[00:00:07] Speaker 00:
We're still rustling papers.

[00:00:11] Speaker 00:
Okay, I think we're good.

[00:00:13] Speaker 02:
Good morning, Your Honor, as the Mayor of the Court.

[00:00:15] Speaker 02:
My name is John Meyer.

[00:00:16] Speaker 02:
I'm here on behalf of Appellant Cottonwood Environmental Law Center.

[00:00:20] Speaker 02:
I'd like to reserve three minutes for rebuttal, please.

[00:00:25] Speaker 02:
This case involves the forest services analysis or lack of analysis in southwest Montana for domestic sheep grazing in the Gravallee Mountains.

[00:00:35] Speaker 02:
The Gravallee Mountains are really important because they are a corridor that can link the Yellowstone National Park grizzly bear population to the Glacier National Park population.

[00:00:43] Speaker 02:
Those populations are not connected and there's concern from biologists that they're

[00:00:49] Speaker 02:
need to be to ensure there's genetic connectivity.

[00:00:52] Speaker 02:
And so right in the heart of this public land corridor for grizzly bears, we have 15,000 domestic sheep grazing.

[00:00:58] Speaker 02:
And there's been dead grizzly bears, dead wolves, dead coyotes, black bears, all sorts of things.

[00:01:05] Speaker 02:
In this mountain range, the gravelly range, there's a mountain called Bighorn Mountain.

[00:01:09] Speaker 02:
And bighorn sheep are not allowed on bighorn mountain because of the domestic sheep.

[00:01:13] Speaker 02:
And so the plaintiffs in this case, in 2015, asked the Forest Service to look at this significant new information.

[00:01:21] Speaker 02:
There's dead grizzly bears.

[00:01:22] Speaker 02:
There's bighorn sheep that are dead.

[00:01:24] Speaker 02:
This is new information that requires you to prepare supplemental NEPA analysis.

[00:01:28] Speaker 02:
And we also said this information is significant.

[00:01:31] Speaker 01:
In the answering break, the government argues

[00:01:36] Speaker 01:
Plaintiffs have not pointed to any legal authority that creates some new, discreet legal requirement to prepare a new even analysis.

[00:01:46] Speaker 01:
And they say because plaintiffs have alleged no further discrete action that the Forest Service is required to take, their claim has to be dismissed for lack of subject matter jurisdiction.

[00:01:57] Speaker 01:
Point to legal authority and if so, where is it in Europe?

[00:02:02] Speaker 01:
And besides that, what's the further discrete action the Forest Service is required to take?

[00:02:07] Speaker 01:
Do they have to do a new NEPA?

[00:02:09] Speaker 02:
Yarn, the Forest Service has to prepare supplemental NEPA analysis.

[00:02:13] Speaker 02:
That is the discrete agency action, is a supplemental NEPA analysis.

[00:02:17] Speaker 03:
But they did so here.

[00:02:19] Speaker 03:
They created a FONSI in response to the district court.

[00:02:24] Speaker 03:
You went to the district court.

[00:02:25] Speaker 03:
The district court said, you know, you make a good case.

[00:02:28] Speaker 03:
They may not have considered all these matters that you raise.

[00:02:32] Speaker 03:
You sent it back to the Forest Service, and they said, oh, now we've considered them.

[00:02:36] Speaker 03:
We don't think they have a significant environmental impact.

[00:02:40] Speaker 03:
And now you're back in the district court, and you say, well, they were wrong.

[00:02:45] Speaker 03:
They really do have a significant environmental impact.

[00:02:48] Speaker 03:
And the district court said, you raised these issues before, and I sent it back.

[00:02:56] Speaker 03:
And so this is claim preclusion.

[00:02:58] Speaker 03:
You can't raise new issues now in front of me.

[00:03:01] Speaker 03:
And I think the Forest Service did what it needed to do when I sent it back.

[00:03:05] Speaker 03:
That's the decision you're now attacking.

[00:03:08] Speaker 03:
What's wrong with that decision?

[00:03:10] Speaker 02:
The second decision, Your Honor?

[00:03:12] Speaker 03:
Yes, because you're not appealing the first one.

[00:03:15] Speaker 03:
First one, you won.

[00:03:16] Speaker 03:
Yeah, yeah, exactly.

[00:03:17] Speaker 03:
You like that result.

[00:03:19] Speaker 03:
Second time, you come back to Judge Morris and you say they didn't sufficiently consider some issues.

[00:03:26] Speaker 03:
And he says, those issues existed back when you first came to me.

[00:03:30] Speaker 03:
And if you thought they hadn't sufficiently considered them, you should have raised them to me then.

[00:03:35] Speaker 03:
And I would have ordered them to consider them and address them.

[00:03:39] Speaker 03:
But you didn't.

[00:03:40] Speaker 03:
And therefore, your claim is barred by claim preclusion.

[00:03:44] Speaker 03:
Would you address that ruling for me and tell me why you think it's wrong?

[00:03:48] Speaker 01:
Yes, Your Honor.

[00:03:48] Speaker 01:
I mean, there's the same dead bighorn sheep in both instances, right?

[00:03:51] Speaker 01:
There's only one.

[00:03:52] Speaker 03:
I believe so, Your Honor, yes.

[00:03:53] Speaker 03:
So I'm having trouble to the extent

[00:03:56] Speaker 03:
that when you come back up and say, well, you sent them back to consider some stuff, but they didn't consider A, B, and C, I think Judge Morris makes some sense when he says A, B, and C existed back when you first came to me.

[00:04:10] Speaker 03:
And if you thought those were issues they should have considered, you should have told me that, and I probably would have ordered them to consider them.

[00:04:16] Speaker 03:
But you can't wait now to raise them for the first time.

[00:04:20] Speaker 03:
That seems to me the basis of his claim preclusion ruling.

[00:04:23] Speaker 03:
Tell me why you think that's wrong.

[00:04:25] Speaker 02:
These are different final agency actions, Your Honor.

[00:04:28] Speaker 02:
We could have never challenged the significance determination in Gallatin 1.

[00:04:33] Speaker 02:
In the case of 1, we could have never challenged the significance determination because it was never decided until after Gallatin 1.

[00:04:39] Speaker 02:
No, no.

[00:04:39] Speaker 03:
Of course you couldn't have decided the significance determination.

[00:04:43] Speaker 03:
But you could have raised the issue

[00:04:45] Speaker 03:
that these facts that you raised for the first time the second time were issues that the agency sort of considered.

[00:04:54] Speaker 03:
And I think what the judge was saying is you can't keep them in your pocket and wait till you come back later and ask me now to send it back again to have them consider those.

[00:05:02] Speaker 03:
You should have raised them the first time, and I would have told them to consider them.

[00:05:05] Speaker 02:
Your Honor, Judge Morris remanded back to the Forest Service to consider the five pieces of new information and any new information.

[00:05:12] Speaker 02:
Any new information.

[00:05:13] Speaker 03:
Not any information that was old but you failed to raise, but any new information.

[00:05:18] Speaker 03:
So tell me why this was new information.

[00:05:20] Speaker 02:
new in the sense that since the original NEPA analysis was completed, not since the decision was made, it's new since the original NEPA analysis was completed.

[00:05:30] Speaker 02:
And so in this sense, some of the analysis was prepared in 1970.

[00:05:33] Speaker 02:
The seven allotments of the NEPA was between 1970 and 2000.

[00:05:36] Speaker 02:
So there's a lot that's happened since that time.

[00:05:39] Speaker 03:
But if you read it that way, it leads to a strange result.

[00:05:43] Speaker 03:
What it means is you can come to the district court and say, there's five problems that lead them to have to do a new NEPA analysis.

[00:05:50] Speaker 03:
And the judge says, I agree with you.

[00:05:52] Speaker 03:
Go back and do a new NEPA analysis.

[00:05:55] Speaker 03:
And they do, and they address those five problems.

[00:05:57] Speaker 03:
And you say, there were three more that I could have raised back then, but I didn't.

[00:06:02] Speaker 03:
I want to raise them now, send it back again.

[00:06:04] Speaker 03:
And that seems to me to be not good procedure.

[00:06:09] Speaker 03:
So none of these arose after the judge's first remand.

[00:06:12] Speaker 03:
They were all issues that were in existence after the first remand.

[00:06:16] Speaker 03:
So I'm having trouble getting around that.

[00:06:17] Speaker 00:
Is that premise correct?

[00:06:19] Speaker 00:
I agree.

[00:06:19] Speaker 00:
I had the same question.

[00:06:20] Speaker 00:
Is that premise correct that none of this is new?

[00:06:22] Speaker 02:
Your Honor, there were new factual pieces of information about grizzly bears and their impacts since Galactin 1 was decided.

[00:06:35] Speaker 00:
What are you relying on for your new evidence that couldn't have been raised first time?

[00:06:43] Speaker 02:
There was information regarding impacts on cursory bears and information regarding impacts on recreationalists.

[00:06:53] Speaker 02:
And those impacts have occurred since Galacta 1 was decided.

[00:06:56] Speaker 03:
But those same impacts had occurred before, had they not?

[00:06:58] Speaker 02:
Yes, Your Honor, they did.

[00:07:00] Speaker 00:
So that's why I'm having the same trouble here.

[00:07:02] Speaker 03:
So I'm trying to figure out

[00:07:04] Speaker 03:
what new you raised to the agency after the remand that you couldn't have raised before.

[00:07:12] Speaker 03:
You may have had an additional fact, but the argument, which is that you have ignored the effect on hikers and you've ignored the effect on predators, was available to you before and you didn't make it.

[00:07:24] Speaker 03:
And that's why I'm troubled by this notion that your position seems to set up a revolving door.

[00:07:30] Speaker 03:
As long as I can find a new fact that occurred after the remand,

[00:07:34] Speaker 02:
Your Honor, I understand that concern.

[00:07:37] Speaker 02:
And I think that if the Forest Service was concerned about that, if they were really concerned about that, they would have said as much in their response to the comments.

[00:07:46] Speaker 02:
But they didn't.

[00:07:46] Speaker 02:
They accepted all this information, analyzed it, and said none of this information is significant.

[00:07:51] Speaker 02:
And now, in litigation, they're saying, well, you're precluded from that.

[00:07:54] Speaker 02:
They should have said, you can only raise the five pieces of information you want on Gallatin 1.

[00:08:00] Speaker 02:
But the public, everyone else, submitted comments regarding grizzly bears impacts on recreation use, all sorts of things.

[00:08:07] Speaker 02:
And the Forest Service analyzed all that information.

[00:08:09] Speaker 03:
So this gets us back to because

[00:08:11] Speaker 03:
The district court never, because it ruled on claim preclusion, didn't say, well, your finding of no environmental significance is good, bad, or indifferent.

[00:08:21] Speaker 03:
It just said you can't attack it for the same reasons you could have before.

[00:08:26] Speaker 03:
But it also seemed to cite the rescission act.

[00:08:30] Speaker 03:
So tell me why, since they were in the process of doing a new environmental assessment, I think.

[00:08:37] Speaker 03:
Maybe it's an EIS.

[00:08:38] Speaker 03:
I forget what you have to do.

[00:08:39] Speaker 03:
They're in the process of doing something.

[00:08:41] Speaker 03:
Why the rescission act doesn't buy your claim?

[00:08:44] Speaker 02:
Your Honor, the rescindence act was put in place to ensure that actions that have not had NEPA at all can continue to go forward until NEPA is complete.

[00:08:53] Speaker 02:
In this case, six of the seven allotments have had NEPA completed.

[00:08:56] Speaker 02:
And so the rescindence act does not apply.

[00:08:59] Speaker 02:
Judge Moore said that in Gallatin 1, said the rescindence act does not apply.

[00:09:03] Speaker 02:
The Forest Service did not appeal that decision.

[00:09:06] Speaker 02:
And so they're now stuck with that.

[00:09:08] Speaker 02:
And so we're saying.

[00:09:09] Speaker 03:
No, they won.

[00:09:10] Speaker 03:
They don't have to appeal anything.

[00:09:13] Speaker 03:
the second time through.

[00:09:15] Speaker 03:
They did raise the rescission act in defense the second time, didn't they?

[00:09:20] Speaker 02:
In the second case, in this case, yes.

[00:09:22] Speaker 03:
So they're entitled to defend the judgment on any basis supported by the record.

[00:09:27] Speaker 03:
They don't have to appeal.

[00:09:28] Speaker 03:
They won.

[00:09:29] Speaker 03:
So I'm not sure we need to address the rescission act, but I don't see how they forfeited any reliance on it.

[00:09:39] Speaker 02:
The Forest Service said that we're going to prepare NEEP analysis, consistent with the Resilience Act, in 2019.

[00:09:47] Speaker 02:
They said we'll have an EIS done in 2019.

[00:09:50] Speaker 02:
That's coming on.

[00:09:51] Speaker 02:
They said the same thing in 2020.

[00:09:52] Speaker 02:
We're going to do it by 2022.

[00:09:54] Speaker 02:
That is coming on.

[00:09:56] Speaker 02:
We keep hearing the same thing every year.

[00:09:58] Speaker 02:
We're going to do it.

[00:09:58] Speaker 02:
We're going to do it.

[00:09:59] Speaker 02:
And at some point, the rubber has to meet the road, Your Honor.

[00:10:02] Speaker 02:
If the Forest Service can be compelled to complete supplemental NEEP analysis, this Court has jurisdiction to require them to do it in a timely manner.

[00:10:10] Speaker 03:
Well, we only have jurisdiction to do so if

[00:10:14] Speaker 03:
They have a mandatory duty to do so by.

[00:10:17] Speaker 03:
And you don't cite a, we get to the reply brief before we find a reg that supposedly supplies the duty.

[00:10:25] Speaker 03:
But that reg says they can extend it.

[00:10:29] Speaker 03:
And so does a duty that can be extended at the discretion of the agency provide a mandatory duty?

[00:10:36] Speaker 02:
General Section 7061 of the EPA allows a party to bring undue delay claim.

[00:10:43] Speaker 02:
And so in this case, Section 706.

[00:10:45] Speaker 00:
When there's a report when the agency is required to take an action.

[00:10:49] Speaker 02:
An agency action is undue delay, yeah.

[00:10:51] Speaker 02:
And so the action in this case, and granted, this goes to remedy.

[00:10:56] Speaker 02:
Assuming that the information is significant, the court can then order the Forest Service to prepare supplemental NEPA analysis by date certain.

[00:11:06] Speaker 02:
I think the jury's still out on whether the information we've provided is in fact significant.

[00:11:11] Speaker 01:
So for example, more hikers said, I was frightened by a sheep dog.

[00:11:18] Speaker 01:
But it's the same client.

[00:11:22] Speaker 01:
Am I correct?

[00:11:25] Speaker 01:
You have additional, initially you had hikers saying,

[00:11:28] Speaker 01:
The sheepdogs are frightening, they run at you and so on.

[00:11:31] Speaker 01:
And then what you're saying is there were more people saying I was frightened by a sheepdog, but they're not saying something different.

[00:11:40] Speaker 02:
I think they're saying we're frightened by sheepdogs and other, we can't hunt in this area, we can't use this area to recreate it, et cetera.

[00:11:56] Speaker 02:
There was no judgment on the merits regarding the significance, Your Honor.

[00:12:01] Speaker 02:
And so the just- That's right.

[00:12:02] Speaker 02:
We understand that.

[00:12:04] Speaker 03:
The judge said this is claim precluded, so I don't have to address the claims.

[00:12:10] Speaker 02:
Well, I mean in Gallatin 1.

[00:12:13] Speaker 02:
So we said there's new information, and we said Gersey bears recreational use.

[00:12:17] Speaker 03:
There was a judgment on the merits.

[00:12:19] Speaker 03:
The judge said the agency hasn't addressed these issues.

[00:12:24] Speaker 03:
You're correct.

[00:12:26] Speaker 03:
And it should.

[00:12:27] Speaker 03:
And so I'm remanding for them to address them.

[00:12:30] Speaker 03:
It doesn't have to reach the final issue of whether or not they were significant or not.

[00:12:37] Speaker 03:
What he's saying is, you brought an APA case to me because you think the agency's action was arbitrary and capricious.

[00:12:44] Speaker 03:
I agree with you.

[00:12:45] Speaker 03:
They never address these issues.

[00:12:46] Speaker 03:
You win.

[00:12:47] Speaker 03:
Go back, agency, and address them.

[00:12:49] Speaker 03:
I'm not sure why that isn't a final judgment on the merits of the claim that you brought.

[00:12:57] Speaker 03:
What more could he have done?

[00:12:58] Speaker 03:
What more remained for him to do?

[00:13:01] Speaker 02:
For purposes of issue of preclusion, Your Honor, I think that you need that decision on the merits of that.

[00:13:07] Speaker 03:
Well, now, so this is a claim preclusion case.

[00:13:10] Speaker 03:
The judge says, you could have brought this claim the first time, but you didn't.

[00:13:14] Speaker 03:
And therefore, you're barred from bringing it later.

[00:13:16] Speaker 02:
The forester's argued issue of preclusion as well in his brief.

[00:13:19] Speaker 02:
So I just want to touch on that.

[00:13:19] Speaker 03:
Yeah, but it really is claim.

[00:13:21] Speaker 03:
When you read Judge Morris's decision, he just claimed preclusion.

[00:13:24] Speaker 02:
Yes, Your Honor, yes.

[00:13:25] Speaker 02:
Real quickly the last issue is the whether we stated a claim for a leaf regarding the dead bighorn sheep and so The complaint alleges that a dead bighorn sheep was found adjacent to one of the grazing allotments the very next paragraph says that dead bighorn sheep was actually in one of the domestic sheep allotments and

[00:13:46] Speaker 02:
Judge Moore said you didn't give enough facts or specificity Regarding how far away this dead big horn sheep was relative to the domestic sheep allotment The complaint itself says the dead big horn sheep was found in the big in the domestic sheep allotment We couldn't be any more specific your honor.

[00:14:04] Speaker 02:
Thank you

[00:14:22] Speaker 05:
Good morning, Your Honors.

[00:14:23] Speaker 01:
Anything in the record that shows where that, I think, 2013 sheep was found?

[00:14:29] Speaker 05:
Yes, Your Honor.

[00:14:30] Speaker 05:
So as to that third claim, this allegation and plaintiff's complaint seems to be identical to an allegation that was discussed in the record by the Forest Service at Supplemental Excerpts, page 87.

[00:14:45] Speaker 05:
Forest Service has a paragraph where they go through in depth.

[00:14:50] Speaker 05:
they base investigated comments that in twenty thirteen one bighorn you dead bighorn you was observed near blackpute within or near the allotments but ultimately the agency was unable to verify if the carcass even was a bighorn you were determined the cause of death source heard

[00:15:07] Speaker 05:
or if commingling occurred.

[00:15:09] Speaker 05:
So without any sort of more factual development in the complaint, I think the district court was correct to dismiss under Rule 12b6.

[00:15:17] Speaker 05:
This just goes back, I think, to the pattern in this case of plaintiffs bringing up information that has already existed and pointing to this information that they could have pointed to in the prior litigation in Gallatin 1, saying that the Forest Service needed to consider it.

[00:15:34] Speaker 05:
I think I want to get into all- Can I ask you to-

[00:15:37] Speaker 03:
answer a question you may not be able to answer.

[00:15:40] Speaker 03:
One reason we're here is that you're in the process of preparing something.

[00:15:45] Speaker 03:
Yes.

[00:15:46] Speaker 03:
Are you?

[00:15:47] Speaker 03:
An EIS?

[00:15:49] Speaker 03:
So, yeah, let me... Yes?

[00:15:50] Speaker 03:
I think there's been... Well, just let me... What are you in the process of preparing?

[00:15:55] Speaker 05:
So, the Forest Service has plans to prepare a new environmental impact statement, EIS, covering all seven allotments under one umbrella.

[00:16:05] Speaker 03:
And you've had those plans for some substantial... For a long time.

[00:16:08] Speaker 03:
Some substantial period of time.

[00:16:10] Speaker 03:
Yes.

[00:16:11] Speaker 03:
If you had brought those plans to consummation,

[00:16:13] Speaker 03:
We wouldn't be here on this case.

[00:16:15] Speaker 03:
That's correct.

[00:16:16] Speaker 03:
We'll be here on the next case.

[00:16:17] Speaker 03:
Yes.

[00:16:18] Speaker 03:
Where they attack the EIS.

[00:16:20] Speaker 03:
Possibly.

[00:16:21] Speaker 03:
So here's the question you may not be able to answer, but I'm interested in.

[00:16:25] Speaker 05:
When are you going to do it?

[00:16:27] Speaker 05:
I think the Forest Service has other management priorities on this forest.

[00:16:31] Speaker 03:
What you're telling us is you don't know.

[00:16:33] Speaker 05:
I don't know specifically what projects or what analysis the Forest Service has been doing, but what's critical with respect to that EIS is that the Forest Service isn't under a legal obligation.

[00:16:45] Speaker 03:
No, let's put that aside.

[00:16:46] Speaker 03:
We can get to that later.

[00:16:48] Speaker 00:
But is that really the rule?

[00:16:50] Speaker 00:
Because there isn't a specific obligation, and I think you have a strong argument to that effect.

[00:16:55] Speaker 00:
for folks who are concerned about this environmental situation, is it really the case that what Judge Hurwitz is referring to, which is this someday plan, could take forever?

[00:17:06] Speaker 05:
It's certainly the rule under Norton v. Sua that if plaintiffs are asserting an undue delay claim under 7061 of the APA, they have to point to some legal obligation in order to come out.

[00:17:16] Speaker 00:
That's the part I'm giving you in my hypothetical.

[00:17:18] Speaker 00:
I'm giving you that.

[00:17:19] Speaker 00:
So are we really in a posture then where this plan that Judge Hurwitz is referring to could be a plan that takes forever?

[00:17:26] Speaker 05:
I think absent some act of Congress that tells the agency that they need to complete an EIS for this new, or this new EIS that covers all seven allotments, there is no date certain by which.

[00:17:39] Speaker 00:
What's frustrating about this case?

[00:17:40] Speaker 00:
My answer is yes.

[00:17:42] Speaker 05:
The answer is yes, because all seven allotments are already covered by the required NEPA analysis.

[00:17:49] Speaker 00:
Forgive my interruption.

[00:17:50] Speaker 00:
No, no.

[00:17:50] Speaker 03:
I mean, I think you've addressed the issue that troubles me in this case that I can't solve.

[00:17:58] Speaker 03:
You've recognized, you the agency, that we ought to prepare a new EIS.

[00:18:03] Speaker 03:
And we're working on it.

[00:18:05] Speaker 03:
And once you do, it'll either be a terrific EIS that the other side doesn't attack, or they will think about things to attack it.

[00:18:13] Speaker 03:
In the meantime, what they're trying to get you to do is to prepare a new EIS.

[00:18:20] Speaker 03:
And so we're fighting about whether or not the actions you took in the past required you to prepare a new EIS, but you're doing one anyway.

[00:18:32] Speaker 03:
And so I'm trying to figure out, you know, why we're all here.

[00:18:37] Speaker 00:
We're mindful that we don't run the Forest Service.

[00:18:39] Speaker 00:
We get that?

[00:18:40] Speaker 00:
So I am curious, though, since it has been identified as a project on the Forest Services list, and pretty much every agency that comes before us talks about they have not enough resources to do their job, and I'm sympathetic to that.

[00:18:53] Speaker 00:
I imagine my colleagues are as well, but I don't want to speak for them.

[00:18:55] Speaker 00:
So if I remember the public concerned about what I'm hearing about today, is there a place a member of the public can go and see what the agency's priorities are?

[00:19:06] Speaker 05:
I am not sure I have the answer to that specifically.

[00:19:08] Speaker 00:
Does the public have an opportunity to have input into the priorities?

[00:19:12] Speaker 00:
I'm assuming there's too much on your plate to get it all done, that the agency hasn't lost interest and would like to get to this sooner rather than later.

[00:19:20] Speaker 00:
But my question is just whether, I guess it's a two-part question.

[00:19:23] Speaker 00:
Is there a place where the member of the public can see what that priority is and watch to see if it's going up the list?

[00:19:29] Speaker 00:
And is there an opportunity for the public to have input?

[00:19:36] Speaker 05:
I'm not speaking with a lot of confidence here, because I don't know the inner administrative workings of this National Forest specifically.

[00:19:42] Speaker 05:
But the National Forest, it does publish a schedule of proposed actions.

[00:19:45] Speaker 05:
Now, these actions aren't ranked by priority.

[00:19:48] Speaker 05:
And I'm not sure whether there is a specific place that the public can go to submit input specifically about priority.

[00:19:55] Speaker 05:
But certainly, there's opportunities for public comment on different projects.

[00:19:59] Speaker 03:
But let me ask you the question a different way.

[00:20:01] Speaker 03:
Let's assume, and I'm not suggesting we're going to do this.

[00:20:06] Speaker 03:
Let's assume at the end of this case we ordered you to prepare a new EIS.

[00:20:11] Speaker 03:
Would anything change?

[00:20:13] Speaker 05:
If there was a court order, then I... You'd move it up on your priority list?

[00:20:18] Speaker 05:
Well, then there would be a legal obligation to prepare a new EIS.

[00:20:21] Speaker 00:
It's not necessarily required by a particular timeframe unless we gave you one.

[00:20:25] Speaker 05:
Right.

[00:20:26] Speaker 05:
So if there was a court order with no date certain... You've assumed the obligation to prepare one.

[00:20:30] Speaker 00:
You've told us that's our plan.

[00:20:31] Speaker 03:
Yeah, you've already started.

[00:20:33] Speaker 03:
I mean, if we ordered you to do one, what would you do differently than what you're doing today?

[00:20:37] Speaker 05:
I can't speak to the forest priorities really, but I could say that in that case then plaintiffs might have a hook to bring a section 7061 undue delay claim if the forest service wasn't preparing.

[00:20:49] Speaker 03:
Although that would see what this case troubles me in many ways.

[00:20:54] Speaker 03:
But what troubles me about this is that if we ordered you tomorrow to prepare a new EIS, the delay claim would start, the statute of limitations of the delay claim would start running tomorrow.

[00:21:05] Speaker 03:
Meanwhile, you've waited seven years, and you say you're doing one.

[00:21:11] Speaker 03:
So I'm not sure that if we gave them everything they asked for, they'd be better off than they are today.

[00:21:17] Speaker 03:
And so I'm trying to figure out how it is that we get this process to the point that both sides seem to think it ought to end up with, which is a new EIS.

[00:21:26] Speaker 05:
And I think the Forest Service will continue its plan to prepare this, but there's wildfires, there's diseases on the forest, and ultimately I can't give you any sort of commitment.

[00:21:37] Speaker 00:
He's asking a different question now.

[00:21:38] Speaker 00:
Is that right?

[00:21:39] Speaker 00:
If we were to order this tomorrow, this obligation that you've already assumed, would the statute of limitations start over again?

[00:21:47] Speaker 00:
Would they be worse off?

[00:21:48] Speaker 05:
Would the statute of limitations start over again?

[00:21:52] Speaker 04:
What would your delay be?

[00:21:53] Speaker 03:
The clock.

[00:21:54] Speaker 04:
Responding to us?

[00:21:56] Speaker 05:
Right.

[00:21:56] Speaker 05:
If the court, I think it would depend on what the court would say in its order.

[00:22:01] Speaker 05:
And it's over.

[00:22:03] Speaker 03:
You must prepare a new EIA.

[00:22:05] Speaker 03:
Is that when your duty began, when we made the order?

[00:22:07] Speaker 05:
I think that's when the legal duty would begin.

[00:22:09] Speaker 05:
And that's, I mean, we're dealing with these hypotheticals here because the Forest Service really is under no legal duty right now to prepare an EIS.

[00:22:17] Speaker 05:
And that's what I really need to keep emphasizing.

[00:22:21] Speaker 00:
Not under a legal duty to prepare it by a certain time.

[00:22:24] Speaker 00:
But are you really saying that you're not under a legal duty even though you've assumed the duty?

[00:22:28] Speaker 00:
Because now you're getting me more interested.

[00:22:32] Speaker 05:
So all seven grazing allotments are covered right now by the required NEPA analysis.

[00:22:40] Speaker 05:
The Forest Service, independent from this litigation, independent from what plaintiffs say, have decided they want to prepare a new EIS.

[00:22:48] Speaker 03:
Yeah, you may have done so for reasons other than the reasons that they desire.

[00:22:52] Speaker 03:
But if you had prepared one, if you walked in with an EIS today, we would say this case is moot.

[00:22:57] Speaker 03:
Yes.

[00:22:58] Speaker 03:
Because you've done a new environmental analysis, and that's all they're seeking.

[00:23:05] Speaker 03:
And so you understand the frustration here.

[00:23:09] Speaker 03:
Even though they want it for different reasons than your motivations, they want a new EIS.

[00:23:15] Speaker 03:
You're saying, fine, we're doing an EIS, but we're not sure when we're going to be done with it.

[00:23:20] Speaker 03:
And in the meantime, we're litigating about the last one, and no one thinks it will be in effect.

[00:23:27] Speaker 03:
at some point in the future.

[00:23:30] Speaker 01:
That's my question.

[00:23:34] Speaker 01:
Have there been questions under congressional oversight relating to this?

[00:23:40] Speaker 05:
Not to my knowledge.

[00:23:41] Speaker 05:
I can't speak on that.

[00:23:42] Speaker 01:
Because Judge Christian raised the question of public comment.

[00:23:48] Speaker 01:
But public comment can also come through Congress.

[00:23:52] Speaker 01:
That is, the public has a right to contact their congressional representative

[00:23:56] Speaker 01:
and say, hey, you need to take a look at this.

[00:24:00] Speaker 01:
And Congress can be often very responsive to that kind of question.

[00:24:05] Speaker 05:
Yeah, I just don't have, I haven't heard anything about that.

[00:24:09] Speaker 05:
I can't speak to that specifically.

[00:24:11] Speaker 03:
Can we get back to the mundane legal issue of claim reclusion?

[00:24:16] Speaker 03:
Yes.

[00:24:17] Speaker 03:
I want to understand exactly what happened here.

[00:24:21] Speaker 03:
Because I think what your friend is saying is, look,

[00:24:23] Speaker 03:
We had complaints of the sort that we could have raised earlier, but now we have additional evidence.

[00:24:31] Speaker 03:
Another, more hikers have been obstructed and maybe more predators have been injured.

[00:24:38] Speaker 03:
I think that's a fair summary of what he was saying.

[00:24:40] Speaker 03:
Is that enough to get past claim preclusion?

[00:24:42] Speaker 05:
So as we read their briefs, we don't think they have alleged that there is any new evidence that they couldn't have brought back in 2015 in Gallatin 1.

[00:24:54] Speaker 05:
I think theoretically, if there were some plethora of

[00:24:58] Speaker 05:
new information that they now felt required the agency to look at and see if supplementation was warranted, then maybe that's enough to get around claim preclusion because it's a new transactional nucleus of facts.

[00:25:09] Speaker 03:
You're saying there were no new facts at all?

[00:25:11] Speaker 05:
They have not argued that there were any new facts.

[00:25:13] Speaker 05:
It's the same information here.

[00:25:15] Speaker 05:
It's the same information.

[00:25:16] Speaker 00:
So it's not... Well, they are arguing there's new facts.

[00:25:18] Speaker 03:
Yeah, he's arguing today there are.

[00:25:20] Speaker 03:
That's why I'm asking.

[00:25:21] Speaker 05:
And I don't think we saw that argument in their opening brief or in their briefs below.

[00:25:26] Speaker 05:
I think that argument is forfeited to the extent that now they're arguing that there are new facts that post-date the Gallatin I litigation.

[00:25:34] Speaker 05:
That wasn't something that we saw.

[00:25:36] Speaker 03:
And let me distinguish so that I'm clear and you can be clear in your answer.

[00:25:40] Speaker 03:
For example, there may have been predators killed before Gallatin I, and then there may have been predators killed after the remand.

[00:25:48] Speaker 00:
Different ones.

[00:25:49] Speaker 03:
Different predators.

[00:25:52] Speaker 03:
The other ones were already dead.

[00:25:54] Speaker 00:
Are accounted for.

[00:25:55] Speaker 03:
Are accounted for.

[00:25:57] Speaker 03:
So let's assume that might be new information that the agency should consider, even though they could have raised the general claim of predators dying before.

[00:26:06] Speaker 03:
What you're saying is that they didn't even do the second.

[00:26:09] Speaker 03:
Yeah, we agree with that.

[00:26:10] Speaker 03:
At least the briefs don't reflect that they did the second.

[00:26:12] Speaker 01:
Yes.

[00:26:12] Speaker 01:
That's why I asked the same sheep question.

[00:26:16] Speaker 05:
Yeah, and I think, I mean, that goes to plaintiff's third claim about the dead Bighorn U in 2013.

[00:26:23] Speaker 05:
They don't include a specific date in their allegations in the complaint.

[00:26:27] Speaker 05:
So we have no way of knowing if that is the same sheep or not.

[00:26:29] Speaker 05:
It sure seems like it's the same sheep that the Forest Service discusses at supplemental excerpts, page 87.

[00:26:37] Speaker 00:
Anything further?

[00:26:38] Speaker 05:
Unless the court has any further questions.

[00:26:40] Speaker 00:
It doesn't appear that we do.

[00:26:41] Speaker 00:
Thank you, Your Honor.

[00:26:42] Speaker 00:
Thank you for your argument, counsel.

[00:26:53] Speaker 02:
Your Honors, this is not a priority in any stretch of the imagination.

[00:26:58] Speaker 02:
The Forest Service has been telling the public for more than 20 years they're going to do this analysis, and they just are not doing it.

[00:27:04] Speaker 02:
And the idea that there is some sort of priority is just, it can't be possible.

[00:27:09] Speaker 02:
The Forest Service entered into a secret agreement with these livestock producers saying, we will not change any grazing at all.

[00:27:17] Speaker 02:
And they never disclosed that agreement in any NEEP analysis.

[00:27:20] Speaker 02:
And so that was Galactin 1, and we won on the case.

[00:27:22] Speaker 02:
And Judge Moore said, the public has a right to serve better.

[00:27:25] Speaker 02:
And so now here we are 10 years later, and they still haven't done the analysis.

[00:27:30] Speaker 02:
Your Honor, in terms of the dead bighorn sheep, in 2018 the Forest Service prepared new supplemental NEEP analysis on that dead bighorn sheep that post-dated the Gallatin 1 decision.

[00:27:42] Speaker 02:
We're challenging that analysis.

[00:27:44] Speaker 02:
That's a totally different decision from Gallatin 1.

[00:27:46] Speaker 02:
The Forest Service prepared a supplemental EIS.

[00:27:48] Speaker 02:
We are challenging that supplemental EIS.

[00:27:50] Speaker 02:
There's new analysis.

[00:27:51] Speaker 02:
It's not the same transactional nucleus effects.

[00:27:53] Speaker 02:
We have different final agency actions.

[00:27:56] Speaker 02:
Montana is It's the last best place The secret that we call Montana is out.

[00:28:03] Speaker 02:
We have more and more people moving to Montana There's more and more pressure on our public lands and we're just asking the Forest Service to address the impacts on our native wildlife and on our residents Thank you, thank you both for your argument.

[00:28:16] Speaker 00:
We'll take that case under advisement and we'll go on to the next