thank you and we appreciate your indulging us and our need for a short recess our final case on this morning stock it is forest service employees for environmental ethics versus the u s forest service so let me can i ask you very quick question you represent a group of forest service employee is and at other individuals is that right that's correct it's not just for service employees that's right all right it's includes former back require that the forest service manage national forest for water wildlife forage timber and wilderness the forest service manual which covers all the national forests and in the some questions that i have to focus the discussion if i may the st question i have for you is what is the relevant decision is that the decision by the district ranger  know how to pronounce that the final notice isn't that the decision were reviewing your honor the if that's the decision that granted the special use permit to the navy it did referred only to the final notice but i may be wrong about that is that it is a practical matter the  i think we address this in our reply brief as well this is a practical matter it doesn't matter whether it was the district ranger or the soup for supervisor who had who rely on for that final administrative action because the the the  simple fact remains the same is that there was no consideration in the administrative record for the consumer the use of private land well i have a question about that as well  in the draft environmental assessment and looking for page number is c r thirty five there is there's a comment what is the need for using national forest system lands why can't these mobile emitters be placed on private or other land ownership so response we're looking at using a signed lands underneath our am always assigned special use airspace that have forest service this ensures simplicity and consistency of access private roads and tribal lands cannot guarantee that so why isn't that sufficient to show that this was across and what the th circuit said is look you can't rely on st analysis because for the st is looking at something else and its purposes are different than yours so the standard the forest service has to address which is that can this use be reasonably accommodated on private lands is different from what the the appealing the the the agency that is attempting to use the force or is lands so in that case the forest service simply adopted what for it said and said that's good enough but what the st circuit said is the forest service is failure to undertake the analysis violates nif and that and they remanded back to the forest service to do what they called a proper analysis so the forest service there was aware of its obligation to determine whether this project could be reasonably accommodated on national not national forest service lands and relied on for it to do it for it but what that what the th circuit found is one of the main issues here no it did not there was so so i'd also appreciate your comments about that ordinarily we rely only on the original administrative record there are some narrow exceptions to that and i'm wondering if you will discuss that i certainly couldn't in this case the dish according bided further briefing after it found that there was nothing in  was by him a person who works for the navy and the nd was by the district ranger millet so mr mosher who works for the navy he to submit a declaration found it relevant parts here at the are thirty six dollars thirty seven so those are where he was basically recollecting things that he thought it that that he had taken part in from two thousand and one to two thousand and fourteen although none of that was in administrative records so let me let me see if i can i know that but here's here's my question to you if those documents are properly considered and i know you do not concede that if they are appropriate to be looked at do they demonstrate that the agency looked at that option you know i don't think so because f c then sent a lawyer to the navy and asked for all documents that relied on that motion relied on in drafting his declaration so anything substantiated the representations in that declaration and this is of course not before the court but what the response to that from the navy was six quad maps thirty four service road maps in a map of the olympic state for well but it's but that's under oath right to the declaration is under oath so maybe under oath but there were no reports in the summaries e mails no analyses nothing none of those things good dressing these private land concerns however there are hundreds and hundreds of e mails in the record hundreds of them and none of them are joel no acts you males with the navy talking about public private land concerns so obviously that f y r response is not they are and it would have been incumbent upon the forest service if there actually were these e mails to put them into administrative record even upon disagreeing millet's declaration after the conclusion of the case but they didn't do it they're not i mean they're simply not there so in milot also refers to going out in the land to test these different forest service sites at forty three dollars but there's no mention of any analysis of any of the private lands so in other words there's nothing in is although the standard to supplement the record is probably interpreted very narrowly is it proper to supplement the record when are the court has has always held in this circuit that it's that one of the standard exceptions to is to allow them to explain things however this court also held in this and lewis case eighteen but that the simple story is if that simply explained something that was already in the record it be one thing but that's not what the but these decorations did they attempted to add new things to the record it wasn't an explanation of what something it was already in the record it was adding new factual materials that unfortunately were not able to be backed up with any documentary evidence that they said existed so i had  record addresses this but  because the underlaying project that the service gave the special used permit one was the conducting of electric electronic warfare training how would that be done on private on a private parcel of land without opening up the military's training techniques to any adversaries like from naif ordinations like china or iran or russia that wanted to camp on the olympic peninsula i don't think that there's any difference in access to that that to those activities whether it's on national forest lands or on a drug tribal land or in private land you're one of the actual installations are simply a truck that drives up sets up its system puts out warning when the united states is perhaps making a an attack on a nation they can determine where the land based radar and sonar detection systems are so they can take them out in this case the systems are mobile so sit there on a truck they set up someplace they met there at the radiation and sound ways and then they stop and then they drive away and then come back on their other locations so i don't think that there's a security risk whether it's on national forest land or otherwise in fact the way it's carried out as a practical matter is that you can ride your bike or drive your car on the road up to and drive around where the image is where the  good morning i'm ellen durkee for the forest service this court should affirm the district court judgment upholding the forest service as decision to issue a special use permit to the navy council i have to say that i find us a very troubling case because ordinarily supplementation of the record is allowed when it does not constitute a purpose talk rationalization but explain something that's in the record i didn't see any rational rationale initially there was no rational was to begin with so it seems like everything was post hoc i'm very troubled by that so what is the hook that allows the supplementation of the record i think the legal hook is to see if the agency considered this issue which was their claim that it was a considered and the but ordinarily ordinarily that an agency's consideration has to be in the record ordinarily but the reason you have exceptions if you could if there are no exceptions that it wouldn't be an exception and the reason that there's there's two points i'd like to focus on in terms of why this exception was not an abuse of discretion by the district court the st of all the record is not bare and it does show that the agencies did consider this it may not have been you know with perfect clarity but they did consider this and i will go through an eye is there any is there anywhere other than that quote i read from the draft and or mental assessment where there's a specific discussion perm there is that quote i would like to correct mr bechtol who said that was not in the record that is in the record it has a big stamp of the administrative on it but the other the other places where it i think it is addressed are st of all we have the decision in the final decision is the july two thousand and seventeen decision notice in that decision it makes a specific finding it you know it sets forth this force plan provision and then it states that the navy considered all terms in this and  determined that it could not be accommodated reasonably accommodated on private land and made the conclusion that it complies with the forest plan so it's not as if they did not consider this it was specific a specific determination now what in the record backs up that terminations in addition to that early comment we also have the citing criteria and we have the application itself and granted that the application sort of phrase it in terms of justifying why four cent land is needed but i think that's typical of the way i mean that's sort of the way it's set up is to you know and that and what that provision is for is you know you have to justify why you need for service land  and the criterion that shows that then we have the maps it's that you know reinforce that there's very little private land underneath the air space where it needs where it needs to be located there's most of it  long the coastline they need they need different elevations for these sites and then there's  and i think that's those are the main ones that i would point to with the e p a having and the decision notice included new criteria as well what pages the statement on the decision notice that you're referring to the statements on then what what the what the defamations do in this case is they confirm that in fact what is said in the decision notice did occur and the declarations so this is and i would take issue with the characterization of it being a post hack post hoc rationalization rationalization is it's not a rationalization it's not saying now that we you know have been sued we're going to come up with some i you know of some reasons that you might find palatable know what it did is it explained with some specificity about discussions between the navy and the forest service and it was it was in november two thousand and fourteen decision which both to clarence you know could specify who was there and what was discussed and one thing i'd like to just sort of point out about the special use regulations is that there is through the process there's two screening process these and then there's the actual application and the screening process these are the early part and it even mentions you can orally talk to the you know the the authorized  and that is when they decide in sort of weed out those which are consistent with the forest plan and those are which are not and so the fact that there he indicated indicators are you know at the two thousand and thirteen comment on and pul draft a yea and then that the this was discussed in two thousand and fourteen to me it just reinforces that this was part of the early screening process and then you also have an e mail that was i believe december of two thousand and sixteen in which eleven person asked the other where is the justification for using forest land instead of private land and the answer was well this was the term in the screening process and then it's reflected in the application but so this is you know this is not the kind of cases where you know you're filling in something that wasn't actually considered it simply providing the confirmation of the of these conversations and i think if you know one of the cases that's most on point is the presidio case and there was another case in which this court upheld over challenge by the pla consideration of a declaration that described the that conversations had occurred and the substance of those conversations during the administrative process and that's what occurred here  i just like to the recess one other sort of factual thing i want to make sure the court that i clarify for the court there was a player in the reply brief and in the opening that special use permits are only required for activities that are not within recreation or tembe or or you know these other lists that they had in fact especially use permits are required for many recreational activities commercial activities for large group encampments and i think in considering what needs to be shown as far as private lands being you know reason be able to accommodate i don't think we want to be in a position of asking the boy scouts to come in and rule out all private land before they can have a large encampment so the this kind of consideration in general is this an appropriate use of private land for navy training i think there's a great deal both in the that is there any national security or military reason why the training is superior or would be superior force service for live rather than privately or was it is that not an issue like well i think i don't know not that i'm aware of in terms of the actual where the signal is originating from whether it be on private land or on on public land you know given if you had the criteria that makes that usable i do think that one you know one of the back tears and a reasonable factor here is that if you put it on private land and you have to coordinate with a bunch of different landowners as opposed to you know public land that starts creating problems both you know it in terms of administrative problems but i would also think in terms of how many people have to be informed ahead of time of you know training exercises of a cut not a response to the comment in the way or the draftee it was guaranteed access isn't available on private or tribal land and it's simpler and we want easy access and simplicity there wasn't a military rationale was given in the record rose there not a not in terms of i think this question about whether there is a security risk you know whether in terms of the ownership but in terms of needing access that's i mean that is what they need they need to be able to use them without having to necessarily set them up ahead of time and on short notice and they do need these different sites so that they can move in fact some of the training involves the moving during the training because that's part of learning how to detect the source of these the navy responds that having an on the forest service would gives its simplicity and consistency of access is that's the navy's analysis it's not the forest service analysis the job of the forest service is to determine whether it this use could be  accommodated somewhere else and frankly the terms of a private lease could prevent public access whereas on national forests the public has access so if the russians one of the get to it they could get it easier on national forests and they could on private land as a practical matter again the it's the forest service is obligation to can consider where there could it could take place on private land and not on the national forest obviously especially those from it for a golf course is probably not going to be approved on a national forest because it can be accommodated on private land better so that when you have a special use permit such as people who are not part of the forest service you want to use force or as lands you need special use permits regardless of what it's for and if i misled you know the way i had certainly intention to the f c put the forest service on notice that they'd have to do d n a analysis for private lands throughout the ministry to process again in again and again three times if the said look you have to guarantee that is that this cannot be accommodated on private lands but the forest service didn't take that into account and i'd just like to bring the court's attention once more to that these these post talk declarations did not put any they had a chance to bring factual things into the record there are no emails or meeting notes or anything else like that there are thousands of pages of meeting notes and emails about other things to do at this permit in the a r but there's nothing in the a r at all about emails or anything or meetings that dealt with accommodation some private lands so it's simply devoid and what we've asked the court to do is is simply under the a p a remanded back to the agency and say do the analysis and then bring it back if we if we were to decide that the case should be remanded is your i understood your position from the briefs was that there would have to be a vacant  they actually put out a written another decision so if it's not vacated in the navy is allowed to keep going as they are it is sort of it begs the question are you just finding excuses to fight to get your decision that your ready made i think if the forest service has an opportunity to actually do an analysis just like the cow pasture case required that they would do their own analysis and do their own determination of whether or not these could be accommodated on private lands so i think that because those post talk that the ration brought in information that was frankly not before that is asian makers i think that the forest service is obligated to take a look at the decision from the beginning and do a proper analysis that simply didn't happen here the district court found that there was no analysis in the record in the district or it was right but the district court i think took the faulty step of asking that the asking for a supplemental briefing and then determine even that would be opposed talk rationale and said look but to makes matters simple i'm just going to consider them and i think they did what they should have done but unfortunately there was no record that they even with those declarations that they did what they should have done because i think the representations in those declarations are unsupported thank you counsel thank you appreciates just argued is submitted we appreciate from the arguments and for this morning session when you're