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Case number 15-5199, United States Association of Reptile Keepers, Inc.

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at Elle vs. Sally Jewell, the Honorable, and her official capacity as the Secretary of the Interior at Elle Appellant, Humane Society of the United States at Elle.

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Ms.

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Polichek for the Appellants, Mr. Frohla for the Appellee U.S.

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Association of Reptile Keepers.

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Good morning.

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May it please the court, Emily Palachuk on behalf of the Federal Appellants.

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With me at Council's table is Russ Hussein with the Department of the Interior Office of the Solicitor.

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I'd like to reserve three minutes for rebuttal.

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To prevent giant constrictors from devastating our native ecosystems beyond the point of recoverability, as the Burmese python has done in the Everglades, the Fish and Wildlife Service listed eight species of constrictor snakes as injurious under the LACI Act and prohibited their import and all interstate transportation.

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In adjoining this 2015 rule, the district court made three critical errors.

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First, the court overlooked the LACIAC's early legislative history.

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Second, the court misunderstood the requirements for implied congressional ratification.

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Third, the court failed to utilize Chevron's two-step framework.

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We usually start before we do any of those with the language of the statute, right?

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Correct.

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Okay, why don't you start there.

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Okay.

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Start with the language of the shipment clause and tell us how that possibly supports what the Secretary did here.

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Particularly telling in the plain language is the separate mention of the District of Columbia.

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There's no reason to believe that transportation from DC to Maryland deserves any more protection than transportation between Delaware and Maryland, for example.

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Under the services theory of the LACIAC's injurious wildlife provision, the district is listed separately because it is not a state, and Hawaii is listed separately because it is not on the North American continent.

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That's the only reading that avoids superfluous words or phrases specifically of those two locations.

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Can I ask you about that?

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The importation clause also singles out the district.

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Correct.

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So it's a little bit odd because I take your point that if the continental United States already includes the district, why list the district?

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Now I think we can, you know, the other side points out that maybe grounded in the Home Rule Act not having come into being yet, which there's, we can talk about that.

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But one point seems to be that you could make the same argument about the importation clause, right?

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Isn't the District of Columbia superfluous as to that too?

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Well, the importation clause says into the United States, comma, the District of Columbia.

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So again, because the district is not a state, it does have significance from the United States as a whole.

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But isn't it in the United States?

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It is in the United States, but to the extent that the United States there is also a collective noun in the same way that the continental United States is used as a collective noun, the United States could be read to include only the states.

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So you think when it says no importation into the United States, it could be read to say, but you can have importation into the District of Columbia?

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It could be read that way.

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And if you look actually back at some of the earlier iterations of the Lacey Act, there has been some back and forth where at some points originally it simply said importation into the United States.

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Then in 1909, it said importation into the United States, comma, or any territory or district thereof.

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So it's gone back and forth to some extent in the past, and so the fact that it's included in there isn't necessarily, it doesn't render the district superfluous in that instance.

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And the surface's reading of the injurious wildlife provision would also, it gives the district's independent significance.

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And then the other... What about the Home Rule?

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Can you talk about the Home Rule?

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The Home Rule, it was in effect at the time of the 1960 amendments.

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My understanding is that it was enacted in 1959 after Alaska became a state.

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But the problem with the Home Rule is that it defines the continental United States to include the 49 states on the North American continent.

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and the District of Columbia.

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So... Unless... Unless it provides... You're talking about the Dictionary Act now, not the Home Rule Act.

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Oh, yes.

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I apologize.

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Judge Srinivasan asked you about the Home Rule Act.

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Yeah, I thought the possible explanation is that Congress thought that other states could protect themselves.

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But then with respect to the District of Columbia, Congress is the body, because at that point, we didn't have the local DC legislative authority.

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Congress had to do it.

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That would call into question why Hawaii is listed separately, if the states can protect themselves.

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But Hawaii is listed separately because it's not part of the continental United States.

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So we're only talking about the states within the continental United States can protect themselves, but the district can't, unless Congress does something.

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I thought that's the argument that's been made by the other side.

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Yes, but I mean, again, Hawaii could protect itself by, for example, Hawaii prohibits any snakes from being imported into or possessed in Hawaii.

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So it calls into question why, if Hawaii has its own ban, why does Hawaii need to be included then separately from the United States?

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The other... I'm going to ask the other side of this question.

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I'll put it to you.

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Um, does the act prohibit transportation or shipment between two possessions?

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So between long and American smoke?

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Yes.

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And this is another aspect where the services reading is important here because the or in that list is very telling.

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It means that each of the

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the entities listed have independent significance.

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They can be used in the alternative.

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And the fact that between is used, between doesn't, it no longer has to be used only between two things.

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It can also be used to indicate multiple one-on-one relationships.

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So, for example, you could say that shipment is prohibited between the continental United States, which would be between any two states in the continental United States, or it could be between any possession of the United States.

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But you see, the language is different because the possession clause says any, whereas the continental United States doesn't.

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Well, I mean, to the extent that there's a difference, we know which states are on the continental United States.

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It's sort of self-evident, whereas any possession is a more fluid topic.

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But I think that an important thing to realize here is that this language is, at the very least, ambiguous.

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And that's evident from the fact that even US ARC's former president, Andrew Wyatt, in testifying on H.R.

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511, which was a bill that would have listed these snakes as injuries by Congress, even he stated that he understood Section 42 to prohibit interstate transportation.

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of the snakes.

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So, I mean, it's clearly ambiguous language.

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And in that sense, then we need to look at other indicia congressional intent.

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And I think that there we should start at the early history of the Lacey Act and the Dish Report.

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It said that

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prior to the 1960 amendments, LACIAC did not address the domestic transportation of listed species, and that's simply not true.

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If we go back to the original enactment of the LACIAC in 1900, Section 2 of the LACIAC, which is the injurious wildlife provision, prohibited the importation of foreign

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and injurious wildlife.

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Section three then, the trade provision, it prohibited transportation from one state or territory to another state or territory of any foreign animals or birds, the importation of which is prohibited.

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Since injurious species could not be imported, they also could not be transported in interstate commerce.

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So this is something that has existed since the very beginning of the Lacey Act and it's consistent

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with the LACIAC's purpose of trying to prevent unwise introduction of injurious species.

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But the language of the 60 amendment is very different.

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The language of the 1960 amendment is somewhat different, but it's explained that the amendments were meant to be technical in nature and they were meant to clarify.

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The stated purpose of the 1960 amendments was to reduce more effectively the hazards arising from the importation of injurious wild animals and to curtail traffic in such species.

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So curtailing traffic was listed separately from importing.

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And looking at the way that the language has changed over the years, what happened in 1960 was that the trade provision, which had previously discussed foreign species and importation, removed all references to importation.

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And instead, this new language was added into the injurious wildlife provision.

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So it's reasonable to assume that Congress was not changing the meaning

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the overall intent of regulating injurious species in interstate transportation.

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Well, didn't the 1936 Amendment make this much more like... Yeah, in 1930... Because it switched it to...

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It changed importation, which is prohibited, that was in the old act, to animals imported from any foreign country, which suggests that the ban applies only to the animal that's imported, not animals that are already here.

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That's correct.

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That's exactly AHRQ's position.

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Well, but, well, no.

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I mean, ARC would also say, ARC says that, I mean, that language would mean that if something were imported from another country illegally, it also could then not be moved between the states.

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So, for example, if it came into a port in California, it couldn't be sent to a retailer in Texas.

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And US ARC does not believe that that's what the statute said.

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But more importantly, if we look at the 1960 amendment,

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it does say that the language has been broadened a bit.

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And so the fact that, you know, the Lacey Act originally in the 1900, the 1909 amendment,

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it did prohibit the interstate transportation of all injurious species, both those that were imported and those already here, and that we're continuing that in 1960 by broadening the language to back what it had been previously.

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So even under AHRQ's interpretation and under the district court's interpretation, the 1960 amendment did do something because it dealt with traffic between Hawaii and the contiguous states.

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Right, and that's important to keep in mind that at the time that the 1960 Amendment happened, one of the biggest concerns was about the mongoose, which was really running amok in Hawaii.

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So there was specific concern about the mongoose coming over from Hawaii.

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And that might explain another reason why Hawaii is listed separately, to be sure that it had some protection.

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So that seems like an argument against you, because that's what the shipment clause accomplished, was to make sure that the mongoose, and to the extent there's other species like that, indigenous to Hawaii, that there's not traffic between Hawaii and the contiguous 48 states.

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Well, again, even under the previous language, had something been imported into Hawaii and then sent stateside, that would have been illegal as well, if it had been imported into Hawaii.

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I mean, the language has been brought in it.

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I mean, perhaps that's the reason, but it also is reasonable to assume.

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I mean, clearly we're trying to do that with respect to the mongoose, even I think the government acknowledges that, right?

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Right.

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And so I think that the issue with the district court's interpretation here is that he... So Congress must have assumed, in other words, because what you just said about what the pre-existing state of the law was before 1960 would have equally applied to the mongoose.

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But clearly the separation of Hawaii in 1960 was at least in part intended to deal with what was perceived to be a problem with respect to the possibility that mongooses might come from Hawaii.

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Right.

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Including mongooses that were already present in the- Exactly.

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Yes.

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But the district court in discussing this, he talked about how the 1960 amendments

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and I think that that's a real problem here.

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But additionally, I think that.

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something that the court absolutely must consider is the recent legislative history, because over the last quarter century, Congress has been explicitly clear.

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What do we make of the purpose of the Act as expressed in the original Lacey Act in 1900?

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that says the object and purpose of this act is, and I'm going to skip some language, also to regulate the introduction of American or foreign birds or animals in localities where they have not heretofore existed.

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Isn't it significant that Congress said that they wanted to regulate the introduction of American

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No, it's American or foreign, and the injurious species can, they don't necessarily need to be non-native species.

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We also, I mean, that's not a requirement for an injurious listing.

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I mean, understand, but does that actually support the government's argument that

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Congress was concerned about things moving from one part of America to another part of America?

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Yes, absolutely.

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Yes, and the use of the word locality is also important.

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It's not talking about continents or any sort of large landmass.

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I mean, throughout the U.S.

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Code, locality is meant to usually refer to smaller

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geographic instances that are smaller than the state.

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So, I mean, Congress's real concern here was both about the introduction and the spread and establishment of injurious species.

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And that's been continued through this recent congressional history, where in 1990, Congress listed the zebra mussel

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as an injurious species with the express purpose of prohibiting the interstate transportation of zebra mussels.

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This happened again in 1991, which was a year after the service listed the brown tree snake.

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Congress also listed the brown tree snake.

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And then in 2010, we have just a plethora of congressional history talking about the need to regulate the spread of Asian carp.

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This argument, I take it

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only gets you somewhere if the statute's ambiguous, right?

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If the statute's clear.

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If the plain language is clear, then that would be the end.

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But as long as we agree that the plain language is ambiguous, we turn to legislative history.

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And included in the legislative history analysis is ratification, which this court said in public citizen versus HHS.

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So ratification should be considered at the same time that any other legislative history, including the 1960 amendments, is considered.

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Let me ask you a question about the impact of the district court's decision.

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The amicus says that if the district court's decision stands, it'll affect all listed species.

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And I notice the government's brief doesn't say that.

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So what are the exact implications of sustaining the district court here?

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This really only applies to animals that were already in the United States prior to listing, right?

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No, I mean, the issue before the court is the scope of Section 42.

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And if the district court's understanding of Section 42 is upheld, then the scope of that prohibition is thrown into question.

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Yeah, but will it affect, as Amicus says, all listed species?

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certainly could in the United States.

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Well, because if the language of Section 42 does not allow the service to prohibit interstate transportation of injurious species, then

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any of those listed injurious species, which there are about 400 different species that have been listed between Congress and the service, it's unclear whether the service can prohibit their interstate transportation.

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And this is a really big problem with Asian carp, where we are certainly... I got the issue about carp, but doesn't...

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If the agency can ban the importation of an animal that's not yet here, you don't really care about the interstate transportation issue, right?

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Because you can just keep it out of the country.

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Theoretically, but it's difficult to tell.

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For example, Hawaii, they don't allow any snakes in Hawaii, and yet they've had 213 confirmed sightings of snakes, including one of a reticulated python.

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We would certainly hope that an importation ban would be enough, but should an animal somehow make it into the states, it's important that we be able to prohibit its interstate transportation.

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Thank you.

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Good morning.

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Good morning, and may it please the court.

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The district court focused correctly on the 1960 Lacey Act amendments and the 1960 Act's legislative history.

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It focused correctly on the fact that this is a criminal statute, 18 USC 42A1.

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And it focused correctly on the fact that this case is about domestic species, species born and bred here or species imported before the effective date of an invasive species listing.

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We do agree with the government that the relevant question isn't just about zebra mussels or big head carp.

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It could be those today.

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It could be golden retriever puppies tomorrow if the service were to list them as invasive.

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But that's just the issue.

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That's just the issue.

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Because what we're saying is that had Congress, let's go back to 2010, highly partisan environment after the election,

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What happens?

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A series of bills come up in the Senate.

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I'd rather not talk about 2010.

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I'd rather talk about the language in the statute.

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Okay.

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All right.

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Plain language in the statute.

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If we were to adopt your reasoning, does the statute prohibit shipment of an injurious species from Guam to the American Samoa?

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Yes, because of the word anti-possession.

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What's important there is that in the structure of the 1960 Act, you see the continental United States versus any possession.

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And that was set up deliberately because the any was supposed to connote more than just one possession.

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It could be two different possessions.

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And that's actually the same way that for 116 years in the Lacey Act, whenever Congress wanted to specify interstate commerce, it either used those exact words

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or use to or from any to another or any other to another.

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It used those kinds of words.

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This is the only time in 116 years that they've used the continental United States, and that's because every element is singular.

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Does it prohibit shipment between Hawaii and Puerto Rico?

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Yes.

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Why?

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It doesn't say, I mean, those are separated by commas.

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They're not separated by and?

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The way the statute is set up is between A, B, or C. The most logical way to, I'm just going to take it out of the words and put it in A, B, C. Between A, B, or C, the most logical meaning of that is between A and B, A and C,

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A and D or A and C or B and C. Except that we know with D, it's within D because of the word any.

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I guess you're saying that's because of the word any.

[00:21:16] Speaker 04:
I'm sorry?

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With D, which is, I'm just hypothesizing its possession, it bans transfer between constituent parts of D. There could be D prime and D double prime because these are singular.

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What I mean to say is these are singular entities that are being talked about here.

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Because any possession, the way it's presented is in the singular.

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It's not presented in the plural.

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The continental United States is singular.

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Yes, that's exactly what I'm saying.

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So why then doesn't it ban shipment between states within the continental United States?

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Because the continental United States is singular and the word any is used for possession.

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What does continental United States mean?

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Continental United States means the 49 states that are on North America.

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Does it include the District of Columbia?

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it does under one U.S.A.

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one, unless it doesn't.

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And here it's separated out for reasons that I think the court has explained before.

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One is because it's always been set up that way.

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And second is because of the home rule issues.

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Yeah, but what, I mean, the district court, I think the district court used the word baffling with respect to the inclusion.

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So that means that it would be illegal

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to transport a snake from Maryland to the district, but not from Maryland to Virginia, right?

[00:22:36] Speaker 04:
That's what it means.

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What sense does that make?

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Why would Congress have done that?

[00:22:41] Speaker 04:
Congress would have done that for the reasons of Judge Srinivasan said that Congress was exercising home rule authority.

[00:22:48] Speaker 05:
Is there anything in the legislative history that suggests that?

[00:22:52] Speaker 04:
No.

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But it's been that way.

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It's been divided out since 1900.

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It's always been done that way.

[00:23:01] Speaker 05:
And one of the principal focus... Well, then why aren't you taking the... Excuse me, Mindy, I... Just correct me if I'm wrong.

[00:23:08] Speaker 05:
I thought you were... Your position was the same as the district courts.

[00:23:12] Speaker 05:
That the statute is... The language is ambiguous, but if you look at the legislative history and the evolution of this, it becomes clear.

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Correct?

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Why aren't you arguing that the plain language is clear?

[00:23:25] Speaker 05:
Because if you're right about the district, that Congress was exercising its plenary authority, then why aren't you just flat out arguing, look, this statute's clear.

[00:23:37] Speaker 05:
It says what it says.

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Why do you need legislative history?

[00:23:43] Speaker 04:
Because the government's been contesting what the statute was.

[00:23:46] Speaker 04:
I'm asking you about your position.

[00:23:48] Speaker 05:
Am I right that in your brief, you concede that the district court is correct, that this statute's ambiguous, and that we therefore have to look to legislative history, right?

[00:23:58] Speaker 05:
Is that your position?

[00:24:02] Speaker 05:
We've explained in our briefs why we believe that the District of Columbia's exclusion is... Maybe this is just a DC Circuit type question, but it affects how we think about the case.

[00:24:15] Speaker 05:
If the language is clear, that's the end of the matter, right?

[00:24:18] Speaker 04:
If you're right about the District of Columbia... Actually, it's under Chevron step one, we get recourse to the legislative history as well.

[00:24:28] Speaker 05:
That's a good argument that Chevron doesn't even apply to this case, right?

[00:24:32] Speaker 04:
Yes, a very good argument.

[00:24:33] Speaker 05:
All right, so let's not talk about Chevron.

[00:24:35] Speaker 05:
The question is, I want to know from you how you think this court

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should look at this case, and that is, are you arguing to us today that the district, the quote baffling presence of the district can be explained by Congress exercising its plenary authority over the district, and therefore this statute is clear, end of the matter,

[00:25:03] Speaker 05:
it doesn't ban interstate transportation of listed species, or are you saying, as a district court did, that yes, the presence of the District of Columbia in this thing makes it ambiguous, and therefore, like the district court, we have to look at the legislative history

[00:25:22] Speaker 05:
in order to resolve the case.

[00:25:24] Speaker 04:
Which is it?

[00:25:25] Speaker 04:
I think I'm going to give you a lawyer's response to a court of appeals question, which is, in our view, it means both.

[00:25:32] Speaker 04:
We believe, and have always believed, that it's clear on its face the district court didn't.

[00:25:38] Speaker 04:
The district court's ruling is under review, and we believe the district court, in terms of the legislative history, is indeed baffling.

[00:25:45] Speaker 05:
If there's no Chevron difference here, we're de novo, right?

[00:25:49] Speaker 05:
Yes.

[00:25:50] Speaker 04:
Yes.

[00:25:50] Speaker 02:
So your legislative history is an even if argument?

[00:25:53] Speaker 02:
Exactly.

[00:25:53] Speaker 04:
And it is crystal clear.

[00:25:56] Speaker 05:
But your first position is we don't have to get to any of that.

[00:26:00] Speaker 05:
Fair point.

[00:26:01] Speaker 02:
Now, I take it that if the statute said between any of the continental, if it used any with respect to the continental United States as it does with respect to possessions, then you would say that the statute is clearly the other direction.

[00:26:13] Speaker 04:
Exactly, because that's exactly how, for 116 years, the LACX has dealt with interstate commerce.

[00:26:20] Speaker 04:
In fact, in section 43, that is how it dealt with it.

[00:26:23] Speaker 04:
So yes, that's absolutely correct.

[00:26:27] Speaker 05:
So you agree that Congress's purpose in 1960 was to strengthen the act, right?

[00:26:34] Speaker 04:
Yes, it was to strengthen the act for a very specific reason.

[00:26:36] Speaker 04:
So how did it do that?

[00:26:37] Speaker 04:
How did it do that?

[00:26:38] Speaker 04:
Under your theory.

[00:26:39] Speaker 04:
Under our theory, Section 42, that section dealt with imports and only imports, importation of these injurious species being prohibited.

[00:26:50] Speaker 02:
Wait, but I thought it dealt with the transfers from Hawaii to the contiguous United States.

[00:26:54] Speaker 04:
But before 1960, it dealt with imports.

[00:26:58] Speaker 02:
Yeah, but in 1960.

[00:26:59] Speaker 02:
I'm sorry?

[00:27:00] Speaker 02:
But in 1960.

[00:27:01] Speaker 02:
In 1960.

[00:27:01] Speaker 02:
I thought Judge Hale's question was, what was done in 1960?

[00:27:04] Speaker 02:
And maybe I missed something.

[00:27:05] Speaker 04:
I was just sort of stepping back from following in sequence.

[00:27:08] Speaker 04:
In 1960, what occurred was, in addition to the import ban,

[00:27:14] Speaker 04:
That import ban was expanded incrementally to deal with a situation like the mongoose in Hawaii, Puerto Rico, and the Virgin Islands.

[00:27:23] Speaker 04:
So it was expanded just enough to treat traffic from the insular possessions like an import, which makes sense in its own way.

[00:27:32] Speaker 04:
You have water, except for the district, and even I guess that's landlocked, not landlocked.

[00:27:40] Speaker 04:
you're dealing with essentially bringing an invasive species to the mainland.

[00:27:48] Speaker 05:
So if someone imports an animal on the list,

[00:28:02] Speaker 05:
Where in the statute, what part of the statute bans the interstate transfer of that?

[00:28:10] Speaker 04:
At this point, in 1960 it was section 43, and now it's in 16 USC, I think it's 33.

[00:28:21] Speaker 04:
I'm drawn up.

[00:28:22] Speaker 04:
Is that section 43?

[00:28:24] Speaker 04:
It's in section, it's in 16 United States Code.

[00:28:27] Speaker 04:
It's in what?

[00:28:28] Speaker 04:
It's in, it's now moved into the civil provisions.

[00:28:31] Speaker 04:
I think it's 3372.

[00:28:34] Speaker 04:
But it's not a crime anymore.

[00:28:37] Speaker 04:
It's a civil violation.

[00:28:38] Speaker 04:
There actually is in the, in that statute, in the criminal, in the penalties provisions, there is a,

[00:28:45] Speaker 04:
sort of a knowing and willful escalator.

[00:28:49] Speaker 05:
So then, once again, in what respect was the statute strengthened?

[00:28:53] Speaker 05:
Tell me again.

[00:28:53] Speaker 04:
In 1960?

[00:28:58] Speaker 04:
The only way that interstate transport of an invasive species is banned

[00:29:06] Speaker 04:
under that civil section that we're talking about now, is if it's being transported in violation of federal law.

[00:29:14] Speaker 04:
And it's here in violation of federal law.

[00:29:17] Speaker 04:
And it's an illegal species, the same way that, going back to 1900, a deer killed out of season is.

[00:29:26] Speaker 04:
3370.

[00:29:30] Speaker 05:
Can I just ask you, if I'm not the person who imported the animal on the list,

[00:29:37] Speaker 05:
if I'm someone else.

[00:29:39] Speaker 05:
Is there something that in any of these statutes in 42 or 43 that prohibits the interest for me for transferring that animal between states that makes it criminal?

[00:29:53] Speaker 04:
Species imported in violation of federal law are treated essentially like contraband.

[00:30:00] Speaker 04:
But if they're domestics, they're not.

[00:30:02] Speaker 05:
If they're what?

[00:30:03] Speaker 04:
If they're domestic species, they're treated differently.

[00:30:06] Speaker 04:
But species imported in violation of the Lacey Act are treated essentially like contraband, so yes.

[00:30:13] Speaker 05:
Yes.

[00:30:14] Speaker 05:
Those can't be redistributed in interstate commerce.

[00:30:17] Speaker 05:
That's correct.

[00:30:19] Speaker 02:
Wait, so if a reticulated python makes its way into the, against the importation ban, makes its way into the United States and then reproduces a bunch of other reticulated pythons, which apparently they can do prodigiously, and then those offspring are transferred, does the importation and shipment and then trade ban affect the offspring?

[00:30:43] Speaker 02:
Yes.

[00:30:44] Speaker 02:
It does?

[00:30:44] Speaker 02:
It does.

[00:30:45] Speaker 04:
How do we know that?

[00:30:46] Speaker 04:
I believe the word offspring is used in the statute.

[00:30:55] Speaker 05:
I thought your position was that the statute didn't prohibit the interstate transportation of these animals.

[00:31:02] Speaker 04:
Of animals that are legally here.

[00:31:07] Speaker 04:
This isn't quite like citizenship.

[00:31:09] Speaker 04:
It's not quite like if the snake's born here, it becomes a citizen.

[00:31:12] Speaker 05:
Even before they were put on the list.

[00:31:14] Speaker 04:
I'm sorry?

[00:31:15] Speaker 04:
Before they were put on the list.

[00:31:18] Speaker 05:
Before they were put on the list.

[00:31:20] Speaker 05:
The animals that were here before they were put on the list.

[00:31:22] Speaker 04:
Yes, Your Honor, I apologize.

[00:31:23] Speaker 04:
Before they were put on the list, correct.

[00:31:33] Speaker 04:
I'd like to turn, if I... Well, that's clear.

[00:31:36] Speaker 04:
I guess at some point I have about two minutes left.

[00:31:39] Speaker 04:
I could spend one minute on the congressional doctrines back where I started when Judge Wilkins wanted to talk about the plain language.

[00:31:48] Speaker 04:
The district court was right when he explained that

[00:31:52] Speaker 04:
It's one thing for Congress to think that, you know, basically assume that the law 42 USC applied to interstate transportation and simply incrementally include the Asian carp, which no one really likes for good reason, versus the broader question that's presented is, has the administration come to Congress and explained to Congress that what it really wants to do is expand the criminal law so the Fish and Wildlife Service can

[00:32:23] Speaker 04:
gain a whole new set, a whole new range of criminal authority over interstate commerce and supplant the state's police powers.

[00:32:32] Speaker 04:
That's a bigger issue.

[00:32:32] Speaker 05:
You mean retain the authority it's claimed, right?

[00:32:35] Speaker 04:
Retain the authority, but it hasn't... But isn't that right?

[00:32:40] Speaker 05:
It has banned the interstate shipment of

[00:32:46] Speaker 05:
of the big head carp, and Congress amended the law thinking that's what it was doing, right?

[00:32:53] Speaker 04:
But it extended its authority by regulation.

[00:32:58] Speaker 04:
It didn't extend its authority by law.

[00:32:59] Speaker 05:
What did Congress do when it amended the Lacey Act to include the big head carp?

[00:33:05] Speaker 04:
I think the district court had it right on page 34.

[00:33:08] Speaker 04:
What it did was it thought it was addressing transport of big head carp.

[00:33:14] Speaker 05:
It was just wrong.

[00:33:15] Speaker 05:
It didn't have the authority to do that.

[00:33:17] Speaker 04:
It didn't.

[00:33:18] Speaker 04:
Going back to the 1990, when the Assistant Secretary of the Interior came into Congress, the Assistant, who's at least now is above the Director of the Fish and Wildlife Service in the yellow book, came into Congress and said in connection with the zebra mussel, if you want to know how to deal with zebra mussels, here's how you deal with it.

[00:33:37] Speaker 04:
And her last point, and she presented this to both houses, and you better believe that if the Assistant Secretary is in there giving testimony to Congress, some solicitor at Interior looked at it.

[00:33:46] Speaker 04:
She said, it's not going to be enough.

[00:33:48] Speaker 04:
You're going to need to say something else if you want to deal with zebra mussels in interstate commerce.

[00:33:53] Speaker 04:
And that's the last word.

[00:33:55] Speaker 04:
That's the last word that the Interior Department in this record has provided to Congress.

[00:34:00] Speaker 04:
OK.

[00:34:01] Speaker 05:
Anything else?

[00:34:04] Speaker 05:
No.

[00:34:04] Speaker 05:
No.

[00:34:04] Speaker 05:
OK, thank you.

[00:34:08] Speaker 05:
Ike, did counsel have any time left?

[00:34:11] Speaker 05:
Would you like two minutes?

[00:34:13] Speaker 05:
Okay, you've got it.

[00:34:19] Speaker 01:
Thank you, Your Honor.

[00:34:19] Speaker 01:
First of all, responding to that last point, the last word is not what the agency said.

[00:34:24] Speaker 01:
The last word is what Congress intended.

[00:34:26] Speaker 01:
And here, Congress has made its intention with respect to this statute very clear, and it's not limited to any species.

[00:34:33] Speaker 01:
Congress said that Section 42 prohibits

[00:34:36] Speaker 01:
the interstate transportation of species.

[00:34:39] Speaker 01:
And that's clear from the fact that both in 2002 and in 2009, Congress specifically wrote to the service and asked them affirmatively to list Asian carp because Congress understood that section 42 would ban the interstate transportation of Asian carp.

[00:34:56] Speaker 01:
So they understood already that that's what the section did for any species that was listed.

[00:35:00] Speaker 01:
It wasn't specific to any species the way that the district court has said.

[00:35:05] Speaker 05:
Of course, that wasn't the 1960 Congress expressing that view.

[00:35:09] Speaker 01:
No, but again, with the doctrine of implied congressional ratification, if Congress has amended the act, the provision at issue, if it's clear from the court or if there's evidence that Congress did or should have known about the agency's meaning,

[00:35:26] Speaker 01:
And if the agency's meaning has been long held, then Congress can ratify that understanding.

[00:35:32] Speaker 01:
And that's what's happened here in both the 1990 listing of zebra mussels, 1991 with brown tree snakes, 2010 with Asian carp, and then very importantly in 2012 and 2014 with Lake Texoma with zebra mussels.

[00:35:47] Speaker 01:
Congress actually went out of its way to enact a statute that would allow for transfer of water from Oklahoma to Texas

[00:35:55] Speaker 01:
specifically because and only because it was understood that the Lacey Act would otherwise prohibit those transfers.

[00:36:03] Speaker 05:
Did you have a second point you wanted to make?

[00:36:06] Speaker 01:
I would just again that this comes back to congressional intent and Congress has acted deliberately here and said that it needs to prohibit the interstate transportation of injurious species not only because of the issues with these snakes but for other injurious species as well so the district court needs to be reversed.

[00:36:23] Speaker 05:
Thank you, both the cases submitted.