talk about what is not in dispute in this case because we are after all asking for genova or review of summary judgment and our case is premised entirely on the record on what the forest plan requires and on scientific fact that the forest service does not dispute so since what is at issue here today as a wildlife management area let us begin with a scientific all of our legal arguments according to the forest service biologist in this case juniper woodlands provide vertical and horizontal vegetative structure that enhances wildlife use the vertical structure associated with juniper woodlands increases the richness and one city of bird species juniper woodlands provide a sharp contrasts with adjacent grasslands increasing available cover for tickle structure and habitat interspersed from and hence the number of potential niches available for wildlife studies have found up higher bird densities and greater species on the the the fact that the forest service is has for years now then basically eliminating forest can't do that because it's not oh it's not a big game management area your honor it's a wildlife management area and all of their management and this area of the national for system and only in this area of the national forest system is required to benefit wildlife generally more specifically required to benefit wildlife  habitat requirement will further the goals of the forest plan which is to benefit the species and they also state that the the the amount of cover remaining is at fifty percent and so there is an issue with sufficient hiding required and benefits those species and since the cover remains a fifty percent cover it doesn't detract from their ability their coverage needs their hiding cover in by a categorical exclusion that we have no idea what impacts we know there are adverse impacts of this management regime on species wildlife species favor s such as pine martin and northern gaza hawkers no dispute that those species are adversely impacted we have no idea what the extent of that impact is because they have not complied with the forest plans monitoring requirements well hold on the question is whether they're entitled to a categorical exclusion you're asserting that there's definitely adverse impacts there may be there may not be the question is does the they're taking advantage of is that if it's wildlife so therefore that doesn't require environments and you're saying it doesn't benefit wildlife so for instance for instance it is a matter of scientific fact in this case the removal of shrubs and conifers decreases habitat for some wildlife species so there exclusion i think the relying on east six timber stand and our wildlife habitat improve activities that do not include use of herbicides or do not require more than one mile of low standard road construction is that correct is that the categorical exclusion so it doesn't say and if it's habitat but as i understand the categorical exclusions as the forest service is on it's experience has determined that these sorts of activities did not have an adverse effect on the environment and so they they've already made the determination that activities have fall within the  exclusion don't have an impact on habitat or wildlife or the environment that's adverse so this are you saying there are some extraordinary circumstances in this case and if so what are those extraordinary circumstances yes st of all the kind of cocoa exclusion does not exclude does not mean that they can't they don't have to comply with the forest plan with respect to monitoring the district courts and there was constant training and there was only one missing so annual report into any sixteen but but the at lack of such none of the annual reports your honor if you look at the record unless you going all the way back to nine hundred and eighty two none of the annual reports disclose the impacts of eliminating shrub and conifers on wildlife species of concern other than al and mills here so there's a whole array of wildlife that they're required to management manage for not just not affecting thirty square miles they just have scattered treatment areas is that iranians i'm sorry can you have the cross now the government says it is not covering thirty square miles it just has scattered treatment areas here in there over the area is that iran is this thirty there's thirty square miles total of treatments regulations well hold on cumulative impact is the increase from the action i see but it is when added to other prior actions and there's never been any new poll done on those prior actions we didn't learn about  actions until this problem let me ask it seems to me you've got some procedural aspects to your case and then there's substantive ones and a procedural one you said they didn't follow of environmental impact statement and that course issue is whether they are required to is in front of us and you said that they didn't one thousand reports and so forth and i think you are going to so therefore we didn't have the information we needed i understand those those arguments but as it relates to the substance capricious or are you saying because of the perceived failed to follow procedural rules to provide information that this they should not be allowed to proceed which which one is  way up for this area is naturally locked and hard uncover and all the monitoring done under the forest plan up until this project showed dramatic noncompliance or dramatic shortages of har satellite view or some kind of view in two thousand and eleven and they determined that they have been drastic changes from two thousand and five and that trees were growing saplings were coming up and that the coverage wasn't a or on the record before it or you challenging it based on the fact that since they didn't provide information of the type that you think they should have provided their decision should be reversed yeah and that's what i was getting too so what we have is this that it has been sent back to the forest before to redo their hiding cover analysis because it was inadequate so here the question logically is wait a nd for twenty years in an area that's naturally deficient hunting cover all of  there's magnitudes of order increase in hunting cover how can that be and there is no explanation in the record ok the explanation to the court to lower court which it accepted was there's a dramatic increase in an under story vegetation ok the fifty percent proxy for measuring hiding however is canopy closure the reason that there is a dramatic increase in understory vegetation is because of a beetle kill over thousands of acres that's opening up the canopy the trees and the top story are dying and under story bu remarkable phenomenal almost miraculous sort of development in the record that was never discussed how can the forest number explain to the public how all of a sudden an area that was between one and twenty percent hunting cover is over thirty five percent higher than cover in a matter of six years during a time when trees are part part of the problem with your argument there is that it relies on prior actions now and now you're i mean you're trying to tie that in by sane i guess i'm trying to reconstruct your argument is that because they didn't adequately address the status quo therefore they couldn't make a proper decision over whether this cumulative impact would have been significant such standards so how can they go forward with continuing to eliminate because we didn't know they were doing this before but continuing to eliminate excellent hiding cover which is you know colonization of the that's your client's view but but it does seem like there is adequate evidence in the record that they can i mean all they had to do was consider it and they did consider it they seemed to be very upfront in recognizing they were scaling back the hiding cover but that was offset the increase in vegetation and i mean the forest plan when was the foreseen when adopted that you're saying they didn't comply with eighty six so i mean what is your position that they have to continue to comply with every aspect of that if there's changing circumstances i mean if they amend unless they amend the forest where did they not comply with the eighty is it i think it was eighty two if that's the one i'm thinking well what is it that they what specific provision the eighty two dollars forest plan are they not complying with well the hard uncover standards of what we're talking about but what do they say about the hiding over standards they say that there was and an incredible like magnitude the requirements and so your challenge is factually you don't believe and i understand now we're saying it's implausible to say that you can you can explain a dramatic increase in height in cover by a dramatic increase in under story vegetation because they're relying on the proxy of canopy closure to show compliance with the hard and cover standards that they've number complied with before and under vegetation issue can't be it can't be surrogate for the cabbie closure issue the last thing he was he was addressing sure so the forest plan lays out two possible metrics used to evaluate and  ciding cover standard one relates to essentially if you're if you're staring down the forest and you see a tree and there's an elk behind it is at least ninety percent of that elk covered by that tree at two hundred feet so it doesn't make sense that if you are looking horizontally across the land understory growth would contribute to hiding that elk so in that sense understory growth does contribute to providing hiding cover for elk however the metric that's being talked about in this case is a canopy coverage metric which does deal with an aerial image taken of the area that says you know if if there's sufficient canopy cover in an area that likely translates to sufficient cover underneath those trees that would provide cover for elk but the the argument of the forest service has made here and that's well supported in the record is that both both there has been under story increase but the forest service has also appropriately modeled and uses that used that satellite data to accurately determine hiding cover over the past twenty years as best it can and if it's all right i'd like to address this hiding cover point using three different three different points the st is to clarify that the forest service has not had a sort of long history of data about hiding cover that is now dramatically changed what  data points one is a two thousand and five satellite image upon which a model was based this view math model and it's had a two thousand and eleven satellite image that was analyzed with eight hundred and twenty four thousand model so st of all it's just two data points so when you look at million eighty two thousand and nine reports they're all relying on that st data point that the forest service had which did show less hiding cover in these areas however that two thousand and five model explicitly incorporated the predicted out break of the mountain pine beetle and included those predictions for decrease and cover in that modeling activity and that's reflected in the record in the supplemental excerpts of record at page one thousand four hundred and thirty nine dollars when it says that the it's talking about the criteria for the wildlife models and says they're expected to the forest service has is an updated image the two thousand and eleven satellite image that it got a little bit later than that it built a new model or updated its model to analyze that impacts that image and accuracy test of that model so in the record there's a reviewed the model and analyzed how it how it how its predictions about and cost of occasions for an area were reflected in the actual satellite imagery in the whole document is available in the record if you'd like to s the forest service's responsibility is to comply with this fifty percent standard and its data its most up to date data demonstrates that it complies with that standard fifty percent standard came from the two thousand and fourteen model and the fifty percent standard is in the  is still being complied with yes although it's only been complied with in two out of the three relevant heard units here which is why there's no activity or treatment planned on the i believe it's called the devil's fence her unit because that hiding coverage level is still below what's required in the standards and so there is no activity taking place there and in both of the other two units the north and south crow units treatment will only take place so that hiding cover is not reduced below that fifty percent standard and i just know that the forest plan standard doesn't say hiding cover should be maximized to the exclusion of all other habitat types it says hiding cover must be maintained no less than the standard and whatever is the proper mix of habitats beyond that that will best benefit particularly the species that require that is a judgment of the forest service is supposed to me what one of the problems i'm having with this case is what is actually before us because there's been a lot of arguments thrown out there and what are we reviewing i mean can we say  long as the forest service is maintaining fifty percent cover there is no challenge or you are responsible to indicate there's still a decision that has to be made i mean you theoretically could take it back to fifty percent but it could cause harm to the wildlife and is that is that any wildlife or what needs to be considered there so i think with regards to know if there is a substantive component of the statute that the the forest service must comply with the say well wait a nd that's not actually that that's causing harm to the to the wildlife right i mean that the forest plan does have a general proposition that the this area must be managed to the benefit of wildlife so if there was a decision by the just violate could you violate that provision separate from the fifty percent standard that's in there i don't think that's certainly not what's taking place here and what the plaintiff has it is that what they're arguing i've got to help us because i don't understand what there are it's a little bit of a grab bag of arguments i my understanding of it is that under plaintiff is essentially making a couple of challenges to whether or not this particular project complies the forest land standards the most straightforward one of those i believe is that this project does not comply with the hiding cover standard established in the forest plan there all the also these more generic toward these more sort of generalistic challenges about whether or not ecosystem management is permitted underneath the forest plan or whether ways that even it is that is discreet agency action that subject to  i guess it's subject to review for arbitrary capriciousness in the context of this final agency action is that correct right so what plaintiff would have to show is that something about the use of ecosystem management caused this particular project to be inconsistent with a standard of the forest plan not a sort of wholesale challenge to the general way that the forest service choose to go about selecting its projects in compliance with plan standards and then plaintiff similarly seems to be making a general challenge regarding the either public participation or release of annual monitoring data on behalf of the force by the forest service but again that doesn't show in any way that this particular project does not comply is not compliant with the requirements well you can even challenge that or i guess  challenging the annual reports they're saying the forest service didn't it didn't comply didn't consider didn't properly consider those plans or those plans were they didn't adequately reflect what was actually going on i believe that that's the argument that somehow this project is must fail because it was not based on a sufficient consideration of monitoring that maybe wasn't done and at least wasn't released and in a report with the and fifteen and so it's really based on monitoring data before that point in time because the forest service has continued to monitor since that time and also again the challenge as to whether or not this project is compliant not whether or not the forest service habitat for elk and species that require these other types of habitats and this particular wildlife management unit is really unique in that it doesn't just involve these high mountain areas that are the forest service office often manages but it also involves the foothills right this continuous swing of land and so there's many different habitats their habitat types there that the forest service has to take into account and has to manage together and so it has to balance providing healthy forage for an elk with providing grasslands specifically for ground nesting birds to use with you know heavy juniper white pine bark pine areas for other species and so once it complies with the forest plan standard to meet this fifty percent hiding cover the other decisions that it makes about how to properly benefit that  do seem to be arguing that it's you have it the forest service has not properly considered the harm done to some of these large game animals is there any amount of harm that c done to some of these other animals that would violate the forest plan i think in the abstract it's possible that if you decided to go out and eliminate every tree that had a nest of a particular type of bird that would be problematic under the forest plan but that's certainly not what's happening here well and i mean it may not even be a violation of the forest plan it might be a violation of other environmental laws but i just trying to understand what their hook is in the forest plan because they seem to have so very heartfelt complaints about how the forest service is managing it but we're trying to fit that into a legal construct and it's hard to know where that comes and can you talk about the categor because i mean is that is that one of the ways that some of their arguments could coming in to play is it would be if there was such harm to these other animals could that invalidate reliance on the categorical exclusion yes because if you had an instance where there was an extraordinary circumstance present like the presence of an endangered species that would be negatively impacted by this project then the project would no longer be properly their posing council's argument that there were extraordinary circumstances because the government failed to consider the entire roadless expanse and the potential designation as wilderness i think that's those are the two points they made that required something beyond the categorical exclusion can you address that so the forest service explicitly considered the impact of this project on the roadless area and the continuous additional roadless areas around that and that is reflected in the record and they specifically went through in considered what the impact would be on things like the ability to do primitive recreation on the view shed and they generally determined that the impact would either be short lived for example you'd very briefly see cut down trees in areas where trees had been you know selectively removed or but you would ultimately have a positive experience positive benefit to the wilderness characteristics of this area because it would increase the sort of natural or need of condition of the ecosystem but what's important is that the forest service explicitly explicitly went through in considered the impacts of this project on the inventoried roadless area and that's reflected in the record let me ask you about you now got a fight here in court and i'm not saying that it's an issue regard to whether they're what was a categorical exclusion that was warranted you did a lot of work it seems to me on the line that to get to that conclusion is seems  that there may be strategic reasons why you didn't want to do environmental impact statement but how often does that happen is that in these is a fairly complex factual situation with complex analyses yet there's no statement why but i think the important thing to note about a categorical exclusion is that it represents a category of actions that the forest service has determined generally don't have any significant effect on the environment and so it's appropriate for the forest service when it's doing these i think the district court called it a minimalist in both impact and scope type of project that they shouldn't be then responsible for doing you know an entire yes if they already know going in that the project will have significant effects because they both it's both subject to the categorical exclusion and there's no extraordinary circumstances present and i think that's well documented in the right and i understand what the law is but you see this is being a minimum was kind of project is and that's what the clue joie now let me ask you is i'm not suggesting that you are required to have one but if you were acquired to have one you didn't that would cause us to reverse the judge completely here right if you thought that a  of significance as an environmental impact statement or less so no i think the annual monitoring report issue here really focuses on whether or not the forest service is complying with any obligations it might have to to monitor and to use that data as part of its management activities in this area and i think the record certainly demonstrates that the the service has extensively monitored this area it's considered the impacts on a wide variety of populations animal populations and on vegetative species and then it's used that data and shaping the choices  makes about management i think that amount of monitoring data certainly underlies the services decision to try to move forward with a project like this and to know that it's properly subject to a categorical exclusion because it's not going to have a significant effect because they have all of the stated underlie why this project is appropriate cause significant effects to wildlife diversity or associated with the habitats targeted here as i mentioned before it is not contested in this case that removal of shrubs and conifers decreases habitat for some wildlife species we're not told which there is no analysis of what's how much of that harm yes the problem with that argument it seems is you're basically arguing the categor exclusion is just him proper not in these circumstances but it is wrong to begin with for you seem to be challenging when you do the extraordinary circumstance analysis and disclose that oh by the way there's thirty square miles of treatments that we've done since two thousand that we have done no e a a very i asses on right and this is a continuation of the wildlife that likes trees and shrubs because we happen to think most wildlife likes trees and shrubs better than grass this is national forest land not a national grassland so we're not saying necessarily that the forest service what they're doing is absolutely wrong from a wildlife perspective we don't know what the tradeoffs are we know there are trade offs and this is the only in the entire nation where they're required to manage exclusively to benefit wildlife species and they're only benefiting elk and we think any i r s is required to tell us what the trade offs are the ongoing management i think we have your