good morning the sole issue now an appeal involves the government's compliance with the national threat policy act in connection with its annual decisions as to whether or not what the terms of the authorize statutory men must make discretionary decisions every year as to whether and on what terms to authorize i think avail in the grand teton national park of course everyone recognizes that ordinarily there is says it is not mandatory and if they must make a new decision every single year in fact even the two thousand and seven plan and underlying programatic d i s acknowledge repeatedly and you can see these are just a couple of the why shouldn't they do need to review when they admit they're making good decisions every single year and day do in fact bring some level of analysis and expertise to bear when they decide how many don't will be killed where they will be killed what conditions impact and why don't don't don't you have the burden of shelling that there's something significant that his change in environmental consequences the hunting t new need that's not where they have to address it at all their position is you know this and they did address it and these logistical decisions they make each year don't implicate no environmental consequences you have an answer to that changes to the hunting and the environmental consequences of the hunting well that i think there have been and every year there are changes made both in terms of exactly how they authorize hunting as well as some of the impacts that have come to the fo to year this gets to the whole concept i think of period of the indigents the in the implement the great relationships addressed in theater roosevelt that you know they're not down absolutely assuming they're complying with the plan which is a central part of our argument but they're not but even if you took the two thousand and seven plan to face value it doesn't foreclose the need to look at variations in modifications that are made from year to year in fact he specifically contemplates but those kinds of variations and modifications will be made so argument is not that every time they look at a new hunting decision assuming they were playing two thousand and seven player they have to revisit every element of this broad play they've got to but i completely agree with that your honor as a matter of conceptual nepa compliance but under the sea fewer regulations implementing the as well as under the case law and we think this is also clear from the future roosevelt case itself that when they implement the plan especially a broad plan which commits itself to adaptive management has his very broad on board for sky's of parameters when they make new decisions especially statutorily required decisions that make exactly the kinds will be killed each year but every year when it makes a exactly these kinds of modifications and variations how many will be killed where that can happen they prepare environmental systems on those individual decisions which then address what are the impacts of those particular beauty ation measures why do they go far enough or there are alternatives to those and so even i think of the steamer being implemented it does not foreclose under the statute in the regulations it's really just not  from six hundred hundred one year into five hundred eighty five next year that itself i assume would not require any analysis so what is your test for identifying which changes trigger an obligation when they've already addressed the terminal concerns of hunting in the original twenty two thousand seven plan what is the test for which changes require new analysis well i think one critical part of the change your honor which is important piece of business exist i think in any other case the government relied upon the threshold obligation to make a decision every year as to whether hunting is even necessary if you look at the statute it refers to a recommendation on whether or not to have a hunting for a program for conserving the elk which is supposed to be the objective and then a decision every single year about whether that as opposed their homeland alternative there i am for this fact i think there are a lot of plans that agency's issue on the environmental area and elsewhere now will require decisions to be made annually but we don't require every implementation decision that has to be made in your only to be subject to need to review again i had thought our task wasn't there had to be a significant impact significant environmental consequences that were not previously address is that not the right time and if that isn't what is and what's your authority why i think the way to look at it i mean we do think there significant changes in terms of them very tax which the while i think that my view is that even if there is not a significant change when there is a new decision that has to be made every year about whether or not this particular approach should be conducted and in fact when the plane was issued they said that the major effort of one of the major objective was was to get down to an eleven thousand population number and the heart was part and parcel of getting down to that number well now they admit that they've reached the number eleven thousand and we have a  land so what is the task well are when it changed how would you articulate that legal test in a way that would apply not just in this case but in future cases involve long term plans i think the test involves a combination of other changes circumstances and facts that i dress either impacts that vary from year to year which i think is is clear here potentially significant an effect what the agency itself called major changes in its regulatory scheme over time as well as importantly the justification or rationalization for that action from year to year because that was more of the posts not previously addressed correct or rather and i  was when you started out why not that's not the house that can't be the best but why why why not what's to lose if they do it well there's a lot to lose actually the agency may say we can spend this time each year doing will assess all of the underlying issues we've given our best shot and now we're going to make discretionary decisions going forward well i didn't mean to be overly flippant about the wh considered to be a major new change the concept behind theory is that when you make more particular allies decisions that were when the scope of the overall program but were put off until a later time were analyzed to be analyzed and i think that's what the committed the agency to doing and so we were going to have these new decisions when necessary every year and so we think there have been changes and they recognize that they would have to be a new justification based upon circumstances as they evolved and again i said our initial recommendation was to thirty five to one hundred ratio well this is exactly the kind of question notwithstanding the fact that we've met the overall population objective that we still need as compared to other ways of regulating the other big i would raise in this connection hundred itself i think it does your honor because part of the rationale for the hunting was that they wanted to reduce the population in the population was then going over to the refuge and the fact that they have part of the plan is used as a justification for continuing hunting so it's a continuation of an activity that they said to this court quite clearly they were going to change they damn it there's also a flip side of that mine is a number of eloquent and actually gone down even  because it does also raise the question about the impact of the hunt on the refuge itself because all cut and flourish places in the record the park service acknowledge that if you reduced the amount of hunting you might actually keep more oil in the park and you would have less will go to the refuge which was the central objective of the plan and the fact that they're not meeting the objectives in the plan in order to reduce the harmful concentration of elk i think reinforces the fact that this was all seen as a overall dynamic framework that they're clearly not implementing it itself warrants some additional deeper of you so in that respect also we think there has been a significant change that would warrant a supplemental  please the court the morning your honor my name is rachel heron on behalf of the federal that howie is with me at counsel table is eric peterson for intervener state of wyoming and an aside then for intervener safari club if it's agreeable to your honor's i will use twelve  fifteen minutes that where a lot of the app ali is my only will take their remaining three i counsel for safari club will not present argument but is available should the court have any questions for the club in particular as the  conceded there is only one issue now live in this appeal and that is whether the national park service satisfied needs when it applied previously selected management to determine whether and how many deputized hunters would be authorized to remove el a given year the agency did satisfy need and if i could i'd like to start by providing a little bit of context for the format and the procedure that the agency followed here as this court has recognize see to take a hard look at the impacts of their decisions but when it comes to a decision or an agency a project that's going to have multiple stages it leads to the agency to decide whether it's going to look at all of the foreseeable impacts from those multiple stages in a single environmental analysis document or whether it's instead going to create a broad document and then tear with the series of subsequent more specific documents and the appellant has pointed out various scenarios in which agencies have chosen to do the tearing approach but agencies also frequently choose to look at all of the steps in a single document and there's nothing suspicious about that for example as the court doesn't need to look any farther than its own decisions and greenwald and in davis two cases that were cited in the briefs which involves national park service projects to hold the number of deer in certain national parks both of those environmental impact statements looked at decisions that would take place over numerous years to bring the level of fear in these part properties down to certain levels one thing that they would say is look we're two thirds of the way into this fifteen year plan here and the on which the environmental analyses were undertaken and it just hasn't happened and so when you have when agencies choose to do these longer term plans and maybe they choose at the front end to do their best job to analyze the impacts but the central premise the central predicate for you know how this is just not only isn't happening but feelings are going in the other direction at what point does the agency at davis which is that not every change requires a supplemental yes but quote only those changes that cause effects that are significantly different than what was already studied and here is the question is whether the effects of the program that's being challenged the one thousand decision in grand teton is having any significantly different effects and i think judge williams pointed out that the district court found that whatever alleged changes are happening in the program refuge with regard to supplemental feeding isn't how the and demonstrably spillover effects on the hunt itself and in fact the numbers of hunters authorized on the park every year is going down such that the impacts from hunting if anything maybe a bit less says a number of male counted also going down in the number of that are actually hunted varies from year to year it usually turns out to be something around maybe twenty five percent or a third so as the overall number of authorized hunters authorized is going down that number is generally going down but not sort of in lock step because in any given year people may have more success well this authorization of hunting needs here turns on a determination of necessity and i think there are two hundred is that the necessity wouldn't be there but for the fact that the central feature of this plan has gone haywire and so how do we how can we determine that this hasn't had a significant impact the increased feeding hasn't had this in a significant impact on your determination some hunting is still necessary or hunting is still necessary at the level that it's that it's continuing well with respect your honor i think the question of necessity really goes to the substance in the policy of the decision rather the need the need to question is whether the is whether something about the supplemental feeding is causing the impacts of hunting to be different with regard to whether there is a need for the hunter year the plaintiff or any other member of the public is free to bring a cause of action and say hey look in light of all this other stuff that's going on here necessity to terminations is arbitrary and capricious it doesn't make sense and in fact the  two eighty five and five sixty five which projects which is two thousand and seventy i as the projections of long term which is defined as fifteen years plus out hunting on the refuge and it says that it expects over the long term authorization of seven hundred seventy to about nine hundred fifty hunters each year so this is simply not a case in which the expectation was that this program was going to result in one train tapering off to nothing by the end of this plan it expected that there would be a small increase but that there would be an increase at the beginning and that would taper down but taper down to about seven fifty plus and in fact hunting it currently is occurring at about six fifty plots so it's simply not the and my understanding of work reckless that's right around to the feet is this kind of interesting aside that's playing big but i'm not getting how it's playing out importantly because that's not their challenge they're not that their fight is over the hot members of the house i think that's right your honor that's the way we see the case and i think that there is to the extent that there are concerns about what's going on on the rescues and the level of feed a challenge could be brought against the refuge or it could say that refuge needs to do additional need analysis with regard to the amount of feeding that it's doing and in that kind of case there would be the refuges participation there would be a record demonstrating exactly what's going on over here whereas here we have a case that's all about hunting the record is all about hunting and there's been no demonstrated change in hunting that's going on so i do agree that i think this sort of discussion a fe i didn't say hard and fast supplemental feeding is going to reach this number if it was a phased approach where the number the amount of feeding would go down over time hopefully as the number of the refuge went down over time you know the the alternative that was chosen here is different than other alternatives that were considered in the plan where the agencies had proposed you know driving the number of refugees the number of down that are receiving supplemental feed down and try control the population in that way that's another way of handling this it's not the way that was ultimately chosen and i do think that you know on this issue of supplemental feet to the extent there is any concern that there is some relationship between supplemental feed and the effects of the hunt i think it's important to keep in mind that the two thousand and seven he does look at the effects of supplemental feed and does characterize exhaustively this idea that as you do have more feed that that is going to result in certain risks  to the population is so it's not as if the agencies are unaware of what it potentially means for those numbers to be going up but again here when we're dealing with the hunt and when we're dealing with an agency  where this court's own words explain the answer to the why not question which is that i'm going to quote me visual reasons not to mean rethinking of everything all the time it would be absurd to require d i s on every decision on the management of federal land just get some citations and one i think response that i didn't hear and that is that the state's objective of eleven thousand has been satisfied and so even though we think the record does show increasing not given a justification for the continued hunt at all under the plan and so if you've met the objective and the statute requires you to consider every single year whether or not there will target which could include natural regulation then there is an obviously a critical dimension to deeper compliance which was not addressed in the plan it could not have been because the plan provided the hunt as well as other features of the play would be contingent upon having to meet population objectives that have now been satisfied because they've met their eleven thousand don't have their answers no doubt but that argument sounds different to me than need something is missing in the need analysis i don't think is because i think what the government and wyoming have not responded to is that a critical aspect of took the government at its word if this meant any supplemental feeding or over the course of time that was the centerpiece of the plan the opposite has happened we have more feeding on the refuge now tha the planet so it doesn't matter if that's not the issue before us and this is not the agency that can respond to that question and i understand that you feel strongly about it but not strongly enough to raise it in your opening presentation but we raise no way you would raise it because you know you can't you can hopefully go there right you you know this case your honor if i could if i could just pick bear with me for another moment it's a hundred cases but a should probably have raised more in my opening that i that was a mistake on my part but if i can attempt to respond because it wasn't because we don't think it's important i was trying to respond to the questions about what happens every year in the justification for the hunt but you're on to the critical point is that relies on the the plans objective to get to eleven thousand al interred was dependent upon reducing the number available on supplemental feed these are all presented as coordinated parts of one program one plan and so i apologize if i did not adequately address that in my opening i i think are braced to make it clear and it wasn't because we don't think i gree the hunting this is the focus but hunted was part and parcel of a coordinated plan that was presented as such and that if you're not  plan and particularly if you've met your population target even though the refugee numbers have gone up i go back to the same crucial question is why are we having a hunt and the book is all about alternatives zeus agents who controls local mental food and nobody can make a decision about whether or not hunting should continue in light of the fact that the plan that was underlying the rationale for the snake on the third party actually you want them to make a decision on hunting which will force the agencies that have the authority control feeding again or something  is the hunt that we're going to do and so the question then is if we're not doing the the plan that the park service itself sawing off on why are we implementing a couple of one hundred which was contingent upon that is the central focus when that's not happening so i apologize