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Case number 23-5026.

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AP Bell Fish Company Inc.

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et al.

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a balance versus Gina Raimondo in her official capacity as Secretary of the United States Department of Commerce et al.

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Mr. Hobbs for the balance, Ms.

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Mishra for the FLEs.

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May it please the court, I am Tim Hobbs, counsel for the appellants, AP Bell Fish Company, Southern Offshore Fishing Association, and the Gulf of Mexico Reef Fish Shareholders Alliance.

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We represent the commercial fishing sector, and we are joined by Amiki, representing a broad coalition of charter boat operators, commercial fish distributors, and processors, seafood processors, and restaurants.

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all of whom are concerned with the action being challenged in this case, because it reduces the supply of seafood for consumers and undermines conservation of the red grouper stock of fish in the Gulf of Mexico.

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It reduces.

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Quantity for commercial.

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Right, I thought the whole effort of the rule was to stem or continue to stem

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The decrease in stock.

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What the service did hear your honor was reduce the overall catch limit that applies to both the commercial and recreational sectors.

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For the purpose that was clearly stated.

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for the purpose, in part, to cover the increase of dead discards in the recreational sector.

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Right, and the whole emergency that the 2019 Act was addressed.

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Right?

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That's part of it, Your Honor, but then what happened in this case under Amendment 53 was that there was a further reduction in the overall catch limit to correspond with the change in allocation between the sectors and the need to account for increased bycatch and debt discards in the recreational sector.

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Right.

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It's is that is that right so well in the sense that that is the position your client is arguing.

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I I think that the the if you look at the there's a chart on table one in amendment 53.

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This is.

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in the record joint appendix 3314.

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There's a chart there where it shows the change in the catch limits that would apply under each of the allocation scenarios that were being considered.

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So as the allocation shifts more to the recreational sector, the total catch limit comes down.

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So you argue that the district court was wrong in when it says the continuation of the shift to the FEC reporting system did not change or enhance the recreational allocation beyond what it would have been under the old system.

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I think what happened here is that there was a new survey that showed that the recreational sector was catching more fish than previously estimated.

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And so what the service did was to increase the allocation for the recreational sector to match the new survey results that essentially, you know, prolonged the recreational fishing season around to where it would have been, you know, but for this to change in the.

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So my question was, is it your position that the district court earned both as a matter of law and fact

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in its discussion of what the agency was doing, what it was continuing to switch over to the FEC.

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But my sense is that the district court accurately described the background and how we got here.

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I think the problem here is that there was this new survey that showed higher catch in the past.

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And so the allocation was reset to match that survey.

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But what the survey also showed was that bycatch and dead discards in the recreational sector were far higher than previously estimated.

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And so a change was made to give the recreational sector the benefit of its increased landings in the past.

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But then nothing was done to account for this increase in dead discards that the new survey results also showed.

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Let me just back up and ask you just sort of probe why it's seen as a new allocation at all.

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Because one way of looking at Amendment 53 is that it restates in the new FES units the same historical allocation that Amendment 30B had expressed in CHTS units.

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In other words, both are allocating red grouper based on historical landings in the same period, 1986 to 2005.

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And the innovations are, one, the FES, which is not challenged here, and which it's not that there's a greater allocation now under Amendment 53.

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It's that the service recognized that in the name of the one million pounds or whatever on your chart, the top

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right cell showing one that actually in practice all that time it was much more and should have been, now that we have the FES units, 2.1.

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So it's not that they changed the allocation, but they acknowledged the existing reality of the numbers that have been relied on the whole time.

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And because they're using the telephone survey both to set the numbers and to

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follow up, just the whole thing was undercounted.

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So that's one change.

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The other change is that there's a new lower fishing limit, which I took to be based on the stock survey.

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When you realize more are being fished, you had to bring it down.

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That it wasn't because there was this greater allocation.

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It was just, we have to be careful about not only current fisher people, but

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future Fisher people, your clients.

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So I guess the basic question was, why is there a new allocation at all?

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Well, so you are correct, Your Honor, that what the service did here was essentially take the new updated numbers, plug them into the old allocation formula, and then that spit out the allocations that resulted from Amendment 53.

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That portion is correct.

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So in a sense, it is updating the allocation to reflect the latest information.

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But the problem is that the new information also showed something new that was not previously understood.

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And that is that the bycatch and dead discards within the recreational sector is significantly higher than previously estimated.

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And so our concern is that nothing was done to address that piece of the issue.

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So there were two new things that we learned.

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The service updated the allocation to deal with the increased landings, but then nothing was done to offset the increase in dead discards that also were learned about as a result of the new service.

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Are you seeing an increase in dead discards apart from the fact that when you recognize the recreational sector is more active than you thought, and it has a higher rate of dead discards, that along with that comes a realization that the fishing activity overall is yielding a higher

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number of dead discards.

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That's what I thought the case was, not that there was some separate study about the rate of dead discards.

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That's correct.

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It's not a separate study.

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It was the same survey that showed both higher landings or the amount of fish brought to shore, but also higher rates of dead discards in the fisheries.

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So fish that are thrown away dead and not retained and not brought to shore, essentially wasted.

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And so what are three things, the two things you've mentioned, but also real concerns about death from these algae blooms.

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That's right.

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And so what happened here is the agency had either two or three, depending on how you describe it, as Judge Pillard articulated, sources of information to address.

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And that is there's a lot more recreational fishing going on.

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There's a lot more

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discards bycatch and a lot of it's an even higher percentage of that is mortal bycatch.

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And we got a problem because these fish have already been harmed by multiple algae blooms.

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So they had a whole bunch of new data, new information, updated information before them.

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They said, all right, we got to come up with a new plan.

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So there are three things, not just the two, correct?

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That's correct, Your Honor.

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And I think that's actually shown in the chart that I just called Your Honor's attention to.

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If you look in that chart, there's a column for the ACL.

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There's a number 5.35.

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That's what the catch limit would have been previously before Amendment 53 took effect.

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Then if you go down to alternative two, which is... I thought alternative one was the status quo ante.

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Oh, alternative to retain current percentages.

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So that's just translating to FES.

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Correct, Your Honor.

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So then if you go look at alternative two, the catch limit is reduced from 5.35 to 4.90.

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My understanding is that that reduction is attributable to the guidance that came from the stock assessment, taking into account things like red tide and the need to be conservative in managing the fishery.

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But then if you go down to the next alternative, alternative three, which was selected in this case, it shifts the allocation and the catch limit decreases from 4.9 to 4.26.

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So that is a reduction of 640,000 pounds that is attributable to making up for the shift of allocation to the recreational sector and the harm that will be caused to the stock as a result of that shift.

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So the service recognized that the overall catch limit would have to come down for both sectors in order to make up for the increase in mortality from shifting more fish to the recreational sector.

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You keep saying shifting more fish to the recreational sector.

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And I'm not sure I follow that because it's a recognition

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of activity that was going on at this much higher rate all along.

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It just wasn't acknowledged or understood.

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And so really this interesting comparison is if you look at on the top line, alternative one, commercial ACL 3.16 and then recreational ACL, the second column expressed in FES units 2.1 and all that,

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Alternative three does is effectively say, okay, now that we know the reality, what has been going on all along and what has been approved under an unchallenged alternative one scenario, it's not a challenge in this case, is actually different.

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It's actually better expressed as 3.16 versus 2.1.

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And now that we know that, we know fishing activity overall and the stock that we've studied,

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We're in trouble.

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We're on a collision course.

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So we're going to take both of those numbers down.

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about 20%.

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And that, so we see 3.16 versus 2.1, it's about a 60-40.

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And then on line three, on alternative three, 2.53 to 1.73, it's about 60-40.

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So this narrative about, I understand people perceived it that way, but this narrative about a shift of allocation to the recreational sector appears to me to be entirely illusory.

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What I think it's correct your honor that if you that if one is looking strictly at at the number of landings of fish brought to shore.

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Then you are correct that the effort there was to match new allocation going forward with what in reality had been caught in the past that is correct here.

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But the new fact that was not addressed was that also the increase in dead discards.

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And so the service attempted to address that issue, to account for that additional mortality by reducing the catch limit.

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So in this case, the reduction from 4.90 million pounds to 4.26 million pounds, that was necessary to cover the additional mortality on the stock that would result by shifting more fish to the recreational sector.

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On paper.

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On paper.

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What if, even though they did the FES, the study that yielded the FES figures, nothing changed in the way that it was expressed for enforcement purposes.

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You had 3.16 to one.

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And then knowing what they knew about that that one is really supercharged, they just kept with the old landline

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methods and, but knowing that what they knew that they were on a collision course, they just shifted it all down 20%.

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In your view, what's the challenge?

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So with, let me make sure I understand you.

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So we've got, so we got, uh, I don't know if you could shift it down 20%.

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I would be tricky because once you've,

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once you haven't expressed it in the parallel way.

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And that's the issue, is that if you look at the 2.1 figure compared to the commercial figure, we're already at a 60-40 allocation.

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Right.

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So there's no- That's my point, is that we were all along at 60-40 allocation.

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We were all along.

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Correct, Your Honor.

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Yes, that's true, looking specifically at the landings only.

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But I think that's a separate point.

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The point about the landings and the service says, well, in the way we understood landings, built into that is a proportion of debt bycatch.

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And so we are accounting for that.

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And the way we're accounting for that is by actually keeping the allocation the way it was and recognizing that that way of operating is

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to rock the boat the least, but everybody has to belt tighten in light of that.

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Understood, Your Honor, and I think that that would hold, but for the new information that was learned about how many fish the recreational sector is actually discarding.

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Was that new information?

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I thought they'd

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just like more fishing is happening in the recreational sector.

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And we've always known that the recreational sector is much less efficient when it comes to dead discards.

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And because there's more of it, we have more dead discards.

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And so your view is that there needs to be a permit system for the recreational side, or there needs to be

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We're not here to take a position on what the proper solutions are for the recreational sector, but we do think that there are many tools that the agency has at its disposal to get at this issue about dead discards.

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Give me your favorite example.

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I mean, Louisiana says like, this is what recreational fishing is.

[00:17:29] Speaker 02:
Sure, but I think we reject the premise that recreational fishing is immutably dirty and unaccountable.

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That's why I'm asking you, what do you see that is consistent with what recreational fishing is, which the statute.

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Sure.

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So there are multiple examples, Your Honor.

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There are gear modifications.

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And in fact, the Coastal Conservation Association's brief talks about recent legislation passed by Congress called the Descend Act that requires devices to be carried on board vessels to reduce mortality of fish that are released.

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What to be carried?

[00:18:04] Speaker 02:
They're devices that essentially puncture the air bladder of a fish that has been brought up from very deep depths because gases expand as the fish is brought up.

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Oftentimes, the fish then floats on the surface and dies or is eaten by something else.

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So by puncturing the air bladder, they can be dropped back down to the ocean floor and released.

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And the bends.

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Exactly.

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Right.

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And they survive after their air bladder is punctured?

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The some still do die.

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It's not 100% effective, but it does reduce the mortality.

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So that's one example.

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They just died from now having a punctured air bladder.

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That's also possible, Your Honor.

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Wait, wait.

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So you said this was your example of what would reduce mortal by catch.

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And if it just changes how or where they die, that's not reducing by catch.

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I think studies show that it does actually mitigate the bike edge.

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So instead, you know, it reduces it to some level.

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It doesn't eliminate the mortality altogether.

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Some still do die after being reeled up to the surface, having their air bladder popped, sent back down.

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I mean, there's obviously trauma to the fish, both from the hook and from the puncture.

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So some mortality does happen, but it's perceived to be less than the mortality that would happen without using this device.

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Congress found that it is.

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It's before congress.

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They passed the law or it's pending?

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It's been passed and the law requires vessels to carry the devices.

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It doesn't necessarily require anybody to use them, but they have to be on board vessels.

[00:19:39] Speaker 05:
So that apply to rec... and the appointment... I just want to follow up.

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I understand this is... this applies to commercial?

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And recreational.

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So every individual who wants to go fishing now has to have this little bariatric chamber for the fish?

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Well, yes, as I said, it's not a bariatric chamber, but it's a crude device meant to address the same effects.

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Yes.

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Every individual fisher person will have to have this under this new statute.

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Each vessel is required to carry one.

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There's no requirement to use this.

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So anybody fishing off a pier doesn't have to use this?

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Correct, Your Honor.

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But anyone who goes out on a boat, even in their own rowboat, has to have one of these?

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I think if you are actively engaged in the reef fish fishery that's at issue in this case, then you do.

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I don't think it applies to any... Actively engaged?

[00:20:30] Speaker 05:
Does that mean you fish more than once?

[00:20:31] Speaker 05:
Or if someone just goes out... I really am trying to understand this.

[00:20:34] Speaker 02:
I didn't... My understanding is that if you are engaged in fishing for red grouper or other fish, then you fall within the ambit of the statute and have to have the device on.

[00:20:44] Speaker 05:
And so, and your point is, so what the, Congress already passed this law, that the fisheries service could have required people to use it?

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That's right.

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There's no use required.

[00:20:56] Speaker 05:
The agency could require use?

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They could require the use.

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In fact, they actually used to also, under regulation, used to require vessels to carry the same devices.

[00:21:05] Speaker 05:
But if you said it's already passed as a law, that's sort of pointless at this point.

[00:21:08] Speaker 02:
So the agency could require them to be used.

[00:21:11] Speaker 02:
There could also be time and area closures.

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As one of the cases we cited, the National Coalition case, that was something that the agency looked at for a different type of commercial fishing, but you can close areas of bycatch hotspots, for example.

[00:21:27] Speaker 03:
So the agency could say- So how do you respond to the agency's position and the state's position that the agency was looking at these nine alternatives, explained why it acted as it did,

[00:21:44] Speaker 03:
And that's all that was before it at this time.

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And yes, there are other things it could do even beyond what you suggested, but there was no obligation that it do so at this time when what was before us, before it was the nine alternatives.

[00:22:11] Speaker 02:
Yes, your honor.

[00:22:11] Speaker 02:
So that, I think, brings us to our national standard for argument.

[00:22:16] Speaker 02:
And so what the statute requires is that for any allocation, it must promote conservation.

[00:22:25] Speaker 02:
And to your honor's point, while this may have been a change to reset on paper what was happening in reality,

[00:22:33] Speaker 02:
there's no debate that this was an actual formal amendment to change the allocation within the fishery management plan itself.

[00:22:42] Speaker 03:
Is that accurate though?

[00:22:43] Speaker 03:
It was in the context of considering, as I understand it, the agency's alternatives that it thought would carry out its purposes.

[00:22:58] Speaker 03:
at the time, not that it couldn't do things in the future, but at least as to at the time, it really wasn't going to make much of a change, which was the thrust of Judge Pillard's line of questioning.

[00:23:17] Speaker 01:
That's correct, although what- So why was it obligated

[00:23:26] Speaker 03:
to do everything that was possible on the table to address this dead discard increase.

[00:23:41] Speaker 02:
So we are not arguing that the agency was required to do everything on the table.

[00:23:46] Speaker 03:
No, what you wanted to do is something about dead discards.

[00:23:50] Speaker 03:
And the agency, as Judge Pillard's line of questionings in your answers,

[00:23:55] Speaker 03:
made clear, it seems to me, that it stayed at this 60-40 allocation.

[00:24:03] Speaker 03:
Now it knew more, but what it was focusing on was the threat to the stock.

[00:24:13] Speaker 03:
And there were other problems with these other alternatives.

[00:24:17] Speaker 03:
So for now, it addressed what was before it.

[00:24:25] Speaker 03:
That's all I'm getting at, not that there aren't things that can be done.

[00:24:30] Speaker 02:
Yes, your honor, but by formally shifting the allocation on paper, the agency entrenched this issue with dead discards.

[00:24:43] Speaker 03:
Oh, for the moment when the question was, as a result of the updating and as a result of

[00:24:54] Speaker 03:
you know, the continuation of this transition of counting.

[00:24:59] Speaker 03:
And so that's all the agency was dealing with at the time.

[00:25:07] Speaker 03:
That's what I want to understand.

[00:25:09] Speaker 03:
Why was it required to do more?

[00:25:11] Speaker 03:
I mean, we have all these cases, you know, the agency can address these problems over time, periodically, it doesn't have to do everything at once.

[00:25:21] Speaker 03:
Congress has already passed the statute, so it's out there.

[00:25:24] Speaker 02:
Yes, Your Honor.

[00:25:27] Speaker 02:
We would point to national standard four of the Fishery Act, which says that an allocation must promote conservation.

[00:25:35] Speaker 02:
Right.

[00:25:36] Speaker 03:
And I didn't think you weren't arguing that, but rather that you were arguing because of better knowledge.

[00:25:48] Speaker 03:
The agency now knows about

[00:25:52] Speaker 03:
this increase in dead discards because it knows that there's more recreational fishing going on.

[00:26:04] Speaker 02:
Right, and as a result of formally changing the allocation for landings to match what had been happening in the past,

[00:26:13] Speaker 02:
that locked in a higher level of dead discards going forward.

[00:26:18] Speaker 03:
No, but you say formally locked in.

[00:26:21] Speaker 03:
I mean, for purposes of this rulemaking, yes, but it wasn't as though the agency said it was never going to do anything in the future.

[00:26:30] Speaker 05:
Your argument is they have to comply with the national standards in this breaking.

[00:26:35] Speaker 02:
That's correct, Your Honor.

[00:26:36] Speaker 03:
And it can't, your argument is more than that.

[00:26:40] Speaker 03:
is that it cannot address it the way in which it did, namely by maintaining an allocation

[00:26:53] Speaker 02:
I think what we're saying here, Your Honor, is that by formally shifting this allocation, even with reducing the catch limit, the stock was still left worse off.

[00:27:05] Speaker 02:
So as a result, based on all the information we know now, as a result of Amendment 53, the stock is going to be smaller

[00:27:14] Speaker 02:
It's going to be less productive.

[00:27:16] Speaker 02:
It's going to give off smaller yields in the future.

[00:27:19] Speaker 03:
Well, yes, but the agency is looking long range.

[00:27:23] Speaker 03:
Is this the way toward better health?

[00:27:26] Speaker 03:
And you're saying, as I understand it, well, even if it is, there are other things that could help even more.

[00:27:35] Speaker 02:
That's right, Your Honor.

[00:27:36] Speaker 02:
And I think that's why National Standard 4.

[00:27:38] Speaker 02:
Sorry, go ahead, Your Honor.

[00:27:40] Speaker 04:
You can finish your answer.

[00:27:41] Speaker 02:
That's why national standard four talks about promoting conservation.

[00:27:44] Speaker 02:
That's why national standard nine talks about minimizing bycatch.

[00:27:48] Speaker 02:
We think that these things must be addressed each time the agency takes a regulatory action, especially one that makes the stock worse off as a result of the decision it made.

[00:27:59] Speaker 04:
that the stock is worse off, recognizes.

[00:28:01] Speaker 04:
So is it your position that once they did the fishing efforts survey, that actually amendment 30B's allocation itself became impermissible in violation of national standard four?

[00:28:13] Speaker 02:
No, your honor, because that allocation was undertaken at the time using the best available information that was there at the time.

[00:28:21] Speaker 04:
So that was on the books.

[00:28:22] Speaker 04:
But if they just said, OK, we're going to stick with the status quo, there's too much complexity between the sectors, so we're going to keep Amendment 30B's allocation going forward, that would not be a problem in terms of conservation?

[00:28:41] Speaker 02:
But I think if you know, the conservation impacts would be much better actually if the existing allocation had been maintained.

[00:28:51] Speaker 02:
That's alternative two in the chart that we were talking about earlier.

[00:28:55] Speaker 02:
Maintaining the prior allocation at 76, 24 would have resulted in a higher catch limit for both sectors.

[00:29:03] Speaker 02:
And it would have resulted in less overall dead discards in the fishery.

[00:29:08] Speaker 04:
That was unlawful, right?

[00:29:10] Speaker 04:
in light of the status of the stock, couldn't have happened.

[00:29:13] Speaker 02:
Alternative one would have been unlawful.

[00:29:15] Speaker 02:
Alternative two was lawful.

[00:29:17] Speaker 02:
That was simply updating.

[00:29:18] Speaker 04:
Bring it down, bring it down.

[00:29:20] Speaker 04:
It seems though, like under your reading, I guess I'm not sure what the stopping point is.

[00:29:24] Speaker 04:
Under your reading of national standard four, any allocation to the recreational sector fails to promote conservation.

[00:29:34] Speaker 02:
We don't think that that's the case, Your Honor, because we think that the issues in the recreational sector that lead to high bycatch can be addressed.

[00:29:44] Speaker 02:
We don't think that these are immutable characteristics of recreation.

[00:29:46] Speaker 04:
So any allocation to the recreational sector without additional bycatch measures, anti-bycatch measures, would be a violation of national standard for, in your view?

[00:30:00] Speaker 02:
That is correct, Your Honor, because if you look at the statute, the plain language applies specifically to allocations, and allocations must promote conservation.

[00:30:11] Speaker 04:
So until the bycatch rates for the recreational sector are improved, the service under your reading has an obligation to zero out recreational fishing.

[00:30:23] Speaker 04:
And then as it tests and understands that there are ways

[00:30:27] Speaker 04:
that are the best scientific evidence supports to minimize bycatch, then they can reintroduce recreational fishing.

[00:30:36] Speaker 02:
We don't think there's a need to zero out recreational fishing.

[00:30:38] Speaker 04:
I thought that was the logic of your position.

[00:30:40] Speaker 02:
No, because what we're saying is under the status quo prior to Amendment 53, there was an allocation.

[00:30:50] Speaker 02:
It was implemented based upon the best available information in 2005.

[00:30:54] Speaker 02:
That has not been challenged.

[00:30:56] Speaker 02:
Those regulations are on the books.

[00:30:58] Speaker 04:
But now we have the FES, and so we know that that is no longer based on the best available scientific information.

[00:31:07] Speaker 04:
Right, but there's nothing to- The best available scientific information is that it's more like a 60-40.

[00:31:13] Speaker 04:
actually.

[00:31:14] Speaker 02:
But there's nothing to compel the agency to make the agency actually change the allocation.

[00:31:20] Speaker 04:
It no longer comports with the best available scientific information, FES.

[00:31:25] Speaker 02:
But that's typically the case in these fishery management regulations.

[00:31:28] Speaker 02:
An action is taken years go by, new information is learned.

[00:31:32] Speaker 02:
That could be cause to grounds, rational basis for amending the regulations.

[00:31:39] Speaker 02:
But it's not like the service is constantly under obligation to update all of its regulations every time it gets one new piece of information.

[00:31:47] Speaker 02:
This is an iterative process that's taken over time.

[00:31:50] Speaker 02:
National Standard Four says explicitly that if it becomes necessary to make an allocation, then these requirements apply.

[00:32:00] Speaker 02:
National Standard Four does not compel the agency to change an allocation.

[00:32:05] Speaker 04:
Well, that's necessary in light of, I'm sorry, misunderstanding.

[00:32:09] Speaker 04:
If it is necessary in light of FES, so then they couldn't just recapitulate alternative one by embracing alternative two, because it doesn't fit with the historical record that they've been relying on all this time.

[00:32:28] Speaker 02:
That would have been a choice based upon a different rationale.

[00:32:34] Speaker 02:
I think if the agency had selected alternative two, they would have justified it by saying, you know, we think that the prior allocation should continue going forward, even despite the new information.

[00:32:47] Speaker 02:
Maybe because to address the bycatch issue.

[00:32:51] Speaker 02:
There were other reasons that could have motivated the agency to support alternative two, even though new information showed that what was done in 2005 was no longer accurate.

[00:33:02] Speaker 04:
And undermines the very methodological premise of that.

[00:33:06] Speaker 04:
So they would just have to say, status quo ante.

[00:33:09] Speaker 04:
That's our new rationale.

[00:33:11] Speaker 02:
Right, but Amendment 30B used an allocation form, right?

[00:33:14] Speaker 02:
Looking at the years 1986 through 2005, right?

[00:33:19] Speaker 02:
That formula could have been changed.

[00:33:22] Speaker 02:
There's something that holds the agency to using the same formula in the past.

[00:33:26] Speaker 04:
But then they wouldn't have come up with alternative one.

[00:33:28] Speaker 04:
They wouldn't have come up with sticking with the same.

[00:33:31] Speaker 04:
They would have come up with something different.

[00:33:32] Speaker 02:
So I think I think alternative to sorry, I can make one point.

[00:33:36] Speaker 02:
I think alternative point of alternative to was merely to not do an allocation change and merely to update the management system and the catch limits to be consistent with the new FES units.

[00:33:50] Speaker 02:
So in other words, Amendment 53 didn't have to do these two things together that it did.

[00:33:55] Speaker 02:
There could have been different amendments to accomplish these two objectives.

[00:34:00] Speaker 02:
So one amendment could have been just the allocation change, and another amendment could have been modifying the catch limits accordingly.

[00:34:10] Speaker 03:
Excuse me, Judge Phillips, go ahead.

[00:34:13] Speaker 03:
No, no, you go ahead.

[00:34:16] Speaker 03:
The agency brief, citing to the record, points out why alternative two doesn't work, all right?

[00:34:25] Speaker 03:
But it also makes another interesting point, and I didn't see a response, and that is even if you get back before the agency, the three alternatives differ, what does it say, by less than 1%?

[00:34:48] Speaker 03:
And that is not going to provide you with the remedy that you're seeking.

[00:34:57] Speaker 03:
And I didn't see a response in your reply brief other than to say, well, you never know what an agency is going to do on remand.

[00:35:10] Speaker 03:
Is that correct?

[00:35:12] Speaker 02:
I'm sorry, I'm not following your question, Judge Rogers.

[00:35:15] Speaker 02:
What?

[00:35:16] Speaker 03:
Oh, I'm so tired of hearing that.

[00:35:19] Speaker 03:
I'm just reading the brief that was filed in this case.

[00:35:25] Speaker 03:
All right.

[00:35:30] Speaker 02:
Excuse me, Your Honor, would you mind pointing me to the page which you're looking in the agency's brief?

[00:35:47] Speaker 03:
So if you see on page 47, where the agency talks about these alternatives, do you see that?

[00:36:00] Speaker 02:
Yes, your honor.

[00:36:02] Speaker 03:
And what you've told us this morning is not consistent with that, even though that's what the record says.

[00:36:14] Speaker 03:
And then it says,

[00:36:19] Speaker 03:
Forcing, on page 48, four lines from the bottom, the fisheries service to, I'm quoting, reconsider alternatives three to five, would not redress plaintiff's alleged injury, loss of catch share, because the sector landing allocations in those three alternatives, quote,

[00:36:46] Speaker 03:
vary by approximately 1%.

[00:36:49] Speaker 03:
Yes, Your Honor.

[00:36:58] Speaker 03:
And you don't say in your reply brief that's incorrect.

[00:37:05] Speaker 02:
Well, for starters, Your Honor, we were not requesting to force the agency to reconsider those alternatives.

[00:37:14] Speaker 03:
You want more of a share in light of this discharge.

[00:37:22] Speaker 03:
I mean, that's what this is about.

[00:37:24] Speaker 03:
This is not save the planet litigation.

[00:37:31] Speaker 03:
This is the commercial sector saying it wants a larger share, that its share has been reduced.

[00:37:38] Speaker 03:
And contrary to national standard four and contrary to some other things that you argue.

[00:37:47] Speaker 03:
It is true that the commercial sector share has been reduced, but the other problem- But what I'm getting at is, even if you win this case, says the agency,

[00:38:00] Speaker 03:
You get back before the agency and the alternatives you're looking at are not going to provide you the relief that you're seeking, namely a greater share.

[00:38:13] Speaker 02:
The relief that we're seeking here, Your Honor, is for the agency to do something about dead discards in the recreational sector, because those are presenting... So even if it reduces the commercial sector further,

[00:38:30] Speaker 03:
That's fine with you on remand.

[00:38:32] Speaker 03:
That's not what this case is about, Council, and you know that.

[00:38:37] Speaker 02:
Of course, my clients challenged the allocation change because they lost quota, but that was not the only reason, Your Honor.

[00:38:45] Speaker 02:
There are ongoing management problems within the recreational sector that are causing conservation.

[00:38:49] Speaker 03:
I'm giving you that alternative argument, and I'm also acknowledging the agency's alternative argument.

[00:38:57] Speaker 03:
And where did you respond to that alternative argument?

[00:39:02] Speaker 02:
So the reason we, I guess, did not address this is because that is not the relief that we're seeking.

[00:39:09] Speaker 02:
Our clients were clear from the get go in this process.

[00:39:13] Speaker 02:
We were not.

[00:39:14] Speaker 02:
out to necessarily maintain the prior allocation, what we wanted was an allocation review.

[00:39:23] Speaker 02:
So the Gulf Council, who developed the amendment 53, has an allocation policy.

[00:39:31] Speaker 02:
And that policy says when we receive updated information about landings, like we did under the new FES survey, we should undertake an allocation review.

[00:39:41] Speaker 03:
Council, the bottom line here I'm trying to get you to focus on is normally we don't send things back to the agency for a useless act.

[00:39:56] Speaker 03:
You don't tell me in reply, this is not a useless act.

[00:40:02] Speaker 03:
You're just saying you want the agency to do something about these discards and it didn't.

[00:40:10] Speaker 02:
That is correct.

[00:40:11] Speaker 02:
That is that is part of the belief that we're seeking here is that the agency acknowledge the discard issue and actually do something about it because it's causing problems in the overall fishery.

[00:40:25] Speaker 03:
It is it's reducing required.

[00:40:29] Speaker 03:
It's a violation basically of national standard four, not to do something about it immediately.

[00:40:37] Speaker 02:
And national standard nine, your honor, which specifically contemplates minimizing bycatch to the extent practicable.

[00:40:45] Speaker 03:
To the extent practicable.

[00:40:47] Speaker 03:
And the agency has told you why in its view, this is the practicable way to go.

[00:40:57] Speaker 03:
You may disagree with that, I understand, but I'm just wondering where the court is left.

[00:41:03] Speaker 02:
So the agency undertook a 22-page bycatch practicability analysis, but it never grappled with the issue here, which is that as more of the allocation is shifted towards the recreational sector, there is more dead discards that need to be dealt with.

[00:41:25] Speaker 03:
And so the agency said we have nine alternatives in front of us.

[00:41:30] Speaker 03:
Here's our evaluation of them.

[00:41:33] Speaker 03:
And for the reasons the agency said, it's fairest to both groups to adopt alternative three, which leaves the allocation basically where it is.

[00:41:55] Speaker 02:
Right, but there are two problems with that, Your Honor.

[00:41:58] Speaker 02:
One is that it penalized the commercial sector for dead discards that are happening in the recreational sector.

[00:42:04] Speaker 03:
But more importantly, the agency explained why the alternatives weren't any better in its view.

[00:42:16] Speaker 02:
But more importantly, Your Honor, the action that it took, the reduction in the catch limit, did nothing to solve the problem with dead discards.

[00:42:25] Speaker 03:
But the agency thought it was addressing, in one sense, a larger problem, namely avoiding the extinction of the species.

[00:42:43] Speaker 03:
And they thought this was the way to do it.

[00:42:47] Speaker 03:
And that's not to say that what your clients are suggesting may not be good ideas, but did either the standard four or nine require the agency to adopt what you're doing or was it sufficient for the agency to explain its rationale and rely on its expertise?

[00:43:14] Speaker 02:
So National Standard 9 contemplates that bycatch shall be minimized to the extent practicable.

[00:43:21] Speaker 03:
To the extent practicable, Council.

[00:43:24] Speaker 03:
I mean, that's a word ripe with deferring to agency expertise.

[00:43:34] Speaker 02:
Yes, Your Honor, and we acknowledge that, but what the agency did not do was think about and they look at ways that bycatch could actually be minimized and then make a determination about why those things are practicable or not.

[00:43:48] Speaker 02:
That's what we're saying the agency should have done here.

[00:43:51] Speaker 03:
The agency should have said- What I'm all trying to get you to focus on, Counsel, and you don't disagree with this as I can read your briefs, it had nine alternatives in front of us, in front of it.

[00:44:03] Speaker 03:
It dealt with all nine and explained why it chose one as opposed to the others.

[00:44:17] Speaker 03:
That's what I'm getting.

[00:44:19] Speaker 03:
It's not that these things can't come up in the future.

[00:44:21] Speaker 03:
It's not that you can't file a petition in the future.

[00:44:26] Speaker 03:
But in this rulemaking, here's what was before the agency.

[00:44:33] Speaker 02:
We agree that there were multiple alternatives that were considered, Your Honor.

[00:44:37] Speaker 02:
Our problem is that the one that was selected is going to end up having negative consequences for the overall stock in the future.

[00:44:46] Speaker 03:
Well, that's why I asked you about the agency's alternative response.

[00:44:54] Speaker 03:
And you know, as you say, you chose not to address it.

[00:44:58] Speaker 02:
well, our response is that there should be remand for the agency to comply with national standard for and with national standard nine.

[00:45:06] Speaker 05:
And what if I on your man?

[00:45:08] Speaker ?:
Yeah.

[00:45:10] Speaker 05:
Are you asking the agency to reanalyze these six options or are you saying there's a flaw in all these options because all they did to address buy cash was lower the overall cash limit?

[00:45:23] Speaker 05:
So all of these options are, in your view, legally flawed because they weren't addressing

[00:45:30] Speaker 05:
by catch, um, as required by standard nine, or I guess you would say conservation is required by standard four.

[00:45:38] Speaker 05:
So the agency is going to have to go back, not and reanalyze these options, which only changed by one percent, but actually do the hard work in your view of figuring it out how to with this new statistical information, reduce by catch and promote conservation.

[00:45:57] Speaker 02:
Precisely, your honor.

[00:45:57] Speaker 02:
That's exactly what we are saying.

[00:46:02] Speaker 04:
I just had one question about your argument that Amendment 53's economic analysis is materially inconsistent with the analysis in Amendment 28.

[00:46:12] Speaker 04:
If we were to so conclude, what's the remedy?

[00:46:13] Speaker 04:
If that were the only defect we were to find, what would be the remedy?

[00:46:17] Speaker 02:
To vacate and remand to the agency for further action.

[00:46:21] Speaker 04:
Why would we vacate given that if it's a failure of explanation and acknowledgement, we sometimes under allied signal don't vacate?

[00:46:29] Speaker 02:
understood, but this that analysis was critical to the justification for Amendment 53 in multiple places in the record, the agency justifies that all the bad things that are going to happen as a result of this by saying this is going to result in the greatest net economic benefits to the nation.

[00:46:48] Speaker 02:
That conclusion is flawed.

[00:46:50] Speaker 02:
There is no basis for the agency to make a conclusion like that.

[00:46:54] Speaker 02:
That was the lesson from Amendment 28.

[00:46:56] Speaker 02:
And so if you strip that justification away,

[00:46:59] Speaker 04:
So on the rest of your analysis, is it correct to think that you're basically saying it's incumbent on the agency at this juncture, given what it now knows about the relative harmfulness of the recreational sector to abandon its reliance on the historical allocation as between the two sectors.

[00:47:21] Speaker 04:
It just has to do something.

[00:47:23] Speaker 04:
different now.

[00:47:24] Speaker 04:
That was the way I did it before, but now that we know the much bigger role of the recreational sector and its relative draw on the stock, that they just need to start from scratch.

[00:47:43] Speaker 04:
Is that your position?

[00:47:44] Speaker 02:
Essentially, your honor, and I think that's what we were asking the Gulf Council to do in undertaking an allocation review.

[00:47:50] Speaker 02:
Starting from scratch, what do we want this fishery to look like in the future?

[00:47:54] Speaker 02:
How are we going to address the bycatch and other issues that need to be addressed so that we can have, you know, this fishery for long-term, you know, maximum utilization and making sure that it's conserved for long-term.

[00:48:06] Speaker 05:
But in doing that, don't they still under the statute, don't they have to account at least for the new statistical information and shares?

[00:48:16] Speaker 02:
Indeed, Your Honor.

[00:48:17] Speaker 05:
So they can't take that off the table as part of their analysis, as part of their decision making.

[00:48:23] Speaker 02:
Correct, Your Honor.

[00:48:23] Speaker 02:
I mean, presumably the allocation would be based on some data or some other decision criteria that would be used.

[00:48:31] Speaker 02:
We think the agency could use the historical landings period, but then it has to take into account all this other information that we've now learned about bycatch and discards and make sure that... Either not hewed to the historical allocation or hewed to the historical allocation and do X, Y, or Z to address bycatch?

[00:48:53] Speaker 02:
We think that that is ultimately a choice for the Gulf council to make as to how to proceed going forward.

[00:48:59] Speaker 05:
So you think they could continue to do the historical apply those statistics, but if they're going to do it in the face of evidence that there's a real big bycatch problem in one sector, they've got to do something along with that to address the bycatch, which would leave you with the exact same percentage you have now.

[00:49:18] Speaker 05:
It just might mean more regulation on the recreational sector.

[00:49:21] Speaker 05:
That would be fine for your clients.

[00:49:23] Speaker 02:
Yes.

[00:49:24] Speaker 02:
Yes.

[00:49:25] Speaker 02:
Our concern is with addressing health care.

[00:49:27] Speaker 02:
Correct.

[00:49:27] Speaker 02:
Our concern is with addressing the impacts of the stock and avoiding a dead discards.

[00:49:32] Speaker 02:
Yes, sir.

[00:49:34] Speaker 05:
Any other questions?

[00:49:37] Speaker 05:
Roger.

[00:49:39] Speaker 05:
All right.

[00:49:39] Speaker 05:
Thank you very much.

[00:49:40] Speaker 06:
Thank you.

[00:49:57] Speaker 00:
Good morning.

[00:49:57] Speaker 04:
May I please support Dina Mishra for the fisheries service?

[00:50:02] Speaker 04:
The rule here embodies the service's carefully balanced approach to do two things.

[00:50:07] Speaker 04:
First, to account for updated data on the status of red grouper stock after red tide algae blooms by reducing catch limits to support it.

[00:50:13] Speaker 04:
And second, to, quote, evenly distribute, end quote, the burdens of reduced limits by restoring historical participation of actual red grouper catch by the commercial recreational sectors in light of more accurate data about the actual catch amounts.

[00:50:27] Speaker 04:
Appellants would prefer a different balance so that they could take more fish to others' detriment from this limited pool, but they identify no legal entitlement to one.

[00:50:35] Speaker 04:
The Act provides for the service to perform just as it did here, carefully accounting for scientific data and recommendations and selecting catch limits that comply with the Act's national standards, including its direction to balance prevention of overfishing with achievement of optimum yield, a statutorily defined term that expressly contemplates recreational opportunities.

[00:50:55] Speaker 04:
The agency carefully considered each of appellant's objections in the regulatory process and well explained how it had adequately accounted for.

[00:51:01] Speaker 04:
Ms.

[00:51:01] Speaker 04:
Mishra, I'm sorry, can you slow down a little bit?

[00:51:04] Speaker 04:
Sure.

[00:51:04] Speaker 04:
It's hard to hear you.

[00:51:05] Speaker 04:
It has something also to do with the amplification.

[00:51:08] Speaker 04:
Okay, I apologize.

[00:51:10] Speaker 04:
At the end of the day, the challenge rule promotes conservation, minimizes bycatch to the extent practicable, includes proper accountability measures and calibrated catch limits, and is supported by well-reasoned.

[00:51:19] Speaker 05:
What does it look like?

[00:51:21] Speaker 05:
It looked like what happened here is you got new statistical information.

[00:51:27] Speaker 05:
And you said, well, we have to reallocate based on that.

[00:51:30] Speaker 05:
It's going to have to be 60-40.

[00:51:32] Speaker 05:
All your alternatives didn't vary from that number other than the, of course, status quo, which you couldn't do.

[00:51:37] Speaker 05:
So that was going to be off the table before it even started.

[00:51:42] Speaker 05:
So all you did was go, we got to do 60-40.

[00:51:47] Speaker 05:
And it's a shame that's going to result in extraordinary increase in, extraordinary to our knowledge, new information about bycatch and mortal bycatch at a time when the species is already in trouble because of these algae blooms.

[00:52:04] Speaker 05:
but we are not, in the amendment's words, we're not proposing to directly reduce bycatch of red grouper in this amendment.

[00:52:13] Speaker 05:
We're not addressing it.

[00:52:15] Speaker 05:
Instead, we're just going to lower the catch limit.

[00:52:19] Speaker 05:
Is your position, is that no other, sorry, standard nine,

[00:52:28] Speaker 05:
because it's fine if all you do to deal with what is now recognized to be a material and significant increase in bycatch that you're now aware of.

[00:52:39] Speaker 05:
You just didn't know about it before, but now it's in front of you.

[00:52:41] Speaker 05:
That standard nine says it's fine to go, we're not gonna deal with bycatch other than we'll just lower the overall catch limit.

[00:52:50] Speaker 05:
We're not gonna do anything bycatch focused.

[00:52:54] Speaker 05:
How is that consistent with standard nine?

[00:52:56] Speaker 04:
So the first point is that standard nine incorporates the to the extent practicable language and more broadly in the structure you didn't do.

[00:53:04] Speaker 05:
I mean you just the amendment says we're not going to deal with by cash directly.

[00:53:09] Speaker 05:
We're just not going to deal with it directly.

[00:53:11] Speaker 04:
I don't think that's the full description of everything that went on with respect to analysis of bycatch.

[00:53:19] Speaker 04:
So, for example, some of the measures that are being pointed out by the plaintiffs here are measures that are already in effect, for example, and there are plenty of others that they aren't getting into.

[00:53:29] Speaker 04:
So, for example, there's discussion in the amendment of, for example, that there would be season closures if incoming data shows that they're going to be projected to reach or exceed those ACLs.

[00:53:44] Speaker 05:
If the... We'll have to close it if they're exceeding the catch limit.

[00:53:48] Speaker 05:
That's not addressing bycatch.

[00:53:49] Speaker 05:
That's just the rules of catch limits.

[00:53:52] Speaker 05:
But that happens regardless.

[00:53:54] Speaker 04:
Right, but the idea being that there are a number of different ways in which to sort of preserve and promote conservation that took account of bycatch and bycatchers assessment.

[00:54:05] Speaker 05:
All you'd be reacting to after the fact too late a problem.

[00:54:11] Speaker 05:
Right.

[00:54:13] Speaker 05:
problem where yours is ugly head, then we'll deal with it.

[00:54:15] Speaker 05:
That doesn't seem to be dealing with it.

[00:54:17] Speaker 04:
I don't think that's quite what the agency did here.

[00:54:20] Speaker 04:
So the agency here did what was consistent with what I understand to be a case law.

[00:54:24] Speaker 04:
So for example, there are cases, for example, in other circuits like Little Bay Lobster is one in the First Circuit that talks about how you analyze the proposed alternatives, the things that are before you, and you look at those with respect to making that decision.

[00:54:38] Speaker 04:
And then that decision is assessed under the act and under the administrative procedure.

[00:54:42] Speaker 03:
So let me be clear, how do you choose the alternatives that quote are before you, before the agency close quote.

[00:54:51] Speaker 04:
So the agency designed the alternatives two through six to have the same risk of overfishing basically to prevent overfishing to the same degree.

[00:55:01] Speaker 04:
And they designed those to have those kinds of trade-offs and to take fully into account things like the bio-catch and the dead-desk cards issue to the extent that there is one.

[00:55:10] Speaker 03:
And we know that because

[00:55:14] Speaker 04:
I believe that Joint Appendix 5819 may have this discussion.

[00:55:23] Speaker 04:
5819.

[00:55:24] Speaker 04:
Let me double check that.

[00:55:31] Speaker 04:
I believe it talks about how the acceptable biological catch, which is set to the same as the total annual catch limit, was accounted for by catch.

[00:55:42] Speaker 04:
and any increases from the recreational sector.

[00:55:45] Speaker 04:
And I think that's something that Judge Millett was actually referring to.

[00:55:47] Speaker 04:
They took into account when they were setting these different alternatives that there may be trade-offs about what may happen with respect to discards.

[00:55:55] Speaker 04:
And to be clear.

[00:55:56] Speaker 04:
Of course.

[00:55:56] Speaker 03:
So let me just ask you, counsel, does the record actually say took into account, I can't,

[00:56:07] Speaker 03:
recall exactly what you said, but took into account all the new information about Discard?

[00:56:16] Speaker 04:
I believe so, yep.

[00:56:17] Speaker 04:
It talks about... Which volume are you in?

[00:56:20] Speaker 04:
There's so many volumes here.

[00:56:22] Speaker 04:
I think it's mine, I'll be hopeful.

[00:56:26] Speaker 03:
But this is 5819.

[00:56:34] Speaker 04:
It's not in the amendment.

[00:56:35] Speaker 04:
No, that's in the final rule.

[00:56:38] Speaker 05:
I don't know.

[00:56:40] Speaker 04:
Yeah.

[00:56:44] Speaker 04:
And it talks about how.

[00:57:01] Speaker 03:
In other words, I didn't mean to slow you up here, but the whole thrust of the key argument here this morning.

[00:57:11] Speaker 03:
In fact, the agency has already done its work on this bypass increase information.

[00:57:21] Speaker 03:
It seems to me we ought to have those

[00:57:28] Speaker 03:
record citations.

[00:57:30] Speaker 04:
Sure.

[00:57:30] Speaker 04:
So the first point is that to the extent that they are suggesting that there was some change with respect to the bycatch issue, that's something that is incorrect as described in the rule.

[00:57:40] Speaker 03:
No, no, no, no, no.

[00:57:41] Speaker 03:
But Judge Phillips' questions made it clear that that's not what happened here.

[00:57:47] Speaker 03:
All right?

[00:57:48] Speaker 03:
The agency learned a lot of things about what had been going on.

[00:57:54] Speaker 03:
All right?

[00:57:55] Speaker 03:
So my point is having this new information, I thought what you were responding to Judge Millett was, and the agency dealt with all this information about increased bypass.

[00:58:09] Speaker 03:
and mortality.

[00:58:11] Speaker 04:
So the agency discussed, for example, there's extensive discussion also in amendment 53 in the entire bycatch appendix to amendment 53, which there's an entire bycatch appendix that talks about, for example.

[00:58:24] Speaker 04:
Which appendix is that?

[00:58:26] Speaker 04:
That's appendix B. That's appendix B. And that is, you know.

[00:58:31] Speaker 04:
B as in boy.

[00:58:32] Speaker 04:
One, two, three, four, five, six, seven, eight.

[00:58:34] Speaker 04:
B as in boy.

[00:58:35] Speaker 04:
And that's joint appendix 3515 to 3537.

[00:58:40] Speaker 04:
And there's extensive discussion in there.

[00:58:42] Speaker 04:
Appellants had conceded, for example, below that the service admittedly undertakes efforts to estimate dead discards.

[00:58:49] Speaker 04:
That was something that they had acknowledged.

[00:58:51] Speaker 04:
There's also the fact that most of the measures that they're pointing to largely are, first of all, kind of new in being presented in this way on appeal.

[00:59:00] Speaker 04:
But in addition, the measures are already in play.

[00:59:04] Speaker 05:
Where?

[00:59:05] Speaker 05:
I think they talked about the bycatch problem.

[00:59:07] Speaker 05:
They wrung their hands about the bycatch problem.

[00:59:11] Speaker 05:
Where did they consider

[00:59:14] Speaker 05:
another alternative for dealing with the bycatch problem, other than lowering the catch limit with this wooden 60-40 division.

[00:59:22] Speaker 04:
So as mentioned, the entire way that this challenge has been brought and in terms of what the plaintiffs have brought, they have not been proffering additional alternatives, for example.

[00:59:34] Speaker 05:
No, no, I'm interested in the question about whether the agency grappled with its obligations to deal

[00:59:42] Speaker 05:
expressly and specifically, it was added by Congress, deal with bycatch to the extent practicable, which means there should be an agency decision or language somewhere that says it is impracticable for us to do anything

[00:59:59] Speaker 05:
other than divide this 60-40, because that's what the statistics say, and lower the catch limit.

[01:00:05] Speaker 05:
But it doesn't say it's impracticable to do anything else.

[01:00:09] Speaker 04:
I guess what I'm saying is that with respect to the alternatives that were presented here, the agency fully considered them and its reasoning for why it was trying to restore what was actual historic participation.

[01:00:20] Speaker 04:
No, no, no, that's not the answer.

[01:00:21] Speaker 04:
We heard that, but we want to see where- You want the specific sites for the bycatch consideration, for example, right?

[01:00:27] Speaker 04:
you want the specific citations.

[01:00:30] Speaker 05:
That's right.

[01:00:31] Speaker 05:
Let's do this in stages.

[01:00:32] Speaker 05:
So did any of those alternatives, two through six, deal with the bycatch problem any differently between themselves other than, you know, the catch limit?

[01:00:49] Speaker 05:
Is there any alternative approach other than lowering the catch limit that was applied in any of those alternatives?

[01:00:56] Speaker 04:
So there was discussion also of existing measures, which are largely overlapping with the ones that plaintiffs have been pointing out today.

[01:01:03] Speaker 04:
For example, the Descend Act applies to the recreational sector, and it requires them, for example, to carry certain types of equipment to try to restore discards to the sea if they can.

[01:01:13] Speaker 04:
And there are size limits and there are bag limits.

[01:01:16] Speaker 04:
And there was discussion of that.

[01:01:17] Speaker 04:
There were discussion of season closures.

[01:01:19] Speaker 04:
There was discussion of future season reductions, if there would be overages in other years.

[01:01:23] Speaker 04:
And it talked about all of those as addressing the bycatch issue with respect to what was being done here, the alternatives that the commercial plaintiffs have been advocating for.

[01:01:35] Speaker 05:
No, no, no, that's not my question.

[01:01:36] Speaker 05:
I'm sorry if I'm not being clear.

[01:01:38] Speaker 05:
I guess they talked about a lot of things.

[01:01:41] Speaker 05:
Right, but they like what we have.

[01:01:44] Speaker 05:
Let's just say there's six alternatives, but we can take status quo off the list.

[01:01:49] Speaker 05:
Do any of them?

[01:01:50] Speaker 05:
Do they all deal with bycatch the same way?

[01:01:52] Speaker 05:
Yes or no?

[01:01:54] Speaker 04:
I believe that they all take into account by catch in determining what the annual catch limits.

[01:02:00] Speaker 05:
The only way they deal with they all.

[01:02:02] Speaker 05:
So there were no alternatives here on dealing with by catch.

[01:02:04] Speaker 05:
Every one of these alternatives did the exact same thing.

[01:02:07] Speaker 05:
They dealt with by catch by doing one thing and one thing only.

[01:02:10] Speaker 05:
And that was lowering the catch limit.

[01:02:13] Speaker 05:
There's never been a check.

[01:02:15] Speaker 04:
There's never been a check.

[01:02:16] Speaker 04:
So I'm sorry.

[01:02:17] Speaker 05:
I really am trying to understand what's going on.

[01:02:18] Speaker 04:
Yeah, I understand.

[01:02:19] Speaker 04:
I think the only alternative.

[01:02:21] Speaker 04:
So they are advocating for the alternative.

[01:02:22] Speaker 05:
I don't want to argue.

[01:02:24] Speaker 05:
I'm really trying to help you understand what the agency decided.

[01:02:27] Speaker 05:
Right.

[01:02:28] Speaker 05:
Right.

[01:02:28] Speaker 05:
The agency.

[01:02:29] Speaker 05:
Right.

[01:02:30] Speaker 05:
Okay.

[01:02:31] Speaker 05:
We'll help if I'm able.

[01:02:32] Speaker 05:
Yeah, I'm having some echo.

[01:02:34] Speaker 05:
I apologize.

[01:02:36] Speaker 05:
Are you having trouble hearing what you said?

[01:02:37] Speaker 05:
Yeah, just a little echo, so I apologize.

[01:02:39] Speaker 05:
Oh, I'm sorry.

[01:02:40] Speaker 05:
OK, I'll try to go.

[01:02:41] Speaker 05:
And if you can't hear it, let me know, and then I'll try again.

[01:02:44] Speaker 05:
Sure.

[01:02:44] Speaker 05:
It's really unfair to you if you can't hear it.

[01:02:46] Speaker 05:
So my understanding from what you said and from the record is that the only tool for dealing with bycatch that all the alternatives did was the same tool.

[01:02:57] Speaker 05:
There were no alternatives for dealing with bycatch.

[01:03:00] Speaker 05:
They all just said, we're just going to lower

[01:03:06] Speaker 05:
the overall catch.

[01:03:07] Speaker 05:
I'm not saying whether that's good or bad.

[01:03:08] Speaker 05:
I'm just saying there were no alternatives considered for dealing with with bycatch.

[01:03:14] Speaker 05:
It was just lowering.

[01:03:16] Speaker 05:
There was no alternative.

[01:03:20] Speaker 05:
8 that said, actually, we could lower the catch limit, but not so much, but also impose X, Y, or Z on the recreational thing.

[01:03:28] Speaker 05:
It was all just lower the catch limit.

[01:03:31] Speaker 04:
All the alternatives also included, for example, reference in the rule to, for example, season closures at the incoming data.

[01:03:39] Speaker 04:
would indicate that they're going to reach or exceed those annual catch limits while it is true that these annual catch limits were set taking account of what would happen with respect to bycatch and that the recreational sector it was well understood before and after that there would be potentially bycatch and even the statute comprehends that for example in section 18.

[01:04:00] Speaker 05:
So the question though that the answer is just to make clear right that of the alternatives analyze

[01:04:07] Speaker 05:
None of them did anything to deal with bycatch other than they were going to lower the annual catch limit.

[01:04:15] Speaker 05:
And of course, that catch limit is being extended.

[01:04:17] Speaker 04:
None of them differed on that basis because the season closures and the incoming data, for example, is something that applied to all of them.

[01:04:25] Speaker 04:
But that is not an issue with it because they did not propose, for example, an alternative or say there should have been some other alternative in the news.

[01:04:33] Speaker 04:
It's a good question.

[01:04:35] Speaker 04:
Sure.

[01:04:35] Speaker 05:
It's an obligation on the agency

[01:04:38] Speaker 05:
to diminish, decrease by catch, especially by catch mortality, excuse me, to the extent practicable.

[01:04:48] Speaker 05:
So now we've got that they said, all we can do is lower the cash limit.

[01:04:52] Speaker 05:
And then if something goes wrong, we'll shut things down.

[01:04:55] Speaker 05:
Where did they say there was nothing more practicably that could be done?

[01:05:02] Speaker 05:
There's all this talking about things.

[01:05:04] Speaker 05:
Where did they say, if they should have said that, that's the legal standard.

[01:05:08] Speaker 05:
I want to explain why to the extent practicable imports that.

[01:05:12] Speaker 04:
And the reason that it imports that.

[01:05:13] Speaker 04:
I'm sorry, to the extent practicable.

[01:05:15] Speaker 04:
Imports this analysis of taking account of, for example, competing objectives under the national standards, which is something that appellants conceded before the district court and that other other circuits like the first.

[01:05:25] Speaker 05:
They should have said.

[01:05:26] Speaker 05:
And if they it's not a magic words thing, if there's a sentence where they said there's this is all that can be done.

[01:05:34] Speaker 05:
I don't under practically committee.

[01:05:37] Speaker 05:
It's not all that could be done, of course, but all that practically could be done.

[01:05:41] Speaker 05:
as required by standard nine.

[01:05:43] Speaker 04:
They make that judgment.

[01:05:45] Speaker 04:
My understanding is that to the extent practical as understood by case law, for example, in the first circuit, there's a case called Lovegren and Lovegren talks about how that takes into account the balancing that the agency must do with respect to other objectives.

[01:05:59] Speaker 04:
Because when you look at the structure of the act and you see the various different national standards, you see that there are in effect trade-offs between a number of different ones.

[01:06:07] Speaker 04:
For example, taking account of scientific data and this on the historic participation.

[01:06:11] Speaker 05:
but just balancing itself just going okay here's a bunch of factors in the mix let's balance them isn't sufficient understand or nine unless they've said

[01:06:22] Speaker 05:
this is the best we can do as to by catch.

[01:06:26] Speaker 05:
Given these other competing considerations, I think I'm not sure they said we're doing the best.

[01:06:30] Speaker 05:
I think that they said we're not addressing it.

[01:06:33] Speaker 04:
Yeah, I think that understanding of the to the extent practical, what it demands in this context is at odds with the first circuits understanding and lop grand.

[01:06:41] Speaker 04:
I think it's at odds with the concession.

[01:06:48] Speaker 05:
You have to do conservation first.

[01:06:50] Speaker 05:
Whenever you're doing your balancing, you have to do conservation first, and then these other economic and social factors come in second.

[01:06:58] Speaker 04:
And the agency did that here because all of the alternatives other than that, you know, first leave it as what Amendment 30B had or whatever that, in their sense, the status quo would be.

[01:07:09] Speaker 04:
All of those alternatives were designed to have the same chance of preventing overfishing or having overfishing.

[01:07:16] Speaker 05:
do anything and that's the standard to do anything different.

[01:07:20] Speaker 05:
It's like it's baked it if we're not going to do anything other than lower the fishing lip the catch limit.

[01:07:26] Speaker 05:
That's all we're going to do that's baked into your options because there's nothing else.

[01:07:31] Speaker 05:
there.

[01:07:32] Speaker 05:
When I look at this table there's nothing else there.

[01:07:35] Speaker 04:
To be clear I think that the understanding that they were required in this amendment where it wasn't proffered as an alternative that there should be particularly considering.

[01:07:44] Speaker 05:
They don't have to comply with a statutory standard.

[01:07:46] Speaker 05:
Unless the party comes to the agency and tells them how to do it you're the expert agency but you don't have to do anything unless it's fed to you.

[01:07:55] Speaker 04:
No council finish your statement.

[01:07:57] Speaker 04:
Yeah, I like to make two points on that.

[01:08:00] Speaker 04:
The first is that the statute itself, as I mentioned, and I believe it's 1801 B3, talks about, for example, the recreational sector and trying to promote commercial and recreational fishing and even makes express reference to, for example, catch and release.

[01:08:14] Speaker 04:
So there is some sense in which the statute comprehends that there could be issues of there could be bycatch.

[01:08:19] Speaker 04:
It could be part of what happens with recreational.

[01:08:21] Speaker 04:
Nevertheless, there are a number of provisions in the statute that talk about how conservation takes account in a sense to some degree of impacts on the recreational sector.

[01:08:31] Speaker 04:
So, for example, there's reference to recreational benefits.

[01:08:33] Speaker 04:
And that's in 18, in the definition of conservation and management, there's in 1802 five, there's reference to, to it in the national standard one, which a lot of cases have said, for example, in other circuits, that this is the bedrock principle and that this is something that gets balanced into the mix.

[01:08:57] Speaker 05:
all those economic and social factors that the daily decision said comes second after.

[01:09:02] Speaker 04:
Even if it were true that the daily decision was only talking about preventing overfishing, as I mentioned.

[01:09:12] Speaker 05:
Is your visit, if I read daily and tell me if you read it differently, it says conservation first.

[01:09:18] Speaker 05:
That's what this was about.

[01:09:19] Speaker 05:
If government may like it or disagree or agree with it, I don't care.

[01:09:22] Speaker 05:
I'm bound by it.

[01:09:23] Speaker 05:
Conservation first and then economic and social factors.

[01:09:26] Speaker 05:
But that's hearing, I'm just gonna lay it out and then you can tell me.

[01:09:29] Speaker 00:
Yeah, I apologize.

[01:09:29] Speaker 05:
What I'm hearing what it sounds like is you're saying, well, what conservation means is all of these other economic and other factors first place.

[01:09:38] Speaker 05:
So daily was,

[01:09:39] Speaker 05:
kind of silly when it said conservation was something that you would promote in its own right apart from the economic and social factors.

[01:09:46] Speaker 05:
In fact, conservation means balance everything together.

[01:09:51] Speaker 04:
No, so what I'm saying is that when you look at NRDCV Daily,

[01:09:55] Speaker 04:
There's a discussion, for example, of the central principle, and it talks about the principle of national standard one, essentially, as being the most central, which is this balancing of preventing overfishing while achieving optimum yield, which the statute expressly defines in a way that comprehends these sort of recreational opportunities.

[01:10:12] Speaker 04:
And as I mentioned, the statute comprehends that there may in some instances be

[01:10:17] Speaker 04:
be bycatch.

[01:10:18] Speaker 04:
And the very fact that there is discussion of whether it should be minimized is taking account of the fact that there may be some of it.

[01:10:24] Speaker 04:
And it says, to the extent practicable.

[01:10:26] Speaker 04:
What I'm saying is that the case law, consistent with Daly and other circuits, talks about, consistent with the concession of the plaintiffs and the district court, that this, to the extent practicable, language brings in this sort of balancing to some degree with respect to the competing objectives of the other national standards.

[01:10:43] Speaker 04:
And that, of course, has to be the case to reconcile the act.

[01:10:46] Speaker 04:
Maybe this is what I'm not understanding.

[01:10:49] Speaker 05:
You already have conservation and all this balancing going on under standard four, right?

[01:10:54] Speaker 05:
That's how you get to optimum yield.

[01:10:56] Speaker 05:
That's a lot of balancing, a whole bunch of factors, correct?

[01:10:59] Speaker 05:
Under the act at writ large, there are many.

[01:11:02] Speaker 05:
But even under optimum yield, I mean, you're making the statutory definition, it's a lot of different factors in there, correct?

[01:11:08] Speaker 05:
Correct, in one, for example.

[01:11:09] Speaker 05:
What does standard nine add?

[01:11:11] Speaker 05:
Has Congress specifically added it later to deal expressly with bycatch?

[01:11:16] Speaker 05:
standard nine require you to change from what you would have done previously under standard four and determine optimum yield.

[01:11:22] Speaker 04:
Right.

[01:11:22] Speaker 04:
It does suggest that there should be some analysis, for example, with respect to bycatch and that there should be taking account of that as it does the as the agency does consistent with all of the different national standards.

[01:11:33] Speaker 05:
Right.

[01:11:33] Speaker 05:
It wants some action.

[01:11:35] Speaker 04:
Right.

[01:11:35] Speaker 05:
Well, it says minimized.

[01:11:38] Speaker 03:
I need to be clear, though.

[01:11:40] Speaker 03:
What I understand you to be saying

[01:11:44] Speaker 03:
is that the way the statute has been interpreted by the agency, it's not necessary to have an independent alternative focusing solely on conservation, but rather it's sufficient if in reviewing the other factors,

[01:12:14] Speaker 03:
or standards, national standards, conservation is considered.

[01:12:21] Speaker 03:
And I thought your answer was, in effect, if we read the entire record, we will see that when the agency was considering what to do here as to each of these national standards,

[01:12:38] Speaker 03:
And as to each of the alternatives, we will see that the agency said something about how one standard would promote conservation either better or worse than another.

[01:12:53] Speaker 03:
And what I thought Judge Millett was asking for was, not in these words, but where would we find that?

[01:13:02] Speaker 03:
Or where would we find

[01:13:06] Speaker 03:
a statement that says we've considered all the other conservation alternatives and determined they are not practicable and maybe given us a reason or two as to why they're not practicable.

[01:13:20] Speaker 03:
And I haven't heard you give us that answer.

[01:13:24] Speaker 03:
And maybe it's not there because that's not the way the agency's looking at this case, but that is at least what council

[01:13:35] Speaker 03:
has presented in this court as part or really as his main argument on behalf of his clients.

[01:13:45] Speaker 04:
Right, so I want to say two things.

[01:13:47] Speaker 04:
The first is that the agency absolutely did clearly take account of conservation, even in the narrow sense understood by the plaintiffs, when it set all these alternatives to have an equal chance of preventing overfishing.

[01:13:59] Speaker 04:
And it took that into account.

[01:14:00] Speaker 04:
Now, it did so in a balanced way by taking account, for example, the intertwined nature of the catch limits and the just realistic fact in the world.

[01:14:09] Speaker 03:
And we hear you saying this.

[01:14:12] Speaker 03:
Where can we

[01:14:14] Speaker 03:
find that the agency said that?

[01:14:17] Speaker 04:
Sure.

[01:14:17] Speaker 04:
So the agency talked about how it was taking into account optimum yield with respect to recreational opportunities at page 5818 of the Joint Appendix, for example.

[01:14:28] Speaker 04:
There is discussion of the, to the extent, practicable language in the discretion.

[01:14:35] Speaker 04:
This is not necessarily specific to the agency's interpretation, but it's actually, as I mentioned, something that is consistent with the understanding of the First Circuit and talking about how there are these

[01:14:44] Speaker 04:
trade-offs between the national standards and the concession of the plaintiffs and the district court that it does bring in the to the extent practical language does bring in this taking account of the competing objectives and for example the updating of the data updating to reflect the more accurate data here was in fact you know reflective of also national standard to talking about scientific information and how to take account of that there was

[01:15:08] Speaker 04:
consideration of how this would impact the recreational sector and all those statutory provisions, as I mentioned.

[01:15:14] Speaker 04:
And some of those, as I mentioned, were referenced by the agency as well.

[01:15:18] Speaker 04:
So there's both case law and there is the agency's understanding as described here.

[01:15:22] Speaker 04:
But there's also the concession, as I mentioned, in the DISH report.

[01:15:26] Speaker 04:
Here, I would say, at the end of the day, the understanding of NRDCV Daily was satisfied by the agencies constructing those alternatives carefully to make sure that they would equally prevent overfishing

[01:15:38] Speaker 04:
even under the understanding being proffered of the statute by appellants.

[01:15:44] Speaker 04:
So with respect to bycatch, I also want to point out that, as I mentioned, there was an entire assessment of bycatch in Appendix B. There's a whole bunch of other citations in which they talked about all the many ways in which bycatch is being addressed and minimized, including not just the reduction of limits and taking account of it.

[01:16:02] Speaker 04:
As I mentioned, that's at Joint Appendix 819.

[01:16:05] Speaker 05:
Existing things or new things imposed here?

[01:16:07] Speaker 04:
So, so the taking account of it in the in the limits was certainly, you know how they constructed that question.

[01:16:14] Speaker 05:
The things that they discussed their patch limits and and season limitations and stuff.

[01:16:23] Speaker 05:
Those are all things that were already in place.

[01:16:26] Speaker 05:
And the amount of the high amount of discard and discard mortality that the record revealed once, particularly when you saw the increase in the recreational sector already reflected the effects of those.

[01:16:40] Speaker 05:
efforts to diminish bycatch, correct?

[01:16:43] Speaker 05:
Those things were already in place and yet we have a discovery, I guess it was going all along, but it's new information to the agency that there is, wow, our bycatch problem is much bigger than we thought.

[01:16:56] Speaker 05:
Mortality is much worse than we thought because recreational fishing is much bigger than we thought.

[01:17:03] Speaker 05:
And that was already with all those things that were discussed in place, correct?

[01:17:07] Speaker 04:
So the Descend Act is in 2020.

[01:17:10] Speaker 04:
I think the idea is that many of the particular measures, they are now identifying for the first time, quite frankly, some of them at oral argument on appeal.

[01:17:17] Speaker 04:
I'm not talking about the bariatric chamber thing.

[01:17:19] Speaker 05:
What I'm talking about is the things that are discussed by the agency.

[01:17:25] Speaker 05:
You're talking about the appendix.

[01:17:27] Speaker 05:
I mean, they talk about the bycatch problem and wring their hands a lot.

[01:17:30] Speaker 05:
There's no doubt about that.

[01:17:32] Speaker 05:
Is there anything

[01:17:34] Speaker 05:
that they mentioned there that you say is part of the calculus here as controlling bycatch that was not already in operation at the time these large bycatch things were reported as in this bycatch happens even with those things in place.

[01:17:54] Speaker 05:
Is that true?

[01:17:56] Speaker 04:
Equally under what they have pointed out as measures.

[01:17:59] Speaker 04:
That's not my question to you.

[01:18:02] Speaker 05:
My question to you is are the measures that the agency mentioned things that were already in place and yet the recreational bycatch and mortality

[01:18:18] Speaker 05:
are as high as they are.

[01:18:20] Speaker 04:
But some of them interact differently.

[01:18:24] Speaker 04:
So for example, as I mentioned, the season closures for taking account of incoming data under the new survey, which is part of adapting to the new data and the new methodology of it, is something that operates differently with respect to taking account of what this amendment does and how it's taking account of the methodology.

[01:18:43] Speaker 04:
So I am not understanding the answer.

[01:18:46] Speaker 05:
Is there anything new in what they discussed?

[01:18:49] Speaker 05:
Yeah.

[01:18:49] Speaker 05:
Things that could control mortality bypass that were not already in place.

[01:18:56] Speaker 05:
We'll put aside that little bariatric chamber thing.

[01:18:59] Speaker 04:
Right, which actually applies either way.

[01:19:01] Speaker 04:
So those protections are there as well.

[01:19:03] Speaker 04:
That's a new thing.

[01:19:04] Speaker 05:
So did that statute post-date the agency decision?

[01:19:07] Speaker 04:
It's 2020.

[01:19:09] Speaker 04:
I don't think so.

[01:19:09] Speaker 04:
But my point is actually that it applies to the recreational sector.

[01:19:12] Speaker 04:
So they get the whatever concerns there are about it.

[01:19:15] Speaker 04:
But anyhow, so there's

[01:19:17] Speaker 04:
Right, but I guess what I'm saying is that some of the things like season closures, based on incoming data under the new survey methodology, do actually interact differently based on this updating with respect to the data.

[01:19:30] Speaker 04:
It's taking account of the new type of data, the data that is more accurate.

[01:19:34] Speaker 05:
They didn't take account of it.

[01:19:35] Speaker 05:
They didn't change.

[01:19:36] Speaker 04:
Did they change the season?

[01:19:38] Speaker 04:
they calculated what the season might be.

[01:19:40] Speaker 04:
And one of the considerations that they made was that there could be actually some alternate problems from alternative two, for example, with respect to aligning the season with other seasons.

[01:19:51] Speaker 04:
So for example, you could end up with bycatch issues that are created or worsened by needing to throw back because allocating less as the commercial sector wants, allocating less overall ACL to the recreational sector means that they have to

[01:20:08] Speaker 04:
fishing potentially earlier.

[01:20:09] Speaker 05:
That's just a pre-existing problem.

[01:20:12] Speaker 05:
That's always been, you know, the pros and cons of these limitations that were all in place.

[01:20:18] Speaker 05:
And so the only limitations discussed are ones that have done nothing to address

[01:20:25] Speaker 05:
The problem that is now, it was going all along, but the agency didn't know about it.

[01:20:29] Speaker 05:
Now it knows about it and now it knows about it.

[01:20:32] Speaker 05:
And it says, well, we still feel like we have to do the 40, 60 thing.

[01:20:36] Speaker 05:
I think we must do that.

[01:20:39] Speaker 05:
And so where are we saying, but given that we now know there's so much more mortal bycatch than we thought before, are we doing anything different other than lowering the cash limit?

[01:20:53] Speaker 04:
I think that, as I mentioned, there are some things that are different in terms of taking account.

[01:20:58] Speaker 04:
There is some things that are different in terms of how these enclosures interact.

[01:21:02] Speaker 04:
And there's also a prejudice requirement with respect to this here.

[01:21:06] Speaker 04:
So looking at the alternatives as they were before the agency.

[01:21:10] Speaker 04:
There's also a prejudice requirement in terms of how the Magnuson-Stevens Act and the APA comprehend that this analysis at the judicial review stage should go.

[01:21:17] Speaker 04:
It should be looking for whether the analysis had something clearly unreasonable and that further analysis would be determinative.

[01:21:24] Speaker 04:
And with respect to how the national standard 9 operates,

[01:21:31] Speaker 05:
important statutory criteria, just assuming that it would be a different outcome.

[01:21:38] Speaker 04:
You have to show there'd be a different outcome.

[01:21:40] Speaker 04:
No, I think it's still that further analysis would be determinative as to the assessment, for example, of the alternatives.

[01:21:47] Speaker 04:
But the point here is that if they want to proffer an alternative, as Judge Rogers mentioned, there are other mechanisms for them to try to seek to change the law.

[01:21:55] Speaker 03:
No, we understand that.

[01:21:56] Speaker 03:
But I think I just want to be clear

[01:22:00] Speaker 03:
in my own mind that with the new data, some of the old tools will work differently for promote conservation.

[01:22:24] Speaker 03:
I believe that your argument council

[01:22:30] Speaker 03:
That is part of our argument, yes.

[01:22:32] Speaker 03:
What we can find in the record.

[01:22:35] Speaker 03:
And you can give us some assistance in that regard by giving us some page numbers, given the record here.

[01:22:45] Speaker 04:
So as to that issue, here are some record citations and here is a case citation.

[01:22:50] Speaker 03:
Well, I might suggest that we have you submit something in writing.

[01:22:56] Speaker 03:
So that, for instance, I don't write down the page numbers and transpose the numbers or something like that.

[01:23:03] Speaker 03:
So we all have the correct numbers and we have the case citations.

[01:23:11] Speaker 03:
Other than those that are already in your brief.

[01:23:13] Speaker 04:
That's also Gutierrez in the DC Circuit, which talks about taking account of incoming data, which is what I'm describing.

[01:23:19] Speaker 03:
Did you hear what I just suggested?

[01:23:20] Speaker 03:
Do you have any objection to that?

[01:23:23] Speaker 04:
I think that it may not be necessary here, but we would, of course, be happy to do whatever the court orders.

[01:23:28] Speaker 04:
I can list them here, and they would be on the recording if the court would like.

[01:23:32] Speaker 03:
Right.

[01:23:32] Speaker 03:
And if it's on the recording, then I have to go get the recording and transcribe it.

[01:23:40] Speaker 03:
That's all I'm getting.

[01:23:41] Speaker 03:
You've got this data probably on your computer.

[01:23:45] Speaker 04:
I have it before me, the particular page sites, if you'd like them, but I don't read me your best language.

[01:23:52] Speaker 05:
Okay, this site and then read the best language.

[01:23:54] Speaker 05:
But I think Judge Rogers requested that that there be follow up letter.

[01:24:01] Speaker 05:
If I'm understanding you correctly, Judge Rogers with I think counsel doesn't want to do that, Judge Millett.

[01:24:06] Speaker 03:
And I'm certainly not going to do it.

[01:24:09] Speaker 04:
No, I'd be of course happy to do whatever the court would like me to do.

[01:24:12] Speaker 03:
I just have to answer Judge Millett's question now.

[01:24:16] Speaker 04:
Sure.

[01:24:17] Speaker 04:
Sure.

[01:24:17] Speaker 04:
So in the amendment 53, the citations to see you have the numbers are joint appendix 3323, joint appendix.

[01:24:24] Speaker 00:
So

[01:24:25] Speaker 04:
Yep, I'll say it.

[01:24:27] Speaker 04:
I'll say it louder.

[01:24:29] Speaker 04:
Joint Appendix 3323, Joint Appendix 3523.

[01:24:33] Speaker 04:
Can we do one at a time?

[01:24:35] Speaker 05:
Okay, so 3323.

[01:24:40] Speaker 05:
And the language there.

[01:24:43] Speaker 04:
If you would like to sort of the final rule, actually, I think it would probably be the best.

[01:24:46] Speaker 04:
That's at Joint Appendix 5814.

[01:24:49] Speaker 05:
No, see, we're not doing 3323 or doing 5814.

[01:24:52] Speaker 05:
Yeah, and I can come back.

[01:24:54] Speaker 04:
Hang on a second.

[01:24:54] Speaker 04:
It's in the rule as well.

[01:24:56] Speaker 04:
All right.

[01:25:01] Speaker 05:
I'm going to get a new volume.

[01:25:02] Speaker 05:
Which volume is?

[01:25:05] Speaker 05:
You know which volume that is?

[01:25:07] Speaker 04:
Which part of the federal rule?

[01:25:10] Speaker 04:
It's either 9 or 16.

[01:25:13] Speaker 04:
Joint Appendix 5814, it's page 25573 in the volume 87 of the Federal Register.

[01:25:20] Speaker 04:
I have it right before me.

[01:25:21] Speaker 04:
It's the front page of it that you're referring to?

[01:25:24] Speaker 04:
Yes.

[01:25:24] Speaker 04:
Are we talking about the rule or are you talking about the Federal?

[01:25:27] Speaker 04:
The rule release.

[01:25:28] Speaker 04:
The rule release.

[01:25:29] Speaker 03:
37 Federal Register, what page number?

[01:25:32] Speaker 04:
25573.

[01:25:37] Speaker 04:
top of the right column on the federal register notice talks about the in season.

[01:25:43] Speaker 04:
Closures and then the amendment citations I will provide you talk about that taking into account as I understand it the incoming data which would be from the new survey methodology.

[01:25:56] Speaker 05:
This one just says.

[01:25:58] Speaker 05:
Are you talking about recreational red grouper harfas is managed with catch limits in season, which is what you used here was catch limits in season and post season accountability measures, season and area closures, a minimum size limit and a recreational bag limit.

[01:26:16] Speaker 05:
That's what the language you want us to look at.

[01:26:18] Speaker 04:
No, the last part description of the last part describing season closure here talks about how there are season closures when it's projected to reach the recreational annual catch limit.

[01:26:28] Speaker 04:
There were careful scientific projections made at this stage based on the updated survey data.

[01:26:33] Speaker 04:
And that's what was taken account of in terms of setting these alternatives, et cetera, to set the equal prevention of overfishing percentages, which satisfies daily.

[01:26:43] Speaker 04:
Just enforce the catch limit, not independent.

[01:26:47] Speaker 04:
They just enforce the catch limit?

[01:26:48] Speaker 04:
Is that what you're saying?

[01:26:49] Speaker 04:
Well, they take account of the data about how close they're getting to the catch limit, which we're set taking account of.

[01:26:58] Speaker 05:
The measure, all they do is enforce the catch limit.

[01:27:02] Speaker 05:
So we're back to where we started, which is the catch limit is the only, and this might be right or wrong, but the catch limit is the only thing the agency has done to deal with bycatch.

[01:27:11] Speaker 04:
When the agency gets new incoming data showing they're reaching or exceeding the catch limit, it talks about, for example, future season reductions if there are overages in prior years, and it takes account of that.

[01:27:27] Speaker 04:
They will, but that will also address to the extent that it also addresses that discards were taken into account, as I mentioned in the catch limits.

[01:27:35] Speaker 04:
And so taking account of that new data will interact differently with the new updating to the, to take account of the new data and survey methodology.

[01:27:43] Speaker 05:
Putting that aside, as I mentioned, computing compliance with catch differently, or you're just saying we have new numbers.

[01:27:49] Speaker 05:
And if we get new numbers, because there is an awful lot of bycatch mortality here that,

[01:27:55] Speaker 05:
Maybe they'll hit the catch limit sooner than we thought, at which point we'll have to close it down.

[01:27:59] Speaker 04:
The only premise for the challenge here that's before the court today is what I said accurate.

[01:28:04] Speaker 04:
My understanding is that the assessment under the law here, the case law and the statutory language.

[01:28:10] Speaker 05:
It's my understanding of what the agencies said here.

[01:28:13] Speaker 05:
I'm not looking for case citations.

[01:28:15] Speaker 05:
Is it accurate that what you've read said here, this was your key language, is that, and you can submit more, but this is where you pointed me.

[01:28:27] Speaker 05:
Yeah.

[01:28:28] Speaker 05:
They will, of course, they've got new statistics, so they're going to get new information in about compliance, and hopefully their new methods will get better and better for getting accurate data.

[01:28:37] Speaker 05:
And if it shows the catch limit is being exceeded, we will respond to that, correct?

[01:28:43] Speaker 05:
Or that if they're reaching it faster.

[01:28:45] Speaker 05:
Right.

[01:28:45] Speaker 05:
We will respond to that.

[01:28:47] Speaker 05:
So that's not a measure they've done now.

[01:28:48] Speaker 05:
That's simply, catch limits are how we're dealing with bycatch.

[01:28:54] Speaker 05:
And if it turns out the catch limit is approaching or we turn out it's been exceeded, we'll have to react.

[01:29:05] Speaker 04:
I agree with the, but I will point out again that the statute expressly comprehends that not every amendment is supposed to address in all ways by catch that their trade-offs are comprehended expressly in the statutory language and in other decisions by other courts.

[01:29:21] Speaker 04:
as well as daily in this court we don't have that the to the extent practical i i what i'm trying to explain is that the case law does not require that type of analysis it requires taking account of the bycatch trying to do things that take account of it and address it and they the agency did do that by making sure that its alternatives took account of what those effects would be the statute expressly comprehends there may be bycatch

[01:29:45] Speaker 04:
the agency expressly comprehended the trade-offs, for example, of giving less to the recreational sector and how that could actually cause more throwback problems because the season would close earlier and people would be out there fishing for other fish and have to throw more back.

[01:29:58] Speaker 04:
It had extensive discussion of all these different things.

[01:30:03] Speaker 05:
If they shorten the season, it would cause more mortal bycatch

[01:30:09] Speaker 05:
than the longer season where people are everyone who, you know, it's only getting the accidental throwbacks, I assume, if you're out of season.

[01:30:18] Speaker 05:
And so that that's going to be more than the bycatch problem that's caused by

[01:30:25] Speaker 05:
Like for example, say your season closes normally in December.

[01:30:30] Speaker 05:
And so we've got whatever your statistic is on mortal bycatch going all the way to December.

[01:30:36] Speaker 05:
And we know these are pretty high numbers.

[01:30:38] Speaker 05:
And you're saying if we have to stop the season in November, the number of people who accidentally catch red grouper and throw them back,

[01:30:51] Speaker 05:
will be higher, more by mortal by catch than if we had the season open and people were intentionally catching red gripper and throwing them back.

[01:31:00] Speaker 05:
That's what the agency found?

[01:31:01] Speaker 04:
It found that there is an offsetting effect.

[01:31:05] Speaker 04:
I'm not saying that they found that this would necessarily translate to more in the other direction.

[01:31:09] Speaker 04:
But what I am saying is that the agency did a careful trade-off that involved its scientific expertise.

[01:31:15] Speaker 05:
No, you said if we shorten the season,

[01:31:18] Speaker 05:
there'll be, there's still be discards.

[01:31:21] Speaker 05:
I thought you said there would be more of a problem, but there'll be less, there'll still be a problem, but there'll be less of a problem because there's less throwback from accidents.

[01:31:28] Speaker 04:
There is a different, there is another countervailing effect is what I'm saying that it took account of when it was trying to assess in the process of trying to minimize bycatch to the extent practicable.

[01:31:38] Speaker 04:
And when it did the assessment of what was practicable, it took account appropriately, as the appellants have conceded, as case law, for example, in other circuits establishes, it took account of the trade-offs with the other competing objectives, for example, under the national standards.

[01:31:52] Speaker 04:
And to reconcile those standards in the act, there needs to be an understanding that some of them have to give way to one another to some degree.

[01:31:59] Speaker 04:
So it can't be obviously that- I understand your argument.

[01:32:02] Speaker 05:
They balanced all these other things.

[01:32:05] Speaker 05:
just been asking for where they dress by catch.

[01:32:09] Speaker 05:
And it sounds like we just keep ending up with there was extensive addressing.

[01:32:13] Speaker 04:
There was extensive addressing, I think, to the extent that they needed to develop a separate alternative.

[01:32:17] Speaker 04:
That's not what the case law repairs.

[01:32:20] Speaker 04:
You want to ask about the

[01:32:22] Speaker 04:
I had a question about the economic analysis.

[01:32:27] Speaker 04:
I read the briefs on both sides, and I read the economic analysis in Amendment 28 and in this Amendment 53, and I honestly don't see the difference.

[01:32:45] Speaker 04:
In Amendment 28,

[01:32:48] Speaker 04:
The service said it was not possible to rank the alternatives based on the expected net benefits to the nation.

[01:32:56] Speaker 04:
And they had, in that case, I think nine different alternatives.

[01:32:58] Speaker 04:
Here they have six.

[01:33:00] Speaker 04:
And the point that was made there was that the recreational sectors

[01:33:07] Speaker 04:
quote, isn't officially allocated within the sector.

[01:33:11] Speaker 04:
There's so much variation of revealed preferences among recreational fishers that you just can't necessarily know the optimal marginal fish value.

[01:33:27] Speaker 04:
Anyway, the analysis in support of Amendment 28, which the service said did not allow the benefit to the nation to be

[01:33:38] Speaker 04:
relied on seems to me identical in nature to the analysis relied on in amendment.

[01:33:47] Speaker 04:
53, and I would love your response to what I'm missing.

[01:33:51] Speaker 04:
Sure.

[01:33:52] Speaker 04:
So I would say two things to that.

[01:33:54] Speaker 04:
The first is that it wasn't a change in position in that formal sense in terms of what would have bearing on this amendment that is under consideration now in this challenge, because it was talking about, first of all, the alternatives in that amendment, and it specifically said,

[01:34:12] Speaker 04:
ranking of the alternatives in this amendment based on the expected net benefit.

[01:34:16] Speaker 04:
This is like the old joke with those the facts of that case are different from the facts of this.

[01:34:20] Speaker 04:
Well what I would say is that really speaking and I went I drilled down and I did not see it.

[01:34:24] Speaker 04:
Right so I as I understand it this was a data specific analysis right so what in terms of what data was available and I understand your point as to what

[01:34:33] Speaker 04:
underlying principle was being discussed.

[01:34:35] Speaker 04:
To the extent that there was any inaccuracy, though, whatever this was, even if it were a change in position, it was fully explained.

[01:34:43] Speaker 04:
And so the discussion in the rule talks about how primarily what Amendment 28 was really talking about was this maximization versus comparison of specifically identified alternatives here.

[01:34:55] Speaker 04:
No, they were comparing a set of alternatives.

[01:34:58] Speaker 04:
And they were assessing them.

[01:34:59] Speaker 04:
And the service said,

[01:35:01] Speaker 04:
We can't add the economic benefit to the commercial sector and the economic benefit to the recreational sector because those two things are incommensurable measurements for this reason.

[01:35:12] Speaker 04:
I'm not sure I agree with it, but that is not my job.

[01:35:16] Speaker 04:
So they do make a point in support of 28.

[01:35:19] Speaker 04:
And it's the effort to distinguish it, actually, that to me is problematic.

[01:35:24] Speaker 04:
Because if you said, yeah, we did that there, we thought that was like,

[01:35:29] Speaker 04:
You know, the whole thing is average and across the recreational sector.

[01:35:32] Speaker 04:
Who cares whether the particular marginal fisher has a lower or higher revealed preference?

[01:35:39] Speaker 04:
So we disagree with what we found to be inadequate in Amendment 23.

[01:35:43] Speaker 04:
We're going to rely on that in Amendment 53.

[01:35:46] Speaker 04:
That would be a different case, but that is not what the service did.

[01:35:50] Speaker 04:
And honestly, I don't see the factual distinctions in any of the briefing holding water.

[01:35:55] Speaker 04:
Right, so as I understood it, what I guess I'm saying is two points.

[01:36:00] Speaker 04:
The first being, which you may or may not accept, the first being that I think that the statement that was being made there was not a broad statement of principle.

[01:36:07] Speaker 04:
It was a statement with respect to the data that was available for that particular amendment.

[01:36:11] Speaker 04:
Even if you thought there was inconsistency, there is some explanation.

[01:36:14] Speaker 04:
Even if that explanation were determined to potentially be capable of being more, I will point this court to the standard that has been adopted by the First Circuit and the Fifth

[01:36:24] Speaker 04:
in Little Bay Lobster.

[01:36:25] Speaker 04:
I didn't see the First Circuit case cited in your brief, Lisette.

[01:36:29] Speaker 04:
So I don't believe it was cited there.

[01:36:32] Speaker 04:
It is.

[01:36:33] Speaker 04:
But it was the reference that was being made, the argument that's being made in terms of what was being asked about.

[01:36:39] Speaker 04:
I heard you mention the First Circuit case.

[01:36:40] Speaker 04:
Tell me.

[01:36:41] Speaker 04:
I don't see it cited in the briefing.

[01:36:44] Speaker 04:
So it is Little Bay Lobster.

[01:36:45] Speaker 04:
I can give you the citation if you'd like it.

[01:36:48] Speaker 04:
Yes.

[01:36:50] Speaker 04:
352 F3rd 462 at pages 469 to 470.

[01:36:54] Speaker 03:
Hold on, 352, Fed 2nd.

[01:36:59] Speaker 03:
Third.

[01:37:01] Speaker 03:
Fed 3rd.

[01:37:01] Speaker 03:
462.

[01:37:03] Speaker 04:
462.

[01:37:07] Speaker 04:
Pages 469 to 470, which is relied on in a Fifth Circuit case, Postal Conservation Association.

[01:37:17] Speaker 04:
846 F3rd, 99.

[01:37:18] Speaker 03:
846 F3rd, 99.

[01:37:26] Speaker 04:
At page 108.

[01:37:29] Speaker 04:
that talk about how the agency's analysis needs to be sustained unless it's clearly unreasonable as to a particular omission for which further analysis is likely to be determinative.

[01:37:39] Speaker 04:
I made reference to this before.

[01:37:41] Speaker 04:
The prejudice argument was made in the brief.

[01:37:44] Speaker 04:
That was the colloquy that was being had, for example, about the alternatives three through five and how, you know, a remand essentially wouldn't make much difference.

[01:37:53] Speaker 04:
These were very close and there's not much reason to expect that things would be different.

[01:37:57] Speaker 04:
And I guess what I would say is that to the extent that there was concern about Amendment 28 and Amendment 53, all that's happening is that Amendment 53 made clear that it was taking the position that on this data, it believed that there was sufficient evidence to make a determination as to these particular alternatives.

[01:38:19] Speaker 04:
And that question, that determination is not undercut here.

[01:38:23] Speaker 04:
It's not clearly unreasonable.

[01:38:26] Speaker 04:
It's also the case that remanding wouldn't necessarily be determinative of any of the agency's decision or election among the alternatives, because as mentioned, it's not clear that it would go any other way based on just whether Amendment 28 had some language that may or may not be consistent with the better understanding now with respect to.

[01:38:47] Speaker 04:
You said you had two reasons, one in amendments

[01:38:50] Speaker 04:
uh 28 it was not a broad statement of principle but data specific and your second argument was uh there is explanation affirmatively in amendment 53 that here there was a determination that there was sufficient data to make that comparison the relative comparison there's no difference in the nature of the data on the preferences within

[01:39:12] Speaker 04:
the recreational sector into different records that I can perceive.

[01:39:16] Speaker 04:
And if the assessment of the court were that there was some change in understanding, it undercuts primarily Amendment 28, not Amendment 53, where there was extensive discussion of why it was well-founded here.

[01:39:27] Speaker 04:
So the extent there's a concern- So you're saying it would be Carlin's error if they had made this error?

[01:39:32] Speaker 04:
Right, because with respect to the particular alternatives here, there's not any reason to think that between three through five that it was going to make much difference to the analysis.

[01:39:42] Speaker 04:
And I would also say that with respect to the alternatives that the commercial sectors probably none of those would have actually done the things that the agency rightly was taking account of which were not clearly unreasonable, such as updating for the actual historic participation, the 7624 proportions.

[01:40:00] Speaker 04:
that the percentages that the commercial sector wants are based on an amendment that was based on data that they admit was not the truest state of the world representative, right?

[01:40:10] Speaker 04:
And so that there's updated data now that shows that the foundation for those numbers, the alternatives they want, is really not there.

[01:40:20] Speaker 04:
If the service were to depart from relying on historical allocation and mirroring that and carrying it forward,

[01:40:30] Speaker 04:
What in other fisheries and other species, what are the other ways that these allocations are made or might be made here?

[01:40:39] Speaker 04:
You mean as opposed to taking account of historic?

[01:40:42] Speaker 04:
Methodologically.

[01:40:43] Speaker 04:
Right.

[01:40:43] Speaker 04:
So historic participation reflects some sense of relative interest in participating in the fishery by these different sectors, recreational, including kids out fishing with their grandparents, and the benefits that accrue to them that are not just about how many fish are caught, kept, killed, and sold, as in the case of what happens for the commercial sector.

[01:41:03] Speaker 04:
You know, there's many other considerations described under the national standards that the agency did take account of in doing its analysis.

[01:41:12] Speaker 04:
No, I'm asking more broadly, and maybe you don't know this, but more broadly, is every fishery typically, is this the go-to method for kind of beginning allocation?

[01:41:24] Speaker 04:
It's like, let's look before this law was in place, what the sectors

[01:41:32] Speaker 04:
relative shares were.

[01:41:33] Speaker 04:
How prevalent is that?

[01:41:37] Speaker 04:
I'm not sure.

[01:41:38] Speaker 04:
I don't think it's in every case.

[01:41:39] Speaker 04:
However, what I would say is, for purposes of this case, the commercial challenge here, it's saying this determination by the agency is unreasonable, which is, of course, the standard, is based on only alternatives among which they're all based on some sense of historical allocation.

[01:41:57] Speaker 04:
It's just that the ones they're basing it on are based on outdated or less accurate data.

[01:42:02] Speaker 04:
Partly I'm asking you because it seems like the gist of their position is once it was revealed to the service that in practice, historically, the recreational sector actually occupied a much bigger share of the fishery, drew on a much bigger share, it was incumbent on the service, I mean, I think they're not saying this explicitly, but implicitly,

[01:42:28] Speaker 04:
to abandon them.

[01:42:30] Speaker 04:
Right.

[01:42:30] Speaker 04:
I think that they're trying to make an affirmative values-based argument that the service should take into account.

[01:42:35] Speaker 04:
And at that point, I would say that that would be them trying to substitute their judgment about what matters in a way that is at intention with some of the material in the statute that I was pointing out.

[01:42:44] Speaker 04:
For example, the statute does talk about recreational benefits, that it doesn't just in here in the most- But not at all costs.

[01:42:52] Speaker 04:
And that's the difficulty.

[01:42:53] Speaker 04:
Not at all.

[01:42:54] Speaker 04:
Of course, with these trade-offs and taking account is about permits like the Louisiana brief says, you know, recreational fishing is recreational fishing.

[01:43:02] Speaker 04:
Of course, it's not as regularized and regulated in the same way as commercial, but many states require recreational fishing permits.

[01:43:13] Speaker 04:
It seems like now with apps, there's so much one could do to track bycatch, for example.

[01:43:19] Speaker 04:
And in an appropriate challenge or an appropriate petition or an appropriate avenue, many affirmative policy-based considerations would be taken into account.

[01:43:29] Speaker 04:
Here, there was an extensive analysis taking into account the effects on the ground of what these different alternatives might be, taking into account what the impact would be of better reflecting the historic participation, deciding to taking account of the national standards, more evenly distribute reductions across the sectors based on their reflected interest in participating.

[01:43:52] Speaker 04:
And to the extent that there is some desire affirmatively to make change as a policy matter in this area,

[01:43:59] Speaker 04:
as you know the descend act or some of these other statutes and other regulations show there are avenues that may be pursued and so if the commercial plaintiffs here are really concerned about those underlying things then there are other ways in which they can do that but this amendment did promote conservation for example it did reduce

[01:44:21] Speaker 04:
everyone's annual catch limits to take account of impact on the stock, in the stock assessment.

[01:44:27] Speaker 04:
And when reflecting historic participation, it was reflecting some of the benefits that the statute comprehends.

[01:44:33] Speaker 04:
You effectively made that argument.

[01:44:36] Speaker 04:
I just had a really simple descriptive question about the math.

[01:44:41] Speaker 04:
On JA 3427, the appendix says that 1.73 million pounds in separate units is equal to 0.

[01:44:51] Speaker 04:
a two, four million pounds in the phone survey units.

[01:44:57] Speaker 04:
And then when they do the

[01:45:03] Speaker 04:
that it's functionally the same allocation as is translated as an amendment.

[01:45:08] Speaker 04:
Do the numbers come out somewhat differently in the record?

[01:45:11] Speaker 04:
And I'm not sure why.

[01:45:12] Speaker 04:
75.4% versus 24.6 allocation, not 76 to 24.

[01:45:23] Speaker 04:
Why are there different numbers there?

[01:45:25] Speaker 04:
Do you know what I'm talking about?

[01:45:26] Speaker 04:
I'm looking at 34.27.

[01:45:27] Speaker 04:
Is that the one you said?

[01:45:29] Speaker 04:
And it's also,

[01:45:33] Speaker 04:
3342.

[01:45:33] Speaker 04:
There's just one set of pair of numbers is 75.4 versus 24.6.

[01:45:43] Speaker 04:
And the other, which is amendment 30B, is 7624.

[01:45:50] Speaker 04:
Why is it not 7624 in the recalculation for the alternative in this rulemaking?

[01:46:01] Speaker 04:
I'm looking at 3427, is that where you're saying, and 3372, is that where you're going to?

[01:46:10] Speaker 04:
If this is not familiar to you, well, I can skip it.

[01:46:13] Speaker 04:
3342.

[01:46:13] Speaker 04:
3342, I'm sorry.

[01:46:16] Speaker 04:
Yep, 3342, 3427.

[01:46:21] Speaker 04:
Just the question is why amendment 30B talked about 7624, but the recreation of that in the current chart that you have pointed to has some decimals and maybe it's just a rounding decision.

[01:46:42] Speaker 04:
You know, I'm not sure, Your Honor, because I don't know that I see the references.

[01:46:47] Speaker 03:
Well, we could always submit a letter to the agency.

[01:46:51] Speaker 04:
or I don't know that I see those numbers at these pages.

[01:46:54] Speaker 04:
We've been here a long time.

[01:46:55] Speaker 04:
I'm going to let you.

[01:46:56] Speaker 04:
All right.

[01:46:56] Speaker 04:
Thank you.

[01:46:57] Speaker 04:
Any other questions?

[01:47:02] Speaker 05:
All right.

[01:47:02] Speaker 05:
Thank you very much, Council.

[01:47:03] Speaker 05:
Thank you so much.

[01:47:05] Speaker 05:
Perhaps we'll give you three minutes.

[01:47:13] Speaker 02:
Thank you, Your Honor.

[01:47:13] Speaker 02:
Just to touch on a couple of brief points here.

[01:47:16] Speaker 02:
First of all, with respect to Amendment 30B, the assumption there was that the ratio of discards to landings were roughly the same between the commercial and recreational sectors.

[01:47:26] Speaker 02:
The citation for that is Joint Appendix 4558.

[01:47:29] Speaker 02:
That was the assumption for 30B when the 7624 allocation was set.

[01:47:35] Speaker 02:
That is what fundamentally changed when it came time for Amendment 53.

[01:47:39] Speaker 02:
And it was learned that the ratio of discards in the recreational sector was actually much higher.

[01:47:45] Speaker 02:
That's why it's our contention that when the agency learned that new information, it was required to do something.

[01:47:51] Speaker 05:
There's an argument here and questions about your position that once they discovered the new information, call it 7624, and they discovered

[01:48:05] Speaker 05:
catch problem that or discovered I just computed or figured out that with that set of that change to 6040 is a big increase in bycatch.

[01:48:16] Speaker 05:
Is it your position that the agency has to abandon reliance on historical allocations as part of its decision making and setting the new amendment here?

[01:48:30] Speaker 02:
It's a good question.

[01:48:31] Speaker 02:
And to answer your question earlier, that is typically what is done in allocations, at least that I've been involved with around the country.

[01:48:37] Speaker 02:
The starting place is typically, well, what did everybody catch in the past?

[01:48:41] Speaker 05:
Are you asking for them to change that starting point?

[01:48:43] Speaker 02:
We don't think that's necessarily needs to change, but that can be the starting bid.

[01:48:47] Speaker 02:
And then you have to look at, OK, if we make an allocation based on this, are we complying with the national standards?

[01:48:54] Speaker 04:
On that standard nine, it's

[01:49:00] Speaker 04:
I just want to understand the scope of your proposed reading there.

[01:49:03] Speaker 04:
If the service amends a fishery management plan, no matter how focused the reason for it, the service has to consider every reasonable alternative measure that could potentially minimize bycatch?

[01:49:18] Speaker 02:
I don't think the service needs to do that every time.

[01:49:20] Speaker 04:
OK, so if this rule is all about just queuing to the same historical data, the same historical period of years,

[01:49:29] Speaker 04:
taking the new survey data, what it tells them, and mapping it onto that, right?

[01:49:36] Speaker 04:
Just doing a translation from, you know, Fahrenheit to Centigrade.

[01:49:42] Speaker 04:
What is the position?

[01:49:43] Speaker 04:
Why would that trigger

[01:49:46] Speaker 04:
And requirement to consider every potential measure to minimize bycatch and not be satisfied by what the service did here, which is say, ooh, there's more bycatch going on, has been for years than we realized.

[01:50:03] Speaker 04:
And so we have to lower the ceiling for that.

[01:50:06] Speaker 02:
Right, so the agency, so I think what the statute says is that conservation and management measures shall minimize bycatch to the extent track.

[01:50:15] Speaker 02:
I think the reason that matters here is because the agency learned something new about Bycatch that it didn't know before.

[01:50:24] Speaker 02:
And so that should have triggered an obligation in the agency to do something about those higher levels of bycatch.

[01:50:32] Speaker 02:
In other words, if the agency had just updated the allocation formula with the new landings numbers, not taking into account the bycatch as was done, then the agency is failing to consider an important aspect of the problem here.

[01:50:47] Speaker 03:
So let me ask you, counsel,

[01:50:50] Speaker 03:
Were these objections raised to the agency, and by that I mean that it was impermissible for the agency to take the approach it has taken, namely by saying the tools that we've employed in the past to promote conservation

[01:51:17] Speaker 03:
We expect now that there will be different responses and we'll look at them, look at those responses, you know, and act accordingly then.

[01:51:32] Speaker 03:
But for now, we're doing this translation to FEC measurement.

[01:51:41] Speaker 03:
And we know a lot more, but

[01:51:45] Speaker 03:
in our agency opinion, we're not persuaded, given the trade-offs between these different standards and different interests involved, that we're in a position to do more until we get further information about how things that we have in place

[01:52:14] Speaker 03:
function with this new data set.

[01:52:21] Speaker 03:
And based on what was presented to us, while the agencies has the burden to support its action, nevertheless, it responded to what was presented and has

[01:52:44] Speaker 03:
explained why it's decided to do what it did now.

[01:52:54] Speaker 03:
Long question, sorry, but you get the thrust.

[01:52:57] Speaker 02:
Yes, I get the thrust, Your Honor.

[01:53:00] Speaker 02:
And our response is that when the agency decided to act here to enact Amendment 53, make the allocation change on paper, that triggered an obligation to ensure compliance with all of the national standards and the other statutory requirements.

[01:53:16] Speaker 03:
What I'm getting at, Council, is the agency says, look, we

[01:53:21] Speaker 03:
We may not, these are my words, not counsel's words, we may not have an alternative that says this is all about conservation, but rather we have these alternatives where they have different effects on conservation.

[01:53:38] Speaker 03:
And given the other concerns we have in addition to the interaction of the standards, why isn't this a reasonable way to proceed now?

[01:53:50] Speaker 03:
given that it has this new information, it's not going to ignore the new information, but it wants to see how sort of the system works.

[01:54:03] Speaker 03:
And while it takes this sort of broad brush approach of just lowering the catch, why isn't that enough for now?

[01:54:18] Speaker 03:
That's what I'm not clear on.

[01:54:21] Speaker 03:
Not that you may not be entitled to consideration of these other options, including what Congress has put on the table, but I'm not clear exactly why what the agency did in explaining what it was doing now and not ignoring

[01:54:48] Speaker 03:
Standard nine.

[01:54:49] Speaker 03:
Even though from the court's perspective, it would have been a lot easier had they included a sentence that says, we've decided that anything else at this time is impracticable.

[01:55:11] Speaker 02:
Yes, Your Honor.

[01:55:12] Speaker 02:
So I've looked for such a statement in the record.

[01:55:16] Speaker 02:
I've not been able to find one.

[01:55:19] Speaker 02:
Nor is there any commitment from the agency to actually take action to minimize bycatch in the recreational fishery in the future.

[01:55:29] Speaker 03:
Well, we can't assume that the agency is going to act unlawfully intentionally, if you understand what I'm getting at.

[01:55:37] Speaker 03:
There's a presumption here.

[01:55:39] Speaker 02:
Of course, your honor, but I would also submit that.

[01:55:43] Speaker 05:
And just tell me where it is.

[01:55:45] Speaker 05:
We are making a decision to wait and see and get more information about the bycatch problem because we got new statistics.

[01:55:56] Speaker 05:
And so for now, we're just doing the annual catch limit.

[01:56:00] Speaker 05:
but as you further by catch measures, we want to wait and see how these new numbers work.

[01:56:06] Speaker 05:
Did they say that?

[01:56:07] Speaker 02:
I have not done any statement like that.

[01:56:09] Speaker 05:
Did they say we want to do a wait and see and deal with this incrementally?

[01:56:13] Speaker 02:
No, my understanding is that they essentially threw up their hands and said, we've done as much as we can do, but they've never been in an interview.

[01:56:20] Speaker 03:
What do you mean, council?

[01:56:22] Speaker 03:
The agency said it's done as much as we can do.

[01:56:27] Speaker 03:
Isn't that tantamount?

[01:56:29] Speaker 02:
I'm sorry, I never made that finding, but if you read the bycatch practicability analysis, it goes through all of the prior measures that were in place.

[01:56:40] Speaker 02:
Nothing new was done in this amendment to address bycatch, notwithstanding the new information.

[01:56:45] Speaker 03:
I know, but that's like, the point is now you have this new data and you can see how these tools work.

[01:56:57] Speaker 03:
And they don't know that yet.

[01:57:00] Speaker 03:
So they say, okay, so we just reduce across the board for now.

[01:57:07] Speaker 05:
They didn't say that.

[01:57:08] Speaker 05:
They already knew these tools didn't work.

[01:57:10] Speaker 05:
That's what caused the bycatch problem.

[01:57:11] Speaker 05:
They already knew these tools.

[01:57:12] Speaker 05:
These tools are the ones that left them with the current bycatch problem.

[01:57:15] Speaker 02:
Correct, Your Honor.

[01:57:16] Speaker 02:
And importantly, also reducing the catch limit did absolutely nothing to minimize bycatch, right?

[01:57:24] Speaker 02:
That accounted for the mortality, but the bycatch was continued.

[01:57:26] Speaker 03:
That's an overstatement, counsel.

[01:57:29] Speaker 03:
And you don't have to make it to make your point.

[01:57:34] Speaker 03:
But I just think,

[01:57:38] Speaker 03:
Your argument has to be, presumably, if you presented this to the agency as you're presenting it to the court, that the agency couldn't do anything except consider an alternative based on alternative nine, on national standard nine.

[01:58:03] Speaker 02:
I think as we've talked about, Your Honor, there are a number of things the agency could do.

[01:58:08] Speaker 02:
I would even point the court to the agency's own statements in the Oceania case about what section 1853A15 requires, and that's to accurately assess bycatch during the fishing season.

[01:58:22] Speaker 03:
That is not- In other words, from your client's point of view, it would have been better for the agency not to have done anything, all right?

[01:58:31] Speaker 03:
And let the system go forward

[01:58:33] Speaker 03:
And then in the future, and not too necessarily too distant future, consider this new data and the translation and just delay the translation further.

[01:58:50] Speaker 03:
Rather than get it done with, get the new data, chew it over once you see how it works now that you have the data.

[01:58:59] Speaker 03:
that that's just impermissible.

[01:59:01] Speaker 03:
And you may be right, but I just want to understand if that's your argument and that's how you presented it to the agency.

[01:59:07] Speaker 02:
Yeah, I think that's a fair assessment, right?

[01:59:10] Speaker 02:
I think what we were saying is that we acknowledge that there's this new survey data.

[01:59:15] Speaker 02:
That provides a rational basis for regulatory action.

[01:59:19] Speaker 02:
But then the result of that, the action that was actually taken is arbitrary and capricious because it failed to take, to address an important aspect of the problem.

[01:59:29] Speaker 02:
And that is the new information that was learned.

[01:59:31] Speaker 05:
What they need to wait and see for, since all this was, were numbers that reflected what was already happening out there, including the bycatch problem.

[01:59:39] Speaker 05:
So we already know, the agency already knows

[01:59:44] Speaker 05:
what the bycatch problem is with these new numbers.

[01:59:47] Speaker 05:
They said this isn't something they've invented.

[01:59:49] Speaker 05:
They said this is what's been going all along.

[01:59:52] Speaker 05:
So it's been going on all along.

[01:59:53] Speaker 05:
It's a 60-40 split.

[01:59:55] Speaker 05:
And also what's been going on all along with that 60-40 split is a much, much more significant bycatch problem and mortality bycatch problem than we realize.

[02:00:06] Speaker 05:
There's nothing new to wait and see what happens.

[02:00:08] Speaker 05:
They already know what happens with these numbers.

[02:00:10] Speaker 02:
Precisely, Your Honor.

[02:00:11] Speaker 02:
I'm not sure what waiting longer and having further years more bycatch would have told the agency that it didn't.

[02:00:17] Speaker 02:
That's right.

[02:00:19] Speaker 05:
Any other questions?

[02:00:20] Speaker 05:
All right.

[02:00:21] Speaker 05:
Thank you very much, Your Honor.

[02:00:22] Speaker 05:
The case is submitted.