probability that defendant's regulations will adversely affect the plaintiff's interest in specific areas of the national forest system second it erred in finding that plaintiff's challenges underneath  or species act to the defendant's regulations were not right for judicial review and third it eared insua sponte striking two exhibits to plaintiff's motion for summary judgment i'd like to address those issues the order first issue has to do with standing and before i address the specific test that's been adopted for establishing standing out like to address the overall purpose of the standing requirement because i believe it's important to keep that purpose in mind as we evaluate the test the purpose of the standing requirement is to ensure that the parties who bring a dispute before the court hav sufficient stake in the outcome of the case to prevent to present the court with a factually concrete context and to allow the court to have an appreciation of the consequences of its judicial rulings we believe that that purpose is satisfied by the plaintiffs in this case all of whom have been extensively involved in commenting on and overseeing national forest management for some time the first part of the official test for standing asked the court to look at injury in fact and to determine whether or not the plaintiffs have suffered a concrete and particular those declarations i think are particularly instructive if you compare them to the declarations that were submitted in the salmon river concerned citizens kicks the to the ration submitted in the salmon river concerned citizens case by larry glass and mr david webb described their uses of two national forests and argued that their ability to use and enjoy the areas of those forests that they did attend would be adversely affected by a regional directive allowing additional uses of pesticides declarations submitted by the plaintiffs in this case your honor are even more specific with respect to the particular areas of specific the second part of the injury test asked the court to examine whether or not the alleged injury is sufficiently eminent to warrant judicial attention for this part of the test the  eminence is tempered somewhat by the nature of the claim that the plaintiffs have brought which is a procedural challenge to the doctrine of the regulation this court and the supreme court have both recognized that when a procedural injury is presented and it is coupled with a concrete injury to a specific area of use the imminence requirement is relaxed and as the supreme court said in defenders of wildlife even if the ultimate on the ground injury is many years away so long as the procedural claude has already heard the imminen site specific decision can and therefore congress through would have wanted the agency even more intensely to consider the environmental consequences of its action there's no question here but th the regulation was a final action the legal answer your honor is that this court and others have repeatedly recognized in the past that when an agency adopt implemented in a way that threatens any harm well it's the type of harm that this court recognized in salmon river concerned citizens and in movement where the agency action has resulted in an increased risk or decreased protection both of those phrases have been used for areas that are used by the plaintiffs and here the new regulation has increased the risk of  species elimination by removing the viability requirement that existed in the old regulation and that viability requirement has been recognized by this court in the emblem inland empire cas as being a critical component of the national forest management act implementation scheme so the type of harm that is alleged is precisely that the increased risk to the area is used  concerned citizens has used the language of the plaintiff's right to comment and participate in the new process on so the government forces picked up on that language in the district court's opinion but that appears to me to be question about the national nature of these regulations on that is that if the district court's opinion is allowed to stand then the most impactful and important challenges to the procedures that we're saying were not followed in this case your honor if you can if you can imagine a couple of years from now let's say in two thousand and five when a site specific decision is made in the first back to this make any any sense and as the supreme court has said in defenders of wildlife that you know the time that you should be allowed to challenge and violation is when it when it occurred and that relates also to the hardship component of the rightness test your honour's because the hardship well one aspect of the hardship that results from the from the government not following proper procedures is that as that decision is carried out over time it becomes more and more difficult to go back and correct so that even if for some reason comments were taken in two thousand and five on the regulation adopted in two thousand the likelihood of that procedure having the effect that congress desired is greatly diminished and quickly with respect to redress ability  the showing of redress ability is relatively easy for all the plaintiffs need to show is that a decision could be influenced by redoing the decision in the process using the proper procedures and i think there is a presumption that that's the case because that's what congress thought when it adopted nepa is that better procedures with the to better decisions with respect to rightness the district court's opinion i think  did two things it misunderstood the relationship between standing and rightness and it misapplied the ohio for astri's conclusion with respect to rightness the court found that because standing as a predicate the rightness plaintiffs the employers didn't have standing therefore there was no need to address the rightness issue and i think that since it was wrong on the standing issue it was wrong on that holding with respect to rightness but second the court held that despite the plain language in the supreme court's ohio forestry opinion that meet the cases are right that the time of this decision the court must not have meant what it said because it reminded the whole case for dismissal well the district court's opinion had addressed the merits of the new case and ruled against the plaintiffs on the merits so the reason that the supreme court's opinion supreme court's act at the end of the case didn't contradict that statement that rightness was present with respect and the fact is that the rightness issue with respect to the people wasn't before the court so really have a final if you see action we do have a final agency action your honor and thank you for mentioning that as the court is aware the supreme court in the laidlaw opinion addressed the dividing line between the issues of standing and right enough there has to be some sort of concrete injury some sort of concrete threat to particularized interest plaintiffs well which we have here they're relying entirely on a geographical nexus they say this is the fore itself and look at all the discretionary factors within that role you know i would disagree with you on saying that this rule is less strict than the other rule this is a different rule no doubt about that no question there but we're saying that when this rule is applied as a whole rather than that was in the prior rule doesn't mean necessarily that this rule is less strict just because things are different doesn't mean less strict we're saying here that this rule is as protective as the old rule it uses different language it gives more discretion that's certainly true but that doesn't mean  me go right to what i think you're getting at which is why do any if you don't think you need to do one there are other cases that this court has looked at i'm thinking specifically of the burbank anti noise can use where this court has said sometimes the agencies will go forward they'll go through this process and make these considerations but they don't have to if they want to do that that's great it seems to me should discourage people from using that process thinking about environmental considerations unless they're absolutely sure that they have to do it here it's a good point but if you're going to go  and i asked why couldn't the public comment there was a lot of public comment on this rule lots of public comment we describe that in the statement of facts here in terms of what the environmental implications for going to be what the implications are going to be more generally the public was not cut out of this and we specifically said that we are going to be going through some sort of environmental review process and that's described in our brief it's true that there wasn't a specific whole nother separate public comment process for th have a whole nother separate public comment process on the environmental assessment that's not required by any of the rules pertaining to this you know that's what we have to have public comment on an environmental impact statement there's no question about that but you can't import that whole set of rules for that much more complicated involved process to the environmental assessment process there wasn't a requirement there we already did have a lot of public comment thank god a lot of public comment on environmental consequences of the rule would have been we don't need to have yet a whole nother process on procedures for doing a forced plan which sets up how you go about making site specific decisions that you're so far removed from any actual impacts on the environment that you don't need to go through need here and in fact the forest service could have failed  end it's plenty to do so in the proposed rule that it's working on right now and that's in the middle of public comment that's right in the forest service regulations and chose to go forward with an environmental assessment to be doubly sure to go through and make sure it got the that case response also mentioned an oral argument that they had discussed below i think with ohio forestry teaches us that is that there is no absolute rule that all need to claims are immediately right but that you have to look to the injury here is there some sort of injury or immediate threat to the plaintiffs and again what we're saying here is that that has not been shown here we have on the one hand them saying that they have the geographical nexus of visiting the forests on the other hand making allegations about substantive weakening of the rule we obviously don't agree with the substantive weakening we also would point out that they didn't do what they needed to do to show that there was such to weakening to the district court below that the evidence that they submitted was not admissible and plaintiffs didn't challenge that they did follow a motion f reconsideration but they didn't suggest in any way that there was anything wrong with that ruling and in fact they haven't shown that that evidence is admissible at this level i think there's a number of problems with that that we identified in our letter brief but i won't go through those here unless the court  the plaintiffs are not foreclosed from challenging this rule out a subsequent date if they can show that there's been some sort of site specific action that has actually caused them some harm or threatens them with some particularized harm that opportunity is there so i want to correct that m they haven't cited to anything else but i would also ask they say that there's some sort of substantive weakening but how is that that that's going to affect their visits to the national forests that connection hasn't been made i think here with regard to lastly with regard to the relief request for injunctive relief at the end of the reply brief no case has been made for that happening here and we believe we've shown a serious question about whether they would prevail on the merit standing because it has injury then the claim is right but i think that's an important proviso i think it's because of saying not only claims are automatically right that constitutional requirement has not been abrogated by this case so we need to be focusing on the injury and whether there's been actual injury being shown here determine whether there's rightness and injury to the concrete interest right fair enough or threaten injury but we're saying that that hasn't even been established here that's why thank you your honor briefly touch on the suggestions made by the government first that procedural injury alone is not enough we're not arguing in this case that procedural injury address your comment with wardlaw that the fidelity standard with respect to the viability standard we do obviously believe that the bible of the standard has been relaxed and i think it's plain from setting the two regulations down next to each other but i also think that it's important not to mix the merits with the standing issue as the court said in level and this is particularly easy to do want to proceed rule case would the way i view this case is that we are challenging a change to an agency standard and the merits of the case have to do with whether that new standard is with  but the level of proof that's required to address it yes i think different when you're addressing standing and another aspect of labor laws i think relevant to that standard of proof and that is that laidlaw because of this distinction between for this i guess overlap between the merits and injury the inquiry is to the harm to the plaintiffs not to the environment where the plaintiffs have submitted declarations saying the viability standard is being relaxed that's going to harm pacific areas and i think that's adequate under the legal decision with respect to the arguments that the e a a prepared by the government wasn't necessary because the regulation would have no effect i would just emphasize to the court that the c e q regulations specifically include rules and regulations and the definition of agency actions that are subject to and with respect to the assertion that the forest service has categorically excluded national regulations as requirements itself that has occurred  and if the forest service is going to categorically exclude from nepa or attempt to categorically exclude from nepa its national regulations that have more impact than anything else it does on the national force of this country it should at least do that by regulation and give the public an opportunity to comment on that