[00:00:00] Speaker 00: May it please the court. [00:00:01] Speaker 00: My name is Nick Katie. [00:00:02] Speaker 00: I'd like to reserve two minutes for rebuttal. [00:00:05] Speaker 00: I'm representing Appellant's Cascadia Wildlands and Oregon Wild, and I'm joined by Mr. John Purcell, staff attorney with Oregon Wild. [00:00:13] Speaker 00: So this case concerns the BLM's Big Weekly Elk Project, which authorizes... You speak up a little bit. [00:00:17] Speaker 03: Oh, I'm sorry. [00:00:18] Speaker 00: You're not coming through very well. [00:00:20] Speaker 03: There you go. [00:00:20] Speaker 03: Thank you. [00:00:21] Speaker 03: Excellent. [00:00:23] Speaker 00: This case concerns the BLM's Big Weekly Elk Project. [00:00:25] Speaker 00: It authorizes commercial logging in Oregon's coast range southeast of Coos Bay. [00:00:29] Speaker 00: And there's four main issues I want to touch on here today. [00:00:32] Speaker 00: The first is I want to talk about murelets and this project area and why we're here, because appellant organizations generally support plantation thinning, which is the majority of this project, but this area is unique. [00:00:45] Speaker 00: Second, I want to talk about the Resource Manager Plan, the RMP, its murelet protections, and BLM's efforts to avoid them here. [00:00:51] Speaker 00: Third, I want to touch on how these protections are [00:00:56] Speaker 00: in harmony and consistent with the remainder of the Resource Management Plan and talk about BLM's options for moving forward here in this project area. [00:01:03] Speaker 00: And fourth, I want to discuss NEPA and how BLM's analysis contains serious errors and omissions. [00:01:10] Speaker 03: You'll cover it in the order that you want, but I want to know at an early point if you know the Trump administration recently issued an interim final rule removing the NEPA implementing CEQ regulations from the Code of Federal Regulations. [00:01:25] Speaker 03: I want to know what impact, if any, that has on this case. [00:01:29] Speaker 00: I think I can address that now. [00:01:31] Speaker 00: I think that has no impact on the NEPA claims now. [00:01:35] Speaker 00: I think it's [00:01:36] Speaker 00: BLM articulated in the environmental assessment and finding of no significant impact the regulations that it was relying upon in that case. [00:01:45] Speaker 00: And I think now, moving forward, they can rely on their own regulations, or I think it's a little unclear. [00:01:52] Speaker 00: But I think in this case, we're looking at what the BLM relied on here in these documents. [00:02:01] Speaker ?: OK. [00:02:02] Speaker 03: I also want to ask you, it seems to me that you've taken a markedly different position between your opening brief and your reply brief. [00:02:11] Speaker 03: In the opening brief and before the district court, you seem to admit that there's no direct alteration of nesting habitat, but say that the edge effects from non-habitat can result in modifications of murrelet nesting habitat. [00:02:24] Speaker 03: But in the reply brief, you broaden the definition of nesting habitat to include younger strands. [00:02:30] Speaker 03: Isn't that a radically different position? [00:02:33] Speaker 00: I would argue that it's not a different position. [00:02:35] Speaker 00: I think the terms nesting habitat and nesting structure, if you look throughout the record, are used fairly interchangeably in different contexts, used different ways. [00:02:45] Speaker 00: Nesting structure is going to be an individual tree that Neolats can nest in, right? [00:02:50] Speaker 00: Nesting habitat is the forest area around. [00:02:53] Speaker 03: But you seem to be, before the district court, it seemed to be a fairly narrow definition. [00:02:58] Speaker 03: You seem not to have broadened it. [00:03:00] Speaker 03: Isn't that correct? [00:03:02] Speaker 00: I think it is correct, and I think we put a footnote in the reply brief trying to explain kind of the difference there. [00:03:07] Speaker 00: I think the claims have always been the same. [00:03:10] Speaker 00: The BLM is not following these Murilet management directions, they're not surveying, they're not designating occupied stands per R&P direction, and they're not buffering. [00:03:18] Speaker 00: But I think Murilet habitat has a number of different definitions. [00:03:23] Speaker 00: And so if you look at [00:03:25] Speaker 00: For example, in the Resource Management Plan's biological assessment at ER-1165-1166, Murillet nesting habitat can be a patch of nesting structure. [00:03:37] Speaker 00: And I think that's how we refer to it in the opening brief. [00:03:41] Speaker 00: When getting plaintiffs' response brief in this case, I realized how they were kind of using it as a term of art and kind of adjusted to kind of reflect the intention and meaning of the Resource Management Plan. [00:03:54] Speaker 03: I don't think it's an expansion. [00:04:03] Speaker 00: I think we were using it in kind of a general colloquial way. [00:04:06] Speaker 00: I think BLM was using it in a very specific way. [00:04:09] Speaker 00: I think our reply brief, maybe it took me longer than it should have, but picked up on that usage and then responded to it and addressed it. [00:04:19] Speaker 00: So murreletts are seabirds that nest in coastal old growth. [00:04:22] Speaker 00: They lay their eggs on thick lateral branches high up in the canopy. [00:04:25] Speaker 00: This type of nesting structure takes 200 to 250 years to develop. [00:04:29] Speaker 00: In addition to nesting structure, murreletts need large blocks of unfragmented forest around that nesting structure to breed. [00:04:36] Speaker 00: BLM assumed it would take a couple hundred acres of forest area around nesting structure to support a single pair of nesting murreletts. [00:04:44] Speaker 00: So nesting habitat is not just the old growth nesting trees, it's the forest surrounding it. [00:04:48] Speaker 00: Muriolets need this forest as insulation, as protection from elements, but mainly to hide from predators. [00:04:56] Speaker 00: The first nest wasn't discovered until 1974, so the bird does a pretty good job at hiding. [00:05:01] Speaker 00: And if you log the forest surrounding nesting structure, this leads to adverse edge effects. [00:05:06] Speaker 00: This includes increased exposure and weather, but again, predation is the main thing in Oregon, which is driving population dynamics. [00:05:14] Speaker 00: BLM lands in Oregon which have been flagged as highly problematically fragmented. [00:05:20] Speaker 00: They have very high nest predation rates. [00:05:22] Speaker 00: It can reach up to 60 to 80 percent. [00:05:25] Speaker 00: So edge effects general the rule of thumb is they reach 300 to 600 feet and into an adjoining forest area. [00:05:30] Speaker 00: Nearly all of the proposed logging here is within 300 feet of an extensive network of nesting structure. [00:05:37] Speaker 00: This area has a uniquely large amount of never before logged wool growth. [00:05:42] Speaker 00: And this is why the stands in the Big Weekly Elk area, quote, are mapped to suitable nesting habitat. [00:05:48] Speaker 00: That's ER 197. [00:05:50] Speaker 00: This is why over 50 murrelet sites have been documented here. [00:05:53] Speaker 00: That is an unusually high number. [00:05:55] Speaker 00: And the project area contains nearly a quarter of all murrelets on BLM lands, which is 2.6 million acres. [00:06:02] Speaker 00: This is why appellants are here with this case. [00:06:04] Speaker 00: This is a uniquely important area. [00:06:07] Speaker 00: And so the Resource Management Plan has murrelet protections. [00:06:10] Speaker 00: in every land use allocation in zone one. [00:06:13] Speaker 00: So they apply to the entire project area here. [00:06:16] Speaker 00: And both parties agree that these protections are triggered by modifying nesting habitat or removing nesting structure. [00:06:22] Speaker 03: It's interesting to me. [00:06:24] Speaker 03: Do you agree that the BLM is not logging in occupied sites? [00:06:30] Speaker 00: Yes, but I think that's because they're inappropriately avoiding finding occupied sites. [00:06:37] Speaker 03: You want to treat occupied sites as within 300 feet, but that's a new construction, is it not? [00:06:45] Speaker 00: No, I think the BLM is avoiding the survey requirement, which would then compel, if they got a positive survey result, would compel the designation of an occupied stand, which is that [00:06:55] Speaker 03: quarter-mile plus a 300 foot buffer right under the resource can you cite any case law that would if you will buttress your position it seems to me I've done a lot of environmental law cases and I it seems to me you are taking some pretty clear law what they can and cannot do and you're if you will putting an X factor into it you're just saying you know it's a practical matter you get too close to these things you're going to create harm [00:07:24] Speaker 03: But it's new. [00:07:26] Speaker 03: It's a new spin. [00:07:28] Speaker 03: What I'm looking for is where what's your justification for that? [00:07:34] Speaker 00: I would argue that we're not introducing anything. [00:07:37] Speaker 00: I think all that we're asking all the appellants are asking be on to do is apply that that five acre standard [00:07:44] Speaker 03: Draw the analysis area apply the five-acre standard to determine whether or not nesting habitat, but it's new it's new right I mean I understand you you think as a matter of logic it should go there But do you not agree that there is no current case law that buttresses your position. [00:08:01] Speaker 00: Oh absolutely that there's no This resource manager plan was new in 2016 so there we are in the process with the BLM now of kind of [00:08:09] Speaker 00: there's a number of provisions in this resource management plan that are before. [00:08:13] Speaker 00: So yes or no there are case law that back you up? [00:08:17] Speaker 00: Back me up? [00:08:18] Speaker 00: There's no case law specifically about this standard. [00:08:20] Speaker 00: So you're asking us to make new law? [00:08:23] Speaker 00: Correct. [00:08:24] Speaker 00: I'm asking for a novel interpretation of the BLM's marble murlatt protections in the resource management plan. [00:08:31] Speaker 00: And I think this course correction is warranted because BLM's projects are all over the map with this murlatt standard and so I think [00:08:39] Speaker 00: This is necessary. [00:08:41] Speaker 00: And so the question before this court is what does modifying nesting habitat mean? [00:08:45] Speaker 00: I think that is the legal question that you're resolving. [00:08:49] Speaker 00: And R&P interpretive issues start with the text. [00:08:52] Speaker 00: The relevant provisions here are three bullet points just before the medialite protective options. [00:08:58] Speaker 00: And the disagreement between the parties hinges on this first sentence. [00:09:01] Speaker 00: It says before modifying nesting habitat or removing nesting structure, assess the analysis area for nesting structure. [00:09:07] Speaker 00: And so BLM's argument, [00:09:09] Speaker 00: is that it does not need to assess an analysis area until it's proposing to modify nesting habitat. [00:09:15] Speaker 00: But this is just not a serious interpretation because if you keep reading the RMP text, it explicitly says that the analysis area is how BLM identifies relevant nesting structure so that you know if you're modifying or removing. [00:09:29] Speaker 00: It says, quote, the analysis area includes all nesting structure that could be affected by habitat modification. [00:09:34] Speaker 03: Let me ask you this. [00:09:36] Speaker 03: I realize that this case, the Supreme Court's recent case, deals with NEPA. [00:09:41] Speaker 03: I wrote a case years ago called Lance Council versus McNair. [00:09:46] Speaker 03: And basically what we said is, [00:09:48] Speaker 03: You've got different opinions. [00:09:50] Speaker 03: You folks are brilliant. [00:09:52] Speaker 03: You go in and you make all these arguments. [00:09:54] Speaker 03: There are thousands of pages of objections. [00:09:56] Speaker 03: But ultimately the agency has to balance it. [00:10:00] Speaker 03: And what we concluded in Lance Castle and the Supreme Court seems to have concluded in its recent NEPA case is you've got to defer to these people unless you've got some direct [00:10:11] Speaker 03: evidence that they're just flat out wrong and they're not complying with the law. [00:10:15] Speaker 03: And that's frankly what I'm struggling with in your case here. [00:10:18] Speaker 03: You're smart people, you're dedicated people, but you've got the BLM which has got all this record, all these people making comments, and they have to balance it somehow. [00:10:30] Speaker 03: Their argument is that they did. [00:10:32] Speaker 03: What's your best argument that they didn't? [00:10:37] Speaker 00: I think there's a few points here. [00:10:38] Speaker 00: So I think [00:10:39] Speaker 00: The balancing already occurred when the agency developed the resource management plan, came up with the Atlanta use allocations, and developed the wildlife protections. [00:10:47] Speaker 00: And they modeled out how all of this would apply. [00:10:50] Speaker 00: I think the best, one of the best facts for why this, what the BLM is doing here is kind of inconsistent with that balancing that occurred. [00:10:59] Speaker 00: is the BLM predicted that extensive surveying would occur prior to logging in LSR in the late successional reserves in Zone 1. [00:11:07] Speaker 00: Here we have a project area that's undoubtedly like Murillet Zone and we have no surveys in the LSR whatsoever. [00:11:14] Speaker 00: And so I think there's this inherent inconsistency. [00:11:17] Speaker 00: The BLM also predicted and modeled that there would be 380 some odd occupied stands designated. [00:11:23] Speaker 00: Here we have just single stand designated in the harvest land base. [00:11:26] Speaker 00: And so I think [00:11:28] Speaker 00: With that balancing and with the math that went into the BLM's modeling, they predicted that there was going to be extensive occupied stand designation. [00:11:35] Speaker 00: They modeled that there would be no logging at all in the occupied stands. [00:11:39] Speaker 00: These were to occur in the LSR and the harvest land base. [00:11:42] Speaker 00: And so I think what we have here is the super important dairy from our Muralettes, and we have none of that applying. [00:11:48] Speaker 00: And I think that's a major red flag that something's wrong. [00:11:51] Speaker 00: I think the other major red flag that something is wrong is BLM's position [00:11:56] Speaker 00: Fish and Wildlife Service disagrees with it. [00:11:58] Speaker 00: It's an open conflict with the biological opinion. [00:12:00] Speaker 00: That is something we've never run into in the timber sale context before. [00:12:04] Speaker 00: Like that is a major red flag that this is an inconsistent interpretation. [00:12:08] Speaker 03: When you say a major red flag, you're saying that if the BLM models something and they say, we think this is going to happen. [00:12:16] Speaker 03: And you say, no, that's not what's going to happen. [00:12:18] Speaker 03: Then you go down the road several years and you say, you know what, they were wrong. [00:12:22] Speaker 03: Is that essentially what you're saying here? [00:12:25] Speaker 00: Could you repeat that question? [00:12:27] Speaker 00: I'm sorry. [00:12:27] Speaker 03: What I'm saying is the BLM did certain modeling. [00:12:31] Speaker 03: They predicted certain things. [00:12:34] Speaker 03: And you said, no, something else is going to happen. [00:12:36] Speaker 03: Go down the road, something maybe in between happened. [00:12:40] Speaker 03: And you say, you know, the BLM, you got it wrong. [00:12:42] Speaker 03: You modeled it wrong. [00:12:44] Speaker 03: Is that what we look to? [00:12:46] Speaker 03: Or do we look at what the facts were as people examined them at the time the report was done? [00:12:52] Speaker 00: I think, so the modeling very explicitly in the RNP doesn't control anything, but I think it's a strong indicator of how the RNP was anticipated to play out on the ground. [00:13:06] Speaker 03: Again, that gets back to my basic point. [00:13:08] Speaker 03: You guys are really smart people. [00:13:10] Speaker 03: You really want to get a result. [00:13:12] Speaker 03: But ultimately, the BLM has to take everything that gets in, tons of stuff, and they do their best. [00:13:18] Speaker 03: They do their best. [00:13:19] Speaker 03: And not just one administration. [00:13:21] Speaker 03: No, this is carried over for several administrations. [00:13:24] Speaker 03: And yet, they still come up with the answer that you don't like. [00:13:28] Speaker 03: And ultimately, we as a court have to determine, OK, [00:13:32] Speaker 03: How do we determine this? [00:13:33] Speaker 03: We're not scientists. [00:13:34] Speaker 03: I said that in lands council. [00:13:36] Speaker 03: We're not scientists. [00:13:36] Speaker 03: We have to depend on the scientists. [00:13:39] Speaker 03: And when they say something, you have one person says X and the other person says Y. We deferred to the agency unless you can show they knew it was just flat out wrong and they're not complying with the law. [00:13:53] Speaker 03: I'm not seeing that here. [00:13:54] Speaker 03: What am I missing? [00:13:55] Speaker 00: So I think one of the other kind of factual circumstances that clearly indicates the BLM is doing something wrong. [00:14:02] Speaker 00: is that there is anticipated take of four marbled murrelets from the proposed logging. [00:14:08] Speaker 00: That's from the harvest land-based logging. [00:14:09] Speaker 00: The Fish and Wildlife Service didn't even estimate take from the LSR because they said it would require more on the ground information, which they did not have. [00:14:16] Speaker 00: But the fact that that take is occurring means that the RMP is being applied wrong. [00:14:21] Speaker 00: The RMP anticipated that the only take that would occur would be in zone two in the harvest land base. [00:14:27] Speaker 00: No take would occur in zone one because they were going to be liberally surveying for, designating protected occupied stands, and then buffering those stands. [00:14:35] Speaker 00: And that is what the agency is inappropriately avoiding here. [00:14:40] Speaker 00: And I'll just say, I think with the modifying nesting habitat, all of these questions, and I know you're talking about deference, under Kaiser, I think we have, this is a question of like, [00:14:51] Speaker 00: RMP interpretation of like what this language means I think we need to like start, and I think we can end with the text you very well I'm sorry I think we want to start and end with the text of the resource management plan and the resource management plan clearly lays out a Step-by-step process for determining whether you're modifying nesting habitat And this is you delineate in analysis area that analysis area may contain no nesting structure BLM can do whatever it wants or if it does contain a [00:15:20] Speaker 00: six or more nesting trees within this five-acre moving circle, BLM has to employ one of the mulelet protective options. [00:15:26] Speaker 00: And I think here, BLM's like, hey, we need to log these plantations. [00:15:31] Speaker 00: There is still a way for BLM to log the plantations here. [00:15:34] Speaker 00: So the survey and designate occupied stand, that's one of three, four different protective options under the Resource Management Plan for mulelets. [00:15:44] Speaker 00: Option two here allows the BLM to move forward [00:15:47] Speaker 00: They don't have to survey. [00:15:48] Speaker 00: They don't have to designate occupied stands. [00:15:49] Speaker 00: They just have to implement a lighter logging prescription, which is still commercial, still commercial volume. [00:15:55] Speaker 00: They just don't have to do, they're just not going to be able to log this heaviest logging prescription. [00:16:00] Speaker 03: I know you're almost out of time, and I know you want to save a couple of minutes, but I want to get to the NEPA concept. [00:16:05] Speaker 03: You seem to rely primarily on the failure to take a hard look. [00:16:10] Speaker 03: And I don't find that very convincing. [00:16:12] Speaker 03: And I look at the Supreme Court's recent [00:16:14] Speaker 03: Seven County Infrastructure Coalition versus Eagle County, and it seems to further undercut your argument. [00:16:22] Speaker 03: How would you respond to that? [00:16:24] Speaker 00: So in Eagle County, the Supreme Court reiterated that an agency's NEPA analysis gets deference on the issues of the detail, the level of detail required, the scope of the issues considered. [00:16:35] Speaker 03: And you don't project into the future. [00:16:36] Speaker 03: You're dealing with the current facts, right? [00:16:38] Speaker 03: Right. [00:16:39] Speaker 03: So under that standard, why did they get NEPA wrong? [00:16:44] Speaker 00: So I think there's no question here that Murlett effects are relevant and appellants aren't arguing or asking the BLM to amass more detail or jump through more hoops. [00:16:54] Speaker 00: Appellants argument is that BLM had this, it had the take determination from Fish and Wildlife Service, did not disclose it. [00:17:01] Speaker 00: It had all of these units laid out, didn't disclose it in any of the NEPA documents. [00:17:05] Speaker 03: As I read it, what you're basically saying is they looked, but they didn't look hard enough because you found some things that they didn't find and you disagree with them. [00:17:14] Speaker 03: That basically right? [00:17:15] Speaker 00: I think they looked, they didn't like what they saw because it was, because their new RMP interpretation from realettes was inconsistent with how the RMP and the Fish and Wildlife Service were saying this should be applied. [00:17:27] Speaker 00: And so they obscured the negative effects that would reveal that this project was inconsistent with the Resource Management Plan. [00:17:33] Speaker 00: That's why they didn't disclose take. [00:17:35] Speaker 00: That's why they didn't lay out any of these logging units on the ground. [00:17:38] Speaker 00: They were trying to mask the fact that this project was way out on a limb. [00:17:43] Speaker 03: You want to save the rest of your time. [00:17:44] Speaker 03: It's up to you. [00:17:45] Speaker 00: I believe I will. [00:17:46] Speaker 03: Thank you. [00:17:46] Speaker 03: Okay. [00:17:47] Speaker 03: Thank you. [00:17:48] Speaker 03: All right. [00:17:49] Speaker 03: Mr. Glenn, please. [00:18:01] Speaker 01: Good morning. [00:18:02] Speaker 01: May it please the court. [00:18:03] Speaker 01: Kyle Glenn here on behalf of the Bureau of Land Management. [00:18:06] Speaker 01: Your Honors, I'll start with the Flipma claim before turning to the NEPA claim. [00:18:10] Speaker 01: And on the Flipma claim, I think it's best to begin just by describing the balance that the 2016 RMP struck. [00:18:17] Speaker 01: Through the 2016 plan, the Bureau set aside a large amount of forests and reserves that would actively manage to promote recovery of threatened and endangered species like the murrelet, a system where the Bureau would preserve existing murrelet habitat while also actively working to restore it in areas that [00:18:36] Speaker 01: It doesn't exist where it's been lost. [00:18:39] Speaker 01: The Bureau also set aside a much smaller area, the harvest land base, that it would manage to ensure a predictable supply of timber harvest every year. [00:18:49] Speaker 01: Now, the big weekly elk project simply implements this balance. [00:18:54] Speaker 01: Most of the project which occurs within reserves is not a habitat modification project. [00:19:01] Speaker 01: It's not a habitat removal project. [00:19:03] Speaker 01: It's a habitat restoration project. [00:19:06] Speaker 01: The Bureau is thinning in stands that are in forest areas that lack suitable existing nesting habitat and it determined that the best way to get these forests on track to developing those traits within the foreseeable future is to conduct these sorts of thinning treatments now. [00:19:25] Speaker 01: And I'd like to address a point about what the environmental assessment says in the record excerpts at page 197. [00:19:34] Speaker 01: That part of the EA does say that [00:19:36] Speaker 01: The Bureau is conducting some thinning treatments in stands that are mapped as including suitable habitat. [00:19:42] Speaker 01: However, it also says that the Bureau will only thin the parts of the stand that don't meet habitat criteria. [00:19:49] Speaker 01: So there's no late succession reserve thinning treatment here that targets existing suitable habitat. [00:19:56] Speaker 01: The whole point of these treatments is restoration. [00:20:02] Speaker 01: With that, I'd like to turn to how the Bureau is implementing option one of the murrelet direction for this project. [00:20:08] Speaker 01: I don't think there's any real dispute here that the murrelet direction only comes into play if the Bureau first proposes to modify nesting habitat or remove nesting structure. [00:20:21] Speaker 01: That was proposed, right? [00:20:23] Speaker 01: No such thing was proposed, right? [00:20:26] Speaker 01: Not within the late secession reserves. [00:20:28] Speaker 01: It is within the harvest land base, but that's why the bureau is surveying in the harvest land base. [00:20:37] Speaker 01: Now option one requires surveys, and if the surveys reveal evidence of murrelet occupancy, setting aside the surrounding quarter mile of forest and buffering it by 300 feet. [00:20:50] Speaker 01: As I noted, the only part of this project, or the only timber activities in this project that occur within existing nesting habitat are within the harvest land base. [00:20:59] Speaker 01: And that's why the Bureau is surveying and setting aside any new occupied site. [00:21:06] Speaker 01: Within the late accessional reserve, for these treatments, the Bureau is not required to implement option one. [00:21:13] Speaker 01: And I'd like to address a point about that plaintiff's council made [00:21:18] Speaker 01: about what the plan envisioned in terms of surveying in the late succession reserve. [00:21:23] Speaker 01: And I'd actually like to make two points about that. [00:21:26] Speaker 01: One is that plaintiffs cited part of the biological opinion for the project that what they say shows that the Bureau envisioned extensive surveys in reserves. [00:21:42] Speaker 01: But that part of the biological opinion specifically [00:21:48] Speaker 01: I believe it's in the record excerpts at 1227, was about the harvest land base. [00:21:52] Speaker 01: That was not about surveys in reserves. [00:21:55] Speaker 01: And two, most of the reserves here that the Bureau is not surveying are within sites that the Bureau already surveyed or has already been surveyed under the Northwest Forest Plan and designated as occupied. [00:22:07] Speaker 01: The Marble Merlot directions within the RMP don't apply to those sites. [00:22:12] Speaker 01: The Bureau made clear in its plan and the supporting documents that [00:22:17] Speaker 01: The Merlet directions are processed for protecting new occupied habitat that had not yet been discovered. [00:22:25] Speaker 01: And once you take out that large chunk of habitat that the Bureau is not surveying within the late succession reserves, there's not much left to plaintiffs' claim that this issue of what modifying nesting habitat bears on. [00:22:41] Speaker 01: The question would be, well, [00:22:43] Speaker 01: adjacent but suitable nesting habitat is the Bureau supposed to survey and is not surveying. [00:22:52] Speaker 01: And as we explained in our brief, the Bureau's interpretation of modifying nesting habitat as being direct alteration of nesting habitat is built into the plan itself. [00:23:04] Speaker 01: As the Disher Court explained, the Bureau modeled the allowable sale quantity, the amount of timber that [00:23:12] Speaker 01: it envisioned it could make available for harvest every year under the ONC Act based off this interpretation of modifying nesting habitat. [00:23:23] Speaker 01: And just to put a finer point on it, the way that the Bureau did that was by, I'll take a step back. [00:23:31] Speaker 01: The Bureau and its plan stressed a need for certainty and predictability in meeting the declared ASQ. [00:23:38] Speaker 01: So to ensure that predictability, it stressed [00:23:42] Speaker 01: that it assumed full implementation of the planning directions, including the Marble Merlet direction and its survey and buffer process. [00:23:51] Speaker 01: And the bureau made a downward deduction to its ASQ based off of harvest within Habitat by predicting how much of that would have to be set aside through surveys that reveal occupancy. [00:24:06] Speaker 01: The Bureau did not make any downward adjustment to its ASQ declaration based off of harvest next to habitat that it knew was occupied. [00:24:16] Speaker 01: It knew where this habitat was within the Northwest Forest Plan-era sites. [00:24:21] Speaker 01: It knew that habitat was occupied. [00:24:23] Speaker 01: And its modeling assumed that harvest would occur up to the edge of that habitat. [00:24:28] Speaker 01: So what the Bureau essentially did was tell its model that harvest up to the edge of that habitat won't modify it. [00:24:34] Speaker 01: so don't make a downward adjustment in the ASQ based off of that. [00:24:39] Speaker 01: And I like to stress about the Fish and Wildlife Service, the only open disagreement here between the Fish and Wildlife Service and, it's between the Fish and Wildlife Service and the plaintiffs rather than between the Fish and Wildlife Service and the Bureau. [00:24:54] Speaker 01: The Fish and Wildlife Service, once it became aware of the difference in interpretation about what is modifying nesting habitat, [00:25:01] Speaker 01: It prepared a new effects analysis pursuant to the Endangered Species Act. [00:25:05] Speaker 01: It acknowledged that the Bureau's ASQ modeling was based off of the interpretation of modifying nesting habitat to mean direct alteration of it. [00:25:15] Speaker 01: And on top of that, the Fish and Wildlife Service prepared a biological opinion for this project concluding that this project is consistent with the management direction of the Bureau's plan. [00:25:25] Speaker 02: Based on the definition of modifying nesting habitat, correct? [00:25:31] Speaker 02: I mean, the odd thing about this case is you have the two agencies that seem to disagree what that phrase means. [00:25:38] Speaker 02: And I understand that you proceeded with a series of assumptions to try to get to your opinion. [00:25:45] Speaker 02: But at the end of the day, to me, this case seems to turn on whether or not your construction of modifying nesting habitat is due deference, right? [00:26:00] Speaker 01: Well, Your Honor, we believe that we have the best reading of the plan. [00:26:04] Speaker 01: Right. [00:26:04] Speaker 02: I know you do. [00:26:05] Speaker 02: But the Supreme Court has instructed how we do the analysis. [00:26:09] Speaker 02: And my concern in this case is that the District Court didn't do the complete Kaiser analysis. [00:26:17] Speaker 02: And when it got down to the four factors, it did the first two and didn't do the remaining. [00:26:23] Speaker 02: So my question to you is, what do we make of that? [00:26:26] Speaker 02: Leaving aside, I understand your argument about reasonability and what happened here. [00:26:32] Speaker 02: But as I look at it, the Supreme Court says, here's your task. [00:26:36] Speaker 02: Here's how you analyze it. [00:26:38] Speaker 02: And it appears that the district court analysis is incomplete. [00:26:42] Speaker 02: So what do I do with that? [00:26:44] Speaker 01: Well, Your Honor, to the extent that the district court's analysis is incomplete in terms of going through the steps of Kaiser, [00:26:53] Speaker 01: We don't believe that would, this court can still affirm because the standard of review here is de novo and the court doesn't owe any deference to the district court's analysis or application of Kaiser. [00:27:07] Speaker 02: Right, but then so how are we to independently go to the third and fourth steps of Kaiser, that part of Kaiser? [00:27:15] Speaker 02: I mean that's usually what we ask the district courts to do to weigh that. [00:27:22] Speaker 02: I mean, I'm going to ask them whether this is subject to harmless error. [00:27:25] Speaker 02: But I mean, that's my concern procedurally is that the district court didn't, in my view, didn't finish its job. [00:27:33] Speaker 01: Well, Your Honor, the first step of any textual interpretation is beginning with the text and the surrounding context. [00:27:40] Speaker 01: And we believe that this analysis ends there. [00:27:43] Speaker 01: So we believe that the court could affirm simply on that basis without reaching the other steps [00:27:50] Speaker 01: of Kaiser. [00:27:51] Speaker 02: There's no genuine ambiguity here in the Marble Merlite direction because the... The problem I have with that genuine ambiguity is you have a disagreement about what the phrase means among two agencies. [00:28:05] Speaker 02: And to me it's not obvious on its face of what modifying the habitat means. [00:28:12] Speaker 01: Well, Your Honor, although the Fish and Wildlife Service initially understood the phrase as used in the plan to mean something other than what the Bureau intended, it acknowledged that the Bureau's interpretation was always the intended interpretation. [00:28:26] Speaker 01: It was built into the plan. [00:28:28] Speaker 02: Well, did it? [00:28:29] Speaker 02: Or did it just say, we'll proceed under your assumption? [00:28:33] Speaker 02: I mean, I didn't... I may have missed it, but I didn't see anything in Fish and Wildlife saying that said, yeah, you were right, we were wrong. [00:28:42] Speaker 01: Your honor, the Fish and Wally service did continue to recommend as a policy matter that [00:28:46] Speaker 01: the Bureau applied these 300-foot buffers around the Northwest Forest Plan occupied sites, but it did acknowledge in its new effects analysis, specifically in the record excerpts at 894, that the Bureau had intended modifying nesting habitat to mean direct alteration of nesting habitat. [00:29:06] Speaker 02: Right. [00:29:06] Speaker 02: I mean, it acknowledged what the Bureau did, but it didn't say, yeah, you were right and we were wrong. [00:29:12] Speaker 02: It just said, this is what you're doing, and so we'll do the analysis. [00:29:15] Speaker 02: That's why I read it. [00:29:17] Speaker 01: Well, I believe it ultimately made that determination in its biological opinion for this project when it concluded that the project here is consistent with the management direction of the plan. [00:29:26] Speaker 01: It acknowledged that there is initially that misunderstanding in its biological opinion, but also acknowledged that the Bureau had clarified its meaning of that. [00:29:36] Speaker 02: Did it say misunderstanding? [00:29:38] Speaker 02: It just said, well, we'll take your version of it and we'll run the analysis. [00:29:44] Speaker 01: The biological opinion did not say misunderstanding, but it had acknowledged that there was originally that question that arose. [00:29:51] Speaker 03: What do we do with that, as my colleague points out? [00:29:54] Speaker 03: The district court didn't do the full Kaiser analysis. [00:29:57] Speaker 03: You have a disagreement between fish and wildlife and the BLM, which ultimately just acquiesced. [00:30:05] Speaker 03: How do we treat that? [00:30:06] Speaker 01: Your Honor, I don't think it bears on the court's analysis here, really, simply because [00:30:13] Speaker 01: that the bureau is was charged with under footnote with you know drafting these land use plans and implementing them and the bureau's interpretation here uh... because it's the best interpretation is [00:30:27] Speaker 01: This court owes no deference to the Fish and Walleye Service's interpretation on that. [00:30:33] Speaker 02: No, no, no. [00:30:35] Speaker 02: You start with, is this ambiguous? [00:30:38] Speaker 02: And you have two agencies that have a different interpretation, which tells me, yeah, it's probably ambiguous. [00:30:44] Speaker 02: And then the question is, is the Bureau's interpretation due deference? [00:30:50] Speaker 02: And the Supreme Court in Kaiser said, here's how you determine that. [00:30:54] Speaker 02: And again, my concern is, [00:30:56] Speaker 02: the district court didn't finish the analysis. [00:31:00] Speaker 02: My educated guess is, if it had, it would have come out your way as well, but analytically and on review, that's my concern. [00:31:07] Speaker 02: I'm just expressing that so you can respond and tell me why it doesn't matter. [00:31:13] Speaker 01: Well, Your Honor, as you noted, if the analysis would be the same, that's a question that this court could itself resolve without acknowledging those [00:31:25] Speaker 01: The district court not reaching those steps and and I would also point out that or we could do a limited remand say finish finish Well, I guess I guess that's where the question of harmless error would come into play your honor, but we is harmless error Appropriate here. [00:31:41] Speaker 02: I mean that usually that's a concept in criminal cases and some civil cases, but I'm agency cases I'm I'm not sure [00:31:48] Speaker 01: Well, we believe that the court would not even need to reach that question simply because the best reading of the plan here is that modifying nesting habitat means direct alteration of nesting habitat. [00:32:01] Speaker 01: And I would just, I would again emphasize that once you take out the Northwest Forest Plan-era occupied sites, there's not much left over that the Bureau is at issue. [00:32:11] Speaker 01: The Bureau surveyed both the habitat that is within the harvest units and adjacent to the harvest units [00:32:17] Speaker 01: within the harvest land base. [00:32:19] Speaker 01: So the only question would be what's left in Laces Session Reserves and the Bureau is avoiding even indirect modification of I think it's 56 acres of unsurveyed but suitable nesting habitat in Laces Session Reserves with the 150 foot buffer is that the Bureau is implementing at the recommendation of the Fish and Wildlife Service. [00:32:37] Speaker 01: So I think no matter the approach here, the court still has a basis to affirm. [00:32:44] Speaker 02: Yeah, except that we really can't jump to saying, oh yeah, you're reasonable without going through the steps of Kaiser. [00:32:50] Speaker 02: I mean, we may think looking at your approach and listening to you today that your approach is reasonable and your interpretation is reasonable, but that doesn't cut out the analysis that's required. [00:33:01] Speaker 02: Again, that's my concern. [00:33:04] Speaker 03: Can we do that as a court of appeal? [00:33:07] Speaker 03: Can we construe and determine [00:33:12] Speaker 03: how the missing analysis of the Kaiser principles are to be decided? [00:33:20] Speaker 03: Or do we have to send it back to district court? [00:33:23] Speaker 01: Well, I'd like to take a step back, because I don't think that the ultimate question here is whether the agency's interpretation is reasonable. [00:33:33] Speaker 01: It's simply whether it's the best reading. [00:33:35] Speaker 02: And that's why we- Okay, substitute best reading for my question. [00:33:41] Speaker 01: don't think that this court would have to do a limited remand to the district court on that purpose. [00:33:46] Speaker 01: This court could reach those steps itself because again the standard of view here is de novo and the court owes no debt. [00:33:54] Speaker 01: What would we look at? [00:33:56] Speaker 03: What would we look at to fill in the blanks of the missing Kaiser elements? [00:34:01] Speaker 01: From this record your honor? [00:34:03] Speaker 01: Yes. [00:34:04] Speaker 01: Well there's just in terms of reasonableness the fact that the Fish and Wildlife Service is not charged with [00:34:11] Speaker 01: The Fish and Wildlife Service did not draft this plan. [00:34:16] Speaker 01: It's the Bureau's plan. [00:34:18] Speaker 01: And the ASQ modeling, there's no, we're talking about a very comprehensive planning process that led to the RMP here. [00:34:28] Speaker 01: It was a four-year planning process, an extensive four-volume environmental impact statement, and the only contemporaneous contextual evidence that, [00:34:42] Speaker 01: The contemporaneous contextual evidence here shows that the only intended meaning of modifying nesting habitat was direct alteration of nesting habitat. [00:34:53] Speaker 01: That's how the Bureau modeled the ASQ and assessed effects from the plan under NEPA. [00:35:01] Speaker 01: And plaintiffs really have not pointed to any countervailing contextual evidence besides the Fish and Wildlife Service's biological opinion that it itself [00:35:10] Speaker 01: Departed from and concluding that this project is consistent with the plant and I'd like to if the court has no further questions on the flip my point. [00:35:21] Speaker 01: I'd like to briefly turn to the NEPA claim here We we believe as we noted in our Supplemental Authority letter that seven County really was a sharp course correction in terms of [00:35:35] Speaker 01: ensuring agency compliance with NEPA. [00:35:38] Speaker 01: And plaintiffs' claims here really do go to the scope of the environmental assessment and the level of detail that was provided for in that environmental assessment. [00:35:48] Speaker 01: And the Supreme Court stressed that those matters are the sort of policy-laden, fact-specific judgment calls that are within the agency's discretion and warrant substantial deference. [00:36:00] Speaker 01: And just to follow up on your question about the NEPA regulations, [00:36:06] Speaker 01: We don't believe that the rescission has any impact on this case. [00:36:10] Speaker 01: Like in 7th County, this court could resolve the NEPA claim simply on the basis of looking to the statute itself. [00:36:16] Speaker 01: The statute itself only requires the court of the agency to prepare a detailed statement if it determines there are significant environmental impacts. [00:36:26] Speaker 01: And the ultimate standard to review for that is the APA's arbitrary and capricious standard. [00:36:32] Speaker 01: Plaintiffs haven't shown that [00:36:34] Speaker 01: You know, affording the agency the substantial deference that the Supreme Court explained was necessary in Semit County that the agency's NEPA analysis here was arbitrary and capricious in any way. [00:36:46] Speaker 01: If the court has no further questions. [00:36:48] Speaker 03: I think not. [00:36:48] Speaker 03: All right. [00:36:49] Speaker 03: Thank you, counsel. [00:36:51] Speaker 03: All right. [00:36:51] Speaker 03: Mr. Cady, you have a few minutes of rebuttal. [00:36:59] Speaker 00: So I'd love to pick up on where that discussion left off about Kaiser, and I think [00:37:04] Speaker 00: The question we're answering is reasonableness of that interpretation. [00:37:07] Speaker 00: And Kaiser explained that the same factors that you would consider like the context, purpose, intent, all of those factors weigh on both the question of reasonableness and ambiguity. [00:37:18] Speaker 00: And so even if this court were to find based on those two agencies conflicting interpretations of this provision that the language modifying nesting habitat is ambiguous, I think there are a number of reasons why that interpretation is unreasonable. [00:37:33] Speaker 03: So I gather you would encourage the court to have a limited remand for the district court to further analyze the Kaiser elements, is that right? [00:37:43] Speaker 00: I think that's one route open to the court. [00:37:45] Speaker 00: I also think this court could address the reasonableness of Beyond's interpretation itself. [00:37:49] Speaker 03: So you think we could address it ourselves? [00:37:51] Speaker 00: I believe so. [00:37:53] Speaker 00: This is an administrative record case. [00:37:55] Speaker 02: Right, but I mean, you start off, is it ambiguous? [00:37:58] Speaker 02: assuming it is, then is their interpretation reasonable? [00:38:01] Speaker 02: Let's assume that it is. [00:38:03] Speaker 02: Then you get down to whether the agency's interpretation is entitled to controlling weight. [00:38:11] Speaker 02: And that's where the district court, and I think I said four factors, but there are only three, didn't deal with the third factor. [00:38:18] Speaker 02: So my question is, to your point, [00:38:22] Speaker 02: What should we make of that? [00:38:25] Speaker 02: Is it required? [00:38:27] Speaker 02: Can we do it? [00:38:30] Speaker 00: That's an interesting question. [00:38:32] Speaker 00: I am not sure I have the answer to Kaiser's relatively new case law. [00:38:37] Speaker 02: Both of you seem to want us to cut to the chase on reasonableness. [00:38:41] Speaker 00: I think this is unreasonable for a few reasons. [00:38:46] Speaker 00: The RMP contains its own test for determining whether or not you're modifying nesting habitat. [00:38:51] Speaker 00: This is the analysis area, the five-acre moving circle. [00:38:54] Speaker 00: It explicitly says it's to address and account for edge effects. [00:38:58] Speaker 00: BLM's interpretation just looks within the logging unit itself. [00:39:01] Speaker 00: It can't address that. [00:39:03] Speaker 00: And basically, BLM is making up its own test for modifying nesting habitat to replace that one that exists in the RMP language. [00:39:10] Speaker 00: The consequences of BLM's test is there will be no muleette surveys in LSR. [00:39:15] Speaker 00: That's how we see it play out on the ground. [00:39:16] Speaker 00: That is a major fundamental change of the plan. [00:39:19] Speaker 00: To address the missed site, I did catch this and meant to touch it. [00:39:22] Speaker 00: It's ER1230. [00:39:22] Speaker 00: 50% of LSR logging was supposed to be surveyed. [00:39:27] Speaker 00: Here we have LSR logging and [00:39:28] Speaker 00: one of the highest muralite concentration areas on BLM lands. [00:39:31] Speaker 00: No surveys. [00:39:33] Speaker 03: Okay. [00:39:33] Speaker 03: Any questions about my colleague? [00:39:35] Speaker 03: Thanks to council for your exhaustive argument. [00:39:38] Speaker 03: I hope you're not too exhausted. [00:39:41] Speaker 03: Thanks to everybody in this case. [00:39:43] Speaker 03: The case of Cascadia Wildlands versus United States Bureau of Land Management is submitted and the court stands adjourned for the day.