[00:00:02] Speaker 00:
Case number 14-5304, Anglers Conservation Network at L Appellants versus Penny Sue Pritzker at L. Mr. Fleming for the appellants, Mr. Lundman for the appellees.

[00:00:23] Speaker 04:
Good morning, Your Honors.

[00:00:24] Speaker 04:
Roger Fleming on behalf of the plaintiff appellants, Anglers Conservation Network.

[00:00:28] Speaker 04:
I'd like to reserve two minutes for rebuttal.

[00:00:31] Speaker 04:
Your Honors, this case addresses the heart of the Magnuson-Stevens Act.

[00:00:35] Speaker 04:
It asks whether the Fisheries Service is ultimately obligated to carry out the core requirements of the Act when a counsel declines to do so in the first instance.

[00:00:44] Speaker 04:
If left to stand, the district court opinion could blow a crippling hole in the Act, because it would transform most, if not all, of the requirements that Congress established to meet the Act's purposes, such as 16 USC 1852H, into discretionary options.

[00:00:59] Speaker 03:
Doesn't it say May in H?

[00:01:04] Speaker 04:
Well, 1652 H is the provision near the beginning of the Act that states that the Council shall add stocks of fish.

[00:01:13] Speaker 03:
The Council's not the defendant here, right?

[00:01:17] Speaker 03:
The council is not the defendant here.

[00:01:18] Speaker 03:
So we're concerned with the section that deals with what our defendants are obligated to do.

[00:01:24] Speaker 03:
And I could look for that citation, but I'm sure you're better at calling it than I am.

[00:01:30] Speaker 03:
Doesn't it say May?

[00:01:31] Speaker 03:
That's right, Your Honor.

[00:01:32] Speaker 04:
1654C.

[00:01:37] Speaker 04:
Is the statute is the statutory provision you're referring to that's the provision that requires In situations like this the secretary no, they're not like this Go ahead

[00:01:53] Speaker 04:
Your Honor, it's a cardinal rule of statutory construction that a statute needs to be read as a whole in view of its definitions, its findings, and its purposes.

[00:02:04] Speaker 04:
The Fisheries Service has a discrete legally required duty to ensure that all fishery management plans... First of all, the statute has to be read.

[00:02:14] Speaker 03:
That's correct.

[00:02:15] Speaker 03:
That's correct.

[00:02:16] Speaker 03:
When read as a whole... That's correct.

[00:02:22] Speaker 03:
That's correct.

[00:02:22] Speaker 03:
It doesn't say has to, it says may, right?

[00:02:25] Speaker 03:
You're correct.

[00:02:25] Speaker 03:
It says may.

[00:02:26] Speaker 03:
That part about us making it discretionary, if we hold against you, is not exactly accurate.

[00:02:31] Speaker 03:
Congress made it discretionary, didn't it?

[00:02:33] Speaker 04:
They said may.

[00:02:34] Speaker 04:
That's right.

[00:02:35] Speaker 04:
Congress very carefully crafted it to say may in this situation, because the Magnuson Act includes both mandatory and discretionary provisions.

[00:02:45] Speaker 04:
So in this section of the act, which is a part of the act,

[00:02:48] Speaker 04:
that is a grant of authority to the agency to act when the council fails to act, it says may because it may establish its own secretarial amendment when the council fails to go forward with a discretionary provision.

[00:03:08] Speaker 03:
But it doesn't have to.

[00:03:09] Speaker 04:
It doesn't have to on a discretionary provision.

[00:03:12] Speaker 04:
Right.

[00:03:12] Speaker 04:
But our argument is that when the statute's read as a whole, that it has to when the council fails to act on a mandatory provision.

[00:03:24] Speaker 04:
Congress created the Magnuson Act.

[00:03:26] Speaker 03:
Why would Congress say may?

[00:03:28] Speaker 03:
You said a while ago the NH, which I misstudied.

[00:03:32] Speaker 03:
the language was mandatory.

[00:03:33] Speaker 03:
Now over here in C, where we're dealing with the secretary of duty, it says May.

[00:03:38] Speaker 03:
Why would Congress, reading the section as a whole, why would Congress have discretionary language in the section unless it was meant to be discretionary?

[00:03:48] Speaker 04:
Your Honor, because it's meant to be discretionary when the Council fails to take action on a discretionary provision of the Act, but it's meant to be mandatory.

[00:03:58] Speaker 04:
That's not what it says.

[00:03:59] Speaker 03:
It's a grant.

[00:04:01] Speaker 03:
As you said yourself at the beginning of your remarks, in cases like this, it seems to me this is the section that you're looking to to get the authority.

[00:04:10] Speaker 03:
That's correct, Your Honor.

[00:04:11] Speaker 03:
You're stuck with the authority Congress granted.

[00:04:14] Speaker 03:
And what Congress granted is May authority, not shell authority.

[00:04:17] Speaker 04:
Well, when you look at the overall statutory scheme, Congress set up the Magnuson Act to take immediate action to conserve and manage fishery resources and to place them under sound management.

[00:04:29] Speaker 04:
If that May is read to establish a blanket grant of authority to the agency for any provision under the Act, then it reads

[00:04:44] Speaker 04:
the purposes of Congress and all the required.

[00:04:47] Speaker 03:
You answered my question as to why Congress used discretionary language in that section that applies to this circumstance.

[00:04:53] Speaker 03:
Because.

[00:04:54] Speaker 03:
Unless they intended something discretionary.

[00:04:57] Speaker 04:
Again, they did intend it to be discretionary, but they also intended it to require action when a required provision is not.

[00:05:05] Speaker 03:
Did Congress ever say that?

[00:05:07] Speaker 03:
I mean, you tell us they intended that.

[00:05:08] Speaker 03:
I found nothing in your brief that pointed me to anywhere Congress had done that.

[00:05:13] Speaker 03:
You don't get to decide what the law is, Congress does.

[00:05:16] Speaker 03:
That's right.

[00:05:17] Speaker 03:
And Congress didn't say what you're just saying.

[00:05:19] Speaker 03:
You said that.

[00:05:20] Speaker 03:
Congress did.

[00:05:21] Speaker 04:
Well, it's our view that Congress did say this.

[00:05:24] Speaker 04:
Congress could have written it differently.

[00:05:25] Speaker 04:
Congress could have written a much longer statute that... No, they couldn't have been much longer than this.

[00:05:33] Speaker 04:
But in this situation, if you look at the structure of the act, the section that we're talking about right now, 1854, 1854, A and B state clearly that the Secretary shall review draft fishery management plans and amendments and regulations to ensure that they're consistent with the national standards and all the required provisions of the act as well as other applicable ones.

[00:06:00] Speaker 03:
Of course the Congress said shall when they meant to be mandatory.

[00:06:02] Speaker 03:
But they didn't put a shell provision in for the circumstance that you face here.

[00:06:07] Speaker 03:
I mean, you said yourself at the beginning, in cases like this, it's C that gives, and that's a May section.

[00:06:14] Speaker 04:
It's a May section, but again, it's a grant of authority.

[00:06:17] Speaker 04:
It's not a grant of discretion.

[00:06:19] Speaker 04:
It's the other parts of the act.

[00:06:21] Speaker 03:
I don't understand how you can say it's a grant of authority without recognizing that it grants some specific kind of authority.

[00:06:29] Speaker 03:
And that kind of authority it grants can be mandatory or it can be discretionary.

[00:06:34] Speaker 03:
But it has to be something it doesn't grant.

[00:06:36] Speaker 03:
If you have all the authority in the world, it grants something specific.

[00:06:39] Speaker 04:
Right.

[00:06:40] Speaker 04:
I'm agreeing with you that it grants authority that can be mandatory and it can be discretionary.

[00:06:47] Speaker 04:
It is mandatory in the situations where these core requirements of the Act that Congress carefully drafted to fulfill the Act's purposes are not met by the Council.

[00:06:59] Speaker 04:
The structure of this section demonstrates that.

[00:07:02] Speaker 04:
1854 A and B deal with those situations when an amendment is submitted, a draft amendment is submitted to the Secretary for

[00:07:12] Speaker 04:
review, the secretary reviews it to make sure that it complies with the act.

[00:07:17] Speaker 04:
If it doesn't comply with the act or other law, it sends it back to the council to take another shot at making it comply.

[00:07:23] Speaker 04:
But if the council doesn't act in the first instance, or the council doesn't act in the second instance when it's sent back by the secretary, that's when we get to 1854C.

[00:07:35] Speaker 04:
And if that first action dealt with a discretionary provision under 1853B,

[00:07:42] Speaker 04:
then there's no obligation on the secretary to act, because Congress didn't say that fishery management plans have to require those types of measures.

[00:07:52] Speaker 04:
But if it's a required provision, like a requirement to add a stock to a fishery management plan that's in need of conservation management, or a requirement to end overfishing, then the secretary's obligated to act under C.

[00:08:05] Speaker 04:
Congress carefully crafted it to use the word may because it's a grant of authority.

[00:08:11] Speaker 04:
It's not a grant of discretion to the Fisheries Service to ignore all the requirements of the act.

[00:08:18] Speaker 04:
Now, other courts that have looked at similar situations have agreed that it's the fishery service that's ultimately responsible for ensuring that the Act's provisions are met.

[00:08:32] Speaker 04:
The courts in the Flaherty case, the Ginden case, and the related ACN case all recognized and stated that it's the fishery service that's ultimately responsible for making sure that the provisions of the Act are carried out.

[00:08:48] Speaker 03:
Do you have a case that says this duty under C is mandatory?

[00:08:55] Speaker 04:
No, Your Honor.

[00:08:56] Speaker 04:
I don't think so.

[00:08:58] Speaker 04:
No, this is the first time, I believe, that we've ever been in this situation where there's a requirement of the fisheries service.

[00:09:11] Speaker 04:
The council has taken up the rulemaking process, and then it's stopped the rulemaking process.

[00:09:18] Speaker 04:
So we're in a situation where we have a requirement under the Act that there's no dispute that these fish, these River Herod and shad, require conservation and management.

[00:09:29] Speaker 04:
There's no dispute that 1852-H requires that fish that need conservation and management be added to the Act.

[00:09:37] Speaker 04:
The dispute is that the Fisheries Service argues that this is a grant of discretion for them to ignore the mandatory provisions of the Act.

[00:09:46] Speaker 04:
The Act can be read consistently

[00:09:48] Speaker 04:
if the way that I'm arguing it, if the May in this section is viewed as a grant of authority, it would be an absurd reading of the Act to view this as a strictly discretionary provision because it would allow the Fisheries Service to ignore all of the requirements of the Act.

[00:10:08] Speaker 04:
And that's clearly not what Congress intended when it wrote this long statute

[00:10:13] Speaker 04:
that is designed to put our fishery resources of the country under sound management.

[00:10:22] Speaker 04:
Your honors, I'd also like to address the right to review under the Magnuson Act and 7062 as well.

[00:10:35] Speaker 04:
It's our view that the fishery service here did take a discre... Are you going to come to standing

[00:10:43] Speaker 03:
I'd be happy to address standing.

[00:10:45] Speaker 03:
Your time is getting short and you know the first thing we have to do is decide if we have jurisdiction.

[00:10:51] Speaker 04:
Your honor, the supplemental briefs that were filed with this court

[00:10:59] Speaker 04:
both agree that the Fisheries Service agreed that the English Conservation Network is entitled to standing under review under 5 USC 7061.

[00:11:11] Speaker 03:
We also believe that we're entitled to review under... What is the harm that the defendant is causing to your clients that is remediable in this case?

[00:11:24] Speaker 04:
The harm in this situation, Your Honor, is that by failing to include these severely depleted populations of river herring and shad under a sound fishery management plan, it's hurting our clients, who are small businessmen, recreational fishermen, who are unable to go out and harvest the predators that should be present because these fish are being caught in numbers that are too high.

[00:11:48] Speaker 04:
If they're put under a sound fishery management plan, which our argument is

[00:11:53] Speaker 03:
the fishery service is responsible for ensuring... Does it sound like an imminent or actual harm that is remediable without the intervention of third party actors?

[00:12:04] Speaker 04:
Yes, Your Honor, because it's the fishery service that's ultimately responsible for ensuring that fishery management plans are put in place with all the required provisions in the act, including provisions to hand over fishing, protect the habitat that the fisheries... Is this just a

[00:12:23] Speaker 04:
It depends upon what part of the coast you're in.

[00:12:27] Speaker 02:
The spawning run occurs in the spring, simultaneous with the spawning run of striped bass.

[00:12:37] Speaker 04:
That's correct.

[00:12:38] Speaker 04:
And that's a good example, because our fishermen have businesses that take clients out to fish for striped bass.

[00:12:47] Speaker 04:
And the reason they're able to run their businesses and to go out and catch striped bass.

[00:12:52] Speaker 02:
Not in the rivers.

[00:12:54] Speaker 04:
Not in the rivers.

[00:12:56] Speaker 02:
Because I think that's prohibited during this spawning run of striped bass.

[00:13:02] Speaker 02:
You're not permitted to fish with them.

[00:13:04] Speaker 04:
Those regulations are state by state, and I believe that you're right.

[00:13:07] Speaker 04:
In some states it is.

[00:13:08] Speaker 04:
But these fish are anadromous fish.

[00:13:10] Speaker 04:
They spend a great deal of their time in federal waters, more than three miles offshore.

[00:13:15] Speaker 04:
So that's the time of year, which is nearly year round,

[00:13:20] Speaker 04:
when this case would apply most directly.

[00:13:22] Speaker 04:
These fish swim out to sea.

[00:13:24] Speaker 04:
They co-mingle with the fish that the mackerel and the squid and butterfish fishermen are trying to catch.

[00:13:31] Speaker 04:
And these river herring and shad are caught at sea.

[00:13:34] Speaker 02:
But there's not federal... Are there regulations in effect with respect to the herring and shad for other fisheries, aren't there?

[00:13:43] Speaker 04:
There are regulations in place for state waters that are put in place through the Atlantic States Marine Fisheries Commission, but that only covers the area from shore out to three miles.

[00:13:55] Speaker 04:
So during a small part of the year, when they're in these waters, there are regulations in place.

[00:14:02] Speaker 04:
But during the other times of the year when they're out at sea, there are virtually no regulations in place and none of the required provisions of the act, such as the requirements to manage populations according to the scientific evidence of

[00:14:17] Speaker 04:
you know, how abundant they should be and catch limits and measures to protect essential fish habitat.

[00:14:27] Speaker 04:
None of those provisions are in place for the 197 miles in the EEZ that go beyond state waters.

[00:14:37] Speaker 04:
It's when these fish are in those waters that they're caught in large numbers by mackerel fishermen and thus it has contributed significantly to their depletion over time and the need for them to be managed and conserved under the act.

[00:14:52] Speaker 04:
Your honors, I see that my time is up.

[00:14:56] Speaker 04:
Our briefs also explain that we're entitled to review under 7062 and the Magnuson Act because rulemaking started in this situation and rulemaking was stopped by the responsible federal agency, the Fisheries Service.

[00:15:12] Speaker 04:
There's a notice of intent published to start rulemaking.

[00:15:15] Speaker 04:
There were committees formed, and there were meetings held over the course of 16 months to initiate this rulemaking, and then the rulemaking stopped.

[00:15:27] Speaker 04:
And under the APA, the denial of rulemaking qualifies as a federal action.

[00:15:34] Speaker 01:
Thank you.

[00:15:44] Speaker 05:
Good morning.

[00:15:45] Speaker 05:
Robert London, representing the National Marine Fisheries Service.

[00:15:49] Speaker 05:
I just want to start right away with 1854C.

[00:15:52] Speaker 05:
That's the provision that plaintiffs claim creates the mandatory duty here.

[00:15:57] Speaker 05:
If you look at the plain language, it just does not.

[00:15:59] Speaker 05:
It says the secretary may prepare a fishery management plan and then goes on to list the circumstances in which it can consider doing that.

[00:16:07] Speaker 05:
And that language contrasts with the language in 1854A and B. So the provision's immediately before this one.

[00:16:13] Speaker 05:
In those, the statutory language says the secretary shall review the council's action.

[00:16:19] Speaker 05:
So if the council approves an amendment, it's transmitted to the secretary, then the secretary has to review that amendment, either approve it, partially approve it, or disapprove it.

[00:16:30] Speaker 05:
But the contrast here is with the 1854C.

[00:16:33] Speaker 05:
When no such amendment is transmitted, and there was no amendment transmitted here, then it's discretionary authority in the secretary to decide whether to act or not.

[00:16:43] Speaker 05:
And under the Southern Utah Wilderness Alliance case from the Supreme Court, plaintiffs have to show a clear-cut, mandatory, non-discretionary duty, and that language in C just does not get anywhere near clearing that hurdle.

[00:16:57] Speaker 05:
Plaintiffs say step back, look at the entire statutory scheme.

[00:17:00] Speaker 05:
That helps them.

[00:17:01] Speaker 05:
I don't think it does.

[00:17:02] Speaker 05:
The statute here is clear that the councils are distinct from the secretary and the fisheries service.

[00:17:08] Speaker 05:
The councils, in the first instance, are to prepare

[00:17:10] Speaker 05:
Fishery management plans and amendments.

[00:17:14] Speaker 05:
Then if those are approved, they're transmitted to the secretary.

[00:17:17] Speaker 05:
The secretary then performs the review pursuant to 1854A, approves or disapproves.

[00:17:23] Speaker 05:
But the scheme is clear that it creates councils that are distinct and can't just simply be lumped together with the secretary of the fishery service.

[00:17:34] Speaker 05:
This isn't a crippling hole in the statute, as plaintiffs describe it.

[00:17:38] Speaker 05:
Rather, it reflects Congress's choice to give the secretary discretionary authority to jump in and create its own plan when the councils haven't done so.

[00:17:47] Speaker 05:
If plaintiffs are displeased with the secretary's choice, discretionary choice, either to jump in or not to jump in, then they can petition the secretary directly to act under the Administrative Procedure Act.

[00:17:58] Speaker 05:
They go to the secretary, the secretary then will decide whether or not to take that discretionary action.

[00:18:04] Speaker 05:
But it's just wrong that because it's discretionary, it's a crippling hole.

[00:18:07] Speaker 05:
It's an option for the secretary to step in, and that's the only way the language can be read.

[00:18:13] Speaker 02:
Has anything happened in the two years since the mid-Atlantic group said, we're going to study this some more?

[00:18:24] Speaker 05:
A few things have happened.

[00:18:25] Speaker 05:
These are post-state, the complaint.

[00:18:27] Speaker 05:
But the one thing that happened is Amendment 14 was approved by the council and then issued as a rule by the secretary.

[00:18:37] Speaker 05:
And that amendment does not do what plaintiffs want.

[00:18:40] Speaker 05:
It doesn't add river herring and shad to the fishery management plans of stock.

[00:18:44] Speaker 05:
It does provide for protection of those species.

[00:18:47] Speaker 05:
So that's number one.

[00:18:48] Speaker 05:
And plaintiffs have a case in district court where they've challenged Amendment 14.

[00:18:51] Speaker 05:
They've made the same argument that they've made here.

[00:18:54] Speaker 05:
The district court has just issued a ruling that they sent in and we sent in a response about in the last two weeks.

[00:19:00] Speaker 05:
And it's said that they're rejecting their argument in the Magnuson Stevens Act, finding a problem with our NEPA, with the agency's NEPA work, and a set timeline for remedial briefing.

[00:19:11] Speaker 05:
So they've got the same argument they've made here, setting a district court with respect to Amendment 14, and Amendment 14 is one of the changes.

[00:19:18] Speaker 05:
In addition, when the Council voted not to proceed with Amendment 15, it said, we're going to take a look at this again in three years.

[00:19:26] Speaker 05:
In the meantime, the Council's working committees have continued to study this.

[00:19:31] Speaker 05:
The three-year deadline is a year from now, and the Council will take up the question again at that point.

[00:19:39] Speaker 05:
completely cut off forever.

[00:19:40] Speaker 05:
It's rather postponed for further study.

[00:19:43] Speaker 05:
The decision of Amendment 14 explains further why that's the case.

[00:19:46] Speaker 05:
This is complicated.

[00:19:47] Speaker 05:
There's complicating questions of overlap.

[00:19:50] Speaker 05:
There's lots of issues of why the River Harrigan Shad aren't doing as well as they could.

[00:19:53] Speaker 05:
Dams, river access, clean water.

[00:19:57] Speaker 02:
Is there any evidence that their population rises or falls over periods of time that are cyclical, for example?

[00:20:07] Speaker 05:
The evidence is fairly incomplete on this.

[00:20:10] Speaker 05:
The fullest discussion of this in our record is in round JA 147.

[00:20:18] Speaker 05:
And that's where the Fisheries Service responded to a petition to list river herring as threatened or endangered, and summarized all of the data on them as of that point in time, ultimately decided not to list them as threatened or endangered under the Endangered Species Act.

[00:20:37] Speaker 05:
And that decision's in the JA as well, because the data was incomplete.

[00:20:41] Speaker 05:
What it shows is there's lots of different stocks of these fish up and down the Atlantic seaboard.

[00:20:46] Speaker 05:
Some of them are depleted compared to the historical level.

[00:20:51] Speaker 05:
Others are less depleted.

[00:20:52] Speaker 05:
And the bottom line was the data is just incomplete on this, and that there was no basis at this point for listing under the Dangerous Species Act.

[00:21:01] Speaker 05:
And that's the same reasoning

[00:21:03] Speaker 05:
that applies here with respect to adding the stocks to the fishery plan.

[00:21:07] Speaker 05:
The data to complete further study makes sense.

[00:21:09] Speaker 05:
That's what the council said it was going to do, and now we're about a year away from the council taking this issue up again.

[00:21:15] Speaker 01:
You said that plaintiffs could petition the secretary if they wanted her to exercise her discretion.

[00:21:26] Speaker 01:
If they did that and the secretary declined to act,

[00:21:30] Speaker 01:
Would they have an action under the APA, or would they have the same problem?

[00:21:35] Speaker 05:
Well, they would have an action.

[00:21:37] Speaker 05:
The review may be limited, because under 1854C, the secretary has discretion.

[00:21:44] Speaker 05:
So I think the review would be, did the secretary abuse her discretion in refusing to take the action plaintiffs have asked for?

[00:21:52] Speaker 05:
But there would be a record created.

[00:21:54] Speaker 05:
They would say, we want you to add these stocks, Secretary under 1854C, to the management plan.

[00:21:59] Speaker 05:
The secretary would look at that, would consider the submissions from the parties who wanted that, and would have to explain why or why not she is doing that.

[00:22:08] Speaker 05:
And that would then be reviewable.

[00:22:10] Speaker 05:
But it would be reviewable.

[00:22:12] Speaker 05:
you know, a limited review because it is a discretionary decision.

[00:22:15] Speaker 05:
The Fisheries Service is the expert in this field and we would be here arguing that the review should be very deferential.

[00:22:21] Speaker 05:
But it's a way to get the court and the district court noted that avenue here and made clear that they did not sew a petition.

[00:22:30] Speaker 05:
And this court regularly reviews APA 553E decisions on a petition, seeking petitions.

[00:22:38] Speaker 03:
On the standing questions, it's the government's position that there is not standing with reference to any claim under N955F2 to be brought under APA Section 2.

[00:22:54] Speaker 03:
uh... with respect to their claim that there was an action by the secretary and they brought that both under the magazine stevens act eighteen fifty five F two and under APA seven oh six two but you do concede that there is standing but not a claim for relief uh... under the uh... under seven oh six one question something that you

[00:23:23] Speaker 03:
Concede in your your supplemental brief.

[00:23:28] Speaker 03:
Will you say that?

[00:23:32] Speaker 03:
Federal court must assume, arguing to the merits of the his or her legal claim.

[00:23:38] Speaker 03:
Now we are to assume factual matters in favor of the alleging party, but you seem to be conceding something that I'm wondering if it's well conceded when you say the legal claim.

[00:23:50] Speaker 03:
Is it not the law that we do not assume the accuracy of their statements of law?

[00:23:57] Speaker 05:
I think you don't have to assume the accuracy of their statement of law.

[00:24:01] Speaker 05:
The cases that, and we cite the Parker case and I think plaintiffs cited the Vietnam Veterans case, they seem to say you assume the validity of their legal claim.

[00:24:13] Speaker 05:
I'm not entirely sure what that means, to be frank.

[00:24:17] Speaker 05:
In this case, their legal claim with respect to 7061 is there is a mandatory duty.

[00:24:23] Speaker 05:
If you assume that is right for the purposes of standing analysis... Isn't that an assumption of law rather than fact?

[00:24:31] Speaker 05:
It does seem like an assumption of law.

[00:24:33] Speaker 03:
Is it not the case that we do not make assumptions of law favorable to the pleading party, but only assumptions of fact?

[00:24:41] Speaker 05:
I think you make assumptions of fact, but then the cases say assume their legal claim is valid, and I don't know how far that statement reaches.

[00:24:50] Speaker 03:
I think what we meant was that we assume the validity of the claim if the law is there, the legal claim being the

[00:25:00] Speaker 03:
claim that it's based on those assumptions of fact.

[00:25:03] Speaker 05:
If that's the distinction, that it's simply assumptions of fact that are assumed, then I think there would be a question about redressability and traceability or causation as well.

[00:25:17] Speaker 03:
It may not make any difference in result than the threshold question of claim for relief, but it is jurisprudentially different to say they've established jurisdiction and don't have a claim as opposed to saying they did not establish jurisdiction.

[00:25:32] Speaker 05:
Right, I do think that this court has also said that as long as you don't reach the merits of their claim, and I think reaching the merits of their claim would be holding that there is a mandatory duty that the secretary is not satisfied.

[00:25:44] Speaker 05:
I think you could still decide on the threshold question of there is no clear-cut, non-discretionary, unequivocal, using all the SUA language, duty here, and that that is still a threshold determination on which you could dismiss their claim, as the district court did here.

[00:26:02] Speaker 05:
Um.

[00:26:04] Speaker 05:
I have one more point on their alternative argument.

[00:26:08] Speaker 05:
In addition to mandatory duty, they say there is an action here by the secretary.

[00:26:12] Speaker 05:
I think I've almost covered this already, but there just isn't an action by the fishery service here.

[00:26:18] Speaker 05:
The amendment was not stopped by the fishery service.

[00:26:21] Speaker 05:
It was a vote by the council not to proceed with the amendment 15 at this time, and nothing then was transmitted to the service, and the service then did not take any action under the Madison Stevens Act.

[00:26:33] Speaker 05:
So that means they both don't have standing with respect to that claim because there's nothing that's been caused, nothing traceable to the action by the Fisheries Service, and there's nothing that's redressable because there's no action to vacate or set aside, there's no proceeding that Fisheries Service took to remand, and also just means that there's no action that's reviewable under the Madison-Stevens Act or under APA 7062.

[00:26:55] Speaker 05:
So unless the court has any further questions, we ask that you affirm the district court.

[00:27:07] Speaker 01:
Mr. Bomey, it appears that you had no time left, but we'll give you two minutes if you need it.

[00:27:16] Speaker 04:
Okay, thank you, Your Honor.

[00:27:17] Speaker 04:
I apologize for that.

[00:27:21] Speaker 04:
Your Honor, the Fisheries Service has characterized this as a purely matter of choice for the agency that Congress established.

[00:27:31] Speaker 04:
But that's, frankly, inconsistent with the purposes of the act, as I said before, to create a comprehensive scheme for managing stocks of fish that require conservation and management, to bring them under sound management.

[00:27:47] Speaker 02:
Would you assume that the Mid-Atlantic Fisheries Council

[00:27:51] Speaker 04:
Your Honor, that's an open question, but you're right.

[00:27:56] Speaker 04:
It appears that they're not a federal agency.

[00:28:01] Speaker 04:
And the courts that have looked at this, and we believe the statute, make clear that it's the Fisheries Service that's the responsible party here.

[00:28:09] Speaker 04:
The Council has no authority.

[00:28:10] Speaker 04:
It's unclear to us how the Fisheries Service could argue that they could stop

[00:28:15] Speaker 04:
rulemaking when they have no authority to do anything.

[00:28:19] Speaker 02:
It's the fishery service that must ensure.

[00:28:25] Speaker 04:
That's correct.

[00:28:26] Speaker 04:
That's what they do.

[00:28:27] Speaker 04:
They have authority to make recommendations, but it's up to the fishery service to ultimately ensure that all the provisions of the Act are met.

[00:28:36] Speaker 04:
Their reading would undo this statute, and Your Honors, this would be a serious economic problem for our clients and for clients like them all along the coast.

[00:28:44] Speaker 04:
The Fisheries Service could simply choose, because of this word may in this grant of authority, to ignore all the provisions of the Act that are designed to protect fish species so that they can be harvested sustainably in fisheries across the country.

[00:29:04] Speaker 02:
I wonder about that.

[00:29:06] Speaker 02:
You're on, we have to take the, at least the factual allegations of your complaint is true, but it's the effect on the striped bass, bluefish, and wheatfish sport fishing that you're claiming is the harm

[00:29:23] Speaker 02:
And yet, it's not in the record, but I seem to recall the reading that the striped bass population and bluefish, I'm not sure about the weebfish, is really at a peak that it's been steadily rising over the years.

[00:29:40] Speaker 02:
If you go back to 1965 or something, the population was very low.

[00:29:47] Speaker 04:
Your honor, the Atlantic States Marine Fisheries Commission just recently approved reductions in the ability to harvest striped bass.

[00:29:55] Speaker 04:
And that population has increased and decreased over the years.

[00:30:01] Speaker 04:
They also eat other forage fish.

[00:30:03] Speaker 04:
River herring and shad are a big part of their diet, but there's- Herring, there's mullet and menhaden.

[00:30:11] Speaker 04:
That's correct.

[00:30:12] Speaker 04:
And sea herring as well, your honor.

[00:30:16] Speaker 04:
The point here is that if brought under a sound management plan, these fishers can be managed in a more sustainable level.

[00:30:25] Speaker 04:
And the fact is, opposing counsel questioned

[00:30:35] Speaker 04:
opposing council commented on how these populations are doing, the river herring and shad populations have been declining for over 50 years and much more precipitously later since these big industrial federal fisheries have ramped up.

[00:30:49] Speaker 04:
And that has effects on striped bass, weak fish, blue fish that eat them.

[00:30:54] Speaker 04:
Thank you, Your Honor.

[00:30:56] Speaker 01:
Thank you, Mr. Fleming.

[00:30:57] Speaker 01:
The case will be submitted.