[00:00:06] Speaker 01:
Good morning.

[00:00:07] Speaker 01:
May it please the court.

[00:00:08] Speaker 01:
My name is Rebecca Smith and I represent the Appellants Alliance for the Wild Rockies Native Ecosystems Council and Council on Fish and Wildlife.

[00:00:17] Speaker 01:
I would like to reserve five minutes for rebuttal today.

[00:00:22] Speaker 01:
Your honors, we are here today following the denial of a motion for preliminary injunction against the wood duck project on the Helena Lewis and Clark National Forest in Montana.

[00:00:34] Speaker 01:
And so today I'll start by explaining why the Alliance has raised serious questions on the merits.

[00:00:41] Speaker 01:
I'll then move in to explain why there is a likelihood of irreparable harm

[00:00:45] Speaker 01:
and then finally I will address why the public interest and balance of equities weighs in alliances favor.

[00:00:52] Speaker 01:
First, your honor, starting with our first argument on the merits, this was actually an argument that the district court never got to, it never addressed, and that was the violation of 36 CFR to 1915.

[00:01:07] Speaker 01:
That is the NIFMA planning regulation that requires

[00:01:14] Speaker 01:
that when you are assessing forest plan compliance, you must analyze it in the project approval document.

[00:01:21] Speaker 01:
And so I want to start with the plain language of that regulation, because that is what the court has to apply here.

[00:01:28] Speaker 01:
And the regulation says, quote, a project or activity approval document must describe how the project or activity is consistent with the applicable plan components.

[00:01:42] Speaker 01:
And so we never had that in this case.

[00:01:44] Speaker 01:
Neither the Project Decision Notice nor the Project EA ever described why the project would be consistent with these applicable Forest Plan components.

[00:01:56] Speaker 03:
When you say that, are you including the description or analysis in the consistency tables?

[00:02:03] Speaker 01:
No, Your Honor.

[00:02:04] Speaker 03:
So you're saying that the consistency tables were not appropriately incorporated.

[00:02:08] Speaker 03:
Is that the argument?

[00:02:10] Speaker 01:
Yes, Your Honor, the argument is two part.

[00:02:12] Speaker 01:
First, in their brief, the Forest Service did concede that the approval document for the purpose of this regulation is the decision notice.

[00:02:21] Speaker 01:
And then, as you say, they then said, but we incorporated a document called the consistency table.

[00:02:28] Speaker 01:
And there's two problems with that.

[00:02:30] Speaker 01:
First, there is no legal authority for them to incorporate by reference the consistency table.

[00:02:38] Speaker 01:
We have the plain language of the NIFMA regulation that says the analysis must be in the approval document itself.

[00:02:46] Speaker 01:
We have that specific regulatory language.

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And then they fail to provide any legal authority for the notion that somehow they could nonetheless put it in any other document.

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And I want to emphasize too that in their brief they say, we incorporated the entire project record.

[00:03:03] Speaker 01:
into the decision notice.

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And so by that logic, a member of the public would have to wade through the entire project record, the entire administrative record, to find that analysis.

[00:03:14] Speaker 01:
And that's just not what the plain language of the regulation says.

[00:03:19] Speaker 01:
It requires that analysis in a specific document which the Forest Service concedes is the decision notice.

[00:03:26] Speaker 01:
So the first is a problem of violating the plain language of the regulation,

[00:03:31] Speaker 01:
the NIFMA regulation is specific and then they don't give any legal authority for the notion that they can incorporate by reference and this is well in the NEPA context I know for a fact we have precedent that says you can incorporate by reference no longer your honor that's no longer the case in

[00:03:49] Speaker 01:
2025, the NEPA CEQ regulations were rescinded.

[00:03:54] Speaker 01:
And we did bring this up multiple times in the district court because this was something we talked about in the district court.

[00:04:01] Speaker 06:
Well, I'm talking about judicial decisions that say that you can incorporate by reference other documents.

[00:04:05] Speaker 01:
And your honor, all of those are based on the CEQ's regulation that says NEPA documents can incorporate by reference.

[00:04:13] Speaker 01:
However, within the past year or two, the CEQ has come forward, said that it never had authority to issue those regulations.

[00:04:23] Speaker 06:
Is there any Ninth Circuit decision saying that you cannot no longer incorporate by reference?

[00:04:28] Speaker 01:
Your Honor, I don't believe this court has addressed the rescission of the CEQ regulation yet.

[00:04:34] Speaker 03:
And what's the time frame in respect to when the action was taken and the time in which, in your view, it was no longer permissible to incorporate by reference?

[00:04:47] Speaker 01:
Thank you, Your Honor.

[00:04:47] Speaker 01:
So the Forest Service did make an argument here that the court should still apply incorporation by reference regulation because that regulation was in effect at the time the decision was made.

[00:04:59] Speaker 03:
So what's your answer to that?

[00:05:00] Speaker 01:
The trick is that the CEQ said that it never had rulemaking authority.

[00:05:05] Speaker 01:
So that means that regulation was never valid in the first place and, Your Honor,

[00:05:11] Speaker 01:
I think that when we have two regulations that seem to be in conflict, so even if the court were to apply the rescinded CEQ regulation here, we would then have a specific NFMA regulation and then a general NEPA regulation, and that is a traditional canon

[00:05:29] Speaker 01:
of construction that a general regulatory provision cannot nullify a more specific provision.

[00:05:38] Speaker 01:
The specific provision controls, and so the specific NFMA provision controls

[00:05:46] Speaker 01:
over a more generalized generic provision in the CEQ regulations, which again has been rescinded and is no longer law.

[00:05:56] Speaker 01:
And I think maybe this is why the district court didn't address this.

[00:05:59] Speaker 03:
This is a hypothetical question.

[00:06:02] Speaker 03:
But if we assume that incorporation by reference were appropriate, I'm not asking you to agree, but if we were to assume, is the analysis

[00:06:14] Speaker 03:
contained in the consistency table sufficient?

[00:06:17] Speaker 01:
No, Your Honor, and I will walk you through each one of those provisions and why the analysis in the Forest Plan consistency table is not sufficient.

[00:06:27] Speaker 03:
So even if incorporated, you still say it's insufficient.

[00:06:31] Speaker 01:
that's correct your honor our primary argument is regulatory interpretation at the plain language of the regulation does not allow for this but yes even if you did look at this one single document the consistency table it's not enough and so this is in our excerpts of record at

[00:06:48] Speaker 01:
466 through 469.

[00:06:54] Speaker 01:
And so regarding the first provision, so there are three elk provisions that are at issue here, the two desired condition and then the one guideline.

[00:07:04] Speaker 01:
The first desired condition is that ER 466 and that desired condition says that big game species remain on national forest system lands throughout the archery and rifle hunting seasons at levels that support Montana fish, wildlife, and parks recommendations regarding big game distribution, population size, and harvest.

[00:07:28] Speaker 01:
Then in the column where they profess to demonstrate compliance, they say, we have a design feature that applies during the first two weeks of the general rifle season, and we will not let workers basically set up use firearms recreationally.

[00:07:47] Speaker 01:
That doesn't address where the elk are.

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This whole provision is, are the elk on public lands during the archery and rifle hunting season?

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Which, by the way, is three months long.

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It runs from September 1st to December 1st.

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Saying that they're not going to allow road use during two weeks out of a three-month hunting season, first of all, doesn't address the hunting seasons.

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But second and more importantly, we're missing the key fact about where the elk are.

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Are the big game on public lands or not?

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And the answer is in the record.

[00:08:21] Speaker 01:
The answer from the Montana Fish, Wildlife and Parks is in the record and they said they're not.

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They said 90 to 95% of elk are already being displaced off of public land

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during the hunting season.

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And the reason this matters is because they are named right here in the desired condition.

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It doesn't just say big game remain on the public lands.

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It says

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at levels that support Montana Fish, Wildlife, and Parks recommendations.

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And so Fish, Wildlife, and Parks did file a letter, and they did make a recommendation, and they said, you're not meeting this desired condition.

[00:08:56] Speaker 03:
But after the plan was amended, FWT did not come back in and have a further comment, am I right?

[00:09:04] Speaker 01:
No, Your Honor, there was no further comment period after that, and they did not file.

[00:09:07] Speaker 03:
You said no, but I think you meant I was right, correct?

[00:09:10] Speaker 03:
That is to say, I asked,

[00:09:13] Speaker 03:
When they came out with an amended plan, did FWP come back in with a comment?

[00:09:19] Speaker 03:
I think the answer is they did not.

[00:09:20] Speaker 03:
Is that correct?

[00:09:21] Speaker 01:
Correct, Your Honor.

[00:09:22] Speaker 01:
And to clarify that there wasn't an amended plan, it was just the final document.

[00:09:27] Speaker 03:
And it was unchanged?

[00:09:29] Speaker 01:
The final decision document lessened the acres of logging and lessened the number of new roads, but Montana Fish, Wildlife and Parks said in order to address these provisions in the forest plan, we need you to close open motorized routes.

[00:09:47] Speaker 01:
And that's why they said in their letter that their recommendations that these conditions weren't being met.

[00:09:54] Speaker 03:
I may be wrong.

[00:09:55] Speaker 03:
I thought that there were two proposed plans.

[00:09:58] Speaker 03:
and after the first proposed plan was promulgated there was a comment from FWP and then there was a second proposed plan and there was no comment.

[00:10:09] Speaker 03:
Are you saying there was no opportunity for comment after the second plan was put forward?

[00:10:14] Speaker 01:
No, Your Honor, I'm saying there is no public comment opportunity after a final decision issued.

[00:10:22] Speaker 03:
That's not my question.

[00:10:24] Speaker 03:
I understand if there's a final decision, it's a final decision.

[00:10:27] Speaker 03:
But my understanding, and I may be wrong, is that there was a second plan proposed before issuing the final decision.

[00:10:35] Speaker 03:
Am I wrong about that?

[00:10:37] Speaker 01:
Your honor, I don't believe that was the case, but I could be wrong about that.

[00:10:41] Speaker 01:
But I think what the substance of what you're asking is, did Montana Fish and Wildlife follow up and file another letter and say you're still not complying?

[00:10:50] Speaker 01:
Is that sort of what you're asking?

[00:10:51] Speaker 03:
And when they had an opportunity to do so.

[00:10:55] Speaker 01:
Well, your honor, regardless of whether there was a second public comment period, which I don't think there was, there is an administrative appeal process called an administrative objection, and they did not file an administrative objection to the final decision.

[00:11:09] Speaker 01:
The problem here is that we're not using the Montana Fish, Wildlife, and Parks to say that they filed an administrative objection to the project.

[00:11:21] Speaker 01:
What we're saying is the factual findings about where the elk are

[00:11:25] Speaker 01:
are in that letter.

[00:11:27] Speaker 01:
And they say 90 to 95% displaced from public land already.

[00:11:31] Speaker 01:
And so this table cannot show consistency with the condition when it doesn't even tell us the facts we need to know.

[00:11:38] Speaker 01:
And when we look in the record and find those facts, we see that in fact, big game species are not remaining on national forest land.

[00:11:48] Speaker 04:
Is that because, I guess, there's not enough elk security?

[00:11:52] Speaker 01:
Yes, Your Honor, and that is what Montana Fish and Wildlife found was that the existing high road densities, the lack of elk security is why the elk are being displaced.

[00:12:04] Speaker 01:
And I think we laid this out in several tables in our brief that in some units, there's 0% elk security.

[00:12:11] Speaker 01:
And that's nowhere near the 30% elk security, which is the recommendation of Montana Fish, Wildlife, and Parks.

[00:12:19] Speaker 04:
Elk security within the project area?

[00:12:23] Speaker 01:
Yes, well, Your Honor, the way they assessed elk security was, and I believe there's five or six elk units, and one unit, I believe, had something like 12% security, and then I believe another unit has something like 3%, and then several had no security at all.

[00:12:39] Speaker 01:
And so what Montana Fish, Wildlife, and Parks said in their letter was the elk are already being displaced because of lack of security, so we want you to pick open motorized routes and close them

[00:12:51] Speaker 01:
to increase security, and the Forest Service's response, this is sort of getting back to your point, Judge Fletcher, was that they said, well, this is not a travel management decision.

[00:13:01] Speaker 01:
We're not going to change the status of existing open roads.

[00:13:06] Speaker 01:
So even though they decided that they would log less and build fewer temporary roads, what they refused to do was close any existing roads, and that's what would have increased elk security, and they refused to do that.

[00:13:19] Speaker 06:
Council, I don't think, am I wrong, NIFMA, is that how you say it, NIFMA, does not require each project to improve elk security, is that correct?

[00:13:29] Speaker 06:
It only requires that it doesn't preclude future attainment of elk security.

[00:13:34] Speaker 01:
You're talking about, Your Honor, the rules on desired conditions?

[00:13:38] Speaker 01:
Yes.

[00:13:39] Speaker 06:
That's correct, Your Honor, and- So whether or not this particular project improves elk condition is irrelevant, am I right?

[00:13:48] Speaker 01:
I'm sorry, did you say irrelevant?

[00:13:50] Speaker 06:
Irrelevant.

[00:13:50] Speaker 06:
It would not be a violation of NIFMA if it doesn't improve elk security.

[00:13:57] Speaker 01:
Well, no, Your Honor, because they do have that obligation to demonstrate consistency with the forest plan.

[00:14:03] Speaker 01:
And this sort of goes back to what we're arguing is this table we're looking at doesn't give us the facts that we need for a member of the public to know whether they are being consistent with their forest plan, regardless of whether it requires a certain action.

[00:14:19] Speaker 01:
The question here is, does this forest plan consistency table

[00:14:23] Speaker 01:
give us enough factual information to determine whether or not this project is consistent with the forest land.

[00:14:31] Speaker 01:
And our point is, just on this first desired condition, when it says big game species remain on national forest land, that means a critical fact we need to know is where are the big game species?

[00:14:43] Speaker 01:
Are they on national forest lands or not?

[00:14:45] Speaker 01:
We can't determine whether this condition is met if we're missing that basic fact.

[00:14:50] Speaker 01:
And that basic fact is not in this table, and that's one of the multiple reasons why we're saying this table isn't good enough, Your Honor, to get back to your original question about why this consistency table does not meet their burden to establish forest plan consistency.

[00:15:05] Speaker 01:
I would like to address the other parts of this table as well, if I could.

[00:15:09] Speaker 06:
You're now eating into your rebuttal time, though.

[00:15:13] Speaker 01:
Well, then I'd like to reserve my remaining time for rebuttal.

[00:15:16] Speaker 01:
Thank you, counsel.

[00:15:38] Speaker 02:
Good morning, your honors, and may it please the court, Maya Foster on behalf of the United States.

[00:15:45] Speaker 02:
We ask you to affirm the district court's denial of the motion for preliminary injunction in this case for two reasons.

[00:15:52] Speaker 02:
First, plaintiffs have failed to show serious questions as to the merits as to both their NIFMA and NEPA claims.

[00:15:59] Speaker 02:
And second, the plaintiffs failed to show that the court abused its discretion in weighing the equitable factors.

[00:16:05] Speaker 02:
Namely, when determining that plaintiffs' delay undermined their showing of irreparable harm and that the balance, that plaintiffs failed to show that the balance of the equities and the public interest tipped sharply in their favor.

[00:16:17] Speaker 04:
May I just ask you a practical question before we get into some of the legal issues?

[00:16:21] Speaker 04:
How far along is the project now?

[00:16:26] Speaker 02:
Sure.

[00:16:26] Speaker 02:
So for the Diamond City timber sale, the smaller sale that was, that's at issue on appeal, I believe the entire sale is 204 acres of harvest and 56 have been harvested at this point.

[00:16:39] Speaker 02:
So about 26%.

[00:16:41] Speaker 02:
As for the wood duck timber sale, I believe all the mandatory acres have been harvested at this point.

[00:16:48] Speaker 04:
And I gather there's no action taking place now.

[00:16:51] Speaker 02:
Correct your honor.

[00:16:52] Speaker 02:
So the diamond city timber sale is actually on pause because it is entirely within elk winter range and there's a design feature pausing I'll harvest during the winter period for that reason.

[00:17:04] Speaker 02:
So they I think are not supposed to resume until May is what the design feature

[00:17:11] Speaker 03:
No, you use the word mandatory.

[00:17:14] Speaker 03:
You said all of the mandatory has been done.

[00:17:16] Speaker 03:
Is there some other category that's not mandatory that has not been done?

[00:17:20] Speaker 02:
Yes, Your Honor.

[00:17:20] Speaker 03:
So tell me about that.

[00:17:21] Speaker 02:
Yes.

[00:17:22] Speaker 02:
So there is, I think, a section of the contract with Sun Mountain Lumber that deals with timber subject to agreement, which I think is an options contract.

[00:17:34] Speaker 02:
It's my understanding that there aren't plans yet to harvest those acres, but they do exist and they are part of... And what's the size of that acreage?

[00:17:45] Speaker 02:
I want to say it's about 200 acres, but 250 acres.

[00:17:49] Speaker 02:
OK, thank you.

[00:17:51] Speaker 02:
So I'd like to start with the merits piece.

[00:17:54] Speaker 02:
And I'll begin with that procedural issue of 36 CFR 219.15.

[00:17:59] Speaker 02:
So that regulation requires that the Forest Service describe how the project is consistent with applicable plan components, which we believe the Forest Service did so here in both the decision notice and in the incorporated consistency table.

[00:18:14] Speaker 02:
and other parts of the record.

[00:18:16] Speaker 02:
So in the decision notice itself at 2ER202, the Forest Service articulated that

[00:18:31] Speaker 02:
This project was reviewed by an interdisciplinary team of environmental forest health experts, and that in this process, the relevant forest plan components were considered.

[00:18:41] Speaker 02:
And that implementation would move the project area towards forest plan desired conditions.

[00:18:46] Speaker 02:
And now, functionally, we can also see how this project moves towards those desired conditions and meets those components, because appended to the decision notice are all the design features of the project.

[00:19:01] Speaker 02:
Now, at the end of that paragraph on that page, the Forest Service then referred to the consistency table, which is incorporated into the decision notice along with the whole project record explicitly by reference.

[00:19:16] Speaker 02:
And that consistency table lists the specific provisions, how they are consistent, and what design features are associated with each.

[00:19:25] Speaker 02:
We think this

[00:19:26] Speaker 02:
certainly fulfills the obligations that the agency has under that regulation.

[00:19:30] Speaker 06:
What's your response to your friend's argument that because the CEQ regs were rescinded, you can no longer incorporate by reference materials?

[00:19:41] Speaker 02:
We disagree in our brief.

[00:19:44] Speaker 02:
And I think those are NEPA regulations and not necessarily NIFMA regulations.

[00:19:49] Speaker 02:
I am not clear as to whether I have not seen any regulations that say that you cannot incorporate by reference in a consistency or sorry in a decision notice.

[00:20:00] Speaker 02:
And also it sort of makes sense that you can hear

[00:20:04] Speaker 02:
you know the agency is tasked with balancing how much information they put in each individual document and I think what's really helpful here is that the agency did so in a way that is quite organized helps you find the answers that you seek if you're a member of the public you know point to the consistency table but doesn't have to

[00:20:21] Speaker 02:
have an extremely long decision notice when doing so.

[00:20:26] Speaker 06:
Is NIFMA subject to a harmless error review?

[00:20:29] Speaker 02:
Yes, Your Honor.

[00:20:30] Speaker 06:
So even if it was slightly error, obviously we could see what the rationale was.

[00:20:34] Speaker 02:
Yes, Your Honor.

[00:20:36] Speaker 02:
And so moving on to the substantive portion of the NIFMA claim, we believe that the Forest Service reasonably determined and reasonably explained how this project was consistent with forest plan components in several locations in the record, which at this stage in the inquiry, we can look everywhere in the record.

[00:20:54] Speaker 02:
So not only, well, and actually I'll start just by

[00:20:58] Speaker 02:
first touching upon that the three components that issue here are not standards.

[00:21:03] Speaker 02:
So the Forest Service must determine that the plan is the project is consistent with those three provisions, but what those three provisions require is a lot less than the mandatory constraints required by standards.

[00:21:17] Speaker 02:
So for desired conditions, I think Judge Bumate said earlier,

[00:21:20] Speaker 02:
The project must not preclude achievement or maintenance of those desired conditions in the long term.

[00:21:28] Speaker 02:
And for guidelines, it's even more flexible allowing for a departure from their terms as long as their purpose is met.

[00:21:34] Speaker 04:
So where does the agency address the condition in that language?

[00:21:40] Speaker 02:
Yes, your honor.

[00:21:41] Speaker 02:
So in that language, I would say the consistency table.

[00:21:44] Speaker 02:
It's specifically right.

[00:21:45] Speaker 02:
I actually think there are a few other places in the record.

[00:21:48] Speaker 02:
You can look to the elk report, which lists the different design features and then I think appends the specific component that each design feature relates to.

[00:21:59] Speaker 02:
There's also let me see.

[00:22:03] Speaker 02:
Yeah, I think that those are the two main areas where I think it's the most clear.

[00:22:07] Speaker 02:
And then, of course, the analysis throughout the environmental assessment makes clear that the Forest Service is looking at those variables.

[00:22:18] Speaker 04:
So this project will not preclude attainment of sufficient security area within, I guess, the particular elk

[00:22:30] Speaker 04:
land that's where the project is located.

[00:22:33] Speaker 02:
Yes, and it's true that elk security is very low in this area.

[00:22:37] Speaker 02:
I think part of the reason for that are the recent wildfires that destroyed a lot of the project area.

[00:22:44] Speaker 02:
And that's kind of what prompted this project in the first place was maintenance of those areas specifically in the fire perimeter to help build resiliency to an ongoing insect problem within those trees with pretty high density levels.

[00:23:00] Speaker 06:
I was somewhat confused.

[00:23:00] Speaker 06:
Was this prompted as a commercial project

[00:23:03] Speaker 06:
And you know, or and then that that's the side benefit or was this that the primary reason and the commercial prize side was just a weight of achieving it.

[00:23:13] Speaker 02:
It's my understanding that it's both.

[00:23:15] Speaker 02:
I mean, there are three purposes listed, and one of them is specifically commercial.

[00:23:23] Speaker 02:
Timber harvest is a really important part of the economy in that area.

[00:23:30] Speaker 02:
But I also think that the Forest Service is balancing also the need to make sure that these trees are not going to be destroyed by insects

[00:23:41] Speaker 02:
Problems in the future as well so and it's a really it's a relatively small project to it's about 1200 acres and the project area itself is about 70,000 acres and I actually thought that on the elk security point

[00:23:57] Speaker 02:
One thing that was really interesting is just looking at the maps in the EA of elk security.

[00:24:02] Speaker 02:
You can really see where elk security is, which is kind of in the center of the project area.

[00:24:07] Speaker 02:
And all of the work that's being done, all the harvest and the road work are on the edges.

[00:24:13] Speaker 02:
They're not close to that elk security, which is why the Forest Service found ultimately that this project has no direct effects on elk security.

[00:24:22] Speaker 04:
Now, how about guideline one and the roads?

[00:24:27] Speaker 02:
So, guideline one, the Forest Service found that the intent was met, but they also noticed, noted that there is a, there's language at the beginning of that guideline that says that prior to management actions that would increase or change the location,

[00:24:44] Speaker 02:
timing, mileage, or density of wheeled motorized routes open during the archery and rifle hunting seasons.

[00:24:51] Speaker 02:
This project doesn't increase or change the location, timing, mileage, or routes of wheeled motorized routes open during those seasons.

[00:25:00] Speaker 02:
This only has temporary roads.

[00:25:02] Speaker 02:
So in the first place,

[00:25:06] Speaker 02:
the Forest Service, it's a Forest Service position that this guideline doesn't apply.

[00:25:10] Speaker 02:
But the Forest Service still went on to include design features that minimize the effects of temporary roads as well in good faith after comment periods in which roads were brought up as an issue.

[00:25:25] Speaker 02:
So.

[00:25:27] Speaker 04:
The Montana wildlife, I thought the Montana wildlife, what's it called?

[00:25:32] Speaker 02:
Fish, wildlife and parks.

[00:25:33] Speaker 04:
Fish, wildlife and parks.

[00:25:36] Speaker 04:
they express some, they express concern that the, that the roads that they, they needed to be cut.

[00:25:45] Speaker 04:
Well, they advocate or recommended that there be a reduction in the roads.

[00:25:49] Speaker 02:
They did add.

[00:25:50] Speaker 04:
And that's because elk, uh, I guess shy away from motorized vehicles.

[00:26:00] Speaker 04:
Right?

[00:26:00] Speaker 02:
Yes, that's true.

[00:26:02] Speaker 04:
Um, I keep that, you know, keeps the elk out of the,

[00:26:06] Speaker 04:
Public lands.

[00:26:07] Speaker 02:
Yes, it does.

[00:26:09] Speaker 02:
And they, yes, it does and our response to those comments, in particular, there are a few, a few points.

[00:26:17] Speaker 02:
First is that

[00:26:22] Speaker 02:
You know, those comments highlight what's wrong with the existing conditions in the area.

[00:26:27] Speaker 02:
And this project is not meant to, or does not have to, under the terms of the desired conditions and guidelines, necessarily improve elk security.

[00:26:39] Speaker 04:
But it's not to preclude attainment of elk security throughout the late, I forget what they're called, elk

[00:26:47] Speaker 02:
Elk analysis units.

[00:26:51] Speaker 02:
Yes.

[00:26:54] Speaker 02:
And I would argue that by not impacting elk security at all, it's not

[00:26:59] Speaker 02:
it's not precluding attainment of that desired condition in the long term.

[00:27:04] Speaker 02:
And I think that's really important that in the long term part of what is required for desired conditions.

[00:27:11] Speaker 02:
Those comments also came very early on in the project when the project was, I think at that point, about 3,000 acres of harvesting.

[00:27:21] Speaker 02:
It's now been cut by more than half.

[00:27:23] Speaker 02:
And the number of roads have been reduced in response to the comments received over the course of the project timeline and so in so far as And so it was reasonable for the Forest Service to Afford those comments less weight further on especially because FWP did not object later on in the process and

[00:27:48] Speaker 04:
Was there a little bit unclear?

[00:27:52] Speaker 04:
Was there an opportunity to comment further?

[00:27:55] Speaker 02:
Yes, so that would be the objection period, which was referred to earlier.

[00:28:00] Speaker 02:
So during the objection period, anyone who had previously commented on the project during the first comment period could then file an objection to say, you know, we still disagree with X, Y, and Z. That is to say, in response to the questions I asked to your friends on the other side, when the revised plan came forward, there was a comment period after that was put forward.

[00:28:24] Speaker 02:
Yes, I think in the record it describes as an objection period so I don't want to conflate the two if there is a significant difference.

[00:28:33] Speaker 03:
There was a time in which people could say or entities could say something in response.

[00:28:37] Speaker 02:
Yes, Your Honor.

[00:28:38] Speaker 03:
Whether it's called comment or objection.

[00:28:40] Speaker 02:
Yes, Your Honor.

[00:28:40] Speaker 03:
And at that point FWP says nothing.

[00:28:43] Speaker 03:
Correct, Your Honor.

[00:28:45] Speaker 06:
I just have another question.

[00:28:47] Speaker 06:
The briefing between the government and Sun Mountain is slightly different.

[00:28:51] Speaker 06:
I just was curious, do you disagree with anything that Sun Mountain argues or says?

[00:28:56] Speaker 02:
I don't believe so, your honor, but I'm not particularly sure what those discrepancies might be.

[00:29:02] Speaker 06:
The one I recall is the East Side assessment.

[00:29:05] Speaker 06:
I think the government suggests that you did comply with it.

[00:29:08] Speaker 06:
And then I think Sun Mountain says, well, it doesn't even apply because it's

[00:29:13] Speaker 06:
doesn't, you know, it doesn't change the open roads or something like that, it doesn't apply.

[00:29:18] Speaker 02:
Yeah, so I think that sounds like they're looking at it through the lens of the guideline, of guideline one, which, as I was mentioning earlier, has those, has that express, it applies only when there are wheeled open roads routes, right?

[00:29:32] Speaker 06:
And I think you argued that you did comply, so it doesn't

[00:29:35] Speaker 02:
Yeah, our argument is we didn't need to, but we did.

[00:29:38] Speaker 02:
And there are several points in the record in which we refer to the Eastside assessment in particular types of analyses.

[00:29:46] Speaker 02:
I think it comes up in the response to comments.

[00:29:49] Speaker 02:
And so we do think that we took them into consideration.

[00:29:54] Speaker 02:
Now, Your Honor, with my limited time, I would like to ask if you have any questions about the equities piece.

[00:30:01] Speaker 06:
Well, I guess I did have one question.

[00:30:03] Speaker 06:
If they didn't object to the one, the diamond one, you know, for the injunction, doesn't it make it inconsistent to say that there's such harm on the other project?

[00:30:16] Speaker 02:
Sorry, Your Honor, could you repeat that?

[00:30:19] Speaker 06:
For the injunction, they didn't want to stop one project, right?

[00:30:25] Speaker 06:
There's three projects, and they only wanted to stop one.

[00:30:28] Speaker 02:
There's technically two projects.

[00:30:30] Speaker 02:
One is the Wood Duck timber sale.

[00:30:31] Speaker 02:
One is the Diamond City timber sale.

[00:30:33] Speaker 02:
I think by the time the injunction, the motion had been filed, there had already been work done on the Wood Duck timber sale.

[00:30:41] Speaker 02:
And so on appeal, they have relinquished those claims.

[00:30:45] Speaker 04:
Let me ask you this.

[00:30:46] Speaker 04:
Did the district court adequately consider the harm to the plaintiffs?

[00:30:52] Speaker 04:
I mean, there's a lot of discussion about the logging companies and all that.

[00:30:59] Speaker 04:
Was there really a balance?

[00:31:02] Speaker 02:
I think that there was, Your Honor.

[00:31:04] Speaker 02:
I think that the language that the district court used specifically was that timber sale or timber

[00:31:13] Speaker 02:
What was it?

[00:31:14] Speaker 02:
Timber harvesting or timber cutting is not inherently damaged a forest and irreparable harm does not automatically arise from all environmental impacts caused by logging.

[00:31:22] Speaker 02:
It sounded like to me that the district court was weighing those, the immediate environmental harms of potential environmental harms of cutting down the trees, but with the future environmental harms, sorry, future environmental benefits of the project, along with the economic harms to the, excuse me, to the timber companies.

[00:31:43] Speaker 02:
I also just want to note very quickly, something was misstated in our brief.

[00:31:48] Speaker 02:
I think I said that there was no finding of economic harm below, or nothing in the record about economic harm to the Diamond City Timbersale, but there is in the Sorensen Declaration, which discussed the number of jobs that would be impacted by each sale, and in that case, it was 13.

[00:32:03] Speaker 02:
Now, I see I'm over time.

[00:32:05] Speaker 02:
May I briefly conclude?

[00:32:07] Speaker 02:
Yeah, thank you, Council.

[00:32:07] Speaker 02:
Thank you.

[00:32:21] Speaker 00:
Good morning, Your Honors.

[00:32:21] Speaker 00:
My name is Chris McLean.

[00:32:23] Speaker 00:
I represent Sun Mountain Lumber Company.

[00:32:27] Speaker 00:
And I want to try to correct what may be a little bit of a misunderstanding right off the bat in that there were not three projects.

[00:32:33] Speaker 00:
What we have here is the large project that's 70,000 acres that the Forest Service was analyzing under NIFMA and NEPA.

[00:32:41] Speaker 00:
That's the Wood Duck project.

[00:32:44] Speaker 00:
And then underneath that, you have the timber sale that Sun Mountain, my client, was working on, the Wood Duck timber sale.

[00:32:51] Speaker 00:
and they accomplished most of that.

[00:32:53] Speaker 00:
They got all the required timber off.

[00:32:55] Speaker 00:
They still have some optional timber that they can take, but right now, the market conditions, they just can't do it.

[00:33:01] Speaker 00:
It's too expensive.

[00:33:02] Speaker 00:
And then you have the Diamond City timber sale that is mentioned in the briefs, and that's about 25% done.

[00:33:07] Speaker 00:
Government Council correctly stated that.

[00:33:09] Speaker 00:
And that's being operated by a different outfit that is not gonna be sending that timber to my client, Sun Mountain Lumber Mill in Deer Lodge, Montana.

[00:33:26] Speaker 00:
We join, someone joins the government, most of their arguments.

[00:33:30] Speaker 00:
And my intention right now is to take my five minutes to talk about how the district court properly determined that the Forest Service took the required NEPA hard look at the project in approving it.

[00:33:48] Speaker 04:
Again, let me ask you this.

[00:33:49] Speaker 04:
I gather what you're saying with respect to the work that's been accomplished.

[00:33:55] Speaker 00:
Are you in any way suggesting that the need for an injunction is moot?

[00:34:09] Speaker 00:
all your required timber off, but of course there's the optional timber that they would like to get someday.

[00:34:16] Speaker 00:
But as I indicated, this Wood Duck project is 70,000 acres and we anticipate there will be additional timber sales in the future.

[00:34:25] Speaker 00:
I see.

[00:34:25] Speaker 00:
Not just these two that aren't going.

[00:34:27] Speaker 00:
and our client is desperate to bid on timber so they're anticipating that they'll be able to bid on timber in the future from the wood duck project and bring those jobs even with the market conditions as you just alluded to they're hoping it's a hope right it's hope because right now they're in a very very dark spot there they have no timber for their mill they're scrambling right now to get the timber they need because sun mountain

[00:34:51] Speaker 00:
obtains most of its timber, not all of it, from public lands.

[00:34:54] Speaker 00:
And so they depend on the Forest Service sales to keep this mill in Deer Lodge, Montana running and employs 120 people.

[00:35:01] Speaker 00:
They also have another one in Livingston, Montana that employs 65 people.

[00:35:05] Speaker 00:
And so the equities here, as we've talked about a little bit, really are very, very important to these two communities in Montana.

[00:35:12] Speaker 00:
These mills are very on the very edge of running out of timber, not being able to operate.

[00:35:18] Speaker 00:
And these every single sale is critical to their continued existence.

[00:35:23] Speaker 00:
And that's why we're standing here talking about these sorts of things.

[00:35:27] Speaker 00:
So I wanted to make that that was clear to the court as well.

[00:35:31] Speaker 00:
So we're anticipating being able to bid on some timber sales in this wood duck project, and that's why we're here arguing against, in support of the district court's denial of the preliminary injunction.

[00:35:44] Speaker 00:
The district court properly found that the administrative record demonstrates the Forest Service thoroughly considered the effect of road construction on elk security.

[00:35:53] Speaker 00:
And there's a long list in our brief of the factors that the Forest Service listed in the administrative record and the district court actually referenced as well.

[00:36:01] Speaker 00:
about how the Forest Service considered the effect of road building.

[00:36:05] Speaker 00:
The Forest Service considered the causes of elk migration to private land during the hunting season.

[00:36:10] Speaker 00:
There's a long discussion of that at 3ER348.

[00:36:12] Speaker 00:
The Forest Service evaluated the long-term effects of road construction on habitat effectiveness, 3ER338-339.

[00:36:22] Speaker 00:
The Forest Service weighted the relatively small treatment area against the large range of, home range of the elk in the area.

[00:36:31] Speaker 00:
They're just impacting a small portion of this area.

[00:36:34] Speaker 00:
That's at 3ER 349.

[00:36:36] Speaker 00:
The Forest Service selected treatment areas that overlap with only a small portion of each elk hunting unit.

[00:36:44] Speaker 00:
That's in the record at 3ER 349.

[00:36:47] Speaker 00:
The Project EA and Decision Notice in Fonzie Bullstate

[00:36:52] Speaker 00:
that the project is consistent with revised force plan provisions.

[00:36:56] Speaker 00:
That's in 2ER-195, 2ER-202, 2ER-203, 3ER-266.

[00:37:04] Speaker 00:
And then we have the Project ELK Report and the consistency table that are referenced and incorporated by reference.

[00:37:11] Speaker 00:
And this court has determined numerous times that that's completely legally appropriate.

[00:37:17] Speaker 00:
Most recently, I put the court to its decisions in Cascadia that was brought up and this court said, yeah, the Forest Service can incorporate these things by reference.

[00:37:28] Speaker 00:
Additionally, all temporary roads constructed on the project will be closed to the public.

[00:37:33] Speaker 00:
Appellants overstate the content affecting significance of Montana's FWP 2022 comment letter.

[00:37:44] Speaker 00:
The district court correctly noted that Montana FWP's comments were made when the proposed project treatment area and road construction were significantly larger.

[00:37:54] Speaker 00:
It was 2,977 acres when Montana commented, and it was taken down to 1,241 acres after it was ultimately analyzed under the 2024 plan.

[00:38:07] Speaker 06:
Now over time, if you want to start wrapping up.

[00:38:09] Speaker 00:
I will certainly do that.

[00:38:10] Speaker 00:
Thank you very much, Your Honor.

[00:38:12] Speaker 00:
The district court noted Montana Fish, Wildlife, and Parks comments contain, these comments, this letter contain no analysis and simply express a belief based on an estimate of secure habitat in the project area.

[00:38:25] Speaker 00:
And that's also cited in our brief at particular spots in the record.

[00:38:29] Speaker 00:
For these reasons and everything argued by the government, your honors, my client, Sun Mountain Long, logging respectfully requests this court affirm the district court's denial of appellant plaintiff's motion for preliminary injunction.

[00:38:42] Speaker 00:
Thank you very much.

[00:38:43] Speaker 00:
Just one other sort of record question.

[00:38:47] Speaker 04:
Do you know what the status of the litigation is in the district court?

[00:38:52] Speaker 04:
We are pausing awaiting this decision.

[00:38:55] Speaker 04:
Yes.

[00:38:56] Speaker 04:
Okay.

[00:38:57] Speaker 04:
And the Forest Service has not posted any further sale opportunities.

[00:39:04] Speaker 04:
That's true.

[00:39:05] Speaker 04:
Okay.

[00:39:06] Speaker 04:
Thank you.

[00:39:07] Speaker 05:
Thank you.

[00:39:19] Speaker 01:
Thank you, Your Honors.

[00:39:20] Speaker 01:
I'd like to address a few points on rebuttal.

[00:39:23] Speaker 01:
First, you know, the standard for this court to apply when we look at the way an agency interprets a regulation, including a forest plan provision, is set forth by the U.S.

[00:39:35] Speaker 01:
Supreme Court in Kaiser v. Wilkie.

[00:39:37] Speaker 01:
And so in that decision, the Supreme Court said we no longer have reflexive deference to the way that an agency looks at a regulation.

[00:39:46] Speaker 01:
Instead, the court must look at the plain language of that regulation.

[00:39:53] Speaker 01:
And so that's where I'd like to start on rebuttal is the plain language of the regulation that is the 36 CFR 219.15

[00:40:04] Speaker 01:
Again, that plain language says a project or activity approval document must describe how the project or activity is consistent with the applicable plan components.

[00:40:18] Speaker 01:
So first you would need to have them tell you what the applicable plan components are.

[00:40:24] Speaker 01:
Next, they would have to describe how the project is consistent with those plan components.

[00:40:29] Speaker 01:
And third, that would need to be in the project approval document.

[00:40:33] Speaker 01:
Under Kaiser v. Wilkie, this court cannot adopt an interpretation of this regulation that is contrary to that plain language.

[00:40:41] Speaker 01:
But that is what the Forest Service is asking you here to do today.

[00:40:44] Speaker 01:
They're asking you to find

[00:40:48] Speaker 01:
A footnote to this plain language that says, unless you just want to incorporate by reference the entire administrative record, this language does not admit of any exception.

[00:40:57] Speaker 05:
It specifically incorporates the consistency table and says if you see this consistency table, if you want to see more.

[00:41:03] Speaker 01:
The decision notice does that, Your Honor.

[00:41:05] Speaker 01:
I'm talking about 36 CFR 219.15.

[00:41:09] Speaker 01:
That does not allow incorporation by record.

[00:41:12] Speaker 01:
To add an allowance for incorporation by record into that regulation would be to violate the omitted case canon.

[00:41:20] Speaker 01:
That would be to insert a word or words into the regulation that is not in there, and that is impermissible under Kaiser v. Wilkie.

[00:41:30] Speaker 01:
This court cannot

[00:41:31] Speaker 01:
Throw aside the plain language of a regulation and I want to point out that let me ask you this practically speak So what so what what what are you asking?

[00:41:40] Speaker 04:
To have to have done or to happen only what's in the regulation your honor.

[00:41:45] Speaker 04:
What explain that to me?

[00:41:47] Speaker 01:
Okay, so the project decision document the lawyers answer Explain it.

[00:41:52] Speaker 04:
What do you want?

[00:41:52] Speaker 04:
What do you want to happen?

[00:41:54] Speaker 01:
Your honor, we want the decision or the project approval document to say here are the applicable force plan components for this project and here are how we are complying with them.

[00:42:05] Speaker 01:
So they would say desired condition big game habitat must remain on the forest.

[00:42:10] Speaker 01:
Here's how we're complying.

[00:42:12] Speaker 01:
desired condition four, we're balancing motorized access with elk security.

[00:42:18] Speaker 01:
Here's how we're complying.

[00:42:19] Speaker 01:
Guideline one, here's how we're complying.

[00:42:21] Speaker 06:
So instead of saying C4's plan consistency table available on the project website, they just have to put that table in the notice decision.

[00:42:30] Speaker 01:
Almost, Your Honor, if the table actually met their burden.

[00:42:33] Speaker 06:
Your procedural argument would be gone if they just move that two pages

[00:42:38] Speaker 06:
of the table into the decision.

[00:42:40] Speaker 01:
Yes, Your Honor.

[00:42:40] Speaker 06:
Instead of see the table.

[00:42:41] Speaker 01:
And that's not a big ask because they could do that.

[00:42:45] Speaker 04:
The problem is they need more explanation.

[00:42:47] Speaker 01:
Yes, your honor.

[00:42:48] Speaker 01:
And, and that that's tied to the NEPA hard look, but I just want to emphasize again that this is a specific regulation that requires a specific thing.

[00:42:56] Speaker 01:
And the forest service hasn't come because your honor, the, because this is such a huge issue of public interest to the public in Montana, big game hunting, such a huge interest.

[00:43:10] Speaker 06:
Then if they wanted to see the consistency table, they could go to the website and see it.

[00:43:15] Speaker 01:
But that is not what NIFMA demands, Your Honor.

[00:43:17] Speaker 01:
And you're asking, why does this matter?

[00:43:19] Speaker 01:
And I'm telling you that the revised forest plan went through a multi-year process.

[00:43:24] Speaker 01:
And over and over again, the public said, how are you going to protect elk habitat?

[00:43:29] Speaker 01:
And the Forest Service said, we promise, even though we're not putting standards in the forest plan, here's the desired condition.

[00:43:34] Speaker 01:
Here's another.

[00:43:36] Speaker 01:
Here's the guideline.

[00:43:37] Speaker 01:
promise we're going to apply these things to keep elk habitat on public land and to manage security at appropriate levels and they're not doing that and so if what is the public interest is it is it for hunting purposes yes yes your honor and that's set forth in the east side assessment which is the document that the forest plan expressly incorporates in guideline one

[00:43:58] Speaker 06:
Most environmental cases are trying to protect the animals here.

[00:44:01] Speaker 06:
They just want to hunt them.

[00:44:03] Speaker 01:
Well, it ties.

[00:44:05] Speaker 01:
Well, Your Honor, if we look at the East Side Assessment, when it talks about public interest, it does say hunting.

[00:44:10] Speaker 01:
It also acknowledges that by maintaining elk habitat, by reducing roads, you are helping other kinds of wildlife populations.

[00:44:18] Speaker 01:
And I see that my time is up.

[00:44:19] Speaker 01:
Thank you.

[00:44:22] Speaker 06:
Okay.

[00:44:22] Speaker 06:
This case is submitted and we are adjourned for today.

[00:44:26] Speaker ?:
Thank you.

[00:44:37] Speaker ?:
for this session.