Judge Hamilton and I think I'm sure I can speak for Judge Hamilton in this regard are pleased and honored to join Judge Pamela Harris in her first appearance in the Court of Appeals for the Fourth Circuit as the United States Circuit Judge. I'd like to welcome to the Fourth Circuit and as I say Judge Hamilton, I just pleased that we can be to serve with you in your first case and your first appearance here. Thank you very much. Glad to be here. Good morning, Judge Hamilton. Good morning. Can you hear me? Yes, we can. Good. Just going to make sure the mic's working. Our first case before this panel, our only case before this panel, is American White Water versus Tidwell. We're pleased to have you here this morning and look forward to these interesting cases. Mr. Galbrake, you have the floor. Good morning. Thank you, Your Honor. May it please the Court? My name is Nathan Galbraeth and I represent the appellants in this case. Yes, Judge Hamilton. I want to ask you a question, I wish it was a general question I think to set the tone for your argument. What exactly does American White Water seek in this litigation? American White Water is asking this Court to determine that floating is a value that led to Shatuga Headwaters being designated as a wild scenic river and as a value that led to designation of the river that it be protected and enhanced by the agency, not banned, not restricted, not severely limited, all the things that are the opposite of preserving and enhancing. Let me give you a follow-up question. I don't think floating is an outstanding river valley, remarkable value. And if it is, why aren't all the other things in the 1971 report that led to Shatuga's designation, including hiking and fishing, scientific study, geological scenic historical values, why don't all those things remarkable outstanding values? That is an excellent question and it's one that the district court completely misapprehended because the district court apparently looked no further than the cover of the 1971 study document. Judge Hamilton, as you pointed out, it is that document and all the parties to this proceeding agree that the 1971 study is the operable document that sets out what are the outstanding values for this river. And I'd like to point to some specific parts of the record to answer your question because you can't just stop at the cover and a single excerpt from that study, which is what the district court did. You have to actually look at the substance of that study. And if you look at the table of contents, which is on page 93 of the Juana Pindix, it sets out what's happening in this study. There's about 50 pages of background. Then it gets into the real meat of the study. And on page 143 of the Juana Pindix, it talks about the primary considerations that Congress looked to when it designated this river Wild and Scenic. In front and center on page on the right on the primary considerations, right in the very beginning, it talks about specifically if this river is protected Wild and Scenic and particularly the sections of the river at issue in this case, it will increase canoeing opportunities. And it talks about how in the 1968 Wild and Scenic Rivers Act, how there were multiple rivers that were identified for study to see if they should become part of the act. And only four of those rivers were in the southeastern United States. And right there on page 143 of the Juana Pindix, it talks about how the Chittuga is the only one of those four rivers in the southeastern United States that has outstanding opportunities for canoeing. But the real meat of the study where it really gets down and actually names the values, and this goes directly to your question, is on page 155 through 162 of the Juana Pindix
. Right here is where Congress looked and set the values for this river. They're broken on page 155, it talks about the alternatives that were considered. The alternatives were simple. Should they just allow the status quo and not protect it and willy nilly let private development take over the shores of the river. Two, should they develop the river for hydroelectric power or three, should they protect it as wild and scenic. And it goes on to describe the exact values of the river. And it splits them into three categories, tangible values, intangible values, and values that would actually be lost if the river is designated wild and scenic. The values that are to be protected, the tangible ones are a free flowing river, fishing, there's just a handful of them, fishing, floating, which is at issue here, hiking, camping, clean water, and preservation of the scenic and geologic features of the river. Those are the tangible values, but it also talks about intangible values in that same section. And it says that it's hard to describe in words what these intangible values are, but they certainly exist for the canoeist as he meets the challenge of the water. So there's not only a tangible value of floating, there's also an intangible value of the feeling and sense of adventure that one gets on this river. And that raises another question on my part. If all of these values that were listed in the 1971 report were to be maximized in addition to floating, what would happen? Maximized, well, if they're protected and enhanced consistent with the Wild Scenic Rivers Act? Well, they're listed as the values in the 1971 report. And all you want to talk about is floating. And I don't think floating is an outstanding remarkable value. I think floating, like voting and everything else, falls within the category of recreation. I think that is the outstanding remarkable value. That is the agency's argument here, Judge Hamilton. And that argument is what is so dangerous about this case is that it threatens to undermine Congress's very purpose in passing the Wild Scenic Rivers Act in the first place. That act doesn't talk about protecting some kind of amorphous general categories like recreation and geology. It talks about protecting specific outstanding remarkable. And I would point the court to the fact that these are adjectives, recreational values, geologic, scenic, historic, and other values. Those are not broad categories. The values are not themselves scenery or recreation. They are the specific recreational values. And in this case, based on the study that I've in the portions of the study I was just referring to, there's no question that floating is one of those recreational values. Now, the purpose of the statute. I'm trying to ask what I think is the same question, but in a slightly different way. It just seems as though the crux of your argument has to be that there's something in the congressional and congressional intent in the record that shows that floating was supposed to get priority over all the other things like fishing, most obviously about hiking, scenery being alone in the forest, all of that stuff that the priority goes to floating. And I'm not seeing in what you just said, the indication that floating comes first gets the first priority and cannot be balanced off the other things that Congress listed. Judge Harris, I would agree with you completely. At Pellens agree with that position. We're not saying you have to balance floating then
. There's not necessarily a question of balance. It's a question of... Well, that's what I was the question that Judge Harris put to you. It has to be balanced with these other things. That is part of recreation. You agree with that, right? That's how it gets in here. I don't agree that floating is some kind of subcategory of recreation. I am arguing that is it a specific recreational value? And I'm not saying that floating has to come in front of anything else. Pellens argument is that all values of the river and there was just a handful of them, I just read them. The handful of those values all have to be protected and enhanced. And all of this... As for you, say, that's your primary argument is the judge Lewis and the Forest Service misunderstood that proposition and fatally air Judge Lewis did. Is that right? That's exactly right, Judge. Your proposition. And this is an issue of first impression not only for this circuit and for Judge Lewis, but for any court. No court has ever determined what constitutes a value under the Wild Sinek River's act. The only court that's come close was the eighth circuit in the so-called case. And in that case, the eighth circuit talked about how values are unique, rare, and exemplary. Not generally amorphous categories like recreation. And I'd like to give an analogy. And we review this giving a lot of difference to the United States Forest Service. They're the experts in this context. In the farthest of courts concerned, isn't that correct? They are the agency that is designated with management of this river. And I'd like to circle back to answer your question to say what is so dangerous about the argument that the agency is providing here, which is that these are broad categories. And that's all they have to protect. And within that, they can ban or prohibit as they see fit. Imagine the example, let's talk instead about recreation about any event, the 2012 decision that you're challenging, expanded the floating on the part of the river that you wanted to know. That's what 21 of, or all but four miles of 27 miles, all 23 of 27 miles, correct? That's what this agency would have the court believe. But in reality, is it not, and I think that, well, that, okay, go ahead
. Floating has been present on this river for over 250 years. And it was pre, the plaintiffs in this case, the individual appellants, were floating this river both prior and after Walden-Scenic designation. And now are prohibited from doing so. This was not a situation where there was some floating added. What happened was back in 1976, the agency arbitrarily and in violation of the Walden-Scenic Rivers Act removed this primitive wilderness compliant use. We're not talking about commercial use. We're not talking about motorized use. We're talking about someone showing up at a river with a canoe and a paddle and silently floating down, something that's consistent with wilderness. And what happened here is that the Forest Service artificially removed all floating. And in the 2012 decision that's an issue in this case, they only partially restored it. And they do. They make that argument. They say, well, hey, we restored some of this. What's the problem? The problem is the Walden-Scenic Rivers Act required that they protect and enhance the recreational floating value on these very sections, not ban it, not severely limited. But also the fishing, right? You would agree, then, that they were supposed to protect and enhance the angling opportunities. That's right. And that, and Judge Harris, your question brings up another important point, which is there is no problem with protecting both fishing and floating. First of all, on virtually every other river in the country, the two peacefully coexist without excluding one group or the other. When do we talk about floating? What do you talk about? Raps. Floating and burning and talking about kayaks and canoes. I like motorized. What about raps? And this, I believe the decision- I come over in West Virginia, they do a lot of rafting on the new river. Rafting is also floating. In this case- So, you were talking about rafting, you're talking about canoeing, you're talking about kayaking. What else are you talking about? Canoing kayaking and some kind of inflatable device is the only way that you can float a river. And in fact, in 1969, when the agency was studying this river, that's how they studied it. They floated down it from the top to the bottom. That's how we have the information in the 1971 study that we have. But the anglers, right? I mean, I understand that you think the anglers should be able to do just fine even if there is floating where they're trying to fish. But they think not, right? And isn't that what the agency called asymmetric conflict? Go Chairs, it's not the appellance of pittings. It's what the record makes clear. Let me point out that in page 742 of the joint appendix, there's a pie chart that was put together by the agency's own expert. And it shows that in an entire year, there are 34 or less days on which if there are no restrictions on paddling whatsoever, that there will be any craft, a raft, a canoe, or a kayak that can even possibly float the river, only 34 or less days
. And on page 697 of the joint appendix, the same expert goes on to say that really only half of those 34 days, somewhere between six and 17 days, is someone even likely to be in a boat on the river if there are no restrictions. That is not substantial interference. That is not any kind of interference. That's not even interaction. And page 929, excuse me, 689 to 692 of the joint appendix, further shows that there's really only about one to four fishermen, even in the resource at any one time when one of these floaters might be coming down on these between six and 17 days out of the year. Now, when we think about the fact that floating is not banned like this on practically every other river in the country, and we think about the fact that we're talking about between six and 17 days out of the year, and that there's only maybe one to four people that might even encounter better, how could that constitute substantial interference on the Wild and Scenic Rivers Act? And how is the agency protecting and enhancing this important use that's a recreational value that was present at the time of designation that was specifically cited in the study document? And now they've banned it. And banned it for what? For some kind of possible interference, and I'd like to point to the Riverhawks case here, because in the Riverhawks case, they specifically talk about the specter of interference, which is what we have in this case. You'll note that what the agency's talking about is that there's some hypothetical possibility for interference, not that there's actual proof of it. There isn't. And all we have to do is look at virtually every other river in the country, or the record in this case, which shows we're talking about a tiny number of days. On this river, like every other river, Mother Nature does her job. The water level naturally separates these uses. When the flows get high, they're optimal for floating. When the river flows get low, they're optimal for fishing. And the agency's own expert pointed out and pages 722 and 723, the joint appendix, that it's even further unlikely that there's any kind of interaction between these two because of timing of day, fishermen fish early in the morning, boaters in the afternoon. And geography further restricts them because fishermen might be fishing downstream, while floaters put on upstream. By the time they get down there, the fishermen are gone. Tiny number of people, tiny number of days, very small possibility they can even interact. Yes, Joe Jamelton. I like this goes to what you're getting at, but on the average, how many days a year does a water flow exceed 350 cubic feet per second between Green Creek and Lick-Log Creek? There is a chart and it's on page 996 of the joint appendix. It's a table and the environmental impact statement. And it shows there's a couple of different ways that the agency answers your question. And I would like to point out that the agency's own expert calls this a guesstimate because in the entire seven year study period, floating was only allowed for a grand total of two days. Ten people on two days were allowed to float the river and that supposedly provided the basis to show why there's some kind of substantial interference in this case. But that table to answer your question shows that over 300 days per year, there will be no floating on the river based on the flows. It's somewhere I believe between two, I don't have a table right in front of me. It's somewhere between 255 and 300 days there's inadequate flows for any boating according to that table. As I mentioned, the expert who really dug into this and said, when are people actually going to be floating on this river said 17 or less days out of the entire year? Well, it's not true that the forest service in its 2012 decision expanded the number of days that floating could be permitted on the Tuttuga River. So, and under the 2012 decision, don't you get more floating days? That question is similar to what I was discussing a moment ago that that's what the agency would like this court to believe. Well, isn't that accurate? You get more than you had before. Judge King, you want you just didn't win enough as far as your concern? Well, it's not a matter of enough. It's a matter of protecting and enhancing and it's a matter of the fact that this is a use, a primitive use that's happened for over 250 years. They only partially fixed their unlawful decision and it's not okay to just partially to have a partial unlawful ban the whole thing needs to be removed
. It's not a red light with the act. You understand that, Red Light, don't you? Yes. So, we used to say some time and we thank you very much. Thank you, Mr. Galbraith. Is it Ms. Dowdy? Not for now, Secretary? No, the officer didn't pronounce it correctly. I apologize. Good morning. I'm here on behalf of Georgia Forest Swatch. I'd like to reserve two minutes. Who's your client? Georgia Forest Swatch. Thank you. Georgia Forest Swatch is a citizen's group that generally often works with the Forest Service. And do you support the Forest Service? Not exactly, not anymore, not after. Well, you intervene in the district court to support the Forest Service. We intervened on the side of the Forest Service because it was the more straightforward party to intervene on the side of, but we all... But the intervention was only to support the Forest Service. That's not what we requested. I know it's from what you requested, but you were allowed to intervene... You intervened in the district court to support the Forest Service. That's the only purpose for which you were allowed to intervene. Correct, that is what the purpose was. Which you can be here, you might be appealing to the government. We are appealing in that regard, but you in the district court supported the Forest Service. That's all you can do. Well, and we think that's an error on the part of the district court. And she was too narrow in the intervention order. Correct
. And what the Forest Service is going to argue is that this court should apply abusive discretion standard to that, but it's clear in the fourth circuit that the abusive discretion standard applies when you're deciding whether to allow someone to intervene as a right. And the test there is whether there's an... And you filed a notice of appeal. We did file a notice of appeal. And how do you have standing the file of a notice of appeal? Because we were interveners in the case. We were granted the right to intervene as of right, because the court recognized we had an interest, an impairment of interest, and that we had to enact what inadequate representation by the existing parties in the case of the time. But you have a separate lawsuit pending where you have all your claims going to. We have a separate lawsuit pending. And you wanted that consolidated, and Judge Lewis wouldn't do it for you. That's correct, we think that was an error as well. You're appealing that too? We have not appealed that that case is staying pending out. No, you're appealing to denial of the consolidation. We did not appeal the denial of the consolidation. We did not appeal the condolence. Yeah, we have that case to stay. The abusive discretion standard applies to whether or not to allow a party to intervene as of right. Once the party is intervened as of right, it's very clear in the fourth circuit that the only restrictions that can be placed on that party who's now considered an original party for all purposes are of a housekeeping nature and very minor. The substantive rights of the party can't be curtailed. And the test is whether any restriction that's placed on the party is fundamentally fair to every litigant. And the Forest Service has cited the advisory committee notes to rule 24 in support. And this court has rejected that in Arch-Cole. It's an urge you to look at that. I'd also urge you that the most straightforward way to resolve this matter, and our case pending also at the district level, is to direct the district court to hold that the Forest Services 2012 decisions are in violation of the Forest Services own access regs, which are found at 36 CFR261-77. And that's attached to our opening brief. Yes. So I can't before we get to sort of the underlying merits, even assuming, even if I assume for a moment that there was a mistake and error when the scope of your intervention was limited, I guess I don't see what the consequences are. So what? You have a separate case pending. You can raise all of your claims there. What's the problem? Well, and that's why we argued that the error was also made and not consolidating the cases, because the court said the reason that we're restricting you, which we think was invalid, is because we're not going to get, well, originally we were aligned, but the reason it wasn't consolidates, because we'll get to your issues in the separate case, and we won't address them here. The court went on to address our issues, because it ruled very broadly. It said we find that the Forest Services 2012 decisions don't violate the Wild and the St
. Agrivers Act. We find that the court's decisions are consistent. And the context of particular arguments that were being made, right? The court rejected specific arguments going to that question, but not yours. But in a very sweeping way, the court didn't. The court said specifically, the District Court judge said, I'm not reaching your claims, and there was that specific finding on your motion to consolidate. I mean, the court made a finding that the outcome or the result in your case would not depend on what she was doing in that case. And had she done that, it might have been an error without any substantive consequence, but she didn't. What she did then was rule broadly on the claims that were at issue in the case that we asked to be consolidated. And so those issues are being addressed by this court today, and were addressed by the District Court. So an alternative would be for this court to remain the case and have the ruling not extend to my clients arguments. But the way she actually ruled was broad and sweeping. And keep in mind the reason for intervention is of right. The court recognized that we had interest in this case and that there would be an impairment of our interest. So you can't have it both ways, you can't say they'll be an impairment of interest, but we're not going to touch your interest. It doesn't, it's nonsensical. And that's the reason that you generally can't put restrictions on the rights of parties who've been allowed to intervene as a right. I see I have a stoplight. Yes. Wait a minute, hold on. It's very true. You don't have any claims across claims or counterclaims pending in this particular case, do you? We were restricted. We were granted intervention as a right only to defend on the part of, to be aligned with the Forest Service's defense. In fact, the Court's been later struck our- You answered the question. Okay. We do not, and it's because we were not allowed to. Well, your case is still before the District Court. I see. So how are you going to be prejudiced here? You can assert all the claims you want to. In that case, it's still pending before the District Court. Because it's already been decided here. So, raised you to Cata, basically. I don't, I don't understand that it doesn't make sense to allow a party to intervene as a right. Because you have an interest in the case that's going to be decided and impaired by the case
. And then argue that we can't be a full party to the case, actually, because our- I don't understand how you can- The judge permits you to interview, intervene to support the Forest Service. And now you're coming up here arguing against the Forest Service. The Forest Service? So you've expanded your intervention anyway, because you were saying that the Forest Service was wrong. When we- Even though you were intervening only to support the Forest Service. And you got another lawsuit where you're complaining about the Forest Service. I mean, I have the same- Yes, we- Basically, that's the same question that Judge- Okay, but when we moved to intervene- And we moved to intervene, and we explained our position, which was not aligned perfectly with the Forest Service. And then we- And then we- And we also- And then- But you can say that Judge was wrong, you can argue that the Judge was wrong and limiting your intervention. But I don't know how you can go beyond that. We are arguing- I don't know how you can go beyond that in this case, maybe. We are arguing that, and this is the time that we- It's not an ununilicatory appeal, so this is our opportunity to do that. And to correct this error, the court needs to remand the case to the district court so that we can be treated as parties. Because in the case of DC- Smart, just recognize that when you limit the rights of an intervener, the danger is that we have made ourselves vulnerable to complete adjudication of the case by the court. And that is what actually happened here, despite what the Judge has said. The Judge said- I'm sorry, I know your time is up, but the Judge said specifically, I'm not deciding your claim. She must be aware of it. She denied the motion to consolidate. She made a decision that her purposes of this litigation would make more sense to do it in two cases, not one. So I guess I just- I don't see what the- Surely she will be aware when you come back to her that this is that other case she was talking about, right? Well, there's a factual twist here. The Judge who made the- The Judge was changed in our case. I saw that. And so- And so one judge- She may not have been fully aware of that, and then now we're going to have another Judge when we go back. But the Judge who wrote the decision that we're reviewing here, that was the Judge- She is one who denied the motion to consolidate. Right, she who denied the motion to consolidate, who made a finding to which we were ordinarily saying great difference, that there was just no risk here. In fact, what happens in one case will affect the other. Right, and when- There is a great deal of difference supported to District Court Justice in denying a motion to consolidate. There is not a great deal of difference supported to a District Court Justice in limiting the rights of an intervener as a right after that's been granted. So they have a lot of discretion in deciding whether or not to grant it. Once you're in your party, you're treated as an original party. So we should have been allowed to make our case. As is, we could sort of do a whole lot of work and have this small group be involved in a case all the way to here. But anytime the Court wanted to ignore us, it chose to do so. So for example, it ignored our access regulation. We sort of let you through the red light, but- Yes, we've given you enough extra time, I think
. Okay, thank you. You have some couple minutes left. Yes. Now, Mr. Doudy, now for Mr. Pronouncing again, Mr. Doudy. Now, who you for? Your Honor, I represent the Rust family. The Rust family? Yes. All right, sir. Nice to have you here. Thank you, Your Honor. The Rust family owns property within the designated Wild and Scenic River corridor. Because the purpose of the Wild and Scenic designation is it issue in this case. So are the Rust family's property rights. The paddlers are asking for a broad interpretation of that of the Wild and Scenic River Act that would set aside existing property rights within the designated court. Or in the headwaters of the corridor. And the forest service is asking by the headwaters of the quarter, you mean way on the top. Well, Your Honor, it's yes and green creek. As you can see on the map and the rust property is just above green creek. It's the wide area and it goes up and even above Grimshall's bridge. Yes. And it's on one of these figures. It's kind of white. Yes. The private property is white and the forest property is green. So the, it's in the northernmost part of this thing. It's up north. Yes. It's upriver. Upriver. Yeah. Go ahead
. I'm sorry. Let me ask you this question. If this case went your way, what would you have this court do? Or and or instruct the fire service to do? Your Honor, we would have this court make a ruling to hold the parties to we believe that for concessions that may blow that the forest service does not have the authority and is not empowered to manage the private segment of the Chittuga River, which is where the property of the family is. Have they attempted to do that? Your Honor, they're asking this court in our opinion. No, answer my question. Has a fire service attempted to manage the river that borders the Russ family's property? Yes, Your Honor, because in the actions they take, they imply that they have the authority to prohibit or ban voting on the Russ family property. And that would imply that they have some ability to decide who are who and when and where people can vote on the entirety, including the private segments. Where is that in the record? Your Honor, in their own brief, the forest service. I'm not talking about your own brief. I want to know where it's in the record. Well, Your Honor, there in 2012, they indicated that they were opening, that they had not been any voting allowed in that they were opening, banning voting only on the four miles. And where silent is the rest of it. And in any event, Your Honor, I would point out that American whitewater, in this case, is asking for such a broad interpretation of the Wild and Senior River Act, that it would include in the value section. If you adopt their definition of the act, it would include their ability to have public access on the entire river, which we obviously oppose. I mean, you're complained about the forest service from the other side. You're completely opposed to American whitewater. Yes, it is more important. That's what, in some way, the record you all refer to them as a kayak lobby. We would probably do your honor and that we refer to them as the paddlers, the voters, the others, the kayak lobby. Yes. Yes. And as you can see, when the river goes across the property where the Rust family is, it's merely a trickle in these photos. You all own the bottom of the river and the water. Your Honor, what we own is the property, the stream bed, and we own the space that the water goes through. And we therefore should control access. Do you own the water? We own the space that the water goes through your honor. Just as we own the space that the air occupies just over the property, which means you control, if you're a private property owner, you control access. You don't claim the water. We don't claim the water, but we claim that we control... This water goes after it comes out of those mountains up here, it goes all the way where to the Atlantic Ocean down Savannah. I believe that's correct, Your Honor, eventually. The water does. Judge Hamilton. Let me ask you another question. I don't understand how the Rust family's property is implicated. The Forest Service's 2012 decision does not permit floating above Green Creek. Isn't that correct? Well, Your Honor, they have not affirmatively said they're allowing... Is that correct? It does not. But, Your Honor, the manner in which they have done it implies that they have some authority to decide that one way or the other. And certainly the position of American white water implicates the private property rights. Because in their own brief and in their argument and they haven't limited that, they're saying that they want this appeal involves the entire headwaters. The entire 27 miles. And that includes the private segments, including the Rust family. Councillor, am I wrong about this? I thought that what American white water wants is a ruling that the Forest Service's 2012 decisions are invalid. But the Forest Service says those decisions don't touch your property. So, even if American white water wins, what will the implications be for your property? It will invalidate certain decisions that don't include the property. Because the way they want this court to get there, and I have a stoplight on it. The way they want this court answer of the question as long as they ask. The way they get, the way they want you to get there is to adopt this very broad interpretation of the Wild and Scenic River Act, in which they argue they have the right as a value to access the entirety of the headwaters. Right now, that's the only place perhaps that we're talking about. But if this court takes their bait and adopts that wild interpretation, it directly implicates the private property rights of the Rust family. Judge Hamilton, anything else? No, I don't think so. Thank you very much. Appreciate it. Now, Ms. Robertson. May I please the court need a Robertson on behalf of the Forest Service? This court should uphold the Forest Service's reasonable decision to allow limited floating on the upper Chittuga. We're uphold Judge Lewis. That's what we've asked for review, I think. Certainly, Your Honor. We reviewed your decision. The District Court was correct in finding for the Forest Service because the decision was entirely lawful and titled to deferring strikes a reasonable balance among the disparate users here, including the river users, the property owners, and the organization's concerned with the river's conservation
. The water does. Judge Hamilton. Let me ask you another question. I don't understand how the Rust family's property is implicated. The Forest Service's 2012 decision does not permit floating above Green Creek. Isn't that correct? Well, Your Honor, they have not affirmatively said they're allowing... Is that correct? It does not. But, Your Honor, the manner in which they have done it implies that they have some authority to decide that one way or the other. And certainly the position of American white water implicates the private property rights. Because in their own brief and in their argument and they haven't limited that, they're saying that they want this appeal involves the entire headwaters. The entire 27 miles. And that includes the private segments, including the Rust family. Councillor, am I wrong about this? I thought that what American white water wants is a ruling that the Forest Service's 2012 decisions are invalid. But the Forest Service says those decisions don't touch your property. So, even if American white water wins, what will the implications be for your property? It will invalidate certain decisions that don't include the property. Because the way they want this court to get there, and I have a stoplight on it. The way they want this court answer of the question as long as they ask. The way they get, the way they want you to get there is to adopt this very broad interpretation of the Wild and Scenic River Act, in which they argue they have the right as a value to access the entirety of the headwaters. Right now, that's the only place perhaps that we're talking about. But if this court takes their bait and adopts that wild interpretation, it directly implicates the private property rights of the Rust family. Judge Hamilton, anything else? No, I don't think so. Thank you very much. Appreciate it. Now, Ms. Robertson. May I please the court need a Robertson on behalf of the Forest Service? This court should uphold the Forest Service's reasonable decision to allow limited floating on the upper Chittuga. We're uphold Judge Lewis. That's what we've asked for review, I think. Certainly, Your Honor. We reviewed your decision. The District Court was correct in finding for the Forest Service because the decision was entirely lawful and titled to deferring strikes a reasonable balance among the disparate users here, including the river users, the property owners, and the organization's concerned with the river's conservation. The Court was correct for otherwise I can address first American Whitewater's arguments and then proceed to address the issues raised by you. You do it just to why you want to do it. Certainly, Your Honor. Until you get questions and then you answer questions. So with respect to American Whitewater's assertion that floating is an outstandingly remarkable value that should be protected in section 12801 of the Wild and Sea of the Earth. That says number one complaint. Certainly, Your Honor. You all goofed up on that. And he's incorrect. The floating is not an ORV under the Wild and Sea and River Act. Recreation is, and as the Forest Service clearly explained in the Environmental Impact Assessment and its decision documents, floating is just a subcomponent of recreation and is not entitled to any special protection. The Wild and Sea and River Act contemplates many uses of Wild and Sea and River and gives the Forest Service discretion and how it balances different and competing river uses. As the court has indicated, fishing is in direct conflict with floating and under certain circumstances. And here the Forest Service recently determined that where fishing is most popular, floating should not be prohibited. That's only along a four mile stretch and that's four miles of the 21 other miles on which floating may occur. So there's no way in which floating should be held above fishing and that the Forest Service had a reasonable basis on which to conclude that the conflict could arise if it were permitted along the four mile stretch. There's no, also, American Whitewater points to a substantial interference standard. The Forest Service doesn't need to meet that standard. It must only under the Wild and Sea and River Act take into account different uses and strike a balance. There's clear authority for that. I would point the court to the Hell's Canyon case that the Ninth Circuit decided in which the court indicated the need for balance among competing uses. In that case, it was between motorized voting and non-motorized voting. And there the court found that the managing agencies have considerable discretion and how they strike that balance and it did so here. With respect to Georgia Forest Watch's claims, I would just urge the court to hold, to review the district court's decision to limit intervention to abuse of discretion standard. There's no case directly on point because in fact there's been no, this court has never been presented with a factual scenario similar to this case in which the intervener didn't actually assert claims against the party against it was arguing. And it was entirely reasonable for the district court and this unusual circumstance to limit the intervention of Georgia Forest Watch to just defending the Forest Service in this case. Can you just stop on there for a minute? Why was that reasonable? I am having a little bit of trouble wrapping my mind around this, around this. So the predicate for intervention as a right is that the interests aren't otherwise adequately represented. But wasn't the Forest Service adequately defending its own plan? Why would you have someone come in just to do that? You're saying that even the district court's decision to even grant intervention in the first place might have been there. As a matter of right. Well, it's a matter of right. It's a matter of right. And then limited to covering ground that was already perfectly well covered
. The Court was correct for otherwise I can address first American Whitewater's arguments and then proceed to address the issues raised by you. You do it just to why you want to do it. Certainly, Your Honor. Until you get questions and then you answer questions. So with respect to American Whitewater's assertion that floating is an outstandingly remarkable value that should be protected in section 12801 of the Wild and Sea of the Earth. That says number one complaint. Certainly, Your Honor. You all goofed up on that. And he's incorrect. The floating is not an ORV under the Wild and Sea and River Act. Recreation is, and as the Forest Service clearly explained in the Environmental Impact Assessment and its decision documents, floating is just a subcomponent of recreation and is not entitled to any special protection. The Wild and Sea and River Act contemplates many uses of Wild and Sea and River and gives the Forest Service discretion and how it balances different and competing river uses. As the court has indicated, fishing is in direct conflict with floating and under certain circumstances. And here the Forest Service recently determined that where fishing is most popular, floating should not be prohibited. That's only along a four mile stretch and that's four miles of the 21 other miles on which floating may occur. So there's no way in which floating should be held above fishing and that the Forest Service had a reasonable basis on which to conclude that the conflict could arise if it were permitted along the four mile stretch. There's no, also, American Whitewater points to a substantial interference standard. The Forest Service doesn't need to meet that standard. It must only under the Wild and Sea and River Act take into account different uses and strike a balance. There's clear authority for that. I would point the court to the Hell's Canyon case that the Ninth Circuit decided in which the court indicated the need for balance among competing uses. In that case, it was between motorized voting and non-motorized voting. And there the court found that the managing agencies have considerable discretion and how they strike that balance and it did so here. With respect to Georgia Forest Watch's claims, I would just urge the court to hold, to review the district court's decision to limit intervention to abuse of discretion standard. There's no case directly on point because in fact there's been no, this court has never been presented with a factual scenario similar to this case in which the intervener didn't actually assert claims against the party against it was arguing. And it was entirely reasonable for the district court and this unusual circumstance to limit the intervention of Georgia Forest Watch to just defending the Forest Service in this case. Can you just stop on there for a minute? Why was that reasonable? I am having a little bit of trouble wrapping my mind around this, around this. So the predicate for intervention as a right is that the interests aren't otherwise adequately represented. But wasn't the Forest Service adequately defending its own plan? Why would you have someone come in just to do that? You're saying that even the district court's decision to even grant intervention in the first place might have been there. As a matter of right. Well, it's a matter of right. It's a matter of right. And then limited to covering ground that was already perfectly well covered. If the predicate is that the interests aren't otherwise being represented, wasn't the Forest Service already defending its own plan? Certainly, you're on. I mean, to understand what the district court is. Right now that was discussed at the district court level. But given the fact that the district court made their decision, we then moved in the district court to at least have the terms of the intervention be limited and to strike Georgia Forest Watch's purse for relief against the Forest Service because it hadn't asserted any claims. And we think that this court should review that for abuse of discretion. And even if it reviewed it, and I don't know, Boast-Danda, we think that the district court's decision passes muster because. Georgia Forest Watch hadn't asserted any claims against the Forest Service. And we do with their appeal. Excuse me. What do we do with Georgia Forest Watch's appeal? They found an appeal here. We don't think that that appeal was proper and that. Do you think we should dismiss it? Certainly. Your Honor, yes. Well, but one of the parts of their appeal is that the intervention was too narrow. The appeal, the merits of Georgian, should be dismissed. Pardon? The merits of, sorry, the merits appeal could be dismissed or the court need not reach their merits arguments. But if the court were to rule on their appeal of the denial of their, or if the court were to reach the issue of whether or not the district court properly. Limited their intervention, it could certainly consider that part of their appeal and rule on it. No, you don't want the appeal dismissed. That's what I'm, you, Governor, seems like the government is talking out of both sides of the mouth on this point because you said the appeal should be dismissed. But now you say they do have a right of appeal on that. Your Honor, the, the, the, the, the, the, the, the, the, the, the government can see that they have a right to appeal that particular issue. So you don't want it to appeal dismissed in part? With respect to the merits appeal, which is, yes, yes. But, yes. With respect to the Rust family's claims, I would just make two points. What are y'all doing to them? Exactly. That is, in fact, that the critical question and, and the answer is nothing, Your Honor. The Forest Service has never tried to assert management authority over the Rust family's property, and there's no live dispute between the Rust family and the Forest Service in this case. Therefore, any, any opinion that the court were to, to grant the Rust family the relief it seeks, which is some sort of declaration about the scope of Forest Service authority. It would be, it would be essentially issuing an advisory opinion. There is no live dispute as you recently just heard. The, the Rust family only has a problem with the relief that American white water is seeking. Who owns that water? Your Honor, that, that gets to my second point
. If the predicate is that the interests aren't otherwise being represented, wasn't the Forest Service already defending its own plan? Certainly, you're on. I mean, to understand what the district court is. Right now that was discussed at the district court level. But given the fact that the district court made their decision, we then moved in the district court to at least have the terms of the intervention be limited and to strike Georgia Forest Watch's purse for relief against the Forest Service because it hadn't asserted any claims. And we think that this court should review that for abuse of discretion. And even if it reviewed it, and I don't know, Boast-Danda, we think that the district court's decision passes muster because. Georgia Forest Watch hadn't asserted any claims against the Forest Service. And we do with their appeal. Excuse me. What do we do with Georgia Forest Watch's appeal? They found an appeal here. We don't think that that appeal was proper and that. Do you think we should dismiss it? Certainly. Your Honor, yes. Well, but one of the parts of their appeal is that the intervention was too narrow. The appeal, the merits of Georgian, should be dismissed. Pardon? The merits of, sorry, the merits appeal could be dismissed or the court need not reach their merits arguments. But if the court were to rule on their appeal of the denial of their, or if the court were to reach the issue of whether or not the district court properly. Limited their intervention, it could certainly consider that part of their appeal and rule on it. No, you don't want the appeal dismissed. That's what I'm, you, Governor, seems like the government is talking out of both sides of the mouth on this point because you said the appeal should be dismissed. But now you say they do have a right of appeal on that. Your Honor, the, the, the, the, the, the, the, the, the, the, the government can see that they have a right to appeal that particular issue. So you don't want it to appeal dismissed in part? With respect to the merits appeal, which is, yes, yes. But, yes. With respect to the Rust family's claims, I would just make two points. What are y'all doing to them? Exactly. That is, in fact, that the critical question and, and the answer is nothing, Your Honor. The Forest Service has never tried to assert management authority over the Rust family's property, and there's no live dispute between the Rust family and the Forest Service in this case. Therefore, any, any opinion that the court were to, to grant the Rust family the relief it seeks, which is some sort of declaration about the scope of Forest Service authority. It would be, it would be essentially issuing an advisory opinion. There is no live dispute as you recently just heard. The, the Rust family only has a problem with the relief that American white water is seeking. Who owns that water? Your Honor, that, that gets to my second point. The, the water is a public good. No private entity owns it. And, and, and, and, and, it's owned by the people in the United States. Yes, Your Honor. And, and they own the river bottom? So, Your Honor, the Rust family said that they own the stream bed and to my, the government has never seen that, or the, that issue has not been resolved. So, you know, the government, the government, then, necessarily agree that they own the river bottom, but that's not an issue here. Exactly. Yes. Where is the, I'm just curious. This is called this case, came in South Carolina. Where's the, the state line? The state line is the border. So, there's three borders that issue Your Honor. Three borders. North Carolina, South Carolina and Georgia. Well, is it border in the middle of the river or on one side or the other? So, the, the, the border is basically in the middle of the river. The headwaters, which state line from between Georgia and, first of all, between North Carolina and South Carolina is in the middle of the river. And, in the state line between Georgia and South Carolina is in the middle of the river. As far as your country is, yes, Your Honor. Okay. I mean, not exactly the middle of the river. It's, you know, the North Carolina, South Carolina. I'm not, I really, I asked that, close up in West Virginia. The Ohio River border is part of it. And, we all, in West Virginia, always got stuck with building the bridges because they said the border was on the Ohio side at the high water mark. So, West Virginia had to pay for all the bridges. And apparently they didn't do it that way down. Fortunately, to my knowledge that just, he does not exist in this case. Fortunately that that issue is not live in this case. It's not an issue in this case. Sure. And I was, I write that the water goes to the Atlantic Ocean at Savannah. I believe that's correct. Goes down to the Savannah River and flows down all the way to Savannah
. The, the water is a public good. No private entity owns it. And, and, and, and, and, it's owned by the people in the United States. Yes, Your Honor. And, and they own the river bottom? So, Your Honor, the Rust family said that they own the stream bed and to my, the government has never seen that, or the, that issue has not been resolved. So, you know, the government, the government, then, necessarily agree that they own the river bottom, but that's not an issue here. Exactly. Yes. Where is the, I'm just curious. This is called this case, came in South Carolina. Where's the, the state line? The state line is the border. So, there's three borders that issue Your Honor. Three borders. North Carolina, South Carolina and Georgia. Well, is it border in the middle of the river or on one side or the other? So, the, the, the border is basically in the middle of the river. The headwaters, which state line from between Georgia and, first of all, between North Carolina and South Carolina is in the middle of the river. And, in the state line between Georgia and South Carolina is in the middle of the river. As far as your country is, yes, Your Honor. Okay. I mean, not exactly the middle of the river. It's, you know, the North Carolina, South Carolina. I'm not, I really, I asked that, close up in West Virginia. The Ohio River border is part of it. And, we all, in West Virginia, always got stuck with building the bridges because they said the border was on the Ohio side at the high water mark. So, West Virginia had to pay for all the bridges. And apparently they didn't do it that way down. Fortunately, to my knowledge that just, he does not exist in this case. Fortunately that that issue is not live in this case. It's not an issue in this case. Sure. And I was, I write that the water goes to the Atlantic Ocean at Savannah. I believe that's correct. Goes down to the Savannah River and flows down all the way to Savannah. I'm not sure about that. I believe that's correct. Well, it's got to go to the Atlantic Ocean. Eventually, it does, I guess it goes off Mexico. I just didn't know where it went for sure. That wasn't in there. I didn't see it. Yeah, it's not in the record. It runs downhill all that water. It keeps running downhill. Keeps going southward. Yes. Yes. Unless the court has any further questions, I will, I will conclude. We're going to talk about it. Yes. Hamilton. Yeah. I just want to ask you or maybe the members of the court, if you have a red Pat Connoiroy's book Deliverance. I have not read the book or seen the movie yet, sadly. Well, it was fictional to a large part, but it was found on the Tugor River. In fact, yes. It was filmed on the Tugor. And actually, as the record shows, after that movie became popular, the user, the visorship to the river increased tremendously. Hence, the forest services need to manage the river carefully and balance balance uses. I'll admit that I have seen the movie. That's fine. It didn't make me want to go. Thank you. Thank you very much, Mr. Robertson. Now, we go back here to Mr. Galbrake
. I'm not sure about that. I believe that's correct. Well, it's got to go to the Atlantic Ocean. Eventually, it does, I guess it goes off Mexico. I just didn't know where it went for sure. That wasn't in there. I didn't see it. Yeah, it's not in the record. It runs downhill all that water. It keeps running downhill. Keeps going southward. Yes. Yes. Unless the court has any further questions, I will, I will conclude. We're going to talk about it. Yes. Hamilton. Yeah. I just want to ask you or maybe the members of the court, if you have a red Pat Connoiroy's book Deliverance. I have not read the book or seen the movie yet, sadly. Well, it was fictional to a large part, but it was found on the Tugor River. In fact, yes. It was filmed on the Tugor. And actually, as the record shows, after that movie became popular, the user, the visorship to the river increased tremendously. Hence, the forest services need to manage the river carefully and balance balance uses. I'll admit that I have seen the movie. That's fine. It didn't make me want to go. Thank you. Thank you very much, Mr. Robertson. Now, we go back here to Mr. Galbrake. Thank you, Your Honor. I just want to point out very briefly that the whole purpose Congress's intent in passing the Wild and Scenic Rivers Act was that certain specific outstanding remarkable values, such as recreational values, such as boating on this river, would be preserved for future generations. And what the forest service is arguing here basically undermines that entire purpose. What does the protect and enhance standard mean? According to the forest service, nothing. They can willy-nilly eliminate, ban, do whatever they want. What about the second standard in Section 1281? Oh, yes, Joe. The significant question in this matter is, how do you find that the forest service that's 2, 2012 decision is arbitrary and capricious? It's arbitrary and capricious for a number of reasons. The facts that I listed earlier, there's hardly even an encounter between boaters and other users. And somehow they've determined that boaters should be completely excluded from the resource. And there's no evidence in the record that there's any what's called asymmetrical reason for that supposed imagined conflict. Why just ban boating? Where are the hiker free days? Where are the fishermen free days for boaters? It's completely arbitrary and capricious that if there is some kind of encounter that they just decide to take a wilderness compliant, original wild and scenic use that was a protected value and eliminated from the river during most of the year and at all times on one of the most important sections of the river that joins the top and the bottom of the river together. I see that was the point. You take issue there that they didn't make a balanced decision looking at all of the uses of the river and they didn't sort of divide those up and give everybody an opportunity so that it was a balanced decision. You take issue with that? That's right, Judge Hamilton. And there's not even a reason to balance uses in this case. These are all compatible uses. They are on other rivers. And there's no reason to even get to the second test on their wild scenic rivers act, which is whether there's substantial interference because there is no there's barely an encounter. They can protect and enhance all of the values that I listed that are set forth in the study. They don't conflict with one another at all. And there's no basis in the record for saying that they do. And even if there was some kind of small interference, it's certainly not substantial. And again, the agency argues that, well, that standard doesn't mean anything either. Health Canyon case, in that case, large amount of motorboat use was found to be not a substantial interference. In this case, we're talking about hand-powered floating. How can large amounts of motorboat use be not a substantial interference and yet primitive kayaking, substantially interferes with the river's values? I'm already remembering right now, so you can tell me if I'm not, that in the Health Canyon case, Congress had actually legislated. It was a proviso to the designation that there would be motorized boating. That's exactly right, which is certainly a distinction here. But in the river-hawks case, in that case, they also found that large amounts of motorized use did not substantially interfere with the same parties that are agreed in this case, primitive floater. How can this be possible? This decision is an absurdity on every level from arbitrary and capricious all the way up through substantial interference and protecting the land. You say it's an absurdity? It is. It's a complete anomaly on river management. You referred to the entire investigation
. Thank you, Your Honor. I just want to point out very briefly that the whole purpose Congress's intent in passing the Wild and Scenic Rivers Act was that certain specific outstanding remarkable values, such as recreational values, such as boating on this river, would be preserved for future generations. And what the forest service is arguing here basically undermines that entire purpose. What does the protect and enhance standard mean? According to the forest service, nothing. They can willy-nilly eliminate, ban, do whatever they want. What about the second standard in Section 1281? Oh, yes, Joe. The significant question in this matter is, how do you find that the forest service that's 2, 2012 decision is arbitrary and capricious? It's arbitrary and capricious for a number of reasons. The facts that I listed earlier, there's hardly even an encounter between boaters and other users. And somehow they've determined that boaters should be completely excluded from the resource. And there's no evidence in the record that there's any what's called asymmetrical reason for that supposed imagined conflict. Why just ban boating? Where are the hiker free days? Where are the fishermen free days for boaters? It's completely arbitrary and capricious that if there is some kind of encounter that they just decide to take a wilderness compliant, original wild and scenic use that was a protected value and eliminated from the river during most of the year and at all times on one of the most important sections of the river that joins the top and the bottom of the river together. I see that was the point. You take issue there that they didn't make a balanced decision looking at all of the uses of the river and they didn't sort of divide those up and give everybody an opportunity so that it was a balanced decision. You take issue with that? That's right, Judge Hamilton. And there's not even a reason to balance uses in this case. These are all compatible uses. They are on other rivers. And there's no reason to even get to the second test on their wild scenic rivers act, which is whether there's substantial interference because there is no there's barely an encounter. They can protect and enhance all of the values that I listed that are set forth in the study. They don't conflict with one another at all. And there's no basis in the record for saying that they do. And even if there was some kind of small interference, it's certainly not substantial. And again, the agency argues that, well, that standard doesn't mean anything either. Health Canyon case, in that case, large amount of motorboat use was found to be not a substantial interference. In this case, we're talking about hand-powered floating. How can large amounts of motorboat use be not a substantial interference and yet primitive kayaking, substantially interferes with the river's values? I'm already remembering right now, so you can tell me if I'm not, that in the Health Canyon case, Congress had actually legislated. It was a proviso to the designation that there would be motorized boating. That's exactly right, which is certainly a distinction here. But in the river-hawks case, in that case, they also found that large amounts of motorized use did not substantially interfere with the same parties that are agreed in this case, primitive floater. How can this be possible? This decision is an absurdity on every level from arbitrary and capricious all the way up through substantial interference and protecting the land. You say it's an absurdity? It is. It's a complete anomaly on river management. You referred to the entire investigation. You were talking about Judge Lewis's decision or the, uh, or services decision. The agency's decision. The agency's decision is an absurdity. Yes. How long have you been involved in it since when? Since the early 1990s. I personally have been representing these parties. 2003. Yes, you know. And, uh, yes, you're on. See, I have a stoplight. Thank you. Thank you very much. Appreciate it. And, uh, Mr. Dadek? Which one is this one? Well, let's see. On my list, it's, it's, it's Richard. We've flipped there. Sounds like to me. You know, I want to reiterate that the party, the private parties interest are at risk in this case. And it's because what the Forest Service just said that they're, they, they control the water. They may concessions below, uh, as to that the rust on the property. And we would cite the court to still create development corporation versus James and North Carolina case in which it indicates that if you control the stream bed, if you own the stream bed, through which the water flows, you have the right to exclude voting on that property. So as a matter of law, we would say that, uh, the fact that the rust on the property settles the cases to whether there's action. And the fact that the process on the water that happens to flow across the property. Um, also the Forest Service itself, did you build a dam on there? For people, I mean, they wanted to, I think there are restrictions on the dam, but that has to do with conduct that persons owning the property. And it has to do with riparian rights. And this case does not really deal with riparian rights. It's dealing with public access to allowing the public to come on this private property. Um, there were concessions made below, um, by the parties. And we would ask this court if it rules, uh, that it hold their ruling strictly to the area below Green's Creek and that this does not in any way. Um, resolve or indicate that private property is open to public access. Um, this area is it, is it risk? It's, it's issue in this case because by the Forest Service's own chart, it's included within the assessment area. And that gets to our NEPA argument, your honor, which I did not have time to address
. You were talking about Judge Lewis's decision or the, uh, or services decision. The agency's decision. The agency's decision is an absurdity. Yes. How long have you been involved in it since when? Since the early 1990s. I personally have been representing these parties. 2003. Yes, you know. And, uh, yes, you're on. See, I have a stoplight. Thank you. Thank you very much. Appreciate it. And, uh, Mr. Dadek? Which one is this one? Well, let's see. On my list, it's, it's, it's Richard. We've flipped there. Sounds like to me. You know, I want to reiterate that the party, the private parties interest are at risk in this case. And it's because what the Forest Service just said that they're, they, they control the water. They may concessions below, uh, as to that the rust on the property. And we would cite the court to still create development corporation versus James and North Carolina case in which it indicates that if you control the stream bed, if you own the stream bed, through which the water flows, you have the right to exclude voting on that property. So as a matter of law, we would say that, uh, the fact that the rust on the property settles the cases to whether there's action. And the fact that the process on the water that happens to flow across the property. Um, also the Forest Service itself, did you build a dam on there? For people, I mean, they wanted to, I think there are restrictions on the dam, but that has to do with conduct that persons owning the property. And it has to do with riparian rights. And this case does not really deal with riparian rights. It's dealing with public access to allowing the public to come on this private property. Um, there were concessions made below, um, by the parties. And we would ask this court if it rules, uh, that it hold their ruling strictly to the area below Green's Creek and that this does not in any way. Um, resolve or indicate that private property is open to public access. Um, this area is it, is it risk? It's, it's issue in this case because by the Forest Service's own chart, it's included within the assessment area. And that gets to our NEPA argument, your honor, which I did not have time to address. Yes. Well, you can, you can do this so much I'm doing your initial appearance. I pointed out to you that the two 12 decision does not permit floating above Green Creek. Now, how is the Forest Service interfering with the waters, abutting the Russ family's land? Because there, your honor, it's our position that they're asking this court to find that they have some kind of discretionary authority to manage the entire river regardless of if it's slowing over private property or not. Well, tell me, tell me specifically how they're doing that. They're not going to permit any floating above Green Creek. So Green Creek. Uh, by even indicating they have some kind of authority to not allow floating above the certain area. It's an indication that they are in some way think they have the discretion and the authority to allow it if they should change their mind in the future. And in this case, where you can come back if they did that. Well, you honor that issue would be right. We say it's right now, Your Honor, because of the positions taken by the other parties in this case, which are asking for a broad ruling on the entire headwaters that would subsume. Arguably what they're asking you to do is subsume private rights without our day in court. Well, the force serves as we just ought to affirm Judge Louis is understandable and just as far that other appeal may be, but that. Well, we would ask if it's a firm that the Forest Service be held to the concessions. We think they may blow in which the district court found our on the basis of which they found our issues not right. And that is the Forest Service conceded. It does not manage our property, which we say includes the stream bed and right to exclude. We don't decide things that we don't have to decide. We resolve the appeals, the issues that are fairly presented. It's way we only operate. Otherwise, we'd be doing what we'd be is what they call an advisory opinion. I understand that, Your Honor, but you don't want to advise me opinion. I don't want an advisory opinion, but I don't want so broad an opinion that later when we come back, somebody sides your opinion and says, well, you were in court. And the court ruled that there's public access to the entire headwaters and that's already been decided. If we disaffirmed the judge Louis would be all right with that, then. As long as the court carefully notes that it does not is not deciding the issue of what happens when the Chateauga is flowing across private property. It court carefully does that. We would have no problem, Your Honor. Thank you. Thank you very much. We appreciate it. Mr
. Yes. Well, you can, you can do this so much I'm doing your initial appearance. I pointed out to you that the two 12 decision does not permit floating above Green Creek. Now, how is the Forest Service interfering with the waters, abutting the Russ family's land? Because there, your honor, it's our position that they're asking this court to find that they have some kind of discretionary authority to manage the entire river regardless of if it's slowing over private property or not. Well, tell me, tell me specifically how they're doing that. They're not going to permit any floating above Green Creek. So Green Creek. Uh, by even indicating they have some kind of authority to not allow floating above the certain area. It's an indication that they are in some way think they have the discretion and the authority to allow it if they should change their mind in the future. And in this case, where you can come back if they did that. Well, you honor that issue would be right. We say it's right now, Your Honor, because of the positions taken by the other parties in this case, which are asking for a broad ruling on the entire headwaters that would subsume. Arguably what they're asking you to do is subsume private rights without our day in court. Well, the force serves as we just ought to affirm Judge Louis is understandable and just as far that other appeal may be, but that. Well, we would ask if it's a firm that the Forest Service be held to the concessions. We think they may blow in which the district court found our on the basis of which they found our issues not right. And that is the Forest Service conceded. It does not manage our property, which we say includes the stream bed and right to exclude. We don't decide things that we don't have to decide. We resolve the appeals, the issues that are fairly presented. It's way we only operate. Otherwise, we'd be doing what we'd be is what they call an advisory opinion. I understand that, Your Honor, but you don't want to advise me opinion. I don't want an advisory opinion, but I don't want so broad an opinion that later when we come back, somebody sides your opinion and says, well, you were in court. And the court ruled that there's public access to the entire headwaters and that's already been decided. If we disaffirmed the judge Louis would be all right with that, then. As long as the court carefully notes that it does not is not deciding the issue of what happens when the Chateauga is flowing across private property. It court carefully does that. We would have no problem, Your Honor. Thank you. Thank you very much. We appreciate it. Mr. Downey. The Forest Service struggled to address the procedural questions raised by Judge Harris. The issue, there was never an issue as to whether or not Georgia Forest Watch was allowed to intervene as a bride. It was nobody challenged that. There was no challenge at the time what Council referred to was at the way months later, after motions for some red judgment, the Forest Service moved to successfully to strike the portions of Georgia Forest Watches, the prayer for relief in Georgia Forest Watches motion. So the issue before this court is not whether, which would be an abusive discretion, it's what conditions and it's clear from string fellow, gold, arch coal and Columbus America that you cannot place restrictions on an intervener as a bride. And I would urge you to look especially at arch coal. I'd also urge you to consider that the standard of review that was applied by the district court was incorrect with regard to the Forest Service's decision. The Forest Service in this case should not be afforded to difference and there are several reasons for that first. Judge Hamilton has a question for you. Well, as Judge King pointed out earlier, you were permitted to our first watch was permitted to intervene on behalf of the Forest Service. And now you appear are going against the Forest Service. That was an error. We should not have been limited to only be the Forest Service's litigation friend, I guess. I don't even know what that means. But that was a basis on which you were permitted to intervene. It wasn't that was an error because we requested if you look at our motion to intervene, if you look at our supplementable memo when the court set on our motion for over eight months when you look at our supplemental memo, we made clear that we were not aligned with the Forest Service. Not only that, there's an administrative history going back to the 90s. But you were allowed to force her because that was the court order. You have to abide by court order. That court order is an error and we're challenging that. Well, you say that the court order is an error, but you can still can't argue against the Forest Service under that court order. But this is our only chance to address the merits. This is the time when you have to address the jurisdiction. You have another lawsuit. We do if you send us back, we have the opportunity. That lawsuit should have been consolidated if the court was going to address our issues in this lawsuit. If the court had somehow, I don't know how you could do this in this case, kept the issues separate in the two lawsuits. Then perhaps that would have been right. But in fact, the failure to consolidate just compounded in the only reason we filed the other lawsuit was to avoid the situation that happens here, which is that we can do all of this work up here and be basically ignored by the district court at will, which is what happened. And after having recognized that we had an interest interest that could be impaired, that doesn't make sense. That's fundamentally unfair and the test is fundamental fairness to litigants. Thank you very much
. We appreciate the efforts of all the lawyers in the case. I know it's been a tough job and you've done a commendable work with respect to it all the way through. Judge Harrison, I'll come down and greet council and the court will stand in recess for about 15, 20 minutes while we read conference and reconstitute the panel