whether a federal agency sending federal employees into the field with federal equipment is a major federal action such that applies second and if so whether wildlife services took a hard look at the environmental impact its environmental assessment and third whether wildlife services statement of reasons justifying its decision to not prepare and yes was sufficient i will address each in turn can before we do that is want to make sure i'm familiar with what the easterns own is currently in phase three the western zone where wolves retain federal endangered species act protection is still in phase one and additionally as the district court determined there was a risk that the eastern zone could revert back to  two because of the reduction in packs and breeding peers around the time of the summary judgement proceedings ok so the argument would be is that there's a likelihood that even though we may technically in the in the eastern we're in phase three  could very easily drop down to phase two at a moment's notice correct and and additionally in western oregon it's very possible in fact wildlife services in the environmental assessment states that it's likely that wolves will be federally delisted and therefore wildlife services could provide the services throughout the state of oregon so as to major federal action in this case wildlife services presents a post hoc litigation position not articulated during the administrative process that even though it spent considerable resources preparing an e a for its wealth damage management program an organ as the agency does routinely across the country it never had a legal obligation to do so and therefore this court cannot review that for compliance with nepa strict requirements i would like to focus on three of the reasons why this argument must fail first wildlife services decision notices final agency actions subject to judicial review second wildlife services and the district court ignore that the decision notice authorizes the agency to provide wealth killing services to not only the organ department of fish and wildlife d f w but also to sovereign indian tribes and private landowners and third the authority relied on by wildlife services to support its novel theory is an app is it in that it relates to nonfederal action as opposed to federal action like we have here so first the administrative procedure act confers a legal right on any person suffering legal wrong because of agency action to seek judicial review of that decision here wildlife services unquestionably issued a decision notice outlining its anticipated wolf killing operations in oregon and as the district court held in concluding that had article three standing to bring this litigation cascadia through its members has suffered actual and procedural injury caused by wildlife services decision notice this is uncontested on appeal the a p a therefore anticipate claims pertaining to the adequacy of the environmental analysis underlying the decision notice can be reviewed by a federal court if this court were to hold that wildlife services decision notice was not final agency action subject to judicial review it would for the first time in naples forty plus year history create an enormous loophole hole allowing federal agencies to avoid environmental review of its actions as otherwise required by nepa additionally all of wildlife services grounds for asserting that its organ wolf killing program is not major federal action relate to its provision of such services to the organ department of fish and wildlife but even if this court were were to agree with that argument it in it ultimately still must fail because at a minimum it's major federal action as it relates to sovereign indian tribes and private landowners wildlife services makes no attempt to argue that there is no major federal action should provide such wolf killing services to either of those groups  authority relied on by wildlife services to support its major federal action argument relates to non federal action and the amount of money that can federalize an otherwise non federal action both friends of the earth and comma conny relate to actions taken by state actors and not a federal agency in both cases the only federal involvement was the provision of money in the form of a federal grant to help pay for the underlying project otherwise aside from a minor advisory role there was no federal agency involved in the actual construction and implementation of the infrastructure projects at issue in those cases by contrast there is actual federal act action wildlife services anticipate sending federal employees any information in the records specific about what the amount of money wildlife service is paying to the state beyond the brief citations provided by wildlife service which which kind of take a variety of different documents to try to come up with the amount of funding i'm so here we know is that the there's this cap on the amount that o d s w will pay wildlife services for its services and importantly that hundred thousand dollars over a two year period and includes not just the wolf aspect of the program but  also lethal removal of bears cougar and other fur bearers and so our position is that it's just simply an reasonable to assume that there's unlimited funding with the state of oregon to pay wildlife services for its services contributing to this project as opposed to what the states contributing that is not in the record your honor the closest we get is what wildlife services provided to the court to get at this eight percent number that it asserts and we just think that's completely an app is it here primarily because the years in which that happened there was no wolf killing an organ so i think it provides a very skewed perspective of what the funding aspect would be in yours where there is wolf killing which is much more ground but it could be using a helicopter conduct aerial gunning operations it could be sending employees into the field to set like hold traps and snares or could also be employees sitting in the field with rifles to shoot a wolf if in the event that they were to see one and so it really depends on what exactly is going on on the ground and so so again i think there's it's really questionable as to exactly how much that would cost were that to take place and then there's no information in the record discussing the specific financials in years where there would be wolf killing could i ask you to go back to what you said about the environmental assessment is done routinely yes your honor so that the statement about how the routinely do it across the country i think that's evident through the various judicial decisions from district courts about wildlife services activities there's the woodruff decision from the western district of washington analyze n n n e a for wolf killing idaho decisions the nevada decision from this court in the wilder of guardians case ok i understand that but they're saying that in this case there was no requirement that they have discretion to decide whether agency has this question that aside whether to do any way and clearly i would say clearly the rules are kind of unclear about what that means it's basically relate to nonfederal action and federal contribution of money to federalize that non federal action but here there is a federal action and to my knowledge there is no case directly on point addressing that situation but i think it's clear that based on the funding question the questionable nature of how much is actually going to be reimbursed the discretion to the agency in terms of deciding what methods to employ how exactly they're going to conduct these operations and all that and then additionally there's the fundamental and primary discretion of whether or not they even accept the request to kill wolves wildlife services has that discretion to say no we're not going to do that there's no requirement that if odious w says hey wildlife services can you please go kill wolves for us they don't have to say yes they can they have the discretion to say no and so i think there's enough evidence here that it is a major federal action because of the discretion left to wildlife services and the fact that this is federal action not non federal appeal yes i think so based on my my first argument that it's final agency actions object to digital review they issued a decision notice there was no indication in the record that they didn't think they had an obligation to do this this was purely brought up in know wildlife services reached out to other agencies and tribes for official cooperate or status in preparing the way they solicited public comment and comment from other agencies based on my reading of the record i think it's very clear the wildlife services thought they had an obligation to comply with nepa and that it was a major federal action and that it was just brought up as a litigation argument for why there's no jurisdiction to hear the case and most is for the questions on major and major federal action i think i'd like to turn to the claims here so first as to this efficiency of the environmental effects analysis in the wildlife services fail to take a hard look at several categories of effects including wolf populations non target animals and ecosystems wildlife services makes two primary arguments to justify the lack of analysis even if it does not kill wolves oh d f w or indian tribes will kill wolves so any effects from wolf killing is part of the status quo and not be analyzed and second that wolf populations will continue to grow even with its wealth killing program so no impacts but these arguments must fail as articulated by judge brian in the woodruff case these arguments quote ignore wildlife services shared responsibility and discretion assumes a specific but uncertain outcome if wildlife services does not provide the assistance and further the growth in both population reasoning was also explicitly rejected by this court in anderson v evans there this court reviewed an agency decision allowing whale hunting by members of an indian tribe and this court concluded that just because other whales may come into the air area to replace the whales that were harvested and that there would be no impact on the broader will population that does not mean that there are no there's no potential for localised impact that needs that need not be analyzed in an even specifically on wolf populations although wildlife services points to parts of the e p a where this analysis purportedly occurs review the e p a shows that it is lacking there is no disclosure or analysis of the number of it in others have killed in these states for example the idaho department of fish and game and recreational hunters kill wolves in idaho there are easily accessible data available as to the amount of wolf killing in these states and disclosure of these data and an analysis of what they mean should be a critical piece of the e s affects analysis as wildlife service admits idaho remains a source population for organs wolves and wildlife sort of services relies on the source population to justify its failure to disclose and analyze environmental effects it is completely reasonable for the public to ask an agency to conduct an environmental analysis that crosses state lines especially since as wildlife services admits organs will population depends on migrants from other states and  i'm running out of time i just like to read reiterate also that all these effects are very significant under all the significant factors and those should be considered cumulatively not individually as wildlife services asserts in its briefing and in the record   the record shows that wildlife services undertook a rational thorough environmental assessment and it reached rational findings regarding the significance of assisting the state of oregon under the oregon wolf plan where organs the sovereign or organs managing the wildlife because it's state control so where it's federally delisted so we're really talking about eastern oregon and at the time of the district court ruling the state had moved to  three and as of the latest wolf numbers from that end of twenty seventeen i can tell you that there are now eleven breeding pairs and one hundred twenty four wolves what judge mcshane reviewed was one hundred twelve wolves and eight it's certainly i wouldn't rule out as an absolute impossibility but you know it appeared the judgment chain gave the benefit of the doubt that you know when there are eight breeding pairs that if it goes down below seven we could be in phase two again but what the government submits is that that the further development of the breeding pairs makes that even less likely we haven't raised mootness to the court but i bring that up in the spirit of the court  undertake its own review of mootness given given the changing facts on phase three and the fact that the state is further into phase three now what i'll start with you know tracking mr melbourne's argument and someways is that whether nepa was required in the first place and the paramount factor here that the ninth circuit has looked at is supervision and control by the federal agency over the nonfederal activity now here that type of control is absent and as i was mentioning before oregon has complete supervision and control in managing wolves in eastern oregon the area issue here and it on its own developed the governing wolf plan and the state regulations that are very specific about when wolves are going to be considered problem also they can be removed and that is those judgment calls are left up to oregon and oregon alone i was curious council there was i believe in april two thousand and eleven settlement where the federal government agreed to prepare there in the a or a full scale yes in light of that settlement how does that affect our analysis as to whether there's a major federal action here well you know the government did what it said it would do to resolve that litigation it it set it it was going to do anyway and it did so that doesn't change  or the case law about what you know creates a requirement that they need to be reform be performed as a matter of law you know and i would would point out that this court in fact has reviewed a situation where a federal agency did two thousand and two case in that that's a case cited in the comma conny case which is really central to the argument that whether need is required really focuses on whether the federal agency has the control over the non tha federal actor here and something you know that really supports that need but wasn't required here is that the record shows very plainly that oregon told wildlife services that it's going to remove problem wolves whether or not wildlife service is there to help out as his agent so it might not do it as quickly but the state made clear it's going to go ahead and do it anyway and the district court reflects that as well that wildlife services actually hasn't removed any wolves after this twenty fourteen decision and in fact oregon has gone ahead and done so independently under its program and under its authorities now if i might briefly address mr some some mr milligan specific points about why he thought the purpose was required he said well there's so much discretion about the methods that wildlife services undertakes in the field whether it's a snare or a foothold trap and we would disagree that that really rises to the level of control over the nonfederal actor it's it's really limited discretion is judgment chain reviewed and that's how i live by the fact that the record contains take permits that oregon gave wildlife services that circumscribe the kinds of trapping and the types of methods it can use in the field and that and that is found at e r five sixty one five sixty two a very plainly lays out the specific methods that could be used and makes clear that those are nationally recognized methods so these aren't some sort of surprise techniques that aren't well known to all wildlife unsurprising that wildlife services would only use quote allowable methods and will consult with oregon on the methods mr morgan made the point well it's not just assisting the state as the state agent it's the helping the tribes out but that doesn't change the outcome that need that wasn't required because the tribes the tribes of you matilda reservation there sovereigns over their land wildlife services wouldn't be controlling making the judgment calls about problem wolves there and stead the tribes would as  requires that that per private individual receive a state permit so the state decides whether or not it's going to give a caught me at a permit to a private individual and then it's not so it's really wildlife services isn't going to play any role in whether or not that individual gets a permit to allow take of it only the only involvement might be the land owner once it has the permit from the state of oregon could say i'm going to designate wildlife services as my agent to carry out my state permit since similar to you know the rest of this very limited scheme that it's really the state is calling the shots my question why here for forty two a letter from the state of oregon to wildlife services that i think it's concern was if it's doing everything on its own it's going to do before we move forward has to but it's going to take some resources state resources away from other parts of the wolf plan that the state believes all of it is important that it's an integrated program it's not just removing problem wolves it's the steps for that are education and other kinds of technical assistance so the way the state looks at it is it it could be used to help to make sure the plan is done in its most robust way with all of the elements in place comments that went on for i believe about twenty pages and it as part of an e bay that is about one hundred seventy pages all told that looks at various issues and looks at the alternatives and and points out an important u nderlying factor your honour's that the primary limiting factor for whether wolves survive in oregon is human tolerance you know that if wolves are going to make it here the most important factor is whether people can accept that that they a means of redress if their livelihood or that their economic interests are being impaired by wolf conservation that there is a way to resolve that under certain circumstances while still managing this wolf and allowing it to be conserved now that it's back and it's growing in the state of oregon the bottom line is in terms of the hard look on wolf populations wildlife service is a took a hard look it rationally found it three eighty seven that there wouldn't be any effect on the overall northern rocky mountain population of of the wolf and it rightly looked back at decades of management in the western rocky mountain states t lethal removal of wolves that the wolves are still surplus and they're actually coming into oregon from idaho so that i do hope population is basically saturating the state of idaho and moving into oregon the point being that limited removal under state direction and control whether it's just the state or the state with some assistance from its agent wildlife services isn't going to impair that trend isn't going to endanger the population  and wildlife services consulted with the fish and wildlife service and fish and wildlife service agreed that the federally listed wolves in western oregon aren't going to be harmed by what wildlife services would be doing to help oregon in eastern oregon where it's under state control that the wolf populations in oregon will continue to increase now it's always possible to ask an agency to be more specific and say exactly how many wolves in exactly how many states but under and under an e t a the new regulations are pretty plain that you focus on the essence and it's not about the number of pages or excruciating detail what's what's material here what's the most important findings that inform the agency and let the public know what the agency is looking at and here the plaintiff's arguments are what they are that yes you could do more but the bottom line is they haven't rebutted it in any and that this type of limited assistance to the state isn't going to affect either the oregon population of wolves or the overall northern rocky mountain population segment as for the non the hard look on on the non target species links you know bears coyote's e r three eighty eight through ninety and those pages especially of the e p a those those pages look at the fact question and wildlife services explained why for various sized animals and given the specifics about the trapping methods and about where this work is going to happen that it didn't believe there would be major effects and it explained why in the response to comments that is easier for eighty eight there was even more specific information that non target animal captures in two thousand and eleven accounted for less than two percent of all animal capt  in the state of oregon by wildlife services so the point is that it took a look at the effects it also consulted with the fish and wildlife service how is how is this work for the state listed wolves state managed w is that going to affect the links because that is a federally protected species and fish and wildlife service said at most minimal effects on the links as i said earlier wildlife services asked fish and wildlife service what about the fed really  wolf in western oregon is the work on behalf of the state of oregon how a second effect the fed listed wolf an official wildlife service said it's going to have an extremely minimal effect because the listed part of the state wolves there are non target species is just so i'm clear about that so now if there's the panel have any questions about the significance factors that's not something that mr milligan raised in his argument but i think it's been well briefed by the parties so let's that your honour's have any further questions the defendant's asked that you affirm the district court thank you thank you here just want to touch on a couple issues judge wardlaw you specifically asked why would the state of organ want to enter into this agreement and the answer to that is it's cheaper wildlife services as it has expertise that the state of oregon does not have  state of oregon would have to redirect funding and resources as its letter to the agency says and for the tribe say that they rely on wildlife services for expertise and equipment so it's clear that wildlife services plays a much bigger role in this program than it would lead you to believe through its briefing as to the effects on wolf populations again i want to point the court back to anderson view evans that explicitly dismisses this line of reasoning from a federal agency about just because more animals might come in to replace that population that there's no effects there might be localized short term impacts and those need to be required additionally you heard from counsel that some of the effects might be minimal but again i want to emphasize minimal does not mean no effects and even with minimal effects which we disagree that there are those should still be analyzed we respectfully ask the court to reverse the district court's decision and order the district court to vacate the decision notice an environmental assessment thank you thank you very much cancel thank you both for your argument today this matter is submitted in this panel is in recess until tomorrow at nine thirty