utah native plant society versus the u s forest service happens naturally parts of our national forest system are left alone for service trace amount field research natural area to serve as a benchmark for what a high alpine region in the desert southwest should look like the mountain goats have never occupied the mount peel r n a or the national forest surrounding it and so the state of utah flew goats over the desert and released them about a half mile from the forest boundary knowing intending the mountain goats would make a new home rules for managing r n a s that are meant to protect that purpose and they require the forest service to disallow the source of i can see and uses that it can allow elsewhere in the national forest system and those rules are narrow the forest around it and those determinations open the door for the state to make a non permitted in unregulated use of the national forest in the r n a and to there was a failure to act research naturally are you first are arguing that the state had no right to bring in the mountain goats on their own property we are arguing that the florida and my question is very simple are you arguing that the state didn't have a right to put mountain goat or the goats on their own property yes so long as the state knew and intended that they would use unoccupied forests yes your honor ok then how do you propose to keep a wild animal migrating one place or the other i mean by any court order or by any action by any event they were going to go where they're going to go that's absolutely true your honor and what i would suggest is those really aren't the facts you're the goats didn't cross the desert themselves they were flown across the desert they could not but the day you're not arguing that state didn't have the right to do that the state has the right to bring in just like in mexico did when it brought in the goats in the new mexico is that correct the state  not have a right to do that without a permit from the forest service but i'm not talking about putting them on for i'm talking about the state putting goats on state property i would concede your honor if the goats were put on state property and stayed  there then because when they exist they have it up their right to do that it's because the state intended to make a use of the national forest system the permitting rules were triggered so is it your suggestion then that the forest service needs to build a fence to keep the goats off the federal property what we're what we're asking is for the forest service to assure its permitting authority and put the states with choice about whether to apply for a permit or defy the forest service is deman appear in the record it had seventy two after three twenty two and have three twenty five and the requests involve one that the forest service prohibit additional transplants into the forest and are in a to that regulate the transplants that had already occurred for any future transplants that might occur and three that it promptly removed the goats from the r n a and the forest surrounding it and the agency responded to those requests in a series of letters or two in the record that are crucial to the outcome of the case one of them was from a regional forester in may of two thousand and fifteen at that app seventy five and the other was from the chief of the forest service  top ranking official in the forest service in august of two thousand and fifteen and that's it at seventy seven seventy eight and in those responses the agency dealt with each of our requests on the first two requests concerning progress prohibiting additional doe transplants and permitting the transplants that had already occurred the agency as you noted said we don't have jurisdiction to control the state doesn't state land and that jurisdictional determination is the final agency action on those requests there's no argument in this case for services never claimed that it's still thinking about its jurisdiction it gave its last word on that question and it had legal consequences because it gave the state a look you've asked us a promptly remove the goats we made that request because there aren't a rules have a strict command about managing the r n a that in our view doesn't allow the agency to let go it's occupied or modify the a for service that we're not going to remove them promptly we're going to take a different course of action and embark on an open ended five year monitoring plan that has no preordained the end of this five year look what they'll say and then agree with you either so this is horrific that's correct your honor but they also might disagree with thought an important point here is i think the focus on the requests we made which is for prompt action and we have a final decision that the forest service won't will that's a question that remains to be a debatable as to what why you're here but those this seems to be questions of our decision making process not the cum ulation of the process in other words they're studying it and they have the right to do that but i don't see how it's hard for me to see on the basis of the letters of the gulf where the final action is the question goes back where is the final action taken by them and that and i think it's a process but i don't see any cumulation that this is what's going to be their final decision sure make two points  and sponsor that your honor one if you look at our letter specially in january of two thousand and fifteen this is that three twenty two we specifically requested that the go to remove the some six to eight months the forest service clearly said in its response from the chief in august two thousand and fifteen we're not going to do that and it chose to take a completely different course that's what we're saying they chose to take a different course which means then that they see an action that they can take possibly rather than having to go out and occupancy under a special use permit shall not be allowed and those two commands deprive the agency of the discretion to allow non native transplanted mountain goats that it never before been in  propose and this is just a question of interest to me how do you propose assuming that the goats are moved off the federal property that owned the state property how do you propose to keep the goats from going back tell them accord gerry bennett on behalf of the federal defendants i'd like to clear up a couple of factual issues that have been raised by the appellants arguments today number one it's important to keep in mind th hanging out there entirely is certainly you there's no record every showing that they have taken permanent residence there this is especially useful to consider if we look at page one signal that point is there shouldn't be there at all whether they come and go or take up permanent area this is not a massive area this is this is two thousand eight hundred thirty some odd apers which can see two tenths of one percent of the forest land not to mention the hundreds of thousands of acres and i don't know how that relevant really i mean if you have something that is pristine even though there's a small amount of it isn't that something that should be preserved and kept will be the forest service that's what that that it two percent of whatever million acres acres of forest service manages is not really the point or certain other point but it's important contest really to understand the landscape that we're talking about for purposes of background your honor because certainly talking about the final agency action which is really at issue here is important understand that the forest service decided in to defer distraction until it was able to study this problem more which is what it needs to do for two rea whenever it makes a decision like this it needs what worse it is basically inherited a bit of the goat released she has the right to do on its own land the forest service is now confronted with an issue if we make a decision to remove the goats the state will certainly has the action so if the forest service is going to undertake removal action it needs to have evidence that is what is necessary to do in order to avoid a lawsuit from the state saying that that action is arbitrary and capricious if we go to the next step which  here that the forest service needs to take some action to enjoin the state from doing this again this is even more problematic first of all the forest service can't file a lawsuit on its own behalf which is something you tell us a failed to address the forest service can only yes a department of justice to do that and the department of justice under case an independent review of whether to file a lawsuit i have yet to see any chase of the plaintiffs inside that was that has any court ever ordering the the department of justice were to file a lawsuit against the state of utah to enjoin it from any further releases of mountain goats on its own land it better have evidence the view that the mountain goes to the state is releasing is affecting the forest service to the point where i action here i mean in the sense but i understand your you're suggesting what might have happened but i'm wondering if you could just focus here is a you're putting counsel's argument is that they decisions we have thus far in the explaining what finally did see action means seem to suggest further study does not final agency action make in fact it's the beginning of of agency action finally agency action has to have first has to be there has to be a culmination of some decision making process this is not a culmination but the beginning because the forest service needs to study the impact of these goes on this land that it is going to didn't ask for what is what is happening on the wildlife including on on on the forest service for the first services in the situation where it has to manage its forest but at the same time work with the state in terms of managing lovelife and so were the state decides to put mountain goats on its land and those mountain goats then wander over to state land or to the federal land this is not something that the federal government typically issues a special use permit for and i think it's telling that the plaintiffs who ruled against the district  a special use permit was necessary and yet they didn't appeal that decision so this surprising for me to hear that this is such a prominent show their argument when they didn't even appeal that the district court ruled that issuing a special use permit for wildlife to  crawls its way as a property which is cannot be the case the stigma a decision and management decision which isn't titled to do as the with primacy over wildlife management to release mountain goats on its land i'm not really sure what its intent was that's not in the record but even assuming that they truly intended for them to just occupy and to go to the forest doesn't really matter because what matters is the forest service has a past to study this issue to determine now this is at the bottom of section v congress specifically states that the agency has a duty to resolve issues or to act within a reasonable time section seven zero six one allows courts to compel agency action no no your honor this is if it's not if you could give us a twenty eight j letter to give and i will i will because this is in response to the reply memorandum that simply stated that the there were five factors this court considers and looking at whether agency action is a reasonably laid and that is taking that into account the statutory requirement the length of the delay the impacts of the delay as well as the administrative impacts on the agency and the complexity of the  five five five b says is that the forest service has an obligation to resolve the requests from them in a reasonable time and so if the five year study period of forest service has undertaken is to them on a reasonable that is their losses but they haven't filed such a claim here we're only here under seven zero six two final agency action which is not not here and is i was alluding to earlier it's not here for another reason simply because the forest service is in a physician where congress is delegated to it to make decisions about how to manage forests and when asked to make those decisions to manage a forest asked to interact with state agencies this can be a very complex and at times politically charged interaction and the article two branch of government is far more suited to be able to make these determinations than the article three branch of government which is why courts have for decades waited for the agency to make that decision so that it can be reviewed instead of jumping in early which is a planets are proposing which would be inappropriate here for that reason this is an finally agency action plaintiffs and sue aversives norton were wrong in saying look there is no other way to do is other than to stop a t v use on these trails in the supreme court said no that's not the statute doesn't say that it's not  agency action in the regulations the plaintiffs cite here suffers from the same deficiency there is no discrete agency action expressed in the regulation or the statute it provides a management standard very interesting very tellingly we look at wyoming vs the department of the interior of this court decide whether the wild horse and bullets act contains a discrete engine to the action sufficient to make the agency remove horses excess horses from the range that agent that acts the suitably stated under certain conditions the agency is to remove horses that's what it says the discreet agency action that chante compelled regulation doesn't even mention any action that needs to be taken it mentions only a management standard tele and i think relating back to why this isn't final agency action the forest service has not even had a chance to interpret what those words mean the plaintiffs obviously want to have a very strict construction of what this regulation means but the forest service of this decision hasn't had a chance to apply that regulation because it hasn't made a decision for that reason this isn't finally agency action and there is no agency action to be compelled if the plaintiffs think this is taking too long and there is a remedy for that but they have an access to reveal themselves and for this reason to dismiss when the horses and burros act to immediately remove excess animals from the range is indeed a discrete one that the agency would be required to take if the predicate determinations or made that triggered that action research natural area