[00:00:00] Speaker 00: Case number 21-5120, Oceana Inc. [00:00:04] Speaker 00: Appellant versus Gina Raimondo in her official capacity as Secretary of Commerce et al. [00:00:10] Speaker 00: Ms. [00:00:10] Speaker 00: Treese for the Appellant, Ms. [00:00:12] Speaker 00: Morin for the Appellants. [00:00:14] Speaker 05: Good morning. [00:00:15] Speaker 05: Council for Appellant, you may begin. [00:00:19] Speaker 07: Good morning, Your Honors. [00:00:21] Speaker 07: May it please the court, this appeal presents two distinct issues with respect to the services management of the dusky shark, which has remained overfished for over 20 years as the sole result of bycatch. [00:00:33] Speaker 07: The first issue concerns the services misinterpretation of the Magnuson Stevens Act. [00:00:38] Speaker 07: The service violated section 1853A15 of that act by exempting itself from the act's requirements [00:00:46] Speaker 07: and failing to establish any measures to actually hold bycatch of dusky sharks accountable to the limit the agency specified. [00:00:54] Speaker 07: The second concerns the services unsupported conclusion that the measures that included in Amendment 5B will reduce dusky shark deaths enough to allow the population to recover. [00:01:05] Speaker 07: That conclusion was arbitrary and capricious because it relies on speculation rather than reasoned analysis and evidence. [00:01:14] Speaker 07: Turning to the first issue, I first want to clear up any confusion that might have resulted from the disconnect and what the issue that Oceana raised versus what the federal government addressed in its brief, which was whether the act allows it to specify an annual catch limit of zero. [00:01:33] Speaker 07: There's no actual dispute that it does allow an annual catch limit of zero. [00:01:37] Speaker 07: What the act does not allow is for the agency to set a catch limit of zero and then chronically allow catch to exceed it because it has no accountability measures to hold the catch to that limit. [00:01:50] Speaker 03: Do you agree with the, it seems to me you do agree, I should put it that way, with the fisheries service that catch includes [00:02:02] Speaker 03: bycatch mortality. [00:02:06] Speaker 03: Yes, sir. [00:02:06] Speaker 03: Not all bycatch. [00:02:08] Speaker 03: It's just the mortality. [00:02:11] Speaker 07: Yes, sir. [00:02:12] Speaker 07: Yes. [00:02:12] Speaker 07: It's the fish that die as a result of bycatch. [00:02:16] Speaker 03: Okay. [00:02:16] Speaker 03: But that doesn't include all the ones that are caught. [00:02:21] Speaker 07: That's right, Your Honor. [00:02:22] Speaker 03: Yeah. [00:02:22] Speaker 03: Okay. [00:02:23] Speaker 07: Yes. [00:02:25] Speaker 07: So the agency's misinterpretation here is embodied in an exception it created in its guidelines, which state that as long as the service sets the annual catch limit at zero and prohibits intentional fishing for a species, it can escape establishing additional accountability measures that hold catch to that limit of zero or in fact to any numerical limit. [00:02:48] Speaker 03: Can I ask you again, are we just dealing here with long line? [00:02:54] Speaker 03: and not netting? [00:02:57] Speaker 07: We are dealing with a number of fisheries here. [00:03:00] Speaker 07: We're dealing with at least pelagic and bottom long lines, as well as I believe gill net fisheries, as well as recreational fisheries. [00:03:07] Speaker 07: So it's a wide range of gear. [00:03:09] Speaker 03: How can you catch a 400 pound dusky shark in a gill net? [00:03:17] Speaker 07: Those gill nets can be very large and very strong, Your Honor. [00:03:20] Speaker 07: There are nets that actually catch whales. [00:03:24] Speaker 03: Yeah, but the long lines, although it's not specified, and I'll let you get on with your argument, I just want to be clear about this. [00:03:33] Speaker 03: The long lines are actually, they're fishing for swordfish and tuna, is that what it is? [00:03:41] Speaker 07: Yes, sir, those are the main target species. [00:03:43] Speaker 03: Yeah, okay, thanks. [00:03:45] Speaker 07: Certainly. [00:03:48] Speaker 07: Now, the circus's interpretation essentially eviscerates the meaning of [00:03:52] Speaker 07: Section 1853A of the Act, which is clear under Chevron Step 1, as shown by the text and the context and the history of that provision. [00:04:02] Speaker 07: And I'll walk through each of these, starting with the text. [00:04:06] Speaker 07: Now, section 1853 A-15 requires the agency to establish a mechanism for specifying annual catch limits at a level such that overfishing does not occur, including measures to ensure accountability. [00:04:21] Speaker 07: So starting at the beginning, it requires a mechanism that essentially has two halves, the annual catch limits and the accountability measures. [00:04:29] Speaker 07: The first half, the annual catch limits, [00:04:33] Speaker 07: has each of these terms has it has a plain meaning that the service agrees with, as your honor was asking about the service agrees that catch includes by catch mortality and also agrees that the ordinary meaning of limit is a bound not to be passed. [00:04:54] Speaker 07: that phrase is modified by the phrase at a level such that overfishing does not occur. [00:05:02] Speaker 07: So in other words, the annual catch limit must put a definite bound on bycatch that occurs annually, and that number has to be low enough to ensure that overfishing doesn't happen. [00:05:14] Speaker 05: The second half- So what do you do with the agency's response? [00:05:17] Speaker 05: That the statute doesn't bar what is done here, and it's, [00:05:24] Speaker 05: in its view, these will reduce the mortality. [00:05:30] Speaker 05: And this is the first stage, all right? [00:05:34] Speaker 05: And then if it's not low enough, they can modify what's required. [00:05:42] Speaker 07: Well, Your Honor, I think that violates the plain language of the acts, because the plain language- Well, the agency's argument is the plain language [00:05:51] Speaker 05: leaves it a lot of discretion. [00:05:52] Speaker 05: The Congress didn't bar things. [00:05:55] Speaker 05: It didn't define things. [00:05:58] Speaker 05: It said the agency is to carry out the statute. [00:06:03] Speaker 05: And so in the agency's view, what it did does not contradict any limitation [00:06:16] Speaker 05: in the statute itself, whereas your argument is no, it has to be able to say definitively that if we do this, then the catch will reduce by 35%. [00:06:30] Speaker 07: Yes, Your Honor, these are separate issues. [00:06:38] Speaker 05: I know you want to define them that way, but the Secretary's view is broad discretion [00:06:44] Speaker 05: Had Congress wanted to define things the way you say the agency must interpret the statute? [00:06:52] Speaker 05: It could have done so, but it didn't. [00:06:55] Speaker 07: Well, the agency is glossing over a lot of statutory context, as well as the plain text and the history of this provision in taking that position. [00:07:08] Speaker 05: Well, what's the plain text that bars the limit at not over zero and what's the plain text that says if you can't determine specifically that what you're doing is going to reduce it by 35% so long as you're on the road to that and you see what this does and then you come back and if it's, [00:07:37] Speaker 05: If it's not enough, then you do more. [00:07:41] Speaker 07: Well, the plain text requires the agency to specify a limit. [00:07:47] Speaker 04: So here it has, it says they have, they specified, pardon me. [00:07:52] Speaker 04: It requires them to establish a mechanism for setting a limit. [00:07:58] Speaker 04: What about that language? [00:08:01] Speaker 07: Yeah, so establishing the mechanism, again, here it's envisioning a coherent system where in practical terms, usually what a fishery management plan would do would have, for example, a formula or some mechanism for specifying that actual number year after year. [00:08:23] Speaker 07: And so that's, I think, part of where the mechanism comes in. [00:08:28] Speaker 07: The mechanism also includes these measures to ensure accountability. [00:08:31] Speaker 07: I think where we part ways with the service or one of the ways is what that accountability means. [00:08:41] Speaker 05: And where did Congress define it in a manner that bars the agency from interpreting as it did? [00:08:47] Speaker 05: Isn't that your burden? [00:08:51] Speaker 07: Yes, your honor. [00:08:52] Speaker 07: And if you look at the context of the act and read this provision as part of the overall section 1853A, that section begins with 1853A1A that requires all fishery management plans to contain measures necessary and appropriate to prevent overfishing. [00:09:16] Speaker 05: So I guess the agency's response would be, yes. [00:09:21] Speaker 05: And it's getting there. [00:09:22] Speaker 05: It may not get there the first year, the second year, but maybe the third year, et cetera. [00:09:26] Speaker 05: It has to see what happened. [00:09:32] Speaker 07: That's not what the statute requires the agency under 1854E to end overfishing immediately. [00:09:40] Speaker 07: No, it doesn't. [00:09:42] Speaker 05: That's my point. [00:09:43] Speaker 05: And that's the agency's point. [00:09:45] Speaker 05: Where does it says immediately? [00:09:49] Speaker 07: That is in 1854E7, I believe. [00:09:54] Speaker 07: The agency has to, in its rebuilding plan, end overfishing immediately. [00:10:02] Speaker 07: And Congress actually in the legislative history looked at instances exactly like the dusky shark. [00:10:10] Speaker 07: It looked at the fact that the act had required the service to end overfishing for decades and had failed to get there. [00:10:24] Speaker 07: And the overfishing of overfished species much like the dusky shark remained a significant problem. [00:10:32] Speaker 07: In statements, including in Senate report number 109-229 at 21 and 23 to 24, for example, and also at seven, Congress emphasized that that failure to end overfishing [00:10:50] Speaker 07: was resulting from a failure to require cats to adhere to limits year after year. [00:10:56] Speaker 05: Right, but that's really my point. [00:10:59] Speaker 05: What the legislative history shows is they tried over decades to do it, it didn't work. [00:11:08] Speaker 05: What you're arguing, as I understand it, is therefore we must read this statute to say you have to do it within a year. [00:11:21] Speaker 05: or you have to do it within a specified time limit? [00:11:25] Speaker 07: Well, Your Honor, we're not concerned so much with the time limit here as with the overall compliance. [00:11:34] Speaker 07: What the agency has proposed to do here is always allow catch to be higher than the limit it set by some completely unspecified number. [00:11:46] Speaker 07: So it has basically set up a system where it's always violating the catch limit year after year after year. [00:11:53] Speaker 03: The bycatch limit for mortality anyway is zero. [00:11:59] Speaker 03: What happens if the one ship pulls in a dead shark? [00:12:06] Speaker 03: What was the consequence of exceeding the zero limit? [00:12:11] Speaker 07: Under the approach the agency has adopted here, there's no consequence whatsoever. [00:12:16] Speaker 07: And there's no consequence if they pull in 500 debt sharks. [00:12:21] Speaker 07: That's the exact problem here. [00:12:23] Speaker 03: I'm wondering if your problem is not with the number zero, but with the enforcement of it. [00:12:34] Speaker 07: Yes, sir. [00:12:34] Speaker 07: That is exactly the problem here. [00:12:38] Speaker 07: The problem is that [00:12:42] Speaker 07: the statute contemplates specifically because this more general approach had not worked for so long that annual catch limits and accountability measures would be added as a specific mechanism to finally require the service to use the specific mechanism to finally end overfishing. [00:13:05] Speaker 04: Yeah. [00:13:05] Speaker 04: Ms. [00:13:05] Speaker 04: Trace, what about section 1853A11? [00:13:10] Speaker 04: that says that the service has to reduce bycatch to the extent practicable, right? [00:13:17] Speaker 04: And bycatch kind of by its nature is something that's accidental and not intentional. [00:13:23] Speaker 04: So, I mean, it seems then that Congress has given the agency a fair amount of discretion as to how they reduce bycatch in a way that is practicable. [00:13:36] Speaker 07: But your honor that section provides for more for a broader requirement to reduce by catch across the board as a matter of reducing waste and notably it, it applies to species, other than, than fish as well it's, it's. [00:13:56] Speaker 07: It requires it's applies in all instances. [00:14:00] Speaker 07: What Congress was trying to get out with 1853 18 was setting a very specific limit on that bycatch low enough to end over fishing and. [00:14:13] Speaker 07: to that limit, ensuring that cash didn't chronically exceed it. [00:14:17] Speaker 07: So what E-15 does is add specificity and add an additional mechanism. [00:14:25] Speaker 07: And it's basically another additional requirement. [00:14:31] Speaker 03: The service has taken some steps to reduce not so much by cash, but mortality. [00:14:39] Speaker 03: the requirement of circle hooks, number one, which prevents a gut hook, which will kill the fish usually. [00:14:48] Speaker 03: And then also making the circle hooks non-stainless steel, which is important because if the fish escapes with a hook in its mouth, it's going to rust away. [00:15:01] Speaker 03: What else has it done to prevent mortality? [00:15:07] Speaker 07: Well, Your Honor, with respect to that circle hook requirement, notably the study of the service relies on there actually states that requiring circle hooks, at least in the bottom long line fishery, does not have any effect on reducing mortality because they use a larger J hook, as we discuss in our briefs. [00:15:30] Speaker 03: They have, over the years- There must be studies going the other way. [00:15:37] Speaker 03: I mean, circle hooks are becoming fairly common in recreational fishing now because of the catch and release requirements. [00:15:48] Speaker 03: And it's much easier with a circle hook than with a J hook, which may get caught on the interior of the fish. [00:15:58] Speaker 07: The service hasn't cited any other studies that go the other way. [00:16:01] Speaker 07: The issue that the study found that the service cited was that in the bottom longline fisheries specifically, they use a larger J-shaped hook [00:16:15] Speaker 07: that the sharks apparently don't swallow, so they don't get gut hooked with that hook. [00:16:20] Speaker 07: So in that study, they didn't find any difference between using the J hook and the circle hook, even though there are ancillary benefits to other species to using circle hooks. [00:16:32] Speaker 03: OK, thanks. [00:16:33] Speaker 07: Thanks. [00:16:35] Speaker 07: I'm conscious that I'm over time right now and would like to reserve time for rebuttal unless the court has more questions. [00:16:45] Speaker 05: All right, thank you. [00:16:46] Speaker 05: We'll hear from Council for Appellee. [00:16:53] Speaker 01: Good morning, and may it please the court. [00:16:54] Speaker 01: I'm Ariel Moran on behalf of Federal Appellees. [00:16:57] Speaker 01: This court should affirm the district court's judgment. [00:16:59] Speaker 01: The service has been working since the 90s to conserve the dusky shark in addition to closing the dusky shark fisheries, slashing commercial shark quotas. [00:17:07] Speaker 03: I'm having, pardon me, I'm having trouble hearing you. [00:17:10] Speaker 03: There's an echo I think that's going on. [00:17:13] Speaker 03: There's some adjustment you can make [00:17:15] Speaker 02: Can everybody hear me now? [00:17:16] Speaker 03: That's much better. [00:17:17] Speaker 03: Much better. [00:17:18] Speaker 02: Okay. [00:17:18] Speaker 02: Wonderful. [00:17:19] Speaker 03: We're connected through my phone. [00:17:22] Speaker 02: Okay. [00:17:22] Speaker 05: All right. [00:17:22] Speaker 05: Council for our police, please begin. [00:17:25] Speaker 02: As I was saying, the service has been working since the nineties to conserve the dusty shark. [00:17:31] Speaker 02: In addition to closing the dusty shark fisheries, flashing shark quotas and retention limits and numerous other measures, the service has now instituted six new accountability measures through amendment five B. [00:17:42] Speaker 02: This case fundamentally comes down, as became clear during Oceana's presentation, to their disagreement with the service's scientific judgment regarding the best accountability measures to end dusky shark overfishing. [00:17:55] Speaker 02: So I'd like to start by clarifying the remaining dispute. [00:17:58] Speaker 02: As Oceana just clarified, it does not argue that the Magnuson Act precludes the service from setting a limit of zero. [00:18:05] Speaker 02: Rather, it argues that the limit of the service set here [00:18:08] Speaker 02: is somehow not a limit because Oceana does not believe that the accountability measures that the service chose strictly enforce that limit. [00:18:17] Speaker 02: What this argument comes down to is a dispute about the appropriateness of the services chosen accountability measures, fundamentally not really any issue of statutory interpretation. [00:18:26] Speaker 02: Oceana's first argument simply collapses into its second. [00:18:30] Speaker 02: Oceana wanted different accountability measures and argues that it was unreasonable for the service to fail to enact its preferred measures. [00:18:37] Speaker 02: But it cannot show that the measures chosen were arbitrary and capricious. [00:18:43] Speaker 02: Before I turn to that sole remaining argument, I want to address briefly Oceana's attempt to reframe its objection to the accountability measures as a statutory interpretation issue. [00:18:53] Speaker 02: It's clear that Amendment 5B in no way violates the Magnuson Act. [00:18:56] Speaker 02: The service complied with its claim requirements. [00:18:59] Speaker 02: It established a mechanism. [00:19:01] Speaker 02: for an annual catch limit, set that annual catch limit at zero, and that annual catch limit accounts for bycatch mortality. [00:19:08] Speaker 05: Well, let me ask you, as I understand their argument, it's that why did Congress pass this statute? [00:19:15] Speaker 05: For decades, the agency had been trying to do this. [00:19:18] Speaker 05: It hadn't succeeded. [00:19:19] Speaker 05: So now the statute says establish a mechanism that reduces mortality. [00:19:28] Speaker 05: And you need to do it by 35%. [00:19:32] Speaker 05: And what you've done, you may not have adopted what we want by accountability measures, but what you've done isn't enough. [00:19:43] Speaker 05: And as I understand it, the agency acknowledges that what it's done may not achieve the 35% reduction. [00:19:54] Speaker 05: So what is your response? [00:19:59] Speaker 02: The service concluded that the six new accountability measures give a 50% chance of rebuilding. [00:20:07] Speaker 05: That's not the same. [00:20:09] Speaker 02: That's correct. [00:20:10] Speaker 02: We have a 50% chance. [00:20:12] Speaker 02: So the chance is not 100, nor could any accountability measure ever obtain a 100% chance. [00:20:18] Speaker 05: Maybe not, but 50 or 60 is pretty low, given that you're trying to get up to 100. [00:20:26] Speaker 02: That is true. [00:20:26] Speaker 02: The service [00:20:27] Speaker 02: decided that a 50% chance was sufficient here in light of a couple of things. [00:20:33] Speaker 02: First of all, massive data variability. [00:20:36] Speaker 02: In this case, it is very difficult to get information about absolute abundance of dusky sharks. [00:20:41] Speaker 02: It's also very difficult to get any data about eye catch mortality for dusky sharks. [00:20:46] Speaker 02: Interactions are incredibly rare. [00:20:47] Speaker 02: So there isn't much data on this issue. [00:20:50] Speaker 02: In addition, the most recent stock assessment, which was undertaken through process in 2016, [00:20:58] Speaker 02: showed five different options for ending overfishing. [00:21:04] Speaker 02: Now, we have additional data from various ESA petitions that had been instituted that show that it is likely that the dusky shark population is actually more abundant than the 2016 information gave, which led the service to conclude that the 50% probability of rebuilding the stock was sufficient. [00:21:27] Speaker 03: Is the is the low stock just on the East Coast? [00:21:32] Speaker 03: I mean, as I understand it, this shark is also found in the Pacific Ocean. [00:21:38] Speaker 02: The sharks are found for these management purposes in a number of areas, but largely on the East Coast, it's found near Japan, near also the in some areas in the Pacific, but not for management purposes. [00:21:56] Speaker 06: OK. [00:21:59] Speaker 02: So in order to make that move, right, so the measures that have taken place so far have ended, have created, in the most recent stock assessment, we have seen an order of magnitude lower fishing mortality than in 1999 when the service began management. [00:22:19] Speaker 02: Overfishing has reduced 87% since 1999. [00:22:22] Speaker 02: In 1999, we saw overfishing covering around nine times the sustainable level [00:22:28] Speaker 02: It dropped to 1.59 in 2011 and 1.18 in 2016. [00:22:32] Speaker 02: So I think that that puts in context what the service is trying to do here. [00:22:38] Speaker 02: It's trying to make that small move from 1.18 times the sustainable level down to one. [00:22:44] Speaker 02: That's the overfishing limit. [00:22:46] Speaker 02: The service implemented six new accountability measures in amendment 5B to make that shift from 1.18 down to one. [00:22:54] Speaker 02: The service concluded that those measures give it a 50% chance of rebuilding the stock, but a 77% chance of immediately ending overfishing. [00:23:02] Speaker 02: Those accountability measures include requiring recreational shark fishers to complete an online training course, which will increase their ability to identify dusky sharks and release them with a minimum of harm. [00:23:13] Speaker 02: There's substantial research supporting this measure. [00:23:15] Speaker 02: Research on other United States Atlantic prohibited species, such as the thorny scape, [00:23:20] Speaker 02: have demonstrated that a focused outreach and species identification training can improve compliance rates with prohibited species regulations over 98%, including reducing illegal landing by 95%. [00:23:33] Speaker 05: Additionally- Let me understand this a little better. [00:23:43] Speaker 05: You do, or the agency does receive information that [00:23:49] Speaker 05: on fishing expedition out of X Harbor from June through August resulted in, let's say 500 deaths. [00:24:06] Speaker 05: And the, either the fishermen or the, [00:24:16] Speaker 05: Oversight agency run by the fishermen are supposed to report deaths, correct? [00:24:27] Speaker 05: So the agency is having difficulty getting the information. [00:24:31] Speaker 05: Why can't the agency tighten up its reporting requirements? [00:24:37] Speaker 02: There's no way to tighten up the reporting requirements for a number of reasons. [00:24:41] Speaker 02: First of all, misidentification. [00:24:43] Speaker 02: Dusky sharks are relatively difficult to identify and look like a lot of other ridgeback sharks. [00:24:49] Speaker 05: So we're not getting... Oh, the fisherman's not going to know what he or she caught? [00:24:55] Speaker 02: Well, many of the regulations prohibit bringing the sharks onto the deck. [00:24:59] Speaker 02: So we're talking about sharks that are in the water. [00:25:03] Speaker 02: They know that they have to release almost all ridgeback sharks because they're prohibited species. [00:25:08] Speaker 02: So the fishermen are trying to de-hook [00:25:10] Speaker 02: these shark species and often are not making attempts to identify them or if they are making it without pulling the fish out of the water. [00:25:18] Speaker 03: So all they're saying is the snap mostly. [00:25:23] Speaker 02: Right. [00:25:23] Speaker 02: Exactly. [00:25:24] Speaker 02: Um, because bringing the fish onto the deck increases mortality substantially. [00:25:29] Speaker 02: We've prohibited that, but that means that [00:25:32] Speaker 02: trying to identify dusky sharks is incredibly difficult. [00:25:34] Speaker 02: We're not getting very good data on identification or mortality for dusky sharks. [00:25:38] Speaker 02: The service also realized that there is a potential problem for either under or over-reporting. [00:25:44] Speaker 02: It's possible that fishermen want fewer regulations and so are either under-reporting dusky shark mortalities or want it to look like dusky shark abundance is increasing, which would lead them to over-report dusky shark mortality. [00:25:57] Speaker 02: We simply don't have good data. [00:25:59] Speaker 02: In addition, dusky shark interactions are [00:26:01] Speaker 02: pretty rare as it goes. [00:26:04] Speaker 02: So we're not seeing a lot of interactions with dusty sharks, which is also there. [00:26:10] Speaker 03: The Fisheries Service has inspectors on some boats, doesn't it? [00:26:18] Speaker 02: The Fisheries Service does have observers on a certain number of boats, but for obvious reasons cannot have 100% observer coverage on every fishing trip. [00:26:28] Speaker 03: Is there anything in the record to indicate what percentage of fishing boats they have inspectors on? [00:26:37] Speaker 02: There is some information in the record. [00:26:39] Speaker 02: It depends on any given year. [00:26:41] Speaker 02: It depends on the fishery. [00:26:43] Speaker 02: It can be something like 10% of fishing trips that have an observer on, depending on the particular fishery. [00:26:51] Speaker 02: And the observer coverage isn't excellent and doesn't account for everything. [00:26:59] Speaker 02: But fundamentally, what matters is that the service did conclude that there's a 50% likelihood of rebuilding stock and a 77% likelihood of ending overfishing. [00:27:10] Speaker 02: And the measures that it's taken, in addition to being supported by data, also have, frankly, intuitive appeal. [00:27:18] Speaker 02: They're very easy to explain because it's clear that they will end overfishing. [00:27:22] Speaker 02: The first, as I was explaining, is supported not only by the Curtis & Sosa B 2016 study, [00:27:29] Speaker 02: which shows a reduction in illegal landing by 95%. [00:27:33] Speaker 02: But also, a 2016 study indicating that safe handling and release increases post-release mortality rates. [00:27:42] Speaker 02: The service also considered the unique identification difficulties that Oceana raises. [00:27:47] Speaker 02: The service considered those difficulties and designed the training specifically on identifying ridgeback sharks. [00:27:56] Speaker 02: As I mentioned, almost all ridgeback sharks are prohibited species. [00:28:00] Speaker 02: And so although there are difficulties in identifying dusty sharks, particularly as opposed to other ridgeback sharks, the training doesn't need. [00:28:08] Speaker 03: Are all the ridgeback sharks migratory? [00:28:14] Speaker 02: I don't know if all ridgeback sharks are migratory, unfortunately. [00:28:21] Speaker 02: So the training has to focus on identifying ridgeback sharks. [00:28:26] Speaker 02: as opposed to identifying dusty sharks in particular. [00:28:29] Speaker 02: So fishers don't need to identify the difference between a dusty shark and a silky shark, or the difference between a dusty shark and other prohibited ridgeback sharks. [00:28:38] Speaker 02: Ridgeback sharks have more readily identifiable features, specifically the ridge between two interdorsal fins that make them readily identifiable. [00:28:47] Speaker 02: Then when we go to the second measure, this required recreational shark fishers to use these non offset, non-stainless steel circle hooks. [00:28:54] Speaker 02: which reduces mortality of released dusty sharks. [00:28:57] Speaker 02: We know that circle hooks are up to 66% less likely to lodge in the throat or the gut of a dusty shark than jayhooks. [00:29:04] Speaker 02: The Wiley study evaluated the use of circle hooks in recreational fisheries and found that circle hooks should reduce the mortality rate of hooked dusty sharks by 63%. [00:29:14] Speaker 02: While Oceania contends that the surface did not specifically add up the number of [00:29:20] Speaker 02: mortality reduction. [00:29:22] Speaker 03: Excuse me. [00:29:23] Speaker 03: The circle hooks are required not only for recreational, but also on the long line, right? [00:29:32] Speaker 02: Yes, that is correct on the bottom long line. [00:29:34] Speaker 03: Which increases the cost for the fishermen, right? [00:29:38] Speaker 03: Because the hooks will rust. [00:29:42] Speaker 02: That is true. [00:29:44] Speaker 02: The service has an obligation to end overfishing and [00:29:48] Speaker 02: those conservation measures sometimes increase costs. [00:29:50] Speaker 02: All of that is considered in the environmental impact statement. [00:29:57] Speaker 02: Now, I think I'd like to turn to compiling a bit of this data. [00:30:01] Speaker 02: Oceana contends that we cannot reach this 35% mark, but we don't need to specifically add every measure up to reach 35% because it's clear that the measures in totality will reach 35%. [00:30:16] Speaker 02: For example, we know that recreational fisheries cause a majority of dusty shark interactions and bycatch mortality. [00:30:22] Speaker 02: The best data we have show that bycatch mortality in the hundreds in the recreational fishery versus tens in the commercial fisheries. [00:30:29] Speaker 02: That's a quarter of magnitude difference in that data. [00:30:31] Speaker 02: So let's say for a conservative estimate that 55% of bycatch mortality is caused in the recreational fishery. [00:30:38] Speaker 02: There's two measures that the services instituted in that fishery. [00:30:41] Speaker 02: First, the circle hook, which are expected to reduce bycatch mortality by 63%. [00:30:46] Speaker 02: And second of all, the training measures, which should reduce landings by 95%. [00:30:50] Speaker 02: Even if you just take 63% of a 55%, you get to 35%, which is the total reduction in mortality that the service needs. [00:30:59] Speaker 02: Of course, this assumes that bycatch mortality comes from the release sharks and not from misidentification of landed sharks. [00:31:05] Speaker 02: But in that case, the training measures should reduce landings by 95%. [00:31:08] Speaker 02: Of course, 95% of 55% lands you at 52%, which overshoots the 35% mark. [00:31:15] Speaker 02: but cannot be true as oceanic and can, but each measure must have a substantial effect, even if any individual measure. [00:31:26] Speaker 03: For recreational, I mean, I understand from what I've read that these sharks move into shallower water. [00:31:33] Speaker 03: And so it would be surf fishing, for example, would be one of the recreational methods of catching them. [00:31:40] Speaker 03: But do you have to get a federal fishing license? [00:31:43] Speaker 03: I thought that was all regulated by the state. [00:31:47] Speaker 03: surf fishing. [00:31:48] Speaker 02: I'm sorry, do you need a federal fishing license for what exactly? [00:31:53] Speaker 03: Suppose I go out with a surf rod and I'm fishing for something else but with a baited circle hook. [00:32:03] Speaker 03: Do I need a federal license to go out and do that because I might catch a dusky shark? [00:32:11] Speaker 02: If you're in federal waters and you want a, so I thought that was regulated by the state. [00:32:18] Speaker 03: That's, that's why I'm wondering. [00:32:21] Speaker 02: There's also state regulations. [00:32:22] Speaker 02: So the fishery service works in conjunction with states and it depends on the waters that you're in. [00:32:31] Speaker 02: One thing I'd like to address because it came up earlier was the enforcement mechanism. [00:32:36] Speaker 02: It isn't true that there is no enforcement mechanism here. [00:32:40] Speaker 02: Fishermen face penalties under the Act for non-compliance with the protocols, C50 CFR 63521, C6I, and also 635.71. [00:32:52] Speaker 02: Our enforcement works with the U.S. [00:32:56] Speaker 02: Coast Guard, works with different state enforcement agencies to enforce the regulations, and you can find that penalty schedule for HMS. [00:33:06] Speaker 02: So how's that work? [00:33:07] Speaker 03: You have a boat where there's no observer on it and it pulls in and has its catch. [00:33:15] Speaker 03: Is it required that the captain report the mortality of sharks in that fishing voyage and then gets fined? [00:33:29] Speaker 03: Sounds like a fifth amendment violation. [00:33:33] Speaker 02: The way that this usually works is that the sharks will be brought into port and there's a variety of state enforcement agencies and also Coast Guard. [00:33:43] Speaker 02: And so it isn't that 100% of dusty shark mortalities will be caught by some enforcement regime, but there is an enforcement regime and there is an ability to institute civil penalties. [00:33:57] Speaker 03: Another question that I couldn't figure out. [00:34:02] Speaker 03: These long lines are sometimes in the water for as much as eight hours. [00:34:09] Speaker 03: Is that right? [00:34:10] Speaker 03: And if a fish gets hooked when it first goes down, the chances are that fish is going to die by being hooked there for eight hours. [00:34:25] Speaker 03: What do they do? [00:34:26] Speaker 03: What do the fishermen do when they bring that line in and they've got all these dead fish on it? [00:34:32] Speaker 03: Do they just throw them back into the ocean? [00:34:35] Speaker 03: They don't try to process them for human consumption, do they? [00:34:42] Speaker 02: I don't know how all of the fish species are handled. [00:34:45] Speaker 02: I just know for dusky sharks, they have to be de-hooked and thrown back into the water, either whether they're alive or dead, in order to prevent [00:34:54] Speaker 02: incentives for catching dusky sharks. [00:35:02] Speaker 03: It would seem to me that there's an incentive to get the long line out of the water as quickly as possible because otherwise you're going to lose a large amount of the catch. [00:35:15] Speaker 02: Well, I think that not all fish, of course, are hooked at the very beginning of that time. [00:35:21] Speaker 02: And so the soak times [00:35:24] Speaker 02: as opposed to the hook times are an important thing to remember that there's a difference between, especially with regard to just feature if I catch. [00:35:31] Speaker 03: Okay, thank you. [00:35:34] Speaker 02: If there are no further questions, then we would rest on our brief and ask the court to affirm. [00:35:39] Speaker 05: And thank you, council. [00:35:40] Speaker 05: Council for a pillow. [00:35:44] Speaker 07: Thank you, your honors. [00:35:45] Speaker 07: I first want to clarify that there are two very distinct issues and the measures we're talking about are different in each. [00:35:53] Speaker 07: The first issue is is that the there are no accountability measures that hold catch to zero and the agency admits that catch will always be above zero. [00:36:06] Speaker 07: And there is not, there may be enforcement for an individual fisherman catching something, catching a shark or failing to follow a protocol, but there is no measure to react to excessive catch above the catch limit, whether that's by five sharks or 500. [00:36:28] Speaker 07: Now the rebuilding measures in amendment 5B, like the circle hook requirement are separate. [00:36:36] Speaker 07: They are not accountability measures. [00:36:37] Speaker 07: They're not ensuring accountability to zero or any other number. [00:36:41] Speaker 07: And there are, I think I also wanna clarify switching over to those rebuilding measures. [00:36:52] Speaker 07: I wanna clarify a couple of things in response to what council said. [00:36:58] Speaker 07: The agency admits at multiple places in the record that it cannot estimate how much overall mortality, any of these measures, overall mortality reduction, any of these measures will result in. [00:37:17] Speaker 07: For example, at JA593, 599 to 600, 606. [00:37:22] Speaker 07: So the rates that, [00:37:28] Speaker 07: that the services council is talking about are rates that apply to studies on different species. [00:37:38] Speaker 07: And the service doesn't even know what the overall number of dusky sharks is, how many are caught in the recreational fishery, how many are caught versus how many are caught in the plastic longline fishery. [00:37:51] Speaker 07: So they have no idea [00:37:52] Speaker 07: what that overall mortality reduction would be from applying that rate of mortality reduction. [00:38:02] Speaker 07: And I also just want to note that [00:38:12] Speaker 07: The service also stated itself that all of these measures have to have to work in order to get that to that 35%. [00:38:20] Speaker 07: I mean, at several places, the service talks about how collectively these measures will add up to a reduction or cumulatively, they will work to reduce mortality by 35%. [00:38:32] Speaker 07: For example, at JA 593 and 698. [00:38:36] Speaker 07: So if one or two of those measures doesn't work up to their assumptions and their assumptions are based on some pretty thin evidence, the whole package is likely to fail. [00:38:49] Speaker 07: And as was discussed earlier, that whole package with absolutely full success only has a 50% chance of rebuilding the species. [00:39:00] Speaker 07: I mean, if everything goes right here, there's only a 50-50 chance [00:39:05] Speaker 07: that this species will finally rebuild by the next century. [00:39:10] Speaker 05: I guess what troubles me in part about your argument is intellectually you may be correct, but practically how do you enforce an absolute limit given the nature of the industry, the nature of the fish, the difficulties in getting data, et cetera? [00:39:35] Speaker 07: Well, Your Honor, the notion of practicability is one that Congress specifically considered when it was going back to the meaning of 1853-815 and the enforceability of catch-limits specifically. [00:39:49] Speaker 05: That's my point, basically. [00:39:52] Speaker 05: That's what my next point was going to be, that is, that Congress understood this. [00:39:59] Speaker 07: Yes, Your Honor, but Congress, [00:40:01] Speaker 07: In both the statutory context, we see that Congress included the notion of practicability in other provisions, including in 1853, a 13 and a 11, but specifically left it out here. [00:40:21] Speaker 07: In order to buy the government's reading, the provision would have to read something like, establish a mechanism to specify annual catch limits and measures to ensure accountability to the extent practicable. [00:40:36] Speaker 07: But it left that phrase out here, and we have to assume that it did so intentionally. [00:40:41] Speaker 07: Now if we look back at the legislative history, you'll see that Congress specifically heard concerns about uncertain data and reporting on the ability of the agency to set catch limits and accountability measures and responded [00:41:00] Speaker 07: In fact, that instead of inserting the practicability, it expected that having to set these annual catch limits and managing to those limits would result in better reporting and data collection. [00:41:15] Speaker 07: And that statement is at Senate Report Number 109-229 at 24, for example. [00:41:22] Speaker 05: I don't doubt that that's in there. [00:41:24] Speaker 05: And you acknowledge that for the agency's system to work, everything has to [00:41:31] Speaker 05: Everything has to add up. [00:41:34] Speaker 05: Well, the agency can find out if things add up and if they don't make adjustments, but there's, what I don't understand at this point is there's no accusation that the agency acted in bad faith, that it had data directly contradicting the conclusions it reached. [00:42:01] Speaker 07: Well, it did have, at least with respect to the circle hook requirement in the bottom long line fishery, the study it relies on specifically did find that they found, they looked at the effects of using circle hooks versus the larger J hooks that the bottom long line fishery uses and found no difference in mortality. [00:42:25] Speaker 07: So that study does contradict their finding. [00:42:28] Speaker 07: And with respect to being able to try things out, the agency was obligated at the time it promulgated Amendment 5B to find that it was reasonably likely that this would be successful in rebuilding this species. [00:42:47] Speaker 07: And so it had to determine at that time that these measures were supported by evidence and are reasonably likely to work. [00:42:58] Speaker 05: Reasonably likely to work based on the evidence and their problems with the evidence. [00:43:07] Speaker 05: That's what I don't understand about your argument. [00:43:11] Speaker 07: Well, Your Honor, there's no question that deference is due to the agency when it applies evidence and makes a decision consistent with it. [00:43:19] Speaker 05: No, but if it doesn't have that evidence and there's a reason why, first of all, you can't pull a shark out of the water, so they're difficult to identify, all kinds of things. [00:43:34] Speaker 05: So... [00:43:37] Speaker 05: I appreciate your argument, but I don't see Congress mandating what you are saying is mandated in the manner you say it is mandated. [00:43:47] Speaker 05: That's all I'm trying to understand. [00:43:51] Speaker 07: Well, I think with respect to the rebuilding measures, the agency did have data on a couple of measures that it rejected. [00:44:04] Speaker 07: So they were not entirely without data. [00:44:07] Speaker 07: For example, they did have data showing that prohibiting the use of pelagic longline gear in certain areas with very high dusky sharp bycatch [00:44:18] Speaker 07: could reduce bycatch mortality in that fishery by 28%. [00:44:24] Speaker 07: Now the agency chose not to use that measure, but they have that data directly relevant to that fishery and directly relevant to dusky sharks. [00:44:33] Speaker 07: So they weren't without any sort of direct science to use. [00:44:39] Speaker 05: They chose to use that. [00:44:39] Speaker 05: Right, but it decided to go another way. [00:44:43] Speaker 07: Yes, Your Honor. [00:44:44] Speaker 07: And even then, however, they still, in absence of data, they have to make some [00:44:51] Speaker 07: some reasonable showing that the measures will be successful in order to meet the mandates of the act in terms of rebuilding and reducing mortality. [00:45:05] Speaker 07: They can't simply fall back on saying that it's just their expertise that- Well, and their best judgment, evaluating what's out there, et cetera. [00:45:18] Speaker 05: That's all I'm trying to understand. [00:45:22] Speaker 07: Yes, Your Honor. [00:45:23] Speaker 07: I think there's simply a lot of assumptions based on absence of data made here that the agency's own track record has shown [00:45:43] Speaker 07: isn't working and they have actually have quite a long ways to go here, I mean they have to reduce mortality by more than a third it's not just it's it's not just a small task ahead of them that can be solved by by nibbling at the edges. [00:46:09] Speaker 07: Now, I think, again, with respect to the annual catch limit, that is a separate issue, and I think it's very important that to [00:46:21] Speaker 07: give effect to Congress's intent here that Congress did not intend to allow the agency to set one number as its limit and then allow it to completely be violated. [00:46:32] Speaker 07: I mean, that eviscerates the ordinary meaning of the term limit and certainly reads any accountability out of the act because a limit that's routinely surpassed without any consequence is simply not a limit in any real world sense. [00:46:51] Speaker 07: And I'm conscious that I'm over time, but I want to make sure that I'm answering all of the court's questions here. [00:46:57] Speaker 05: Any further questions? [00:47:00] Speaker 06: Not by me. [00:47:01] Speaker 05: Thank you. [00:47:01] Speaker 05: We'll take the case under advisement.