[00:00:00] Speaker 00: Place number 21-5166, Local Pride Enterprises Inc. [00:00:04] Speaker 00: et al. [00:00:05] Speaker 00: appellants, Cape Trawlers Inc. [00:00:07] Speaker 00: et al. [00:00:08] Speaker 00: versus Gina Raimondo in her official capacity as Secretary of Commerce et al. [00:00:12] Speaker 00: Mr. Bollinger for the appellants, Mr. Herlainen for the appellates. [00:00:19] Speaker 01: Good morning, Your Honor. [00:00:20] Speaker 01: Good morning. [00:00:21] Speaker 01: May it please the Court, Eric Bollinger for all appellants. [00:00:24] Speaker 01: This case rests on a simple question. [00:00:27] Speaker 01: Does the government have statutory authority to impose industry-funded monitoring on the New England herring fishery? [00:00:34] Speaker 05: Is there a simple answer? [00:00:37] Speaker 01: It does not. [00:00:38] Speaker 01: And Congress spoke clearly. [00:00:40] Speaker 05: So why don't we talk about that? [00:00:42] Speaker 01: Yes, Your Honor. [00:00:46] Speaker 01: First, the statute doesn't contain any of the grant of authority explicit or implied to shift the monitoring costs onto the New England herring fishery. [00:00:55] Speaker 01: And second, and what this court should should learn from Congress here is that the statute does explicitly grant the government the authority to ship monitoring costs onto fishermen in three specific instances, the North Pacific fishery, limited access privilege programs and foreign fisheries, none of which apply here. [00:01:12] Speaker 01: And this paints a clear picture. [00:01:14] Speaker 01: Congress never intended to grant this extraordinary authority to the government beyond these three fisheries. [00:01:20] Speaker 05: So let me ask you just generally, what do you do with respect to the context here? [00:01:31] Speaker 05: That Congress knew this was an industry funded operation. [00:01:47] Speaker 01: With regards to the legislative history when Congress gave the authority. [00:01:51] Speaker 05: No, no, no, just a fact. [00:01:56] Speaker 05: In other words, Congress, this isn't the first time Congress addressed this issue. [00:02:02] Speaker 01: In the, I think it's the first time Congress, when the North Pacific fishery was authorized. [00:02:08] Speaker 01: there was a lot of comment in the legislative history about whether or not NOAA had, or the government, I should say, the government had the authority to impose industry-funded monitoring. [00:02:19] Speaker 01: And I think it's very unclear that the government had that preexisting authority. [00:02:23] Speaker 01: And of course, I would argue that it did not have that preexisting authority. [00:02:26] Speaker 05: But Congress knew, and you can answer my question or not, that it was industry-funded. [00:02:35] Speaker 05: But it didn't change that. [00:02:39] Speaker 05: And I just want to understand when the Supreme Court has spoken to say context is relevant, what your response here is. [00:02:51] Speaker 01: Yes, Your Honor. [00:02:51] Speaker 01: I think it really points to our side of the case. [00:02:55] Speaker 01: Assuming Congress knew that the North Pacific Fishery was already using the industry-funded monitoring before it passed 1853 B-8, which is where the government claims authority here, [00:03:06] Speaker 01: than by speaking clearly and saying, okay, we're going to put it, put in and codify explicit industry funded monitoring authority to the North Pacific Fishery and the North Pacific Fishery alone. [00:03:17] Speaker 01: And the same statute that it implemented B8 shows that Congress clearly only wanted the statutory authority to apply to the North Pacific Fishery. [00:03:25] Speaker 04: If Congress- Or Mr. Bolander, it could mean that Congress wanted each [00:03:32] Speaker 04: region to have the ability to make the decision, that it was focusing specifically on the plan that had been put before it with respect to that council and that region, but it wasn't necessarily speaking to whether or not any other council could make that decision. [00:03:51] Speaker 04: Why isn't that a reasonable way to interpret the history? [00:03:55] Speaker 01: Well, I think if we, if we apply the canon of the specific governing the general here, we have a general authority that the government claims under section BA, and then we have a specific authority in these three fisheries. [00:04:06] Speaker 04: I thought you talked about the history and what we could glean from the fact that Congress did or did not amend the statute to talk about other areas as opposed to New England. [00:04:18] Speaker 01: Well, I would submit that in the history, Congress was very concerned about the contours of this authority. [00:04:24] Speaker 01: Like I said, this is an extraordinary authority that has an enormous, and I think the record reflects, has an enormous economic impact on the fishermen. [00:04:31] Speaker 01: So at that time, Congress looked and saw and said, okay, the North Pacific fishery, perhaps unlawfully, was using industry-funded monitoring. [00:04:39] Speaker 01: We want to codify that, but we want to limit it to that specific fishery. [00:04:42] Speaker 01: If Congress wanted to give this authority to all the other fisheries, [00:04:45] Speaker 01: Why did it not do that in BA, and I would point like earlier in 1853 section B, under subsection one, it gives authority to charge fees for permits. [00:04:55] Speaker 01: So even for something as simple as a permit, Congress thought it necessary to say okay you can charge fees for that. [00:05:01] Speaker 01: But in 1853 BA, Congress is silent. [00:05:04] Speaker 01: Whereas elsewhere in the statute, it delegated this specific authority. [00:05:08] Speaker 01: And I think if you look at the legislative history as well in that time that's elapsed since then, Congress has continually considered whether or not to grant this authority broadly to all the other fisheries and has declined to do so to this point. [00:05:20] Speaker 05: So what about the provisions that Congress did require be taken into account, namely the economic impact [00:05:33] Speaker 05: you know, any charges should be minimized. [00:05:39] Speaker 01: I think, so that would go more to the analysis of whether or not the agency considered cost. [00:05:45] Speaker 01: And I think here, I think, again, our point would be that the agency has no regulatory authority here at all. [00:05:51] Speaker 01: But if we are going to go into the consideration of cost, if you look in the record, you'll see in our viewpoint is that the agency failed to consider cost appropriately, which is something that- That's a different issue. [00:06:02] Speaker 05: We're still on this context and what Congress did do. [00:06:07] Speaker 05: I thought Judge Jackson's question was asking you to consider this alternative way of looking at it, that Congress had made some general [00:06:20] Speaker 05: could reach some general conclusions. [00:06:23] Speaker 05: Now it had to apply to this specific region. [00:06:25] Speaker 05: Would this council have to do something different? [00:06:29] Speaker 05: And instead Congress didn't change that. [00:06:32] Speaker 05: It simply said in these very specific provisions that we've been discussing, you know, look at costs. [00:06:43] Speaker 05: So you say they did consider costs. [00:06:46] Speaker 05: and decided to go forth as they have. [00:06:50] Speaker 05: So isn't Congress, I mean, why would Congress even put those provisions in the statute if there was a question in Congress's mind? [00:07:05] Speaker 01: I think there was two answers to that, Your Honor. [00:07:07] Speaker 01: I think first, there was a question in Congress's mind of whether the fisheries had this authority at all. [00:07:13] Speaker 01: before the authority was given to the North Pacific fishery. [00:07:17] Speaker 05: That's not my question, is it? [00:07:19] Speaker 05: Come on, counsel, I know the general arguments here, but I'm trying to be very specific so I understand. [00:07:26] Speaker 01: Your question, just to make sure I understand your question correctly, you mean about the Congress's charge to the fisheries that they consider, or to the government that they consider cost. [00:07:35] Speaker 05: Yes, and you acknowledged the government did consider costs, but Congress didn't say [00:07:42] Speaker 05: You have no authority to impose these costs, rather the government has to pay for them. [00:07:52] Speaker 01: I think, so I think the Congress gave authority to impose these costs in these three fisheries. [00:07:58] Speaker 01: I think Congress, it would require Congress to sort of play, to use the terminology we use in our brief, whack-a-mole, if it were to say that- What's the word? [00:08:10] Speaker 01: Whack-a-mole? [00:08:11] Speaker 05: Yeah. [00:08:12] Speaker 05: I didn't understand it when I read it in your brief. [00:08:14] Speaker 05: What does it mean? [00:08:16] Speaker 01: Thank you, Your Honor. [00:08:17] Speaker 01: It means that Congress would need to go through and say to the agency, here is every single thing you cannot do. [00:08:23] Speaker 01: And that's not the way administrative delegations of authority are supposed to work. [00:08:26] Speaker 05: I understand that. [00:08:27] Speaker 05: But the point is the Supreme Court has acknowledged that context matters. [00:08:33] Speaker 05: And that's what I think Judge Jackson's questions and my questions were trying to get you to focus on. [00:08:40] Speaker 05: I mean, there are all these principles you cite in your brief and we understand those. [00:08:44] Speaker 05: That's not the issue in my view. [00:08:48] Speaker 05: So I'm trying to understand why these other arguments are not persuasive. [00:08:56] Speaker 05: And you're saying, well, it did it in three circumstances and government says, well, it's very different circumstances. [00:09:01] Speaker 05: And there's nothing to indicate that Congress intended to limit the agency here. [00:09:07] Speaker 01: I believe that by applying the canons, I believe, and if you look at costs, right? [00:09:13] Speaker 01: So when Congress delegated this authority to the government to impose these costs on fishermen, they were very careful in doing it. [00:09:20] Speaker 01: And looking at the legislative history, this is something that was debated and discussed. [00:09:24] Speaker 01: Looking at the specific programs, such as the limited access privilege program, [00:09:27] Speaker 01: There's caps on the amount of costs that can be imposed on the industry. [00:09:32] Speaker 01: There's a geographic and there's a class of fishermen scope. [00:09:35] Speaker 01: So I think Congress was very cognizant of the cost that was imposed on the industry. [00:09:39] Speaker 05: No question about it. [00:09:41] Speaker 05: And it put this burden on the agency to consider costs. [00:09:46] Speaker 05: But it didn't say either directly or indirectly in the context of what had been going on. [00:09:59] Speaker 05: And I understand we have to look at what Congress has authorized, not what Congress has said you can't do. [00:10:07] Speaker 05: But here, why would Congress have added these provisions if it intended not to have the observers be industry funded? [00:10:20] Speaker 01: I think Congress intended for observers to be industry funded in only these three specific circumstances. [00:10:25] Speaker 05: But why then would it put the other provisions in? [00:10:30] Speaker 05: That's what I'm asking. [00:10:33] Speaker 05: Those are just under your argument, surplusage. [00:10:37] Speaker 01: Yeah, I believe, so section B8 doesn't speak, the 1853 B8, which is where the government claims authority here, doesn't say anything about shifting costs. [00:10:46] Speaker 01: all it authorizes. [00:10:47] Speaker 04: Mr Bollander, doesn't that hurt you? [00:10:49] Speaker 04: I mean, this is precisely what Judge Rogers is saying. [00:10:53] Speaker 04: It be eight allows for these plans to require that one or more observers be carried on board the vessel. [00:11:02] Speaker 04: And it doesn't say and the government has to pay for it or you can't shift the cost to the industry. [00:11:09] Speaker 04: So to me, the silence could mean [00:11:13] Speaker 04: that Congress contemplated that the agency would take into account costs, as Judge Rogers points out, and as reasonable as necessary as the agency thought appropriate, it could authorize a plan that shifts the costs. [00:11:29] Speaker 04: Congress doesn't prohibit it. [00:11:31] Speaker 04: And against the backdrop of what you're saying, that there is real serious concern in Congress, you would think they would have said, don't shift the costs. [00:11:41] Speaker 01: Your honor, I think the government's argument, and I understand what you're saying, is that it doesn't say in there that you can't do it. [00:11:50] Speaker 01: And our response would be that for an agency to act, it needs a delegated authority from Congress. [00:11:56] Speaker 01: So here, it's not the fishermen that need to show that we do or do not have congressional delegation of authority. [00:12:01] Speaker 01: It's on the agency. [00:12:04] Speaker 04: Can that delegation be implicit? [00:12:06] Speaker 04: Must it be explicit? [00:12:08] Speaker 04: And why isn't the language in VA [00:12:11] Speaker 04: saying, specifically speaking to the issue of observers being required to be placed on vessels, why doesn't that carry with it an implicit authority to make a determination regarding who pays for them? [00:12:27] Speaker 01: First of all, it's an extraordinary authority to place. [00:12:30] Speaker 01: I mean, this is not your typical compliance costs that you would think about. [00:12:33] Speaker 01: It's a human, it's an intrusive observer, it's someone that's on your boat that watches you fish, that sleeps in a bunk. [00:12:41] Speaker 01: This is not like the type of net that you need to use. [00:12:44] Speaker 01: and also the cost is significant. [00:12:46] Speaker 01: And I would say that by delegating this authority explicitly in three other fisheries, and I know I'm repeating myself here, Congress showed that this sort of extraordinary authority, this sort of extraordinary intrusion on the fishermen, including the extraordinary inclusion of cost, is something that Congress needed to specifically delegate. [00:13:03] Speaker 05: All right, so your argument is the three specific provisions and the argument. [00:13:12] Speaker 01: Your honor, that is our, we have other arguments, but our primary argument. [00:13:16] Speaker 05: I don't know, but a lot of them are canons and that sort of thing. [00:13:18] Speaker 05: We've been trying to examine that, even though you're resisting answering the questions, and I understand that. [00:13:25] Speaker 05: But I just want to be clear, it's the three provisions. [00:13:30] Speaker 01: That's the strongest argument? [00:13:33] Speaker 01: Yes, your honor. [00:13:34] Speaker 01: Well, the strongest argument, I think, is that there's silence. [00:13:37] Speaker 01: There's silence in the statute. [00:13:39] Speaker 01: There's nothing that says that Congress can have this general authority over the New England pairing fishery. [00:13:43] Speaker 01: And what supplements that argument is the fact that Congress thought it necessary thought it thought it required to grant the specific power to these other three fisheries, the North Pacific. [00:13:53] Speaker 04: Mr. Bollander, are you arguing that the New England fishery is not subject to be eight in terms of Congress's [00:14:02] Speaker 04: authorization to have the observers be required in any event. [00:14:07] Speaker 04: I mean, I thought this was just about who paid. [00:14:10] Speaker 04: That's right, Your Honor. [00:14:12] Speaker 01: I'm not arguing. [00:14:13] Speaker 04: All the rhetoric about this is intrusive to have observers on the boat, you accept that there is authority in the statute to have observers on the boat? [00:14:23] Speaker 01: Yes, Your Honor. [00:14:24] Speaker 04: All right. [00:14:24] Speaker 04: So this is just about the payment. [00:14:26] Speaker 04: And so what I'm trying to understand is how you're separating that out. [00:14:31] Speaker 04: why we see a statute where Congress clearly says, observers on the boat, do it. [00:14:38] Speaker 04: You can do it. [00:14:39] Speaker 04: You may have it. [00:14:41] Speaker 04: We're authorizing that. [00:14:42] Speaker 04: And they don't speak specifically to cost, but there are lots of statutes in which Congress authorizes action and everyone doesn't have a line item with respect to what the agency can do about cost. [00:14:58] Speaker 04: So why is it that you're suggesting [00:15:01] Speaker 04: that the language that they use here, which absolutely authorizes this kind of conduct, is not sufficient to be an implicit rant of authority to the agency to determine who pays. [00:15:17] Speaker 01: Your Honor, I have a two-part answer for that. [00:15:19] Speaker 01: The first, I've already gone through it. [00:15:21] Speaker 01: I'm not going to repeat myself. [00:15:22] Speaker 01: It's that the specific would govern the general here and show that you don't need to kind of consider the difference between this and other compliance costs. [00:15:29] Speaker 01: But if the court were to reach that, first, what I've already said about it being the human intrusive observer, I'm not challenging the authority under B-8, like you said, Your Honor, for them to place the observers. [00:15:40] Speaker 01: But what I am saying is that this is not like a compliance cost that you see elsewhere. [00:15:44] Speaker 05: So, I mean, they have to- Oh, you say that, but you know. [00:15:51] Speaker 05: You've got to be more specific. [00:15:52] Speaker 05: That's what we're trying to get at here. [00:15:55] Speaker 01: Your Honor, I think we cite in our brief a few other statutes and a few other cases. [00:16:01] Speaker 01: We cite engine manufacturers, the EPA- Right, and the government distinguishes those cases. [00:16:09] Speaker 01: And I think also here, you know, [00:16:11] Speaker 01: So again, I think we look at it, we see that kind of the human observer and investigator is something that Congress has distinguished in the past. [00:16:19] Speaker 01: And also the cost of this is entirely inconsistent with what you would normally see as the compliance cost. [00:16:25] Speaker 04: The government- Isn't the cost split as a factual matter? [00:16:28] Speaker 04: I just want to be clear on this. [00:16:30] Speaker 04: It's not that the entirety of the cost of having these folks on the boat is shifted to the industry. [00:16:36] Speaker 04: Isn't the agency sharing it with the industry? [00:16:39] Speaker 01: To an extent, yes. [00:16:41] Speaker 01: So as the agency will put it, sort of governmental functions like training and other stuff that's sort of on the shore side. [00:16:50] Speaker 01: Again, in our view, they're all governmental functions. [00:16:53] Speaker 01: And what the fishermen have to pay for is basically the salary and the cost of the monitor to ride the boat. [00:16:59] Speaker 01: So yes, there is a cost sharing implicit in that, but the cost on the fishermen is $710, an average of $710 per day. [00:17:07] Speaker 01: regardless of what the government captures on the other side or not. [00:17:11] Speaker 01: So the fishermen are always going to be on the hook for that amount of money, which is extremely excessive when compared to basically any other compliance costs. [00:17:19] Speaker 01: And it's really distinct from any other compliance costs, which might be incidental to fishing. [00:17:23] Speaker 01: For example, if you have to have ecologically friendly nets, you need to have nets to fish anyways. [00:17:29] Speaker 01: And if you compare the costs, the government talks about the vessel monitoring system, [00:17:33] Speaker 01: As we've seen in the government's rulemaking in a different fishery, the cost there is a one-time upfront cost with a very low monthly cost, which is very distinct from the cost here, which is a constant per day. [00:17:47] Speaker 04: If we disagree with your Chevron step zero, step one argument, and we're in the world of this statute is ambiguous and the agency is now interpreting it, what's your best argument [00:18:01] Speaker 04: for the agency's interpretation of the scope of its authority in this area being unreasonable, given all of the things that you're now saying? [00:18:12] Speaker 01: I think our arguments, I mean, again, on Chevron step two, you know, we don't just assume that the agency, you know, has the statute right. [00:18:20] Speaker 01: And I think it's an impermissible construction because, again, I think the canons speak clearly to this. [00:18:26] Speaker 01: I think the failure to consider costs was arbitrary and capricious. [00:18:30] Speaker 01: I think the agency's ignorance of sort of Congress. [00:18:33] Speaker 05: Wait a minute, let's just be clear. [00:18:35] Speaker 05: I understand cannons, but then you said the agency's failure to consider costs. [00:18:41] Speaker 05: You previously told us and acknowledged that the agency had considered costs. [00:18:47] Speaker 01: The agency's failure to consider costs in this implementing regulation. [00:18:52] Speaker 01: The agency is mandated by Congress to consider costs [00:18:56] Speaker 01: And it did. [00:18:58] Speaker 05: That's what I'm getting at. [00:19:00] Speaker 05: The statute told it to, and it did. [00:19:02] Speaker 05: You admitted that. [00:19:05] Speaker 05: What else other than you think it's an impermissible interpretation? [00:19:12] Speaker 01: Other than an impermissible interpretation, under Chevron Step 2, again, [00:19:18] Speaker 01: I think there was a little confusion in the briefs. [00:19:20] Speaker 01: It's not that the agency can't impose costs at all. [00:19:24] Speaker 01: It's that the agency adequately has to consider costs and alternatives. [00:19:27] Speaker 01: And our view is that when the agency ran through the monitoring alternatives, it looked at a few different numbers, 100% coverage, 50% coverage, and it landed on 50% coverage. [00:19:36] Speaker 01: It did not appropriately consider the impact that would have on the fisheries. [00:19:40] Speaker 01: National standards seven and eight under the Magnusons. [00:19:43] Speaker 05: How do you know that? [00:19:45] Speaker 05: You just told us they did consider costs. [00:19:48] Speaker 01: on your clients. [00:19:49] Speaker 01: They need to adequately consider cost, Your Honor. [00:19:52] Speaker 05: All right, and so you said what? [00:19:54] Speaker 05: They didn't consider enough alternatives? [00:19:57] Speaker 01: We don't believe they explain their alternatives appropriately and the impact that it would have on the future. [00:20:01] Speaker 05: Failure to explain appropriately. [00:20:04] Speaker 05: Even though they said, we've looked at all these alternatives. [00:20:10] Speaker 01: I think they need to consider the impact this would have on the future of the fishery. [00:20:15] Speaker 01: I mean, if you look in the record, there was an indication, and it did happen, that there would be a 70% cut in quota in 2019 on the herring fishery. [00:20:22] Speaker 01: This is on top. [00:20:23] Speaker 01: So quota is like how much fish they're allowed to catch, and that's under a different provision of the statute. [00:20:29] Speaker 05: That's a different issue, isn't it? [00:20:31] Speaker 05: A quota on the number of type of fish you can catch. [00:20:36] Speaker 01: Your Honor, it's implicated. [00:20:37] Speaker 05: There's no suggestion the agency wasn't aware of that. [00:20:41] Speaker 01: No, I mean, the agency was aware of it, and in our view, failed to consider the economic integrity of the fishery going forward. [00:20:50] Speaker 01: $710 a day, and there are commenters that said this as part of the record, has potentially ruinous the fishery. [00:20:57] Speaker 01: You combine that with the 70% cut in herring quota reduction, which was anticipated and did happen in 2019, and you have a $710 per day charge on top of that. [00:21:06] Speaker 05: Do we have any declarations that this is devastating [00:21:12] Speaker 05: to your clients and they'll go out of business. [00:21:16] Speaker 01: Our clients have not submitted a declaration to that. [00:21:19] Speaker 05: No, yes. [00:21:21] Speaker 05: That's just speculation on your part. [00:21:25] Speaker 05: There's nothing before the court and I don't know what there was before the agency because you haven't cited it. [00:21:32] Speaker 05: Other than failure to explain appropriately, [00:21:36] Speaker 05: and your failure to consider the future of the fisheries as a result of this 70% reduction, what else? [00:21:45] Speaker 01: I just make a very brief point, Your Honor, in the comments, it's not a declaration, but in the comments, our client did raise what a 70% quota might impact their business. [00:21:55] Speaker 05: So the agency was aware of that. [00:21:58] Speaker 01: And then our view is that the agency adequately failed to consider that. [00:22:01] Speaker 05: And what would they have to do that they didn't do? [00:22:06] Speaker 01: I think they would need to honestly assess the future of the fishery, whether or not the fishery would go bankrupt, whether or not. [00:22:14] Speaker 05: Well, you said there were no affidavits, none before us, about bankruptcy looming. [00:22:24] Speaker 01: Your Honor, I just believe that the comments paint a picture of that possibility and the agency needed to adequately consider that possibility. [00:22:32] Speaker 05: All right. [00:22:33] Speaker 05: Anything further? [00:22:34] Speaker 01: Your Honor, one other point [00:22:36] Speaker 01: we made in our briefing is that the agency prejudged the legality of the omnibus amendment. [00:22:44] Speaker 01: Obviously, this is an alternative argument to our primary argument that there was no statutory authority here at all. [00:22:50] Speaker 01: But when, so you got to think about it as the omnibus amendment, an analogy is it's sort of like Congress passing a statute and then the regulation is the implementing regulation. [00:23:01] Speaker 01: Our view is that the comment [00:23:03] Speaker 01: The comment period was open the on this amendment on this amendment was still being so the under this amendment, which is probably is created by the Council was being judged on this equality, or I should say evaluated as legality by the government. [00:23:16] Speaker 01: But in that time period before the government had made a final decision on the legality of the omnibus amendment, it proposed the implementing regulations that would put this on the Fisher. [00:23:24] Speaker 01: In our view, that is proof that the government prejudged the legality of the omnibus amendment. [00:23:30] Speaker 01: The government needs to consider comments, not just as a matter of race, but give them serious consideration. [00:23:35] Speaker 01: And we think the government failed to do that here. [00:23:38] Speaker 01: And so we believe there's an issue of prejudgment on this as well. [00:23:43] Speaker 05: Great. [00:23:43] Speaker 05: All right. [00:23:43] Speaker 05: Thank you. [00:23:44] Speaker 05: Let us hear from the police. [00:23:51] Speaker 03: Good morning, Your Honors, and may it please the court [00:23:54] Speaker 03: My name is Daniel Hellinen for the government in this matter. [00:23:58] Speaker 03: So in section 1853B8, Congress authorized the National Marine Fisheries Service to adopt requirements, to approve the requirements in fishery management plans that include the requirement to carry observers on industry vessels participating in these highly regulated fisheries. [00:24:21] Speaker 03: And that's exactly what the agency did [00:24:23] Speaker 03: in approving the omnibus amendment here and in adopting and implementing regulations. [00:24:29] Speaker 03: In section 1853-8, Congress authorized the agency to impose these requirements without limitation based off of funding or anything like that. [00:24:41] Speaker 03: As has been discussed this morning, there's nothing in the statute itself that addresses funding. [00:24:48] Speaker 03: And the normal default assumption when the government is authorized [00:24:51] Speaker 03: to impose regulatory requirements like this is that the industry vessel may be required to bear the cost of compliance. [00:24:59] Speaker 03: And that's exactly how this rule works. [00:25:01] Speaker 05: And what do you cite for that? [00:25:02] Speaker 05: What's your strongest, the normal default? [00:25:09] Speaker 03: So I think within the context of the Magnuson-Stevens Act, you just have to look at things like national standards seven and eight, which directly address [00:25:19] Speaker 03: Congress's intention for the agency to consider compliance costs for provisions that are adopted in fishery management plans under section 1853. [00:25:28] Speaker 03: You can look at other provisions that Congress directly authorized the agency to adopt in fishery management plans. [00:25:35] Speaker 03: And for example, section 1853B4, that would naturally impose compliance costs. [00:25:41] Speaker 03: What is missing? [00:25:44] Speaker 02: I'm sorry, please finish your sentence. [00:25:46] Speaker 03: What is missing here is any statutory limitation in section 1853B8 that would suggest that this type of requirement should be treated any different from any of the many other requirements in the fishery management plans that are in condition for participation by industry vessels in these highly regulated fisheries where compliance costs will normally fall on the industry vessel. [00:26:09] Speaker 05: Well, appellants, it seems to me, make some strong arguments about how the Supreme Court has [00:26:17] Speaker 05: always been concerned about costs and regardless of whether Congress says anything about it and see all the EPA cases. [00:26:32] Speaker 05: And furthermore, we have said repeatedly that agencies are creatures of the authorization. [00:26:46] Speaker 05: by Congress. [00:26:49] Speaker 05: And so now we have these three provisions where Congress is very specific. [00:26:56] Speaker 05: And I'm just thinking of the arguments that will be presented here in terms of Congress could have made this clearer, it never did. [00:27:10] Speaker 05: And so that's why I started my questions out with what about the context here? [00:27:16] Speaker 05: and you heard counsel for appellant, do you want to respond specifically to any of those arguments above and beyond what you stated in your brief? [00:27:29] Speaker 03: So I think looking at the statutory context, it's important to recognize that in section 1858, G1D, and this is part of our briefing, that Congress expressly contemplated that in implementing observer requirements, [00:27:45] Speaker 03: industry vessels would, under certain circumstances, be required to procure observers at their own expense. [00:27:53] Speaker 03: And you can see that in section 1858, G1D, because that provision authorizes sanctions where vessel fails to pay observer service providers for contracted force services. [00:28:06] Speaker 04: But why couldn't those sanctions be relevant to only those three circumstances in which [00:28:13] Speaker 04: it's clear that Congress has contemplated fees. [00:28:17] Speaker 04: I mean, it seems to me that I don't know that I can take much from this sanctions provision in terms of the authorization to require fees to be shifted upfront to begin with. [00:28:33] Speaker 03: Yes, your honor. [00:28:33] Speaker 03: So I think this gets at the important distinction between a fishery management plan, which is just imposing [00:28:40] Speaker 03: a number of different requirements on industry vessels and a dedicated program funded by fees that Congress has established specifically by legislation. [00:28:51] Speaker 03: So the way that the fee programs work that plaintiffs are relying on here is Congress has authorized the collection of fees generally among participants in those programs that are paid directly into the United States Treasury to allow the government to recover the costs of providing observers direct [00:29:09] Speaker 03: So that is why plaintiffs reliance on the few programs to explain the provision that I'm referring to in section 1858 doesn't make sense because under those few programs, the United States or the excuse me, the government is providing the observer directly. [00:29:24] Speaker 03: So there's no need for the- That's not true for foreign fishing, correct? [00:29:29] Speaker 02: Isn't that not always true for foreign fishing? [00:29:33] Speaker 02: Sometimes the observers are paid directly by the fishermen. [00:29:37] Speaker 03: I believe your honor is referring to section 1821 H6. [00:29:40] Speaker 03: So I want to first situate foreign fishing generally. [00:29:45] Speaker 03: Under the general foreign fishing program, this is section 1821 H1. [00:29:51] Speaker 03: That is a fee program along the lines of what I've just described. [00:29:54] Speaker 03: Congress authorized the collection of fees, actually in that case mandated the collection of fees from foreign fishing vessels to fund the government provision of observers and to permit the government to recover the costs from that. [00:30:07] Speaker 03: There is a specific provision in 1821 H6 that plaintiffs I think have relied on, which is addressing a supplementary foreign fishing observer program, which is an exception to the general rule of how the foreign fishing works. [00:30:26] Speaker 02: The sanctions provision could be referring to the exception to the general rule. [00:30:31] Speaker 03: So that's not correct, Your Honor, for a few different reasons. [00:30:35] Speaker 03: The first is that interpreting the sanctions provision as referring to this particular sort of exception in the foreign fishing fee scheme is inconsistent with the actual text of section 1858 G1D and other provisions of the statute. [00:30:52] Speaker 03: So if you look at 1858 G, it is referring generally to any payment required for observer services [00:30:59] Speaker 03: provided to you are contracted by an owner operator who's been issued a permit under any marine resource law administered by the secretary. [00:31:07] Speaker 03: So this is a general provision that applies generally to observers under the Madison Stevens Act. [00:31:12] Speaker 03: And the Congress specifically chose language in that provision that applies generally to any type of observer, including the types that we're talking about here under 1853 B8 Fishery Management Plans. [00:31:23] Speaker 03: So that [00:31:24] Speaker 04: So why not the fee-based program? [00:31:27] Speaker 04: My only point is why doesn't this capture the three programs that appellants are pointing to? [00:31:37] Speaker 03: So in general, it doesn't capture those three programs because in a fee program, the vessel is not contracting with an observer service provider. [00:31:47] Speaker 03: So this reference in 1858 G1D says, payments required for observer services provided to [00:31:53] Speaker 03: or contracted by an owner or operator of the vessel. [00:31:57] Speaker 03: If they're in a fee program, the government's providing the observer and placing the fee. [00:32:00] Speaker 04: Right, that's the first part of the sentence. [00:32:02] Speaker 04: Observer service is provided to or contracted by. [00:32:07] Speaker 04: So why isn't it capturing the provided to by the government? [00:32:14] Speaker 03: So I think our point is that looking to the fee provisions only [00:32:20] Speaker 03: cannot explain the contracted to part of that sentence. [00:32:24] Speaker 03: So under plaintiff's vision of how the statute works, that contracted to part isn't doing any work because the vessels would be provided with an observer pursuant to a fee funding mechanism. [00:32:36] Speaker 04: And our point is- You're saying the contracted to, you don't think that could refer to what Judge Walker was talking about, this sort of exception. [00:32:47] Speaker 04: Here we have a situation in which there are, are there other circumstances in which observers are contracted in this realm? [00:32:57] Speaker 04: You say this is a general provision that applies sanctions across the board for observers. [00:33:03] Speaker 04: And I would think to the extent that any of them involve [00:33:07] Speaker 04: contracting, why doesn't this just apply to that and doesn't tell us anything about whether Congress intended for the secretary in other circumstances to authorize fee shifting or cost shifting? [00:33:23] Speaker 03: Yes, Your Honor. [00:33:23] Speaker 03: So I have a couple of points to address to that. [00:33:26] Speaker 03: So our basic point is that Congress clearly conceived of authority in the agency to require observer coverage [00:33:36] Speaker 03: that may incur costs for the vessel. [00:33:39] Speaker 03: That's our point about why that contracted for language is in there, that it implies that there's authority somewhere in the statute to require that type of arrangement. [00:33:50] Speaker 03: Plaintiffs respond by pointing to these three fee programs. [00:33:54] Speaker 03: And our point is simply that those three fee programs generally cannot explain the contracted by language because in those circumstances, the authority is for the government to provide pursuant to a fee program and observer. [00:34:06] Speaker 03: I think the specific provision that Judge Walker is referring to requires a little bit more explanation, but I just wanted to say sort of generally, those three few programs can't account for the contracted by language. [00:34:19] Speaker 03: Now, I said this supplementary observer program, which is sort of an exception from how the foreign fishing authorization works generally. [00:34:26] Speaker 03: My point here is that, so first of all, if 1858 G1D's use of this contracted by language [00:34:36] Speaker 03: was specifically about the foreign fishing program. [00:34:38] Speaker 03: That's just sort of an odd way to draft the statute in that this is a sort of exception, a supplementary observer rule. [00:34:45] Speaker 03: The second is that when you actually look at section 1821 H6, it's not actually addressing contractual relationships. [00:34:54] Speaker 03: It's specifically referring to authority in the agency to establish a schedule of fees that would be paid by the vessel. [00:35:04] Speaker 03: So this isn't talking about sort of contractual relationships where you're incurring costs pursuing an observer coverage requirement, which is what's at issue in the rule before the court today. [00:35:12] Speaker 03: That's simply directing the government about a procedure to follow in the event that there's insufficient appropriations to fund the Foreign Fishing Observer Program. [00:35:25] Speaker 03: So I think that's it. [00:35:28] Speaker 02: Let me kind of zoom out for a minute. [00:35:34] Speaker 02: Mr. Bollander, in addition to his Expresio Unius argument, emphasized the silence here. [00:35:46] Speaker 02: And your response seems to be, well, this is just sort of the normal default. [00:35:53] Speaker 02: And to me, that is kind of the heart of the case, not even so much the Expresio Unius. [00:35:59] Speaker 02: But when Congress is silent in a situation like this, [00:36:04] Speaker 02: Is the agency doing the kind of filling in the details that normally happens or is this something pretty weird? [00:36:13] Speaker 02: And here's what seems pretty weird to me. [00:36:15] Speaker 02: These monitors seem somewhat analogous to inspectors. [00:36:22] Speaker 02: And so, you know, I'm curious if you can speak to other contexts, other situations where [00:36:32] Speaker 02: the agency is sending around inspectors and the regulated parties basically pay the salaries of the agency employees. [00:36:46] Speaker 02: And so I have a follow-up question, but that's my first question. [00:36:55] Speaker 03: So I guess just initially I would clarify that this isn't a situation where under the rule that we're talking about here, [00:37:01] Speaker 03: We're talking about government officials, government observers, government inspectors being paid for by the vessel. [00:37:10] Speaker 03: What happens is that they're subject to an observer coverage requirement, and then they are responsible for procuring an observer from an observer service provider. [00:37:18] Speaker 03: Those observer service providers are certified by the government, trained by the government, but it's simply a private party that they're entering into a contractual relationship. [00:37:28] Speaker 02: I get that they are technically [00:37:29] Speaker 02: know, private parties, they're not technically government employees. [00:37:33] Speaker 02: I'm just saying it seems weird that these private parties who are basically doing the government's inspection work are being funded by, you know, by the regulated entities. [00:37:52] Speaker 03: So I think [00:37:54] Speaker 03: Just as a basic proposition, there's nothing in the text that differentiates this provision from any other type of requirement that can be included in a fishery management plan. [00:38:03] Speaker 03: But more directly to your point, Your Honor, I don't think it's unusual in general for regulated entities subject to requirements like this one to have an observer that collects the information that's necessary under the statute for the conservation. [00:38:20] Speaker 03: of the fishery, which is to their benefit, I should know. [00:38:24] Speaker 04: Sorry, I'm sorry, go ahead. [00:38:29] Speaker 04: Finish your answer. [00:38:31] Speaker 05: Can we just get the answer first? [00:38:33] Speaker 03: So I don't think it's unusual when a private party is subject to a requirement like this, for example, something like a licensure requirement, or you maybe need to have auditing done, something like that, that in order to comply with a regulatory requirement that you might need to engage [00:38:50] Speaker 03: a private party to help you meet compliance standards. [00:38:53] Speaker 03: So I don't think this is unusual in any way. [00:38:55] Speaker 03: And there's nothing in the statute that here would suggest that this is a situation equivalent to something like an inspector along the lines that you're talking about, where it's funding a government official to provide inspections. [00:39:10] Speaker 03: It's simply about the vessel has to participate in this, if they want to participate in the fishery, has to [00:39:19] Speaker 03: satisfy these requirements that the agency imposes for collection of information, which is a central purpose of the Magnuson-Stevens Act. [00:39:28] Speaker 02: And that is done through a service. [00:39:29] Speaker 02: Let me ask a hypothetical, and then I'll get out of the way. [00:39:33] Speaker 02: Imagine that Congress just defunded the service, the fishery service, defunded the whole agency. [00:39:42] Speaker 02: Do you think that the agency could then impose enough fees, impose fees [00:39:50] Speaker 02: on the fishermen and fund the whole service through fees paid by the fishermen? [00:39:59] Speaker 03: Through a fee program like the three that plaintiffs are referring to. [00:40:05] Speaker 02: Do you think that it's conceivable that there's any way around a congressional decision to defund the fisheries? [00:40:13] Speaker 03: So I have two answers. [00:40:15] Speaker 03: It depends on the context. [00:40:16] Speaker 03: So first, for a fee program, I think [00:40:19] Speaker 03: collection of fees it involves and can implicate other legal authorities because there are certain things that govern you know when the government collects funds that are paid into the revenue the revenue that's paid into the treasury so i think to the question whether the government could collect fees i think that would be would be governed by whether there's sufficient you know legislative authority for that [00:40:45] Speaker 03: And I don't think is necessarily bearing on this type of program. [00:40:50] Speaker 03: In the program that we have here, I think the rule that the agency actually adopted is illustrative in what would happen in that situation. [00:40:59] Speaker 03: Because unlike a fee program, the rule that we're talking about here does not involve cost recovery for the government. [00:41:07] Speaker 03: So the government in administering an observer program will incur the types of costs that I think Judge Jackson was talking about earlier. [00:41:13] Speaker 03: which is training, certification, data processing, things like that, the government has to have sufficient appropriations to administer the program. [00:41:22] Speaker 03: And so the rule at issue here specifically talks about how when there aren't sufficient appropriations to fund the administration of the program, the observer coverage targets are no longer at 50%, essentially, because there's no requirement to comply with the observer coverage target for the industry. [00:41:42] Speaker 03: And that's because the industry in complying with the observer requirement is paying for sampling costs. [00:41:47] Speaker 03: So those are the costs of the observer, not the government costs. [00:41:50] Speaker 03: So they're paying the cost of complying with the regulatory requirement and not recovering the government's costs. [00:41:57] Speaker 03: And I think that helps explain why Congress in certain circumstances adopts fee programs because those enable the government to recover its own costs. [00:42:05] Speaker 03: Here, that's not what's happening. [00:42:07] Speaker 03: So in the event that there were insufficient appropriations, [00:42:10] Speaker 03: under the rule that we have here, there would be implications for the ability of the government to administer the program. [00:42:15] Speaker 04: Mr. Helen, and I was going back to Judge Walker's question about the sort of oddity of shifting costs to the industry for its own compliance. [00:42:27] Speaker 04: I was thinking about this similarly to some other environmental regulations dealing with [00:42:36] Speaker 04: vessels, the kinds of dumping scenarios where there are statutes that require vessels to have observers to prevent those kinds of environmental violations and sometimes [00:42:54] Speaker 04: even when the vessels are in, if they suspect that there's been some kind of a violation, the government will enter an agreement with the vessel owner to have them cover some of the costs of the investigation. [00:43:10] Speaker 04: Am I wrong in thinking? [00:43:12] Speaker 04: It's sort of the idea, I think, is that in this particular context, for sure, it is very hard to monitor [00:43:21] Speaker 04: and to know that these ship owners are not catching too many fish or not dumping, you know, toxic waste into the ocean or whatnot. [00:43:31] Speaker 04: And so there has to be some sort of monitoring program. [00:43:35] Speaker 04: At least that's what the statutes indicate in that here Congress seems aware of not only the need [00:43:43] Speaker 04: They say that it can be required and it's not unusual in this kind of case, a circumstance involving ships and vessels and compliance for the costs to be borne in part by the vessel. [00:43:59] Speaker 04: Am I wrong about that sort of overview backdrop thought related to this context? [00:44:07] Speaker 03: I think that's right, Your Honor. [00:44:08] Speaker 03: I think when you look at the, [00:44:11] Speaker 03: types of programs that we have here generally, for example, in regulating the fishery, there's gonna be a lot of information requirements. [00:44:18] Speaker 03: There's a lot of information needed for purposes of conservation and management. [00:44:22] Speaker 03: That is a central aspect of why Congress adopted the Magnuson Stevens Act. [00:44:27] Speaker 03: You just have to look at section 1801. [00:44:29] Speaker 03: There's all these findings and policy enacted there that goes directly to this point. [00:44:34] Speaker 03: And so it is natural for the agency under this [00:44:40] Speaker 03: delegated congressional authority to adopt a policy towards that end. [00:44:44] Speaker 03: And it is, you know, I think in the way that you're describing your honor, you know, not unusual at all for the agency to bear some of the costs of complying with those requirements because that's central to the operation of the fisheries. [00:44:59] Speaker 04: And also a third party doing it, right? [00:45:02] Speaker 04: Because the alternative would be to have a government person on every vote, which I would think the industry would object to in theory, perhaps even more so than having a kind of third party who's more neutral and can observe and make sure that they're doing what they need to do, right? [00:45:22] Speaker 03: Yes, Your Honor. [00:45:23] Speaker 03: And I think it's important that here, [00:45:27] Speaker 03: the vessel is subject to an observer requirement, but then they go out and procure the observer themselves. [00:45:31] Speaker 03: They engage the observer service provider directly. [00:45:36] Speaker 03: We, of course, will certify the observer services provider, train the observers, et cetera, so they meet our requirements for information collection, but they are the ones that go out and engage the observer. [00:45:49] Speaker 05: Anything further? [00:45:51] Speaker 03: Unless the court has any further questions, I think the court for its time today. [00:45:55] Speaker 05: For council, I mean, any questions by my colleagues? [00:45:59] Speaker 05: Thank you. [00:45:59] Speaker 05: All right, we'll hear from council for appellants. [00:46:05] Speaker 01: Thank you, your honor. [00:46:05] Speaker 01: I just want to make four points in rebuttal. [00:46:09] Speaker 01: First, judge Walker was asking about the foreign fishery provision with council for appellee. [00:46:14] Speaker 01: And I think that is a very instructive provision because it shows that Congress knew how to authorize industry to pay directly to monitors. [00:46:24] Speaker 01: It knew how to do it. [00:46:25] Speaker 01: And it gave it that authority in the foreign fishery. [00:46:27] Speaker 01: And so our point is that that provision plus the other two programs would be superfluous if the authority that the government claims under 1853 B8 were as it is. [00:46:40] Speaker 01: So when Congress wanted to do the very specific thing that the government here does, the Congress has given a direct statutory authority. [00:46:48] Speaker 04: But Mr. Bollander, I guess this goes back to my question about whether what Congress was actually doing in the sections that you're talking about was just ratifying what a particular council and a particular region wanted. [00:47:05] Speaker 04: that it may well be that given all the controversy that you're talking about, we had, I can't even remember the name of it now. [00:47:14] Speaker 04: What was it? [00:47:15] Speaker 04: The North Pacific Council. [00:47:17] Speaker 04: There was a lot of concern about who's going to bear the cost and what this program is going to be. [00:47:23] Speaker 04: And so Congress ratified that. [00:47:25] Speaker 04: And so I don't know that we can take from that the kind of, you know, canon that you'd like us to impose to suggest that Congress's act in doing that meant that it was precluding any other council from making a similar decision because it ratified in that one circumstance, it necessarily means that it intended for nobody else to have the ability to make a determination about. [00:47:55] Speaker 01: I think there was some, I think, contention at the time that it's born in the history of whether or not North Pacific fishery had that pre-existing authority. [00:48:03] Speaker 01: But if Congress intended to do that, to give this broad authority to all fisheries, then it would have done that. [00:48:09] Speaker 01: Instead, Congress responded to this controversy by only giving it to the North Pacific fishery. [00:48:14] Speaker 01: And this is the exact same legislative enactment in 1990 that created Section B-8. [00:48:19] Speaker 04: You have evidence that the broader question was before Congress? [00:48:23] Speaker 04: Because you see, it just depends on how you frame this as to whether or not you're right. [00:48:31] Speaker 04: If the only thing before Congress at the moment it looked at this controversy was this controversy, and it was not being asked the broader question of whether and to what extent any council can make this determination, I'm back where I was before, which is they're ratifying this particular circumstance doesn't tell me [00:48:53] Speaker 04: what their intention was with respect to whether any other council could do the same thing? [00:48:59] Speaker 01: I would submit, Your Honor, that at least three times since then, or indeed in HR 1554 and 1989, Congress did consider broad industry funding and declined to give it to the councils and to the government. [00:49:15] Speaker 01: So I do think this question has been before Congress several times. [00:49:18] Speaker 01: And I think the Congress's answer every time has been no. [00:49:21] Speaker 01: And so I just think- No, no, no, no, no. [00:49:23] Speaker 05: I don't understand it. [00:49:24] Speaker 05: If Congress has a bill pending and doesn't enact it, that doesn't tell us anything. [00:49:31] Speaker 05: And the Supreme Court is clear about that. [00:49:34] Speaker 05: So bills are proposed all the time. [00:49:36] Speaker 05: They even get out of committee, and they don't pass. [00:49:39] Speaker 05: Well, interesting historically, but they don't have an impact. [00:49:45] Speaker 05: So that can't be your response to Judge Jax. [00:49:48] Speaker 01: I think, Your Honor, it's just a piece of the evidence that goes to the greater statutory scheme. [00:49:52] Speaker 01: I think the fact that they enacted B-8 and the North Pacific fishery in the 1990 fishery conservation amendments at the exact same time, one contained the ability to shift costs to industry, the other had silence. [00:50:04] Speaker 01: I think that speaks for itself. [00:50:05] Speaker 01: Your Honor, I don't believe we need to reach that legislative history. [00:50:08] Speaker 01: I think the text speaks for it. [00:50:09] Speaker 01: Just in answering Judge Jackson's question of whether Congress has considered this before and has been before Congress before, I think it certainly has. [00:50:17] Speaker 01: Well, considered. [00:50:20] Speaker 05: All right, Congress considers lots of things, but it doesn't mean they enact these proposals. [00:50:30] Speaker 05: That's what, I mean, isn't Justice Scalia who made that point? [00:50:35] Speaker 05: So any event. [00:50:40] Speaker 02: What about Judge Jackson's, [00:50:43] Speaker 02: reference to EPA and investigations and cost sharing and analogies in the context of other agencies. [00:50:52] Speaker 01: Yeah, I think that's an important point. [00:50:54] Speaker 01: I hear what Judge Jackson is saying. [00:50:55] Speaker 01: I don't believe there's anything in the record or in the briefing that points to that. [00:50:59] Speaker 01: And I think that we have some of it. [00:51:00] Speaker 05: Well, for example, industry members are required to file audit reports. [00:51:07] Speaker 05: They're required to do all kinds of surveys. [00:51:13] Speaker 05: Government's not paying for that, but in order to indicate they're in compliance with these regionals, our national quality air standards, those are all imposed. [00:51:26] Speaker 05: So if you want to continue to operate, you have to provide records to the agency, studies, reports. [00:51:35] Speaker 05: That's, I thought, the reference that Judge Jackson may have had in mind. [00:51:40] Speaker 01: Yeah, and I think to kind of quote what Judge Walker was saying, there's a distinction between that and the inspector and the observer on the boat. [00:51:51] Speaker 01: I think Judge Walker called it weird. [00:51:52] Speaker 01: It's a weird enactment. [00:51:54] Speaker 04: So what's your reasoning? [00:51:56] Speaker 04: My point is that the observer on the boat, the person who's actually demonstrating or taking into account your compliance on the boat has analogies. [00:52:07] Speaker 04: In the toxic dumping kind of scenario, I'm aware of cases in which there are observers on a boat after someone has been accused of that kind of dumping. [00:52:20] Speaker 04: And I don't know this for sure, but I wouldn't be surprised if there was some sort of cost sharing or shifting for those kinds of observers. [00:52:28] Speaker 04: So that is not unusual, I think. [00:52:31] Speaker 04: Are you familiar with those, the closer context [00:52:36] Speaker 01: I'm not aware of anything else, and I don't know that it's in the briefing of where the inspectors and observers themselves has had cost shifting on the industry without a direct statutory authorization. [00:52:49] Speaker 01: I believe we cite a few cases where that's the case where the Congress went to the great extent to grant. [00:52:55] Speaker 01: that authority. [00:52:57] Speaker 01: So I know, I do think that the inspector and observer on the boat here is a unique situation. [00:53:01] Speaker 01: I think Congress treated it. [00:53:02] Speaker 05: Well, you say unique, but Judge Jackson's question is questioning that very broad statement. [00:53:11] Speaker 05: And you're saying you don't know the answer. [00:53:15] Speaker 01: I think we provide evidence in the briefing of other industries, including in the EPA, Clean Air Act and Clean Water Act, where there are direct [00:53:22] Speaker 01: statutory author. [00:53:24] Speaker 05: Of course, but Judge Jackson's question is going to that's not necessarily dispositive of the issue here. [00:53:34] Speaker 05: And your argument is it's very unusual. [00:53:39] Speaker 05: And EPA counsel comes back and says, no, this is the usual thing that happens. [00:53:43] Speaker 05: And furthermore, as Judge Jackson's question emphasized, I thought, it's a sharing of costs here. [00:53:50] Speaker 05: And there's no recovery of the government's costs from industry. [00:53:55] Speaker 05: So that's what we're getting at. [00:53:59] Speaker 01: I think, Your Honor, what's unusual here is shifting the costs onto industry without direct statutory authorization to do it in this. [00:54:08] Speaker 05: Well, that's what we're trying to get you to focus on. [00:54:10] Speaker 05: It's done in other statutes. [00:54:12] Speaker 05: But I understand your point. [00:54:13] Speaker 05: I thought that's what Judge Walker was seeking from you. [00:54:18] Speaker 04: And by the way, can I just say that you've merged together whether this is an unusual situation in fact, whether these kinds of [00:54:29] Speaker 04: having people on a boat and shifting the cost exists, and the question of whether or not there's statutory authority. [00:54:36] Speaker 04: And what I had understood, at least Judge Walker to be suggesting, is that if this is unusual in fact, one might question whether there's statutory authority. [00:54:46] Speaker 04: And my point was, it's not unusual in fact. [00:54:49] Speaker 04: I don't know what that says about the statutory authority, but this has happened in other industries and other circumstances in similar context. [00:54:59] Speaker 04: So I don't know how much we can take from that to illuminate our understanding of what Congress may have intended. [00:55:09] Speaker 01: I understand, Your Honor, and I think I'm not I don't I don't mean to conflate the authority to place observers. [00:55:15] Speaker 01: with the authority to shift costs onto the industry? [00:55:18] Speaker 01: We're looking at the second question here. [00:55:21] Speaker 01: And that's the distinct question. [00:55:22] Speaker 01: And I think the repeating myself with the unusualness is that they're shifting it. [00:55:27] Speaker 02: And I think it's, if you look at the context of the statute- The unusualness is that they're shifting it without express statutory authority. [00:55:33] Speaker 02: That's your argument, right? [00:55:35] Speaker 02: That's correct, Your Honor. [00:55:36] Speaker 01: That's correct. [00:55:37] Speaker 01: And in the context of a statute where Congress gave direct statutory authority, [00:55:42] Speaker 01: in three fisheries. [00:55:43] Speaker 01: I think Councilor Pali talked about that the fee programs allow the government to recover its costs. [00:55:50] Speaker 01: And I would call them cost shifting programs. [00:55:51] Speaker 01: And here Congress, it's not as if the observers couldn't be placed if they couldn't shift funding onto the industry. [00:55:58] Speaker 01: It's that Congress would need to appropriate money in order to compensate this. [00:56:01] Speaker 01: So it doesn't defeat the purpose of the statute in order to shift costs on the industry. [00:56:06] Speaker 01: And I think that is what Congress intended here. [00:56:08] Speaker 04: Can I just clarify one more thing? [00:56:10] Speaker 04: And I understand your time is short. [00:56:12] Speaker 04: But in order to make that statement unusual without direct statutory authority, don't we have to have before us other scenarios in which this very similar thing has happened and there is direct statutory authority? [00:56:29] Speaker 04: I don't understand what you mean. [00:56:33] Speaker 04: It's unusual compared to what? [00:56:38] Speaker 04: I would have, to make that argument, I would have expected to see here are similar situations in which Congress has authorized observers, government people coming in and shifting the cost. [00:56:53] Speaker 04: And here's all the places where there's expressed statutory authority to do that. [00:56:59] Speaker 04: Without that, I don't know how you can say that it's unusual in this circumstance for the cost to be shifted without statutory authority. [00:57:07] Speaker 01: I think there's two ways to look at that one within the context of the statute and one which is more globally. [00:57:12] Speaker 01: And so within the context of the statute, where they have these these specific authorizations I think it is unusual in contrast to the other three authorizations in the statute that would be superfluous otherwise in the context globally. [00:57:26] Speaker 01: I think, first of all, I think the pertinence on the government to show that they have the statutory authority here. [00:57:31] Speaker 01: And I am not aware of a situation perfectly analogous to the one we're dealing with here. [00:57:38] Speaker 05: And again, I. How do you deal with the government's point about this is not a situation where there were fees to be turned over to the government in the three examples you cite? [00:57:53] Speaker 05: You don't think that makes any difference, right? [00:57:56] Speaker 01: No, Your Honor, I think the government is narrowly defining fee. [00:58:00] Speaker 05: We know it doesn't make any difference or know what a different answer. [00:58:07] Speaker 01: Well, let me just explain myself so I make sure I'm clear. [00:58:10] Speaker 01: It's shifting costs onto industry. [00:58:12] Speaker 01: That's what these other three provisions require. [00:58:14] Speaker 01: Whether the government wants to call it a fee program or something else, it is shifting costs into industry. [00:58:19] Speaker 01: That is the power that Congress delegated to the government in these three instances. [00:58:23] Speaker 05: And secondly, Congress- But the money doesn't, the fees don't go to the government. [00:58:29] Speaker 05: The government is not recovering its costs. [00:58:34] Speaker 01: So I would argue that the government is responsible for the cost of the IC monitors of the observers, no matter what. [00:58:42] Speaker 01: So in my client's viewpoint, in our viewpoint, through the industry-funded monitoring, the government is recovering costs for duties that it would otherwise have. [00:58:49] Speaker 01: and the statute is very specific as the only situations they can do that. [00:58:54] Speaker 05: Well, you know, maybe we'll figure out or technology will figure out a GPS and put on these boats and that'll solve the problem. [00:59:02] Speaker 05: But I mean, there are distinctions here that have been recognized. [00:59:07] Speaker 05: So when you say it's unusual, that's what's troubling us. [00:59:12] Speaker 05: Not that you don't have some general arguments based on general principles, et cetera. [00:59:18] Speaker 05: That's all I'm getting at. [00:59:20] Speaker 05: And I think we take your argument. [00:59:22] Speaker 05: Anything further? [00:59:24] Speaker 01: No, Your Honor. [00:59:25] Speaker 05: Thank you very much. [00:59:26] Speaker 05: We'll take the case under advice.