat there each greater than ten thousand dollars acres and b m u six there's a core habitat area that's twenty seven thousand dollars acres and the fish and wildlife service has determined in its review of this particular project that the existence of those core areas combined with the timing limitations on project activities ensure that effects to grizzly bears from the implementation of the miller project simply won't be the st that's a combination that relies on the the biological opinion and take statement for the access of us right and they also they looked at the a project and said no it is shallow incremental adverse effect but but you don't get there  and so the fact that the judgement i determined that the standards for the bores had been exceeded doesn't call into question the parts of the incidental take statement that applied to the b m use the agencies here have evaluated how the miller project will affect the density road density standards in the b m use and has determined that they are consistent with the incidental take steamer for the access amendments which was in no way called into question by judge malloy's recent order remain and in part as remand the component relating to boras to the district court or do that does it have to be both have to go together i think it could be remanded specifically for the boers and the fact that i realize the court concerned about reliance on the declaration i can tell you that the forest service has stopped activities there it's information that could be provided to the district court and that would be a way to ensure that those issues i don't raise any specific concerns and can be evaluated by the district court i'd also underscore again that alliance has an opportunity to raise these concerns before the district court and see that it is told the forest service that it and intends to file so there are variety of ways  that alliance can have its concerns heard they filed the notice they filed it on october rd with the forest service there are opportunities for alliance to air its concerns but those concerns do not need to be evaluated by this court today if i could i'd i'd like to turn briefly to the nepa issues alliance has argued that the forest service failed to consider how the miller project would combine with existing illegal road use in the project area to result in a fact that a line that the forest service failed to consider in its deep analysis here the district court properly hold that the forest service is cumulative impacts alice's was adequate nepa imposes a rule of reason agencies are not required to catalog vans that are not significant to the action in question in here the forest service explained that i'm at year two hundred and thirty four the miller project will not create a significant departure from past human use patterns or create an obvious source of conflict between people and bears it explained it page two hundred and fifty six that in the boars areas the project in combination with baseline conditions and reasonably forseeable projects does not change baseline conditions in similar statements or made it easier to fifty five any are for ninety four ultimately of the miller was project is designed to decrease road use in the project area and no permanent roads will be constructed there will be three nine miles of temporary roads that will be twelve spur roads but those roads will be obliterated once the project is complete and while there in use during the project the project contact contractor will monitor the roads to ensure that they will not be used by the public and in an unauthorised way so that the authorised way part i confess i'm drift a little bit so i may have missed something but can you help me understand to what extent authorized use is fact or damn i mean it's some point the agency knows that there is authorize use perhaps there's a higher level even than had been anticipated is that baked in somehow the forest service in the in the sci ass at page two hundred and thirty seven dollars cites to the monitoring reports it prepares on a your yearly basis and submitted to the fish and wildlife service explaining changes within each berry management unit identifying breaches where they occurred and explaining how the forest service corrected those bridges and if appropriate will continue to monitor legal use in those areas so those are part of the record the forest service has explained though and that same page that ultimately road densities in the area haven't changed markedly from year to year the forest service is well aware that breaches take place and that's why it's admits in part why it's admits the lead reports to the fish and wildlife service but it is also determined in this particular case that the project being analyzed in its need for documents will not change that existing that existing status hadn't didn't have a robust monitoring program in place and therefore wasn't able to fully evaluate the scope and nature of illegal use here the access amendments require that the forest service monitor at least thirty percent of closures every year and the record shows that the agency monitor is much closer to fifty percent of these closures and therefore is well aware about the extent of illegal use and there are more robust protections and in these areas to ensure that that illegal use on effect there is that the difference between the borders area and the recovery or is that specific to the miller project that's the difference between the bores area and the recovery zone because the recovery zone is managed specifically forbears there are much more  specific and intense protections in place i see that my time is running short unless the court has further questions we ask the court to affirm thank you very much if you're given your honor i just have a few quick points st the d o j did say that there would be no prejudice to the government from a re man and also they indicated that they had not yet decided whether to reinitiate consultation and address the entire access amendment the entire agency action which do you know the underlying statement there is that they could decide to do that and that's precisely the circumstance when the concerns of e s a section seven d come into play because if they ultimately agree to create greater protections for example if they say the boars areas are really degraded so are reasonable and prudent measure is to create greater protections in the recovery zone at this point they can still do that on rate initiation of consultation however if this timber sale goes forward that would be for closing that is a reasonable and prudent alternative and that is why we are saying that the entire agency action is what we need to look at here and they didn't they did not say that they would not be renegotiated consultation addressing the entire access amendment just that they haven't decided yet also there has been no appeal and no stay in progress and then finally that the i believe thirty violations in both the recovery zone and borders together all of those are in your motion for us to take judicial notice of that's all extra record material right that is true you know really before us at this point that is true and i only wanted to bring up to rebut the sort of assumption that these things are occurring in the recovery zone there are just as many violations happening just as often in the recovery zone as in the boers and the fact that they monitor one rd of the recovery zone doesn't stay up these violations from occurring and we have in our statement of facts in our brief outlaid a number of these violations that were in the record and so i just wanted to be clear that this is a substantive issue that affects the recovery zone and the boers and the only reason the district court limited the