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versus U.S.

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Forest Service 24-1187, Council for Appellant.

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If you would make your appearance and proceed, please.

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Thank you.

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Thank you.

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Good morning, Your Honors.

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May it please the Court, Lauren Rule, representing Appellant's Wild Earth Guardians and Western Watersheds Project.

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This case challenges the Forest Service's creation of the Wishbone Grazing Allotment.

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on the Rio Grande National Forest in southwest Colorado.

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And all the claims in this case essentially relate to one thing, the Forest Service's conclusion that this allotment was just a moderate risk to bighorn sheep.

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So what does that mean?

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What is moderate risk?

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There's no dispute that domestic sheep can transmit a pathogen to bighorn sheep that leads to respiratory disease in bighorn herds, can result in large die-offs and extended lamb mortality in bighorn herds.

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So the underpinnings of the risk ratings for grazing allotments, they use low, moderate, high risk, is the disease interval.

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So I'm going to start there.

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What is disease interval?

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In other words, it's how often a bighorn herd may experience a disease outbreak.

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And the Forest Service discusses this in the risk assessment for the wishbone allotment in Appendix Volume 5, pages 176 and 177.

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The Forest Service states that disease outbreaks of every 32 years or less would result in a bighorn sheep population that would be constantly exposed to ongoing disease transmission events and result in outbreaks.

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And that's because of the long length of time needed for a bighorn herd to recover from a prior outbreak.

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On the next page, 177, the Forest Service states that based on our analysis, a disease event within a local bighorn sheep herd every 32 years or less

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is assumed to result in a high risk to bighorn sheep long-term viability and low probability of population persistence.

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So they discuss this 32-year disease interval.

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And in fact, that is the threshold between moderate risk and high risk.

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On the next page of the risk assessment, this is volume 5, page 178, they outline the ratings factors for grazing allotments, low risk, moderate risk, high risk.

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And indeed, the 32-year disease interval is the threshold.

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If the disease interval of a bighorn herd will experience a disease outbreak in less than once every 32 years, the allotment is considered high risk.

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And if it's more than 32 years, then it's moderate risk.

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The other factors were how often a bighorn sheep would contact an allotment or move on to an allotment.

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For moderate risk, it had to be once every 8 to 10 years.

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And the third factor is the distance between a Bighorn home range and an allotment.

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For a high-risk allotment, anything less than 10 miles between the home range and the allotment is high risk.

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It had to be more than 10 miles apart for it to be moderate risk.

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Well, when the Forest Service did the analysis, ran the model for the Wishbone allotment, it came out with results.

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And we put a table in our reply brief on page 3 that compares

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the high risk and the moderate risk parameters to the results of the wishbone allotment.

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And the results of the wishbone allotment were, instead of a 32-year disease interval, it was a four-year disease interval.

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Instead of only contacting an allotment once every eight years, it was expected that a bighorn would contact an allotment every year.

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And the distance between home range and the allotment, instead of being 10 miles, it was one mile.

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So for the wishbone allotment,

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The results are not just high risk.

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When you look at the comparison, it would be considered like very, very high risk.

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Yet the Forest Service determined that the allotment was just moderate risk.

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How did they get there?

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Well, they used what they called local factors to say, oh, well, these certain local factors means the Wishbone allotment is really not as high as what the model showed.

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The main problem or one of the problems with this conclusion was that they didn't tie their moderate risk rating to the parameters for risk that they themselves identified in the risk assessment.

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So they didn't explain or provide any evidence to show that the local factors would actually reduce the risk of the allotment so substantially that they would go from a four-year disease interval to a 32-year disease interval.

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And I want to emphasize again, the 32-year disease interval is critical

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because that is the interval needed to maintain a viable, healthy bighorn sheep population.

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So there's no evidence in the record that these local factors would reduce the risk by almost 87% to get from the model to the moderate risk rating.

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They say, well, these local factors will reduce the risk of the allotment in general.

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But another problem with these factors is that they don't distinguish between the different pastures

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in the Wishbone allotment.

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And I think one thing I encourage you to do, I mean, this case obviously is very dependent on the facts and very dependent on the administrative record.

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And I cited some pages from the risk assessment and I think are critical to understand relating to the disease interval.

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I think it's also very important to understand the allotment itself.

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And the maps help show that there is a big difference between two of the pastures, the crystal and the shallow pastures,

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versus the other pastures in the allotment.

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And it's kind of which if I was in district court, I'd be showing this, but.

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The crystal and those two pastures overlap with the prior area that they determined

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they could not allow grazing on?

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Am I understanding that correctly?

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The crystal pasture overlaps yet the formation of, there were three snow mesa allotments and then there was a fourth allotment, the Ure allotment that was, they were all together and they analyzed them as a package and they said none of those could be grazed because they were high risk.

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The crystal allotment overlaps a good portion of the Ure allotment, yes.

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And so, yeah, if you look at the map, you can see the crystal and shallow pastures.

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They're much larger than the other ones.

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They're higher elevation.

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They're up around where the Snow Mesa allotments were.

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They're more remote.

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They're not along the road.

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There's no barriers between the Bighorn Home Range and those pastures.

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And so to say the factors are going to lower the risk rating of the entire allotment does not take into account the fact that the factors don't apply to the crystal and shallow pastures.

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I think one of the arguments that is made is that you didn't argue that the Forest Service had to do a pasture-by-pasture analysis before the agency.

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How do you respond to that?

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We're not arguing that.

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We're not saying they had a legal duty to do a separate analysis for every individual pasture.

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I mean, they have done that in the past.

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They did that with the fig allotment, Fisher, Ivy, Goose, Lake allotment.

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different assessment for every individual pasture.

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But we're not even arguing that they had to do that here, that they had a legal duty.

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What we're saying is they had to consider how much these factors would reduce the risk overall.

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And in that consideration, they had to look at whether the factors would actually apply to all of the pastures.

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And they didn't do that, because the crystal and shallow pastures, like I said, are so different, and the factors apply to them very differently.

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I would like to touch on the telemetry data, because this is also an important point.

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So actually, before I go on to that, I do want to reference, so the maps in volume five of page 146, that shows the configuration of the pastures, which I think is useful.

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I also want to point you to the map volume five, page 156, which shows Bighorn summer habitat.

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which obviously is important because that's when the domestic sheep are grazing in the summer.

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It would have been helpful if on this map they had shown the wishbone pastures.

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Instead, this map just shows big corn summer habitat and the snow mesa allotments.

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So you have to kind of visualize, look at the other map and visualize where the crystal and shallow pastures would be.

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And if you do that, you can see that there is extensive summer habitat within the crystal and shallow pastures.

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because they're like at the southeast corner of the Ooray allotment, there's extensive pink summer habitat and there is habitat leading from the home range straight up into that good habitat that is in the crystal and shallow pastures.

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So take a look at those maps because I think they are helpful.

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Let me play off at least what I understood to be your initial statement, which is that all of the challenges that are raised here

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essentially derived from the notion of whether there was error in the agency's movement, the government's movement from high to moderate risk in terms of its evaluation here.

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Taking that premise, if we were to determine that the government essentially violated NEPA in its evaluation of the EA, in other words it did not consider all the appropriate factors or for whatever reason you had three challenges I think to the EA, if we were to agree with you at least in part on that, sufficient for reversible error, would we have to reach those other two challenges?

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You mean like the EIS and the Supplemental Information Report challenges?

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Arguably no.

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It would be helpful if you reached our EIS so the Forest Service would know whether they had to do an EIS or not.

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But if you reversed on the EA, you could just reverse on that alone.

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With the telemetry data, I want to point out a couple of things that I think are useful to understand.

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The early telemetry data showed that these animals were moving around

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much more extensively than what the Forest Service had believed.

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So that alone should have made them question whether this data was actually supporting their local factors.

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And indeed, a bighorn ram went straight towards the shallow pasture in July of 2017.

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It's important to note that at that point in July of 2017, that was only the second season of data collection.

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And there were only three rams that had

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telemetry collars.

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One of just three rams went straight toward the shallow pasture and ended up a half mile away.

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The Forest Service itself estimated that there were 28 rams in that Bristol Head Big Horn herd.

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That's volume five, page 180.

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So that means there are 25 more rams without collars.

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It kind of defies belief that there weren't other rams taking that same route, taking that good habitat up towards the crystal and shallow pastures.

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when one of just three with radio collars took that path.

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What month was that observation of the Bristol bighorn within a mile?

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It was within a half mile.

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It was in July.

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OK.

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So that was when the domestic sheep were grazing those allotments, or when they would have been grazing those allotments.

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I understand that this is a fact-bound case.

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But at essence, you are alleging legal errors that have been made in the analysis of those facts.

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error that I understand from the telemetry data is the question that they did not have sufficient information in doing the EA because they excluded the telemetry data.

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Am I correct on that?

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Well, there's two parts.

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I think they didn't take a hard look at the data they did have.

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And then part two was because they got that early data, which

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questions, some of their assumptions, they should have requested the rest of the data that Colorado Parks and Wildlife had collected.

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So they didn't take a hard look at what they did have.

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What they did have was preliminary telemetry data, did they not?

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What they had was, it was like one and a half years' worth of data.

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So it wasn't enough to make, you know, for a whole full study.

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Well, that was a judgment call.

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I mean, the question becomes then, did they have an essential amount of information

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to publish the EA, right?

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Isn't that the legal question that we have to answer?

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Correct, yes.

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Well, if that's the legal question, why couldn't one say that having the preliminary telemetry data and all of the other things that they had in making their evaluation was enough?

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Because the telemetry data was, again, just the early data.

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They just had a few

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The standard, it doesn't talk about optimal.

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The standard talks about did you have the essential information that you needed in order to do this hard look and to issue the EAA.

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Those are two different things, right?

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Correct.

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Okay.

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Well, and the other question is if they're doing this on a yearly basis, how many years do they have to wait until they feel like they have enough that they don't have to wait for any more?

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I mean at some point they need to make a decision because you've got people who want to graze their sheep and they have a mandate for mixed use.

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And so it seems to me that it's a difficult argument about how long they have to wait to get more and more data on the traveling of the rams during their, what are they, forays?

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Well, and our point is that they didn't actually have to wait till the end of the study.

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We were just asking for them to request the data that Colorado Parks and Wildlife had already collected to that point.

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And they didn't even ask for that, or there's nothing in the record to show that they asked for that.

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But I think more importantly, what they had was enough to show that their conclusions were arbitrary and nutritious and weren't supported by the evidence in the record based on the early data that they had and based on the fact, frankly,

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Nothing in the record showed that they were going to be able to get from the very, very high risk that this allotment presents down to a moderate risk based on just these generalized local factors.

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Is this the first time that local factors have been used to modify the results of their software that comes up with this?

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Yes, this was the first time that they actually adjusted a risk rating based on local factors.

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The RCM, is that what it's called?

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ROC, risk of contact model, yes.

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And your argument, one of your arguments is that the reason they should have done an EIS is that this would set precedent for future instances where they get a risk of contact result and then they use these local factors

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for a different area, but it's that they would pick up the same analysis and apply it in a different context.

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Yes, that's certainly one of our arguments for why they needed an EIS.

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And the decision here on the environmental assessment was issued November 2017, correct?

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Yes, that's when the risk assessment.

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Before that time, did you present this July 2017 information about the Bristol bighorn being within a mile of either shallow or crystal?

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Well, the Forest Service had the data.

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Colorado Parks and Wildlife Service had sent the data to the Forest Service about that.

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About this observation.

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Yeah, that's in the record.

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Was that in the supplemental data?

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No, in the administrative record for the EA, at volume four, pages 184 to 186, it talks about the movement of that RAM.

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And Colorado Parks and Wildlife, the biologist who sent it, even said that that movement was concerning.

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So the Forest Service had that data.

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I mean, the email was dated July 2017.

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What was the count of the Bristol herd at that time?

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The population count was 80.

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And Forest Service estimated 28 rams and then 52 ewes.

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And there were three rams with collars and six ewes with collars at that time.

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And Colorado Parks and Wildlife also sent an early report, which is

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Appendix 4, pages 180 to 183, and some other data at pages 187 to 190 of Appendix 4.

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So that's the information that they already had that already brought into question whether their local factors were accurate or not, and showed that those assumptions were not correct.

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I see I'm way over my time.

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Good morning, Your Honors, and may it please the court, Amy Collier on behalf of the federal defendants.

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I'd like to start by highlighting a couple big picture points here.

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The first is, as appellants stated in their opening, the question here really stems from the Forest Service's substantive and scientific conclusions about what this wishbone allotment decision, what risk it poses to bighorn sheep.

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Well, let me ask you this, what scientific

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analysis is in the record to support the use of the local factors.

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So there's extensive discussion about how these local factors apply to the Wishbone Allotment.

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I would compare it.

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I would note that the Forest Service did... I'm asking you, are there any scientific studies?

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Were there any experts?

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What do we have in terms of science to back up the use of local factors to reduce

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about 87% the result of the risk of contact analysis?

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So these local factors come from the Forest Service's management of these specific lands over the course of the snow mesa allotments.

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So for example, the crystal and shallow pastures had been used as sort of an area that sheep were trailing up to the higher elevation snow mesa pastures.

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And the Forest Service explained that there had never been any bighorn sheep observed in either of those pastures.

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The Forest Service examined extensively the mapping of summer source habitat for the allotment itself, but also specifically for crystal pasture.

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It noted that only 893 out of 3,552 acres are bighorn summer source habitat.

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The Forest Service explained that in conjunction with the wildlife experts at Colorado Parks and Wildlife, there is extensive evidence that bighorn sheep are extremely likely to remain within their summer source habitat and are less likely to expand over areas that are not connected to that summer source habitat.

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That's based on preliminary telemetry data.

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data from other bighorn studies, data from observing and counting and watching sheep on this landscape for decades as the Forest Service has been monitoring bighorn sheep.

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It also- Based on that, is there somewhere I could turn to in the record where these observations have been put down in some kind of a report that

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analyzes how many observers were out there to say whether or not big horn sheep and how often they were there because if I happen to hike through in that day there aren't any big horn sheep it's not it depends on how often

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I don't have a site of a particular report.

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I would note that the state wildlife agency is the one that maps the bighorn habitat and has been studying these particular bighorn herds for decades.

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And the Forest Service, in conjunction with those state wildlife experts, developed

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the core herd home range for these particular herds.

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So that sort of back and forth input from those experts was imbued in the wishbone discussion itself, but also in previous analyses for bighorn sheep in this particular area.

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Why weren't these kind of considerations used for the prior alignments, like fig, and I'm going to go blank on the other one.

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It seems to me, it looks like in those cases when they got the risk of contact assessment and it said high risk, they set up back to the drawing board, this one won't work.

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So I disagree that the Forest Service did not consider those factors.

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In the FIG analysis itself, the Forest Service explains that there wasn't any sort of area of disconnectivity between the core herd home range and the allotments.

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that there was a greater overlap between summer source habitat and range.

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So in that particular analysis, again, this Forest Service is engaging in a site-specific analysis for each of the allotments.

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In that one, the local factors were not sufficient to lower the risk rating.

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But in Wishbone, we have a very different landscape.

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We have less overlap between the summer herd home range and the suitable domestic sheep range.

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There are greater barriers to movement.

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And in particular, the forest service.

[00:22:20] Speaker 00:
Well, are there greater barriers to movement at the crystal and shallow pastures?

[00:22:24] Speaker 04:
So again, I think the Forest Service was looking at the allotment of the hole when it was discussing all of the local factors.

[00:22:30] Speaker 04:
But it did talk about how for crystal and shallow pastures, and crystal specifically, one of the local factors considered is that the model accounts for a six-month grazing season that includes September and October, October being the months of bighorn sheep are most likely to leave their core herd home range.

[00:22:50] Speaker 04:
And the Forest Service explained that crystal pasture is only going to be grazed for 25 days.

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Shallow pasture is only going to be grazed for five days.

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So it's a much smaller subset.

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And those periods are not going to be during the time when bighorn sheep are most likely to leave their core herd home range in fore egg.

[00:23:07] Speaker 01:
Do any of those time periods include the month of July?

[00:23:10] Speaker 04:
They do include the month of July.

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But again, that bighorn sheep that was observed in July, the Forest Service discussed it and considered it.

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It noted that that sheep still did not enter the crystal and shallow pastures.

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And so there was not that close proximity to the domestic sheep that would be on those pastures.

[00:23:29] Speaker 01:
But there's no similar monitoring of the domestic sheep.

[00:23:35] Speaker 01:
going in towards the Bighorn territory.

[00:23:39] Speaker 04:
Well, I disagree with that.

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I mean, there are specific design factors that are required for the permateats to follow to keep track of their strays and to keep track of the sheep.

[00:23:49] Speaker 04:
And some of them are aimed specifically at crystal pasture with the recognition that that could pose a little bit higher.

[00:23:56] Speaker 01:
Where you need to have two herders.

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They're supposed to chase away the big horn if they see them.

[00:24:03] Speaker 04:
And also there are additional requirements to count the sheep whenever you're entering and leaving those pastures and do reconnaissance reviews over the pastures after they've been grazed to make sure no sheep have been left in those areas.

[00:24:15] Speaker 03:
But yet they've been pretty unsuccessful during your trial period.

[00:24:20] Speaker 03:
And how many sheep did they lose?

[00:24:23] Speaker 04:
So that was the 2017 trial period.

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That did not have the requirement for two herders.

[00:24:28] Speaker 03:
Well, even still, they had a requirement to count their sheep.

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And they lost a bunch.

[00:24:35] Speaker 04:
And the Forest Service has taken efforts, as explained, to monitor that compliance and cancel permits if they do not comply with the requirements in the permit.

[00:24:44] Speaker 04:
And that is what happened here.

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The Forest Service explained again that the 2017 comparison with only one herder

[00:24:50] Speaker 04:
provide a comparison to 2016 when they did have two herders and they did not have the same issues with sheep straying out of the Wishbone allotment or remaining on the Wishbone allotment.

[00:25:02] Speaker 01:
I also just want to note... Before you go there in just a minute, but you don't claim any waiver on this 2017 siding, any arguments based on that, do you?

[00:25:13] Speaker 04:
I don't think so.

[00:25:14] Speaker 04:
I think that the Forest Service considered that evidence.

[00:25:17] Speaker 04:
It considered the preliminary data from CPW.

[00:25:19] Speaker 04:
I want to emphasize the telemetry data is one part of the data that the Forest Service considers, but it was clear that it also has extensive observations of sheep counts and

[00:25:33] Speaker 04:
Sorry, and extensive observations and input from experts from the wildlife agency as well.

[00:25:39] Speaker 04:
So while the tele-preliminary data is helpful in the Forest Service, consider that preliminary information.

[00:25:44] Speaker 04:
It's not all of the information that it needed and all the information that it considered.

[00:25:51] Speaker 01:
Let me ask you, I don't mean to be obsessive about July of 2017, but as I look at what I see are five local factors,

[00:26:04] Speaker 01:
Other than the fifth, and that is best management practices, none of those local factors, one, two, three, four, account for this 2017 observation of the Bristol Herd being very close.

[00:26:25] Speaker 04:
I disagree, Your Honor.

[00:26:27] Speaker 04:
I think the fact that it was very close, but did not cross into the allotment, did not cross into the pastures where the domestic sheep would be, shows that that fragmented and discontinuous habitat prevented that bighorn sheep or made it less likely to- Obstructions, are you saying?

[00:26:46] Speaker 04:
Not obstructions, but the discontinuous summer source habitat and connectivity habitat.

[00:26:51] Speaker 01:
So the Forest Service- What makes it discontinuous?

[00:26:55] Speaker 04:
So bighorn sheep have particular types of habitat that they like to graze in, that they like to be in, and where that habitat is not connected with similar like habitat, they're 34% less likely to expand.

[00:27:08] Speaker 01:
So this mile period had a lot of connectivity?

[00:27:15] Speaker 04:
Yeah, I would say that it did not connect the bighorn sheep and it was not... And that was a finding in the agency?

[00:27:22] Speaker 04:
I don't know if that was a particular finding with that particular sheep, but it was something that was discussed with those pastures that there was limited summer source habitat within crystal pasture specifically.

[00:27:35] Speaker 01:
What other local factors?

[00:27:37] Speaker 04:
So again, that limited overlap between the bighorn habitat and areas actually grazed.

[00:27:44] Speaker 04:
So for example, the Snow Mesa allotments, which were vacated, had a 70% overlap between where the domestic sheep would be and a suitable bighorn habitat, whereas wishbone only has a 34% overlap there.

[00:27:58] Speaker 04:
And then also just the seasonal bighorn movement.

[00:28:03] Speaker 04:
We discussed this a little bit in our brief with the mapping of the elevation for the various pastures.

[00:28:10] Speaker 04:
But I would note that the Forest Service recognized that the sheep would be moving up to higher elevations, but not crossing the wishbone allotment, away from the wishbone allotment.

[00:28:21] Speaker 04:
And that sheep moved to higher elevations towards the snow mace allotment without crossing into the bighorn pastures.

[00:28:28] Speaker 04:
So that's consistent with what the Forest Service expected the bighorns to do.

[00:28:33] Speaker 04:
And I know this is in the Supplemental Information Report and that additional telemetry data.

[00:28:42] Speaker 04:
But if you look at 6 appellate 207 to 208, that shows the time that the crystal pasture would actually be grazed in the summer.

[00:28:53] Speaker 04:
That's the nine days in July.

[00:28:55] Speaker 04:
Yeah, the domestic sheep.

[00:28:56] Speaker 04:
And it shows week by week where the bighorn sheep will be, where the domestic sheep will be.

[00:29:02] Speaker 04:
And it shows those bighorn sheep, again, moving north towards the snow mesa allotment, moving to higher elevations, but not crossing into the wishbone allotment.

[00:29:12] Speaker 04:
And it shows that on the crystal pasture, the domestic sheep are in parts of that pasture that are even farther from that boundary where the bighorn sheep is moving past.

[00:29:24] Speaker 00:
So I just want to...

[00:29:27] Speaker 04:
Yes, I just want to really quickly point out a couple big picture things.

[00:29:31] Speaker 04:
The Forest Service here does not have to manage for zero risk to bighorn sheep.

[00:29:36] Speaker 04:
That is not its requirement.

[00:29:37] Speaker 04:
It has a multi-use mandate.

[00:29:39] Speaker 04:
And over the last 15 years, the Forest Service has taken numerous steps to evaluate the allotments that pose the highest risk and close the ones that pose the highest risk while looking for alternative substitute allotments to keep grazing happening on the landscape.

[00:29:55] Speaker 04:
And that's exactly what they did here.

[00:29:59] Speaker 04:
That's exactly what the point of the wishbone allotment.

[00:30:02] Speaker 04:
The Forest Service, again, applied its expertise, came to this scientific substantive conclusion that while there is still a risk, again, that Bayhord sheep might cross into the allotment and may contact domestic sheep,

[00:30:14] Speaker 04:
The risk here is only moderate.

[00:30:16] Speaker 04:
It's much, much lower than the risk in Snow Mesa and the allotments that are vacated, where there was an overlap with bighorn habitat, and where it was much harder to manage the domestic sheep populations.

[00:30:31] Speaker 04:
Again, those are substantive conclusions that this Court has repeatedly emphasized are within the realm for the Forest Service to apply its expertise.

[00:30:41] Speaker 04:
I am happy to answer any other questions about the scientific information or the EIS versus the EA if the court has any questions on those points.

[00:30:56] Speaker 01:
Did the Forest Service make a finding that

[00:31:04] Speaker 01:
Bighorns did not migrate north towards the crystal and shallow pastures during the summer grazing period.

[00:31:13] Speaker 04:
In the supplemental information report or in the initial EA?

[00:31:18] Speaker 01:
You did make that determination.

[00:31:21] Speaker 04:
Oh, no.

[00:31:21] Speaker 04:
I'm asking between the two of those.

[00:31:22] Speaker 04:
So in the supplemental information report, the Forest Service, again, showed that telemetry data showing the bighorn sheep moving north towards the snow mace allotments without crossing

[00:31:34] Speaker 04:
into the crystal pasture.

[00:31:36] Speaker 04:
That map again... During the summer grazing season?

[00:31:39] Speaker 04:
During the summer, during the height of the summer.

[00:31:43] Speaker 01:
And that, by its timing of that determination, necessarily include the consideration of July 2017?

[00:31:54] Speaker 04:
Well, that showed the telemetry data for the entire Colorado Parks and Wildlife study.

[00:32:01] Speaker 04:
So yeah, it showed all of the years during the summer, July season, and that sort of accumulated those points.

[00:32:09] Speaker 01:
That sounds like it's inconsistent with the observation of bighorn within a mile of crystal and shallow pastures.

[00:32:20] Speaker 04:
I'm sorry if I misunderstood the question.

[00:32:22] Speaker 04:
The Forest Service determined that no bighorn had ever entered Crystal or Shallow Pasture.

[00:32:27] Speaker 04:
It did note that they were moving, again, close to those invisible boundaries of the allotment as they moved north to Snow Mesa, but there had been no- Saved by the disconnectivity.

[00:32:37] Speaker 04:
Correct, Your Honor.

[00:32:38] Speaker 04:
And again, consistent with the assumptions in the EA.

[00:32:42] Speaker 03:
Can I ask a question?

[00:32:44] Speaker 03:
Sure.

[00:32:45] Speaker 03:
Did the Forest Service make any

[00:32:47] Speaker 03:
determination of whether any of the domestic sheep crossed into the bighorn area across that boundary?

[00:32:57] Speaker 04:
I don't think there has been any evidence submitted that that happened.

[00:33:02] Speaker 04:
That was not part of the telemetry study, again, because that's monitoring the bighorn sheep movement.

[00:33:07] Speaker 01:
And if there had been, that could only be by observation, correct?

[00:33:14] Speaker 01:
Correct, Your Honor.

[00:33:14] Speaker 01:
And that would be observation by

[00:33:17] Speaker 01:
the herders of those sheep?

[00:33:19] Speaker 04:
By the herders, by members of the public, again, by Forest Service personnel who are monitoring.

[00:33:24] Speaker 04:
The Forest Service noted that the wishbone pastures, even crystal and shallow, are lower elevation and more accessible than the snow mesa allotments.

[00:33:33] Speaker 04:
And so they're easier to observe from roadways.

[00:33:36] Speaker 04:
They're all accessible from roadways.

[00:33:39] Speaker 04:
And that enhances the public and the Forest Service's ability to determine if there are any bighorns nearby, but then also if domestic sheep are straying.

[00:33:50] Speaker 04:
Figures.

[00:33:53] Speaker 00:
Ms.

[00:33:53] Speaker 00:
Ruhl, you have one minute rebuttal if you want.

[00:33:58] Speaker 02:
Thank you.

[00:33:58] Speaker 02:
Just a couple quick points.

[00:34:00] Speaker 02:
I think it's, well, for one thing, it's inaccurate to say that there was discontinuous habitat between the ram that went up in July 2017 and the pastures.

[00:34:11] Speaker 02:
If you look at the habitat map I referred you to, there's summer source habitat, bighorn summer source habitat.

[00:34:17] Speaker 02:
all around that area.

[00:34:18] Speaker 02:
So there's definitely no fragmentation.

[00:34:21] Speaker 01:
The fact that... How do I look at that map?

[00:34:25] Speaker 01:
I know.

[00:34:25] Speaker 01:
Well... To judge disconnectivity.

[00:34:28] Speaker 02:
It would be helpful if they had provided a better map that talked about that.

[00:34:32] Speaker 02:
So you have to interpolate.

[00:34:35] Speaker 02:
The other thing I want to point out is they clearly didn't really take a hard look at that sighting because in their analysis of the Wishbone Allotment, they were talking about the Bristol Head Big Horn Herd,

[00:34:47] Speaker 02:
This is appendix volume 5, page 207.

[00:34:50] Speaker 02:
They mention a telemetry sighting that it was a half mile from the South River pasture, but they completely ignore the telemetry sighting that was a half mile from the shallow pasture.

[00:34:59] Speaker 02:
And don't even talk about the crystal and shallow pastures.

[00:35:01] Speaker 02:
They only talk about South River.

[00:35:03] Speaker 02:
So they obviously were not really taking a hard look at that bighorn location in July 2017.

[00:35:11] Speaker 02:
I want to note, BMPs are not successful.

[00:35:13] Speaker 02:
No scientists, no experts have indicated that they can effectively keep domestic sheep from straying.

[00:35:20] Speaker 02:
You have to visualize.

[00:35:21] Speaker 02:
The permit is for 1,000 new lamb pairs.

[00:35:26] Speaker 00:
That's 2,000 sheep.

[00:35:27] Speaker 00:
You had a nice verbal pause in your statements.

[00:35:29] Speaker 00:
You're over the time that had been allotted.

[00:35:32] Speaker 00:
Oh, OK.

[00:35:33] Speaker 00:
Thank you.

[00:35:33] Speaker 00:
Thank you, counsel.

[00:35:35] Speaker 00:
Thank you for your fine arguments.

[00:35:37] Speaker 00:
The case is submitted.

[00:35:38] Speaker 00:
As I indicated before, we'll take a 10 minute break and then we'll be back.

[00:35:41] Speaker 00:
Thank you.