[00:00:00] Speaker 00:
Good afternoon, counsel.

[00:00:20] Speaker 07:
Good afternoon, your honor.

[00:00:22] Speaker 07:
Good afternoon, your honors.

[00:00:23] Speaker 07:
May it please the court, I'd like to reserve five minutes for rebuttal.

[00:00:28] Speaker 07:
With the end of Chevron deference, this case, I think, presents what should be a straightforward question of statutory interpretation.

[00:00:36] Speaker 07:
Does the Magnuson-Stevens Act expressly authorize the government to require industry-funded monitoring in the Atlantic herring fishery?

[00:00:45] Speaker 07:
The steps involved in that task, I think, are also well established.

[00:00:49] Speaker 07:
The court must start with plain text.

[00:00:51] Speaker 07:
It should then examine the overall statutory context.

[00:00:54] Speaker 07:
And finally, if needed,

[00:00:57] Speaker 07:
the court can consider statutory history.

[00:01:00] Speaker 07:
At each of these steps, text, context, and history, the fishermen offer the best reading of the law.

[00:01:09] Speaker 07:
Let's start with text.

[00:01:11] Speaker 07:
Consider section 1853B8, which I would note was the only statutory basis cited by the government in its final rule for its authority to implement the omnibus amendment.

[00:01:23] Speaker 07:
That provision allows for vessels to be required to, quote, carry, end quote, an observer.

[00:01:30] Speaker 07:
The ordinary meaning of carry, though, refers only to things like bearing, transporting, and conveying.

[00:01:38] Speaker 07:
There's no inherent connection between carrying a monitor so that he can perform his information collection duties and paying that monitor's salary.

[00:01:49] Speaker 07:
Section 1853B14's

[00:01:51] Speaker 07:
necessary and appropriate clause.

[00:01:54] Speaker 08:
Just on B-8 for a second, I mean, even if there's not an inherent connection, I guess I'm not sure there is an inherent disconnection either.

[00:02:00] Speaker 08:
And so if we just think B-8 allows for the secretary to require carrying of observers and then doesn't itself answer the question of whether the secretary can require the vessels to pay for the observers.

[00:02:19] Speaker 08:
And let's just assume that for a second, just for now.

[00:02:23] Speaker 08:
You may resist that, but just assume that for a second for now.

[00:02:26] Speaker 08:
And it doesn't mean to say that it doesn't shed light on it in one direction or the other.

[00:02:30] Speaker 08:
It's just that the text doesn't dispose of it.

[00:02:33] Speaker 08:
I guess my question would be, if we look at B4, which talks about prohibiting, limiting, conditioning, or requiring the use of specified types and quantities of fishing gear, fishing vessels, or equipment, it just feels to me like we'd be kind of seeing the same thing, which

[00:02:49] Speaker 08:
that requiring the use of those things can require the use of them, just like it can require the carrying of an observer.

[00:02:56] Speaker 08:
And it just doesn't, in and of itself, tell you who, as a textual matter, who's going to pay for that.

[00:03:02] Speaker 07:
Well, I think there is a bit of a difference.

[00:03:04] Speaker 07:
I mean, to require the use of something,

[00:03:08] Speaker 07:
implies different things than to say you have to carry X person on your boat.

[00:03:13] Speaker 07:
So, I mean, the regulatory costs that come from saying the government can require certain types of vessels or nets or gear is a little bit different than the statute saying explicitly you have to accommodate X person on your boat.

[00:03:28] Speaker 07:
But I also think there's a difference in the nature of what you're suggesting, I think, is that the pain of the monitor's salary and his travel costs can be a form of a compliance cost.

[00:03:38] Speaker 07:
There's a difference in the nature.

[00:03:40] Speaker 08:
I'm not necessarily saying that.

[00:03:41] Speaker 08:
I guess, I mean, we'll go there.

[00:03:42] Speaker 08:
I'm sure we'll explore that.

[00:03:43] Speaker 08:
I guess all I'm saying is that the text of the provision, are you saying that B8, because it uses the term carry, definitely means carry but don't pay, someone else will pay?

[00:03:58] Speaker 07:
I mean, that would be my position, and I do think that there is a meaningful textual difference between the word carry and require the use.

[00:04:07] Speaker 07:
I mean, I'm reminded Judge Walker, I think, in his dissent in the court's last opinion, kind of explored some of this and why that might be the case.

[00:04:14] Speaker 07:
But I think even if we look historically to how the agency has understood the term CARI in its implementing regulations for observer programs, including for most of the history of the MSA for the observer programs that were always funded by the government, CARI was understood to include things like give a birth to the monitor.

[00:04:35] Speaker 07:
You have to give up a bunk.

[00:04:37] Speaker 07:
You have to feed them, right?

[00:04:39] Speaker 07:
You have to make sure that they have access to the hold,

[00:04:44] Speaker 07:
They can use communications equipment as long as it's work related.

[00:04:47] Speaker 07:
These are the sorts of things that I think go very well and which the agency, the government has always understood to go very well with this sense of the carry.

[00:04:55] Speaker 08:
But is it your position that the agency never required anything beyond that with respect to observers that were carried on board a vessel?

[00:05:06] Speaker 07:
So there are, I mean, we want to talk about the history of observer programs.

[00:05:12] Speaker 07:
From the implementation in 1976, the first attempt at industry funding is in 1990 in the North Pacific.

[00:05:20] Speaker 07:
And then as we explained in the briefing, immediately the government stepped in, excuse me, Congress stepped in, and with the 1990 amendments, our view is that they created explicit authority to shift costs through a fee system with the North Pacific fisheries

[00:05:36] Speaker 07:
management plans.

[00:05:38] Speaker 07:
But from then on until the beginning of the 2000s, there's no mandatory industry funded observing program anywhere.

[00:05:47] Speaker 07:
And what you do have is with federally funded programs implementing regulations that make clear that the vessel owners and operators are responsible for

[00:05:59] Speaker 07:
accommodating and feeding, and then these other, you know, things like give them access to the bridge and so forth.

[00:06:05] Speaker 03:
I mean, even in- So, Council, let me just ask you in that connection, can the government in that regard to carrying impose certain requirements, for example, that

[00:06:24] Speaker 03:
the bed will be comfortable, that it will have blankets such that the observer can be kept warm, that the observer will have three meals a day and they will be healthy meals in accord with national standards.

[00:06:45] Speaker 03:
In other words, I see your argument

[00:06:49] Speaker 03:
as not suggesting that the federal government cannot do those sorts of things with regard to quartering.

[00:06:59] Speaker 03:
Have I misunderstood your argument?

[00:07:02] Speaker 07:
So in a funny way, the government already requires some of that.

[00:07:06] Speaker 07:
It's explicit in the statute, right?

[00:07:08] Speaker 07:
So if we look to the exceptions.

[00:07:09] Speaker 03:
I'm talking about what is beyond the statute, Tory text.

[00:07:16] Speaker 03:
We have the word that quartering.

[00:07:22] Speaker 07:
Yes, yeah, that's what I was about to talk about.

[00:07:25] Speaker 07:
I mean, you can have things that, insofar as there is an exception to B8, where there's unsafe conditions, I think the implication there being, at least at a certain level, you're right, the government is gonna be able to say, you know, it has to be a safe place to sleep.

[00:07:45] Speaker 07:
Whether or not a pillow is required, I mean, that might get more into,

[00:07:50] Speaker 07:
arbitrary and capricious review and whether it's really given the national standards.

[00:07:57] Speaker 03:
Well suppose someone comes on board who has a sinus condition and therefore hypothetically needs another pillow.

[00:08:05] Speaker 03:
All I'm trying to understand is the extent to which you are reading the Supreme Court's remand to this court to require in the absence

[00:08:19] Speaker 03:
of Chevron that the only way a court could conclude that the challenged cost is authorized is if Congress expressly says you

[00:08:47] Speaker 03:
the fisheries, shall pay the annual salary, you know, pro-rated for the number of months you use him.

[00:09:00] Speaker 07:
Well, I don't think B-8 is going to get you, with your hypothetical, Your Honor, to where you are.

[00:09:06] Speaker 03:
Well, what I'm trying to get at, you started off your argument by saying that the Supreme Court, as I understood it,

[00:09:14] Speaker 03:
now requires an explicit statement in the statutory text that the salary of the observer shall be paid by the fishery.

[00:09:34] Speaker 03:
Was that your point?

[00:09:36] Speaker 07:
Well, yes, Your Honor, that any assertion of authority by an agency is going to have to be found expressly in the statute.

[00:09:43] Speaker 07:
Now, the court, as we recognize- No, no, no, no.

[00:09:45] Speaker 03:
Hear my question, because I'm just quoting what you said in your opening remarks.

[00:09:52] Speaker 03:
And what I'm trying to understand is when the Supreme Court says courts shall decide and use

[00:10:03] Speaker 03:
the normal cannons of statutory construction, that to me did not, and maybe I'm incorrect, that did not mean to me that the court could only rule if it could find and express, or in your terms, an explicit statement by Congress that

[00:10:33] Speaker 03:
The fishermen shall pay the salary of the observer.

[00:10:38] Speaker 07:
Well, I think it does, your honor.

[00:10:39] Speaker 07:
And if I could read this, this sense of two, two responses to that.

[00:10:42] Speaker 07:
I mean, first, insofar as this court in its previous opinion took for granted that silences or ambiguities could give rise to implied delegations.

[00:10:51] Speaker 07:
The Supreme Court has made clear that that's no longer acceptable.

[00:10:56] Speaker 03:
But you heard my question, did you not?

[00:10:58] Speaker 03:
Right.

[00:10:59] Speaker 03:
Because the Supreme Court clearly stated that the courts could properly apply the usual canons of construction in interpreting a statute, whether it found that statute to provide explicit authority or it was ambiguous.

[00:11:21] Speaker 03:
as to whether the authority existed?

[00:11:23] Speaker 07:
Yeah, so as I was going to say, on page 2255, I think the court says implicit delegations, that presumption of permissibility of implied delegations was wrong before.

[00:11:36] Speaker 07:
And now with Chevron gone, it's definitely wrong.

[00:11:39] Speaker 07:
Now, there can be delegations.

[00:11:43] Speaker 07:
So the Chief Justice says you can have delegations.

[00:11:47] Speaker 07:
Congress can tell an agency.

[00:11:50] Speaker 07:
direct an agency is the language he uses, define this term, fill in this gap or, you know, we're going to recognize that Congress explicitly through the use of certain capacious terms can give some discretionary policy making to an agency.

[00:12:08] Speaker 07:
Now, it's still an express delegation.

[00:12:11] Speaker 07:
It's just that the language that's used is capacious.

[00:12:16] Speaker 07:
It gives by its very nature

[00:12:19] Speaker 07:
some movement to the agency to move about with its regulation.

[00:12:23] Speaker 08:
And one of the words he used... If you can still, I mean, there's no doubt a statute can, without specifically saying that costs are going to be borne by the regulated entity,

[00:12:31] Speaker 08:
a statute can still be best read to allow for that.

[00:12:35] Speaker 08:
You don't need explicit text.

[00:12:36] Speaker 08:
Nothing in the Supreme Court's opinion says that you have to have explicit text about the specific thing about costs, otherwise costs can't be imposed on a regulated entity.

[00:12:45] Speaker 08:
There's no reason to think that language about that is different from language about anything.

[00:12:49] Speaker 08:
What the Supreme Court said is,

[00:12:50] Speaker 08:
You can't give the agency the benefit of the doubt based on delegations of authority.

[00:12:55] Speaker 08:
You have to do the work to figure out how you think the statute is best read.

[00:12:58] Speaker 08:
But it can still be best read to accomplish that result, even if there's not direct words that point in either direction.

[00:13:04] Speaker 07:
Well, I mean, as applied to this case, what's important, I think, to keep in mind is that the paying of the monitor salary is not a compliance cost, right?

[00:13:13] Speaker 07:
It's given the very nature

[00:13:15] Speaker 07:
of the job of the observer who's serving an inspectorial function, an enforcement function on the boat, it's really not a compliance cost.

[00:13:23] Speaker 08:
So I mean... Right, so if you thought that the way the world works is that the only thing that can be implied to come along is compliance costs and this falls outside of compliance costs, then I mean I understand the syllogism.

[00:13:35] Speaker 08:
But in terms of the idea that, in response to Judge Rogers' question,

[00:13:38] Speaker 08:
that you don't have to have, as an abstract matter, explicit tests, explicit text that assigns costs to, or fees, or expenses.

[00:13:48] Speaker 08:
I don't want to get fixated on the word cost, but expenses to a regulated entity.

[00:13:53] Speaker 08:
There's nothing in the Supreme Court's decision

[00:13:56] Speaker 08:
That, it may be in some particular context that that's how a statute is best read.

[00:14:01] Speaker 08:
But the Supreme Court's decision in Loper doesn't tell us that directly, right?

[00:14:06] Speaker 08:
We just do the work of figuring out what the best reading of the statute is.

[00:14:09] Speaker 08:
And sometimes it's going to be written on the bare text of the statute.

[00:14:11] Speaker 08:
Sometimes it's going to require us to do some reasoning based on the statutory context and the way the position's interlinked and things like that, right?

[00:14:18] Speaker 08:
I mean, that's just basic statutory interpretation.

[00:14:20] Speaker 07:
I think the general thrust, though, of the Supreme Court's elimination of Chevron and clarification about what courts are supposed to be doing, though, is that everything needs to have a textual hook.

[00:14:31] Speaker 07:
I mean, so there can't just be- In either direction, then.

[00:14:35] Speaker 08:
In either direction, then.

[00:14:35] Speaker 08:
It's not tilted in order.

[00:14:36] Speaker 08:
You'd have to have one, too, then.

[00:14:38] Speaker 07:
Yeah, but I would say in this case, though, I mean, if we look back to what this court said in its opinion on 368, I mean, it said that you

[00:14:48] Speaker 07:
You took all of the canons, you applied them, and the government lost at step one.

[00:14:54] Speaker 07:
And the only reason why it moved to... The government lost at step one under our decision?

[00:14:58] Speaker 07:
Yeah.

[00:14:58] Speaker 07:
I mean, here, so page 368.

[00:15:01] Speaker 07:
Nothing in the text compels the service's interpretation.

[00:15:04] Speaker 07:
Neither 1853 B-8 nor any other provision of the act explicitly allows the service to pass on to industry the cost of monitoring, nor do the traditional tools of statutory interpretation provide any other basis on which to conclude the act

[00:15:17] Speaker 07:
unambiguously supports the service interpretation.

[00:15:20] Speaker 08:
Unambiguously.

[00:15:21] Speaker 08:
So I have a hard time understanding how, I mean, I don't know why we're even debating this.

[00:15:26] Speaker 08:
I have a hard time understanding how our previous decision is best understood as a Chevron step one resolution.

[00:15:33] Speaker 07:
No, it's not a step one decision.

[00:15:35] Speaker 07:
It's the government lost its step one.

[00:15:37] Speaker 07:
You moved to step two.

[00:15:39] Speaker 08:
Oh, well, the government loses step one.

[00:15:42] Speaker 08:
They just didn't win a step one.

[00:15:43] Speaker 08:
Well, I don't know what it means to say the government losing at step one means that their reading is unambiguously foreclosed.

[00:15:49] Speaker 08:
The government not winning at step one and you not winning at step one means we go to step two.

[00:15:53] Speaker 07:
Right.

[00:15:53] Speaker 07:
But as I mentioned earlier, the court took for granted in applying the Chevron methodology,

[00:16:00] Speaker 07:
that silences and ambiguities can give rise to implied delegations.

[00:16:05] Speaker 07:
So not only is the movement to step two gone, but the court has clarified that those sorts of things, you know, we can't give the benefit of the doubt to the agency.

[00:16:13] Speaker 07:
The government is the one... We don't get the benefit of the doubt either way.

[00:16:15] Speaker 08:
We just construe the statute to figure out what the right answer is based on all the tools of statutory reconstruction that we bring to the court.

[00:16:21] Speaker 07:
Right.

[00:16:21] Speaker 07:
And if the government had met its burden to find statutory support for the legality of industry funding,

[00:16:27] Speaker 07:
I mean we wouldn't be here now and the Supreme Court wouldn't have gotten rid of Chevron.

[00:16:31] Speaker 07:
I mean this would have been resolved at step one.

[00:16:33] Speaker 03:
It may be that the formulation of step one in your view and that stated by the Supreme Court is somewhat different but again we can just look at what the Supreme Court said step one was all about and if

[00:16:50] Speaker 03:
we couldn't conclude that Congress had, in your words, explicitly addressed the subject, then we would go to step two.

[00:17:02] Speaker 03:
But I want to get back to where you are now.

[00:17:06] Speaker 03:
And what I understood the Supreme Court to say is, in light of its instruction,

[00:17:15] Speaker 03:
this court was to look at the case in terms of trying to figure out what is the best reading of the text.

[00:17:25] Speaker 07:
Yes, ma'am.

[00:17:26] Speaker 03:
And I don't see, and I think you're conceding in your colloquy with the chief judge that it doesn't have to be explicit because unless you do, then it means that we could never

[00:17:44] Speaker 03:
rule that the rule is as you object, because Congress didn't say in the statute, industry shall never be charged for the cost of the observer's salary.

[00:18:04] Speaker 07:
I don't think I've conceded anything.

[00:18:09] Speaker 07:
We're not, Congress doesn't need to, as this court even before the end of Chevron deference had explained in cases like Ethel Corporation, I mean, Congress doesn't have to provide an explicit prohibition on the use of industry funding outside of the three contexts that we contend that there already is an explicit authorization.

[00:18:30] Speaker 07:
That's the wrong way to look at it, because if that's the case, I mean, there's really no limit to what the government can claim.

[00:18:38] Speaker 03:
Oh, I don't think we're disagreeing about that at all, Council.

[00:18:42] Speaker 03:
All I'm trying to understand is how far you want to go with your explicit requirement analysis.

[00:18:56] Speaker 03:
Because I thought what the chief judge's question was pointing out, then you have to ignore a lot of what the Supreme Court said when it sent the case back to us.

[00:19:08] Speaker 07:
Well, but even when you're, again, in the realm of where there's been a delegation of discretionary policymaking to an agency, that still has to be expressed.

[00:19:22] Speaker 07:
Now, the express can be, as I think in this case, we're in that third bucket of the types of delegations that the chief anticipated might happen, right?

[00:19:30] Speaker 07:
Where you have a term like appropriate.

[00:19:34] Speaker 07:
The court's job here is to determine what are the boundaries of what appropriate means legally.

[00:19:41] Speaker 07:
I mean, that's still dealing with express language in the statute.

[00:19:49] Speaker 07:
I mean, that's not moving into any sort of a textual realm.

[00:19:52] Speaker 08:
Of course.

[00:19:52] Speaker 08:
I mean, but suppose the statute didn't have necessary appropriate language in it at all, and all it had was B8.

[00:19:57] Speaker 08:
It's just a one provision statute that has B8.

[00:20:00] Speaker 08:
That doesn't tell you who pays the expenses of it.

[00:20:04] Speaker 07:
Well, I think it does.

[00:20:05] Speaker 08:
I mean, you think it does because you think that it means carry and only carry, and the vessel shouldn't have to pay for anything

[00:20:16] Speaker 08:
beyond carrying, quartering, feeding blankets, pillows, but not... Yeah, the things that are incidental to carrying the monitor on the boat.

[00:20:23] Speaker 07:
And that's the historical understanding of the governments.

[00:20:25] Speaker 08:
I mean, even in its regulations today... You just have to read the statute to figure out what the best understanding of it is.

[00:20:30] Speaker 08:
And I know that you have a position that you advocate that you think the most natural way to understand that is to go to some expenses associated with observers being on board, but not to the point of actually paying the observers.

[00:20:43] Speaker 08:
That's your...

[00:20:44] Speaker 08:
an assumption about what the better reading of it, and I think there's an argument on the other side that there's another reading that's different from that, and we have to look at the statute to figure out what the best understanding is.

[00:20:53] Speaker 08:
On that, you don't think that with respect to requiring the use of types and quantities of fishing gear, fishing vessels, or equipment, that that has to be read to mean at the expense of the government.

[00:21:07] Speaker 06:
No, I do.

[00:21:10] Speaker 06:
You do?

[00:21:12] Speaker 08:
So you think that B4, if I can just finish, you think that B4, when it says require the use of specified times and quantities of fishing gear, fishing vessels, or equipment, if the plan takes that up and requires a specific type of fishing gear that the government has to pay for the fishing gear?

[00:21:31] Speaker 07:
No.

[00:21:32] Speaker 07:
Oh, no, no, no.

[00:21:33] Speaker 07:
No, yeah.

[00:21:34] Speaker 07:
The government, I'm sorry, I misunderstood you, Your Honor.

[00:21:36] Speaker 07:
No, and I think in our reply brief, the government floated this idea and, I mean, I honestly, I think it's a pretty far out there argument that the reading of that, I mean, to require the use of, in my mind, as I pointed out in the supplemental reply brief, I mean, that's sort of

[00:21:54] Speaker 07:
It sounds imperative.

[00:21:55] Speaker 07:
It sounds like we're ordering regulated industry to purchase these types of gear.

[00:22:01] Speaker 08:
It doesn't even say it has to be at your expense.

[00:22:07] Speaker 08:
It just says use.

[00:22:08] Speaker 08:
You have to use it.

[00:22:09] Speaker 08:
But it doesn't not say that the government has to pay for it.

[00:22:13] Speaker 07:
No, but I mean there's no

[00:22:15] Speaker 07:
historical example of that.

[00:22:17] Speaker 08:
It's not a common sense reading of the... That's when you go to history.

[00:22:21] Speaker 08:
I'm just trying to understand, what is it about those words that tells you that requiring the use of specified

[00:22:30] Speaker 08:
Fishing gear or fishing vessels doesn't mean require the use, but only require the use.

[00:22:35] Speaker 08:
That doesn't mean you have to pay for it.

[00:22:37] Speaker 08:
You may prefer to use a different type of vessel, but we need you to use this type of vessel.

[00:22:42] Speaker 08:
And of course, we'll pay for it.

[00:22:44] Speaker 07:
So I'm reminded of Justice Barrett's concurrence.

[00:22:48] Speaker 07:
I think it was in Biden v. Nebraska.

[00:22:51] Speaker 07:
when we do textual analysis, we have to do it with an ounce of common sense.

[00:22:55] Speaker 07:
And when we read that phrase, require the use of, I mean, the first thing I think is that nobody reading that would anticipate it to mean that the government is going to pay for it.

[00:23:03] Speaker 07:
And that we have a nationalized fishery system where we're just fishing on behalf of the government.

[00:23:08] Speaker 07:
I mean, I don't think that that's the right reason.

[00:23:09] Speaker 08:
So you think there's a talismanic distinction in words between requiring the use of equipment and requiring the carrying of people.

[00:23:16] Speaker 08:
When you say requiring the carrying of people,

[00:23:18] Speaker 08:
the only conceivable way to understand that without knowing.

[00:23:21] Speaker 08:
There's no other provision that speaks to it.

[00:23:22] Speaker 08:
There's nothing else there.

[00:23:24] Speaker 08:
Requiring the caring of people means, inexorably, you have to carry the people, which means you have to pay for their bed and their food and their pillows and their allergy medicines, but you don't have to pay their salaries.

[00:23:34] Speaker 08:
It's just inexorable.

[00:23:35] Speaker 07:
You have the opportunity cost that you've given up a spot that one of your men would otherwise be on the boat.

[00:23:42] Speaker 07:
Yeah, those are the costs associated with having to carry.

[00:23:45] Speaker 07:
And there's a difference.

[00:23:46] Speaker 07:
And it's not just the textual difference,

[00:23:48] Speaker 07:
I mean, it's just the nature of the regulatory burden, right, having to use a certain boat, whether you're buying it or loaning it or borrowing it or whatnot.

[00:23:58] Speaker 07:
It's just different in kind from having to pay.

[00:24:01] Speaker 07:
the salary of somebody who is acting on behalf of the government in an inspectorial and enforcement role.

[00:24:10] Speaker 07:
I mean, think if you do buy the net, that's your net.

[00:24:14] Speaker 07:
You're required to use it, but you own it.

[00:24:17] Speaker 08:
What if it's monitoring equipment?

[00:24:19] Speaker 08:
So under B4, it's to require the use of equipment for such vessels.

[00:24:26] Speaker 08:
That fits within it.

[00:24:27] Speaker 08:
And the equipment that's at issue is monitoring equipment.

[00:24:29] Speaker 07:
Yeah, so there's already statutory authorization to require vessel monitoring on commercial boats.

[00:24:36] Speaker 07:
So, you know, our fishermen have those on their boats.

[00:24:40] Speaker 07:
But that's a one-time, you know, cost to install the equipment.

[00:24:45] Speaker 07:
But it's still your equipment.

[00:24:48] Speaker 07:
I mean, I think there's just such a difference in kind.

[00:24:50] Speaker 08:
I mean, it's kind of like... I think you may be able to educate us on explaining why

[00:24:55] Speaker 08:
it's best read in one direction or the other.

[00:24:56] Speaker 08:
But I don't think I would assume that it's obvious.

[00:24:58] Speaker 08:
And so I guess where I'm going is, if the statute allows the agency to require vessels to carry monitoring equipment, let's just suppose we get to a stage where we have equipment that just can do the same thing as people.

[00:25:13] Speaker 08:
So it requires, instead of, you get to choose.

[00:25:15] Speaker 08:
You get to have human monitors or you get to have machine monitors.

[00:25:18] Speaker 08:
And it sounds like if the agency requires the machine monitors, then

[00:25:23] Speaker 08:
The best way to read the statute is that the operators have to pay for it.

[00:25:28] Speaker 08:
But if the agencies require the human monitors, then the best way to read the statute is that the agency has to pay for it.

[00:25:35] Speaker 07:
I mean, that may be, but we'd be dealing with different statutory provisions.

[00:25:38] Speaker 07:
We wouldn't be talking about what the meaning of B8 is.

[00:25:40] Speaker 07:
We'd be talking about B4 and B8, right?

[00:25:44] Speaker 07:
If we're talking about electronic monitoring, we're not in the world of B8.

[00:25:47] Speaker 07:
I mean, it might be B4, but I think there's a separate provision in 1853 that deals with positioning systems, which is what VMS or vehicle, sorry, vessel monitoring system.

[00:25:59] Speaker 08:
Yeah, there's one provision actually in 1853A.

[00:26:03] Speaker 08:
There's a provision in 1853A.

[00:26:05] Speaker 08:
I have to have our, I'm going to try to deconstruct where it is in 1853.

[00:26:08] Speaker 08:
1853A, C1H.

[00:26:14] Speaker 08:
So 1853C1H.

[00:26:16] Speaker 08:
And then it talks about a limited access, we were in the limited privilege access program.

[00:26:21] Speaker 07:
Oh, yeah, that's not Herring.

[00:26:23] Speaker 07:
Herring isn't a limited access privilege.

[00:26:25] Speaker 08:
No, I know that, but it's still a provision in the statute.

[00:26:27] Speaker 08:
That provision comes up because you all rely on it for other reasons.

[00:26:31] Speaker 07:
Yes.

[00:26:31] Speaker 08:
And in H, it talks about a limited access privilege program shall

[00:26:40] Speaker 08:
various things, include an effective system for enforcement, monitoring, and management of the program, including the use of observers or electronic monitoring systems.

[00:26:48] Speaker 08:
So you can either use observers or you can use electronic monitoring systems, I guess.

[00:26:51] Speaker 07:
In a LAP, yeah.

[00:26:52] Speaker 08:
In a LAP?

[00:26:53] Speaker 08:
Oh, limited access privilege program.

[00:26:55] Speaker 07:
Which is, and right, and the fact that it, and not only does it.

[00:26:58] Speaker 08:
If I could just finish?

[00:26:59] Speaker 08:
Oh yes sir, I'm sorry.

[00:27:00] Speaker 08:
No, no worries, no worries.

[00:27:02] Speaker 08:
So including the use of observers or electronic monitoring systems.

[00:27:04] Speaker 08:
So I guess what I'm wondering is, since it says observers or electronic monitoring systems,

[00:27:10] Speaker 08:
Is that connoting that that function can be carried out either by an electronic monitoring system or by an observer?

[00:27:17] Speaker 08:
If it's an observer, then it's one set of things kick in.

[00:27:21] Speaker 08:
If it's an electronic monitoring system, another set of things kick in.

[00:27:25] Speaker 08:
And then if you take it outside the LAP context, thank you for the acronym, if you take it out of the LAP context and you put that elsewhere, then you would say for the observer part of it, obviously the agency has to pay.

[00:27:36] Speaker 08:
For the electronic monitoring system part of it, which is an alternative,

[00:27:38] Speaker 08:
Obviously, the operator can pay.

[00:27:40] Speaker 07:
Yeah, I think that's right.

[00:27:42] Speaker 07:
And I actually have, from a different statute, maybe it's a helpful example.

[00:27:46] Speaker 07:
I mean, because I think it's striking how after all these years, the government still hasn't given us an example of where this sort of, like, inspection enforcement regime is sent out to a third party and then paid for by regulated entities.

[00:27:57] Speaker 07:
I mean, that's striking.

[00:27:58] Speaker 07:
But I was thinking of the 49 USC, 44-917, which are federal air marshals, where it says that commercial carriers, airlines have to carry

[00:28:08] Speaker 07:
a marshal on the plane and then along with that they have to do things like give them priority, give them the seat that they want, they have to keep secret that they're on the thing.

[00:28:19] Speaker 07:
I don't think anybody would read those provisions and think then American Airlines has to pay DHS's law enforcement official their salary while they're sitting on the airplane.

[00:28:29] Speaker 07:
What carry means is we're going to make space.

[00:28:32] Speaker 07:
We may have to bump a passenger, just like we have to bump a fisherman.

[00:28:36] Speaker 07:
But we get them on the plane.

[00:28:37] Speaker 07:
They're there.

[00:28:38] Speaker 07:
You know, we make sure that they have what they need.

[00:28:42] Speaker 07:
But we're not paying their salary.

[00:28:44] Speaker 07:
I mean, that's a governmental function.

[00:28:46] Speaker 08:
That comes from the context of what they do.

[00:28:48] Speaker 08:
And I don't think it comes necessarily from just the word carry.

[00:28:51] Speaker 08:
I mean, you could have that you're carried when they don't have other responsibilities beyond what they're doing.

[00:28:57] Speaker 07:
Insofar that it's an inherent governmental function or something like that?

[00:28:59] Speaker 08:
It's just that something else is informing us that the person that's required to be carried has to be paid for by the government rather than by the operator that's doing the carrying.

[00:29:10] Speaker 08:
And that may well be the answer.

[00:29:12] Speaker 07:
I don't think there's anything in that statutory provision, but we can just look at the nature of what they're doing.

[00:29:17] Speaker 07:
And I think that the marshal is more similar to the Etsy monitor than dissimilar from her.

[00:29:23] Speaker 08:
Based on what they're doing.

[00:29:24] Speaker 07:
Based on what they're doing.

[00:29:28] Speaker 05:
Can I ask you about page 32 of your supplemental brief, which is the last page just before the conclusion?

[00:29:38] Speaker 05:
I suspect there's an easy answer to this.

[00:29:42] Speaker 05:
Maybe I'm just not familiar with the typographical style, but it's got these slashes at the bottom there.

[00:29:51] Speaker 07:
That's just that the page is there's not missing text.

[00:29:54] Speaker 05:
OK, to let you know to read on to the next page.

[00:29:56] Speaker 07:
That's the end of that page.

[00:29:58] Speaker 07:
There's nothing further, because we just put conclusion on the next page.

[00:30:04] Speaker 05:
Sorry for the confusion.

[00:30:06] Speaker 05:
This rule was in existence for some number of months or years, and then it's been suspended since April of 2023.

[00:30:20] Speaker 05:
Does that raise any kind of standing or mootness problems for you?

[00:30:24] Speaker 07:
Yeah, I don't think so, for two reasons at least.

[00:30:28] Speaker 07:
First, the government in its supplemental brief, it provided an updated statement of the case in its view.

[00:30:34] Speaker 07:
And I think its last line was, even though we've temporarily suspended this, we reserve the right to reimplement it.

[00:30:43] Speaker 07:
I mean, it's on the books.

[00:30:45] Speaker 07:
It's technically the regulation, the rule for the herring fishery.

[00:30:50] Speaker 07:
So the MSA has a statute of repose.

[00:30:54] Speaker 07:
So, you know, all challenges have to be brought in 30 days.

[00:30:57] Speaker 07:
So, you know, if this case were to be dismissed now in some way, that's it.

[00:31:05] Speaker 07:
I mean, there's no way to re-challenge the omnibus amendment because 30 days from its promulgation has long passed by now, by, you know, three and a half, four years.

[00:31:16] Speaker 05:
It wouldn't be considered a kind of a re-promulgation if it was brought back?

[00:31:22] Speaker 07:
No, well, it wouldn't be, I don't think it would, I don't quite understand exactly what you mean.

[00:31:29] Speaker 07:
I mean, if this case is gone, I mean, and the regulation stands, and not just the implementing regulations, but more importantly, the fishery management plan is amended by the council.

[00:31:40] Speaker 07:
I mean, there's, it's still on the books.

[00:31:42] Speaker 05:
I guess, and I think, I think I agree, but just to talk it through, right now you're not being injured.

[00:31:50] Speaker 05:
by a requirement that you pay for the monitors.

[00:31:53] Speaker 07:
We're not having to pay for monitors at the moment.

[00:31:55] Speaker 05:
So you're not being injured?

[00:31:57] Speaker 05:
Right now?

[00:31:59] Speaker 07:
I mean, there's always, I think, an imminent threat.

[00:32:02] Speaker 07:
I mean, it's on, but they could come tomorrow and say, we're- It's imminent.

[00:32:05] Speaker 05:
So my next question is,

[00:32:07] Speaker 05:
It seems like you're not being financial.

[00:32:09] Speaker 05:
Let's just stick with money.

[00:32:12] Speaker 05:
You're not out of pocket anything today.

[00:32:14] Speaker 07:
Not today.

[00:32:14] Speaker 05:
And you might argue that it's imminent that you will be out of pocket.

[00:32:19] Speaker 05:
I guess that's your argument?

[00:32:21] Speaker 07:
It's not going to require a regulatory action for the government to bring this back.

[00:32:28] Speaker 07:
What they normally do is they send out an email to all the fishermen

[00:32:31] Speaker 05:
This happened within the... And they might do that today at five o'clock.

[00:32:34] Speaker 07:
They could do it today at five o'clock.

[00:32:35] Speaker 05:
But they might not do it today at five o'clock.

[00:32:37] Speaker 05:
They might not do it today at five o'clock.

[00:32:39] Speaker 07:
They might never do it.

[00:32:40] Speaker 07:
I mean, I don't think it's likely they'll never do it again.

[00:32:42] Speaker 05:
And do you think they will do it?

[00:32:44] Speaker 07:
Well, if... I mean, honestly, if they win this case, I think the next day, they're going to bring the monitors back.

[00:32:53] Speaker 07:
I mean that's speculative on my part, but I don't think that's completely out of the unreasonable to expect.

[00:33:03] Speaker 05:
They say they stopped because they ran out of money for the administrative costs.

[00:33:07] Speaker 07:
Yes.

[00:33:09] Speaker 08:
I don't think you need to go as far as you did to say that the case still might not be moved.

[00:33:15] Speaker 08:
It doesn't have to be that the government is not actually being accurate about their reasons.

[00:33:19] Speaker 08:
The burden would be on them to prove that they

[00:33:22] Speaker 08:
under voluntary cessation principles that the same injury can't be reimposed on you if I'm thinking about this correctly.

[00:33:32] Speaker 08:
I don't think they've tried to.

[00:33:33] Speaker 05:
I'm not disagreeing with that and I'm not disagreeing with you.

[00:33:37] Speaker 05:
Like I said, I just wanted to think it through.

[00:33:40] Speaker 05:
If there is that 30-day repose limit, I take it you're saying that in

[00:33:47] Speaker 05:
Fisheries Act, not an APA.

[00:33:49] Speaker 07:
No, that's in the MSA.

[00:33:51] Speaker 07:
That's in the MSA, yeah.

[00:33:52] Speaker 05:
There's a judicial review provision.

[00:33:54] Speaker 05:
Correct.

[00:33:56] Speaker 07:
I mean, I'll give you, it's a relevant anecdote, but you know, one of the other programs where there is industry funding, although the fishermen dispute its legality, is in the northeast multi-species groundfish fishery.

[00:34:08] Speaker 07:
So if you saw the movie Coda, it's like the guys who catch cod and stuff on the bottom of the ocean in Boston and in Massachusetts.

[00:34:15] Speaker 07:
That was 2010 with Amendment 16, and even though it said we're going to have industry funding and you're going to be required to enter contracts, immediately after it was promulgated, the government said, for the foreseeable future, we're going to continue to pay for this.

[00:34:33] Speaker 07:
So don't worry about that.

[00:34:34] Speaker 07:
We're not going to enforce that part of Amendment 16.

[00:34:36] Speaker 07:
And it did that for five years.

[00:34:37] Speaker 07:
And then when it finally said, it sent an email and said, as of this date, you're going to have to start reporting your trips so we can assign a monitor.

[00:34:45] Speaker 07:
And you're responsible to get a contract in place if you don't have one already, which technically they were required to have.

[00:34:51] Speaker 07:
I mean, at that point when the fishermen sued, and that's the Gathel case, and I represented the fishermen with my colleagues in that case,

[00:34:59] Speaker 07:
We lost on procedural grounds because it was too late.

[00:35:02] Speaker 07:
And she won that.

[00:35:02] Speaker 03:
Right.

[00:35:03] Speaker 03:
So the First Circuit never addressed your merits argument.

[00:35:06] Speaker 07:
Correct.

[00:35:07] Speaker 07:
It never got to the merits.

[00:35:09] Speaker 03:
Yeah.

[00:35:09] Speaker 07:
Which is an important point, I think, because the district court here, and I think even the First Circuit, pointed to Judge LaPlante in New Hampshire, his reasoning.

[00:35:20] Speaker 07:
But really, that's all dicta, because the case was decided on procedural grounds that it was untimely.

[00:35:29] Speaker 05:
The corner post argument that applied to the statute of limitations for the APA, that type of argument wouldn't work to extend your proposed period if... I don't think so because corner post is not about statutes of repose.

[00:35:42] Speaker 07:
It's about statutes of limitations.

[00:35:44] Speaker 07:
Okay.

[00:35:44] Speaker 07:
I'm good.

[00:35:45] Speaker 03:
Can I ask a question about... I mean, getting to speculation, I know, but the Appropriations Committee directed NOAA in connection with its fiscal 80

[00:35:58] Speaker 03:
24 budget request to come up with a report to the committees about various costs, including costs for the monitoring.

[00:36:15] Speaker 03:
And reading between the lines, the implication is that the appropriations committees are looking toward

[00:36:25] Speaker 03:
federal funding of the monitors, but we don't know, and we don't know what NOAA is going to propose in its... Well, I guess we do, so you would know now what NOAA had done for fiscal year 24.

[00:36:45] Speaker 07:
I will be honest, I haven't looked at the new appropriations to build to see what's happened.

[00:36:51] Speaker 07:
But in fact, when I was re-reading the principal briefing here, we actually addressed this because the government in its supplemental brief talked about the fact that in the ground fish fishery, which is the Gathel case, that Congress ever since that case was decided has been telling NOAA we're going to dedicate funding so that the fishermen don't have to pay.

[00:37:14] Speaker 07:
That's been the case.

[00:37:15] Speaker 07:
We addressed that in our original reply brief.

[00:37:18] Speaker 07:
I had forgotten about that.

[00:37:21] Speaker 07:
That's been the case from the beginning.

[00:37:22] Speaker 07:
I expect that that's going to continue.

[00:37:24] Speaker 07:
I disagree with the case.

[00:37:27] Speaker 03:
When you say you suspect what's going to continue, that's the government funding?

[00:37:33] Speaker 07:
That for the upcoming year, Congress is telling NOAA to pay the groundfish fishermen

[00:37:40] Speaker 03:
Well, it said come up with a report that includes those costs, but it hasn't made any commitment.

[00:37:46] Speaker 03:
But presumably, I mean, this is all beyond the case.

[00:37:51] Speaker 06:
Yeah, that's right.

[00:37:52] Speaker 03:
Your fiscal 24 appropriation act as it passed.

[00:37:59] Speaker 07:
I actually don't know.

[00:38:01] Speaker 07:
Now, hopefully opposing counsel will be able to tell you whether the agency's been told to pay for the groundfish fishermen.

[00:38:07] Speaker 07:
But I can tell you, up until now, every year NOAA has been told by Congress, here's money, pay for the fishermen.

[00:38:15] Speaker 03:
I mean, the government seems to... Well, all we know from the record in this case is this one year when it's been done.

[00:38:23] Speaker 03:
But your colloquy with my colleague

[00:38:27] Speaker 03:
suggests we don't know what Congress is going to do.

[00:38:32] Speaker 07:
Oh, I should clarify that we're talking about two different fisheries.

[00:38:35] Speaker 07:
So the Gathel case is ground fish in New England.

[00:38:39] Speaker 03:
Oh, I understand that.

[00:38:40] Speaker 03:
I am talking about this case and the report that is in the appropriations report talking about NOAA being directed for fiscal year 24

[00:38:56] Speaker 03:
to include these monitor costs.

[00:38:59] Speaker 07:
For the herring fishery?

[00:39:00] Speaker 03:
But I don't know, for your clients, or I don't know what the outcome of that is.

[00:39:11] Speaker 07:
Nor do I, Your Honor, I'm sorry.

[00:39:13] Speaker 03:
No, that's fine, it's fine.

[00:39:15] Speaker 03:
I mean, it's not part of your case, but it's just as to how certain we can be as to what the Congress is doing.

[00:39:23] Speaker 03:
or has done for fiscal year 24, if it's passed the budget.

[00:39:29] Speaker 03:
Sure.

[00:39:29] Speaker 07:
I mean, perhaps implied in your musing is whether what we should glean from that either way in terms of- No, it's not my musing council.

[00:39:38] Speaker 03:
Let's be clear about that.

[00:39:40] Speaker 03:
You were asked a question by my colleague about mootness, since the rule is not being imposed against your clients.

[00:39:53] Speaker 07:
Well, the rule, I mean, it's been temporarily suspended according to an email.

[00:40:04] Speaker 03:
I'm sorry if that... And your clients have been paid for what fiscal 23?

[00:40:09] Speaker 07:
No, that is not true, Your Honor.

[00:40:10] Speaker 07:
So if you're talking about the claims about the reimbursement,

[00:40:15] Speaker 07:
I mean, I can tell you with certainty that our clients did not receive reimbursements under that scheme.

[00:40:22] Speaker 07:
And in fact, if you read through the email.

[00:40:24] Speaker 03:
Well, why are we learning this at oral argument for the first time?

[00:40:30] Speaker 03:
Because the government made it clear in its supplemental brief that no one was suffering any

[00:40:44] Speaker 03:
fiscal injury as a result of being required to pay for the monitors, i.e.

[00:40:53] Speaker 03:
your clients.

[00:40:54] Speaker 03:
And I didn't see any response saying, not so.

[00:40:58] Speaker 03:
My clients were never reimbursed.

[00:41:03] Speaker 07:
But we weren't reimbursed.

[00:41:05] Speaker 07:
The government's, in its updated statement of the case when it's talking about that reimbursement,

[00:41:12] Speaker 07:
without saying it explicitly, was suggesting on my reading that somehow we paid and were reimbursed.

[00:41:20] Speaker 03:
We were not- No, at most, and I get your point, which is well taken, but at most I read them to be saying that the check may not have been cut, but there's a check coming because Congress has agreed

[00:41:40] Speaker 03:
That your clients should be reimbursed for any costs associated with the monitors.

[00:41:47] Speaker 07:
Well, I would recommend well, your honor, if you read the actual notice from the September 7th, 2023 notice of the status of cost reimbursement, if that I think that's what you're talking about.

[00:42:00] Speaker 07:
Those monies were sent to not even any of the monitoring that's at issue in the case.

[00:42:04] Speaker 07:
It was sent for port side sampling costs, port side sampling infrastructure upgrades, and monitoring.

[00:42:10] Speaker 03:
Actually, Council, I'm talking about what was, and the government can explain, but what it said as to why there was no injuries suffered by your clients.

[00:42:25] Speaker 03:
And I didn't read your arguments to say not so, we continue to suffer because we're out of pocket.

[00:42:34] Speaker 03:
Rather, I thought your argument was along the lines of your responses to Judge Walker about how the agency could at any time send out another email saying your clients have to pay.

[00:42:52] Speaker 03:
Have I just misread that?

[00:42:55] Speaker 07:
I'm still not entirely certain what report the government cited, and I'm happy to address that on rebuttal after opposing counsel has talked about it.

[00:43:06] Speaker 07:
But in response to Judge Walker, yes, I mean, my point was that this could be restarted this afternoon.

[00:43:17] Speaker 08:
Can I ask you a question before you sit down

[00:43:20] Speaker 08:
permit sanctions, the penalty provision, to make sure I understand your position on that one.

[00:43:24] Speaker 08:
And I'm specifically looking at the one in 1858G, permit sanctions.

[00:43:30] Speaker 08:
So it has 1858GD, as you know.

[00:43:32] Speaker 08:
The text refers to any payment required for observer services provided to or contracted by an owner or operator who has been issued a permit or applied for a permit, et cetera, et cetera.

[00:43:42] Speaker 08:
So what's your understanding of the work being done by

[00:43:48] Speaker 08:
the ore contracted by an owner or operator, what does that show does exist and how does that not show that there's an expectation or at least an engagement with the possibility that the owner or operator would be paying for the observation?

[00:44:06] Speaker 07:
Sure.

[00:44:07] Speaker 07:
So this section, 1858, G1, and also the same relevant section that speaks about observers or monitors in 1857, were introduced in 1996 with the 1996 sustainable fisheries amendments.

[00:44:21] Speaker 07:
I mean, there was already statutory language about contemplating in the foreign fishery that there would be, in some cases, under the supplemental observer program, direct contracting and payment for monitors.

[00:44:37] Speaker 07:
I mean, in my mind, considering that that was already in the statute, the addition of this provision, I mean, it has that in mind.

[00:44:46] Speaker 07:
I think that's the most common sense of reading of it.

[00:44:48] Speaker 08:
And only that.

[00:44:49] Speaker 08:
I mean, your argument is that what it's referring to when it's speaking of observer services contracted by our owner operator, it's only talking about

[00:45:00] Speaker 08:
the contemplation of that under 1812?

[00:45:01] Speaker 07:
Well, it could also be, so, I mean, there's another, oh, and this is, I mean, an interesting provision in terms of understanding who monitors are in, I think it's in 1881B.

[00:45:14] Speaker 07:
Contracted monitors, you know, that provision is principally in subsection C giving them workers' compensation as if they were federal employees.

[00:45:22] Speaker 07:
But the same language is there that,

[00:45:24] Speaker 07:
about or contracted for and it refers not only to the MSA but also to the Marine Mammal Protection Act because observers in fisheries aren't there just under the MSA but otherwise and I mean I again I think the most common sense reading is that it's referring to the foreign fishing supplemental observer program where there's direct contracting but you could

[00:45:45] Speaker 07:
Also imagine other situations where observers are serving a dual function and are contracted under other statutes.

[00:45:53] Speaker 08:
And I think there's also something under those other statutes.

[00:45:55] Speaker 08:
If it's contracted under another statute, who pays?

[00:45:59] Speaker 07:
I don't know the specifics of how.

[00:46:02] Speaker 07:
of how the Marine Mammal Protection Act works, Your Honor.

[00:46:04] Speaker 07:
So there might be industry funding there.

[00:46:07] Speaker 07:
I'm not certain whether there is or not.

[00:46:10] Speaker 07:
But I also think contract could be, and we suggested this in our briefing, and I think this is more a backup argument than the principal one about the reference to 1821 and the supplemental observer coverage.

[00:46:25] Speaker 07:
But contract, you could imagine,

[00:46:28] Speaker 07:
in a lap or in one of the North Pacific fisheries where a fisheries research plan is authorized or even it could be structured like 1821 where even though the funding is through fees or coming from the government, the mechanics for how the observer is supposed to, you know, which provider you're using,

[00:46:57] Speaker 07:
and the mechanics of getting to the boat could be done in some sort of contractual way, but the payment is coming from the government.

[00:47:06] Speaker 07:
So I just think it's a lot to read into.

[00:47:12] Speaker 07:
Biden v. Nebraska, let's use Justice Gorsuch's language.

[00:47:15] Speaker 07:
These seem like really thin reads on which to find in two penalty provisions that are part of two very long sections about fines and penalties.

[00:47:27] Speaker 07:
to read authorization for industry funding there, where you can't find it anywhere else in the statute.

[00:47:34] Speaker 08:
Right.

[00:47:34] Speaker 08:
I mean, it depends on how strong you think the indication is otherwise that the observers have to be paid for by the government.

[00:47:41] Speaker 08:
And I think both sides have provisions that they point to that say, look, the best way to understand that provision is assuming a world in which the observers are paid by, you would say,

[00:47:53] Speaker 08:
The government would say the opposite.

[00:47:56] Speaker 07:
Again, 1996 we put this in, we've already had direct contracting under the supplemental program in the foreign fishery for years.

[00:48:07] Speaker 07:
That seems like that's the cross-reference.

[00:48:10] Speaker 08:
Yeah, although then they could have cited that provision.

[00:48:11] Speaker 08:
That would have been easy.

[00:48:13] Speaker 07:
Except that 1857 and 1858 are the penalty sections.

[00:48:18] Speaker 08:
I mean, it makes more sense for a civil... No, I'm just saying, in 1858 and 1857, they could have cited 1821.

[00:48:25] Speaker 08:
If that's what they really meant to talk about, they could have cited 1821.

[00:48:28] Speaker 07:
Well, it was the only thing that existed at the time.

[00:48:30] Speaker 07:
Right.

[00:48:30] Speaker 08:
Then it would have been especially easy to cite it, because it was the only thing that existed at the time.

[00:48:34] Speaker 07:
I mean, possibly.

[00:48:36] Speaker 05:
Yeah.

[00:48:36] Speaker 05:
You quote our court's line in Maine Lobsterman's about delegating the power to destroy.

[00:48:43] Speaker 05:
I mean, can you talk a little bit about whether

[00:48:49] Speaker 07:
the fees here the cost here would would be destructive I can but if your honor I'd like to preface my comment on that but by that the amount of the cost I don't think ultimately matters I mean this is

[00:49:05] Speaker 07:
The government has tried to suggest that our discussion of cost, that we're trying to mask an arbitrary and capricious challenge as a legal, a challenge of legal meaning.

[00:49:15] Speaker 07:
And I don't think that that's true.

[00:49:18] Speaker 07:
I mean, it could be that the monitor costs very little, right?

[00:49:21] Speaker 07:
It's just the nature of the monitor, of what the monitor is doing means that his salary doesn't, belongs properly to the government rather.

[00:49:29] Speaker 07:
But, I mean, I think the record, I mean, the government's own estimates are that these costs would be, I mean, tremendous.

[00:49:37] Speaker 07:
A 20% reduction in annual returns to owner is definitely not insignificant in the public comments.

[00:49:44] Speaker 07:
There's a reason why 96%, I believe it was, of stakeholders of fishermen commented negatively.

[00:49:52] Speaker 07:
So, I mean.

[00:49:53] Speaker 07:
Who are the 4%?

[00:49:55] Speaker 03:
I just want to be clear.

[00:49:57] Speaker 05:
They don't sell the fishermen.

[00:49:58] Speaker 03:
I read your current comment to say that the amount of costs doesn't really matter, that you're arguing what I'll call a principle here, that either Congress has said it explicitly or it hasn't.

[00:50:20] Speaker 03:
And if it hasn't said it explicitly, it can't do it.

[00:50:26] Speaker 07:
Well, it matters in a real way in that, you know, if the fishermen have to pay it, I mean, that's gonna be tremendously difficult.

[00:50:36] Speaker 03:
I don't know whether that's something that should- No, what I'm getting at, if we're talking about major corporate fishery operators, that we're not talking about John Jones and his little boat with four fishermen, that's a different picture.

[00:50:55] Speaker 03:
All right, just like we don't have family farms anymore.

[00:51:00] Speaker 03:
So when you tell me that the amount of cost doesn't matter, that says to me that there's something else going on here that has nothing to do with the $700 a day that your clients have to pay.

[00:51:24] Speaker 03:
in connection with the monitor.

[00:51:27] Speaker 03:
I mean, that's a shift in gears.

[00:51:31] Speaker 03:
And I'm surprised, but you've done it so fine.

[00:51:34] Speaker 03:
Oh, nothing wrong if that's the way you choose to argue the case.

[00:51:38] Speaker 07:
I mean, our clients are not major corporate phishing firms.

[00:51:42] Speaker 07:
There are really no major corporate phishing firms in the United States anymore.

[00:51:46] Speaker 03:
We don't know because we don't have the record.

[00:51:52] Speaker 07:
Who are your clients?

[00:51:54] Speaker 07:
Our clients are small family-owned fishermen from Cape May.

[00:51:58] Speaker 07:
I mean, one of our clients has one boat that he uses for commercial fishing.

[00:52:02] Speaker 07:
He had to sell his second, him and his family a couple of years back because of the cost of regulation.

[00:52:08] Speaker 03:
Well, let's not get out of the record here, because we don't know.

[00:52:13] Speaker 03:
And I thought your point was, regardless, your client shouldn't have to pay over $700 a day.

[00:52:23] Speaker 03:
because Congress has not required your clients to pay for monitors.

[00:52:32] Speaker 03:
End of discussion.

[00:52:35] Speaker 07:
Well, that's true.

[00:52:35] Speaker 07:
I mean, that's true.

[00:52:36] Speaker 07:
I don't think that that's changed.

[00:52:38] Speaker 03:
I mean, my point was that to the extent the government... No, I'm not suggesting that hasn't changed.

[00:52:41] Speaker 03:
I've understood that to be your argument from the beginning.

[00:52:45] Speaker 03:
You started off today saying, unless Congress has explicitly provided,

[00:52:53] Speaker 07:
Right.

[00:52:56] Speaker 07:
I'm sorry, Your Honor.

[00:52:57] Speaker 05:
I don't... In your defense, you were just answering my question, and I take Judge Rogers' point that perhaps my question is not relevant.

[00:53:06] Speaker 05:
We can decide later whether it's relevant or your answer is relevant.

[00:53:09] Speaker 05:
My question was simply, who are your clients?

[00:53:11] Speaker 07:
Yeah, our clients are, I mean, they're family-owned fishermen from southern New Jersey.

[00:53:16] Speaker 07:
I mean, I would say that the administrative record is replete with the government's own discussion of how there are no major corporate fishermen in the herring fishery and that this is going to have a significant economic impact.

[00:53:32] Speaker 07:
My point only about that the cost doesn't matter, it's not that it doesn't matter because in terms of real-life implications of the rules standing,

[00:53:40] Speaker 07:
All of that hasn't changed.

[00:53:42] Speaker 07:
It's that to the extent the government is trying to suggest that an emphasis on the economic, the adverse economic impact is properly raised as an, under an arbitrary and capricious claim or a claim about noncompliance with national standards seven and eight that, because those claims were brought, we didn't appeal them.

[00:54:04] Speaker 05:
What work do you think that the necessary and appropriate clause does do?

[00:54:10] Speaker 07:
So, well, I can give you an example of something that I think is if it would be helpful of a necessary and appropriate provision related to monitoring that is totally authorized and makes sense.

[00:54:22] Speaker 07:
And that would be something like a prioritization scheme, like what we actually have in the omnibus amendment.

[00:54:29] Speaker 07:
So, in a world of limited appropriated monies, the agency wants to have monitoring in lots of fisheries.

[00:54:38] Speaker 07:
but it can only afford to pay for so many of them before the pot runs out.

[00:54:43] Speaker 07:
Having a regulation that sets out how each fishery is going to be prioritized for the placement of a federally funded monitor, much like exists with the standardized bycatch reporting methodology, which is another observing program that the government funds entirely,

[00:55:06] Speaker 07:
That sort of thing makes sense, and it's the sort of thing that is necessary and appropriate for the proper implementation of B8's authority for the carrying of an observer.

[00:55:19] Speaker 07:
I think that the industry funding requirement

[00:55:22] Speaker 07:
falls outside of the boundaries of the legal meaning of appropriate here.

[00:55:28] Speaker 07:
And I think that the reason why, I mean, we have to look, the Supreme Court, I mean, we already had this in cases like the Alabama Realtors, Association of Realtors, where there's this principle that you have to read things in context.

[00:55:41] Speaker 07:
But the court's decision this term, this past term in Harrington versus Purdue Pharma is very instructive because it's exactly the same structure of 1853.

[00:55:52] Speaker 07:
where you have a list of what a bankruptcy judge can include in a bankruptcy plan, and then he can also include, much like the A and B of 1853, what must and can be included in a fishery management plan, and then anything else that's necessary and appropriate.

[00:56:06] Speaker 07:
And in fact, the language, I think, is the same in both the bankruptcy provision and here.

[00:56:11] Speaker 07:
And the Supreme Court said,

[00:56:13] Speaker 07:
When you are faced with that sort of catch-all provision, the way to properly interpret it is to look at the context and look at the nature of the powers that preceded.

[00:56:24] Speaker 07:
and draw meaning from the surrounding provisions and read it in a way that limits rather than expands the authority of the agency.

[00:56:32] Speaker 07:
A catch-all provision isn't meant to be a blank check.

[00:56:35] Speaker 08:
Can I ask, I don't know if it has to be under the catch-all provision or somewhere else, but suppose we're talking about monitoring equipment as opposed to machine monitors as opposed to human monitors.

[00:56:44] Speaker 08:
And it's machine monitors that the government has.

[00:56:47] Speaker 08:
The government has its own monitors, but it wants them to be on all the owner operator vessels because

[00:56:53] Speaker 08:
They've done the studies.

[00:56:54] Speaker 08:
This is the only equipment that works.

[00:56:55] Speaker 08:
It's the only equipment we trust.

[00:56:57] Speaker 08:
And let's suppose that that all gets past an arbitrary and capricious challenge, and that what the government wants to do is to require the vessels to use the government equipment to monitor.

[00:57:12] Speaker 08:
And then the government exacts a charge for that, to use our equipment.

[00:57:17] Speaker 08:
Here's the cost, and you've got to pay for that.

[00:57:21] Speaker 08:
Is that OK?

[00:57:22] Speaker 07:
I mean, I'd have to go back through 1853 and find the relevant provision, which I'm pretty sure addresses the use of, it might just be VMS instead of electronic monitoring.

[00:57:33] Speaker 07:
I'd have to think about that a bit more.

[00:57:35] Speaker 07:
I would just add that there's, I mean, it wouldn't just be arbitrary and capricious that you would have to get over at that point.

[00:57:40] Speaker 07:
It might also be

[00:57:41] Speaker 07:
Fourth Amendment concerns.

[00:57:43] Speaker 07:
And like if you look at a case like the Mexican Gulf Fishing Company, which we cite from the Fifth Circuit... But that was in a very different context, wasn't it?

[00:57:53] Speaker 03:
That's the Fifth Circuit case you're referring to?

[00:57:55] Speaker 07:
Yes, ma'am.

[00:57:56] Speaker 03:
Yes.

[00:57:56] Speaker 03:
Yeah.

[00:57:57] Speaker 03:
And that was...

[00:58:00] Speaker 03:
boats that are hired by private parties to go fishing on.

[00:58:05] Speaker 03:
So it's not our case, OK?

[00:58:08] Speaker 03:
And the Fifth Circuit didn't suggest it was saying anything in the context of our case.

[00:58:14] Speaker 07:
No.

[00:58:15] Speaker 07:
Your Honor, I just meant to suggest that it wouldn't just be arbitrary.

[00:58:18] Speaker 07:
In the hypothetical of a put this government camera on your boat and pay for it,

[00:58:23] Speaker 07:
It wouldn't just be arbitrary and capricious review that you'd have to get passed.

[00:58:28] Speaker 07:
I believe there probably would be Fourth Amendment concerns.

[00:58:32] Speaker 08:
I'm just assuming that it gets by everything else.

[00:58:35] Speaker 08:
I guess all I'm trying to isolate is the payment part of it.

[00:58:37] Speaker 08:
If it's government monitoring equipment as opposed to a government machine monitor as opposed to a government human monitor.

[00:58:46] Speaker 08:
the government says, you need to use our government machine to monitor and you need to pay for that because it costs, you know, it's actually, there's a cost associated with it.

[00:58:58] Speaker 07:
I think it might, there might be a meaningful difference between an instance where it's government cameras and a command to purchase your own camera.

[00:59:09] Speaker 07:
There might be an important distinction there.

[00:59:11] Speaker 07:
So if it's government.

[00:59:12] Speaker 08:
It may be the case that the government can't

[00:59:14] Speaker 08:
that in that situation the best way to read the statute is that if it's government equipment that the vessel operator has to use that the government can't pay for it.

[00:59:24] Speaker 08:
The government can't require the operator to pay for it.

[00:59:26] Speaker 07:
Yeah, possibly.

[00:59:26] Speaker 07:
I mean, I'd have to, it would depend on what part of 1853 the council and the government, the secretary are trying to place that sort of.

[00:59:36] Speaker 08:
I mean, I think they would do that before.

[00:59:37] Speaker 07:
I don't mean to evade your question.

[00:59:38] Speaker 08:
No, no, no, that's all.

[00:59:38] Speaker 08:
You shouldn't be expected to have an answer at the ready because I'm making up the question.

[00:59:43] Speaker 08:
It wouldn't be under B4, because B4 says you have to, we can require to use equipment and use vessels.

[00:59:51] Speaker 08:
And the equipment that's being required to be used is, happens to be equipment that the government has in its possession.

[01:00:02] Speaker 07:
I mean, you might then need to distinguish between the requirement to put it on your boat and the requirement to pay for it, right?

[01:00:11] Speaker 07:
if you're trying to say it's under B4 to require the use of.

[01:00:14] Speaker 08:
I mean, that's what happens when you buy it from a private.

[01:00:17] Speaker 08:
I mean, if you go to Home Depot and you buy a piece of equipment, it ends up on your boat.

[01:00:20] Speaker 06:
Yeah.

[01:00:21] Speaker 08:
And I'm just saying, instead of going to Home Depot, you're going to the government depot.

[01:00:24] Speaker 08:
The government's saying, you've got to come to my depot, because I don't trust what Home Depot has.

[01:00:27] Speaker 08:
And I don't mean to belittle what this entails.

[01:00:30] Speaker 08:
I'm just trying to make it as easy to understand as possible.

[01:00:32] Speaker 08:
You've got to come to our store, buy our stuff, put it on your boat, and you need to pay us for it.

[01:00:37] Speaker 07:
Yeah, I mean, there might be more that language of require the use of does a bit more legwork, I think, than carry and be aid.

[01:00:47] Speaker 03:
I mean, it is interesting that we sort of overlook the whole notion of the government's finding about how, in fact, having monitors enhances the fisherman's ability to profit.

[01:01:05] Speaker 03:
All right?

[01:01:07] Speaker 03:
Um, so, and of course it protects other fishermen, Joe Jones and his son who own a boat who are fishing for a different type species of fish.

[01:01:25] Speaker 03:
But I mean, that's why I'm concerned about the financial end of this in terms of

[01:01:34] Speaker 03:
This enables you to get the government seal of good approval so your clients can sell their fish, sell more fish than they otherwise would.

[01:01:51] Speaker 03:
I mean, that's part of the record in the case.

[01:01:56] Speaker 03:
So that in answering the chief judge's questions, don't you have to take that into account as well?

[01:02:04] Speaker 07:
Well, there can be very many commendable things that a regulatory agency hopes to achieve through regulation.

[01:02:12] Speaker 07:
I don't think that that means they can just go ahead and do it.

[01:02:15] Speaker 07:
So I'm reminded of a line a few weeks ago, it might have been at the end of August, Judge Rao, in one of the first post-Loper cases, Pacific Gas and Electric versus FERC, where she talks about how policy can't trump statutory text.

[01:02:35] Speaker 07:
right, that just because it would be great, it would be great for the fishermen and for the fishery if we had these monitors, that doesn't mean the agency can just do what it wants.

[01:02:47] Speaker 08:
I think where it fits in potentially is that I think you, the part of what I find

[01:02:55] Speaker 08:
potentially meritorious about your position is that there's a difference between the observers and equipment because the observers are government observers and the government would usually pay for that.

[01:03:06] Speaker 08:
And the natural understanding of that would be that the government should continue to pay for it, and you can't flip the cost over.

[01:03:12] Speaker 08:
Whereas with equipment, actually the vessel owner goes out and gets a piece of equipment, and that piece of equipment benefits the vessel owner.

[01:03:19] Speaker 08:
It's his, and it's also his.

[01:03:20] Speaker 08:
It's his, right.

[01:03:20] Speaker 08:
And presumably the reason he has it is because it serves some purpose.

[01:03:26] Speaker 08:
And so I think what Judge Rogers could be getting to is, well, the observers serve a purpose, too, that's beneficial to the

[01:03:34] Speaker 08:
vessel operators based on some of the stuff that's in the briefing and in the materials, because that monitoring function is actually beneficial.

[01:03:43] Speaker 07:
Right.

[01:03:45] Speaker 07:
So the exact line that I was thinking of is policy concerns cannot override the text of a statutory provision.

[01:03:49] Speaker 07:
And then there's a site to utility air regulatory group from the Supreme Court.

[01:03:56] Speaker 07:
Yes, it could be that monitors are the best thing for everybody.

[01:04:01] Speaker 07:
Certainly the government seems to think that there's added value to having increased monitoring.

[01:04:06] Speaker 07:
Certainly the record also reflects that some fishermen disagree with that.

[01:04:11] Speaker 07:
But even if we, for the sake of argument, say that it'd be great to have lots of observers on even more trips than 50%, that doesn't mean the agency can do it because it would be beneficial even for the fishermen.

[01:04:24] Speaker 07:
they have to follow the law.

[01:04:26] Speaker 07:
And the policy concern doesn't grow there.

[01:04:28] Speaker 03:
How about beneficial to the general public who wants to eat fish?

[01:04:33] Speaker 03:
Well.

[01:04:33] Speaker 03:
I mean, that's the other side of the health side.

[01:04:36] Speaker 03:
I don't want to pursue that, but in any event, I appreciate your comment.

[01:04:43] Speaker 03:
And I was thinking, presumably your response would be the same even if you weren't

[01:04:50] Speaker 03:
in a position where your clients were forced to buy the machine and you were just renting it for whatever period the government wanted to cover and get the test results.

[01:05:03] Speaker 03:
And presumably you wouldn't object to the maintenance of the equipment being paid for by your clients, but I don't know.

[01:05:17] Speaker 07:
Unless your honors have any other questions, I'm happy to come back for rebuttal.

[01:05:21] Speaker 08:
Sure.

[01:05:22] Speaker 07:
Thank you.

[01:05:23] Speaker 08:
Thank you, counsel.

[01:05:25] Speaker 08:
We can hear from the government now.

[01:05:37] Speaker 01:
Good afternoon, your honors.

[01:05:38] Speaker 01:
May I please the court?

[01:05:39] Speaker 01:
Daniel Holanin for the government.

[01:05:41] Speaker 01:
We think the Magnuson-Stevens Act is best read to authorize industry-funded monitoring

[01:05:45] Speaker 01:
in the Atlantic carrying fishery because Congress authorized the National Marine Fisheries Service to implement observer programs for the benefit of the fishery writ large.

[01:05:54] Speaker 01:
And that sometimes requires industry vessels that carry observers to bear the cost of complying with that requirement.

[01:06:01] Speaker 01:
This court previously concluded that the agency exercised lawful statutory authority to adopt this rule, and although the Supreme Court has overruled Chevron, we think that the same result obtains, notwithstanding the change in interpretive methodology, because the statute is best read to authorize this type of rule in Section 1853, B-8.

[01:06:23] Speaker 01:
We think that the plaintiff's arguments on remand from the Supreme Court are essentially asking the court

[01:06:29] Speaker 01:
depart from or reject some of its earlier analysis of the statute.

[01:06:32] Speaker 01:
We think that's unnecessary where the Supreme Court didn't reach any of these statutory issues and didn't disturb any of the court's conclusions about the proper construction of the statute.

[01:06:42] Speaker 05:
Mr. Mulvey gives an example of something he thinks the necessary and appropriate clause would allow the agency to do.

[01:06:50] Speaker 05:
Can you think of an example of something that it does not allow the agency to do?

[01:06:56] Speaker 01:
Sure.

[01:06:56] Speaker 01:
So I think, you know, the Necessary and Appropriate Clause in 1853B14 also has additional language.

[01:07:02] Speaker 01:
It says it has to be necessary and appropriate for conservation and management purposes.

[01:07:06] Speaker 01:
So I think I would suggest that the example that you cited in your earlier dissent about sort of driving around employees would not fit within conservation and management purposes.

[01:07:15] Speaker 05:
So I think there is certain... And that's because it wouldn't help conservation?

[01:07:19] Speaker 01:
Because there's not a close enough tie to the conservation and management purposes as that term is defined.

[01:07:24] Speaker 01:
Section 1802 subsection 5 of the statute, which is concerned with things like maintaining a supply of food and, you know, ensuring continued recreational benefits in the fishery, avoiding adverse impacts to, you know, affected communities, et cetera.

[01:07:40] Speaker 05:
What if the agency decided to outsource its annual catch limit decisions?

[01:07:48] Speaker 05:
So I take it that

[01:07:51] Speaker 05:
the fisheries or the council that then goes to the fisheries.

[01:07:53] Speaker 05:
Somebody in this operation puts catch limits, establishes catch limits.

[01:07:59] Speaker 05:
Am I right so far?

[01:08:01] Speaker 01:
The secretary adopts the catch.

[01:08:03] Speaker 05:
And then what if the agency were to say, well, we're going to have a third party establish the catch limits and we're going to make the

[01:08:17] Speaker 05:
the fishermen pay the third party's salaries.

[01:08:22] Speaker 05:
Would that be okay?

[01:08:24] Speaker 01:
I don't think so.

[01:08:27] Speaker 01:
I think the issue there would both be with the Secretary exercising through the National Marine Fisheries Service obligations that the government official is charged with, and also with establishing the necessary reasonable connection to the statutory purpose.

[01:08:43] Speaker 01:
This is where I think we get into the distinctions between statutory authority questions and reasonableness questions.

[01:08:49] Speaker 01:
I think a lot of the sort of questions at the outer bounds of statutory authority would necessarily be constrained by other limits within the statute, including the APA's Section 706 scope of review, but also the national standards in Section 1851 of the statute.

[01:09:03] Speaker 05:
I understand the first part, that it may just be that the statute doesn't allow the decision to be outsourced.

[01:09:09] Speaker 05:
But we could easily change the hypothetical so that we imagine a statutory provision that allows the decision to be outsourced and that is silent on who will pay the salaries of the contractors.

[01:09:21] Speaker 05:
The second part, though, I'm not sure why that would be far removed from the, why the hypothetical is far removed from the purpose, because the purpose of the catch limit is conservation, I think, and in my hypothetical,

[01:09:38] Speaker 05:
the contractors setting the catch limits would be serving the purpose of conservation.

[01:09:46] Speaker 01:
I guess I'm struggling a little bit with the hypothetical because I imagine there would be a host of independent constraints that would prevent us from ever getting into this territory.

[01:09:53] Speaker 01:
But I think just as a matter of necessary and appropriate authority, it doesn't seem that to me that that's a sort of faithful implementation of the conservation and management purposes of the statute by outsourcing.

[01:10:04] Speaker 05:
Why is catch limit not

[01:10:07] Speaker 05:
consistent with the purpose of conservation and management, but monitoring is consistent with the purpose of conservation and management.

[01:10:15] Speaker 01:
So I think catch limits are certainly part of the conservation and management of the fishery.

[01:10:22] Speaker 01:
I'm focusing more on outsourcing that to a third party in the way that you're suggesting.

[01:10:27] Speaker 05:
Whereas observers, I think- You're saying maybe you can't imagine why.

[01:10:30] Speaker 05:
Maybe they just don't have the money to pay their own staff who sets the catch limits.

[01:10:36] Speaker 05:
I assume it takes some research and some work.

[01:10:40] Speaker 05:
Imagine there's a statutory provision that allows the outsourcing, silent on who will pay the outsourced contractors, but it allows the outsourcing.

[01:10:48] Speaker 01:
So you're suggesting something comparable to section 1853b8 that's specifically providing for catch limits to be set by third parties?

[01:10:55] Speaker 01:
Yes.

[01:10:56] Speaker 01:
I think in that circumstance, it's plausible that the necessary appropriate authority would reach that, but I think as this court explained in its earlier decision,

[01:11:04] Speaker 01:
When you're looking at these types of provisions, like necessary and appropriate, consistent with what the Supreme Court said in its decision explaining how these types of provisions should be considered going forward, you have to look at the agency operating within its lane of regulatory authority.

[01:11:20] Speaker 01:
And so here we're tightly focused on Section 1853B8 is expressly authorizing observer programs and observer requirements.

[01:11:28] Speaker 01:
And the exercise of section 1853B14, necessary and appropriate authority, would be in fulfillment of that sort of statutory authority.

[01:11:37] Speaker 01:
Whereas if there was some sort of freewheeling, untethered policy that is not sufficiently within the regulatory lane, I think that would create issues.

[01:11:48] Speaker 05:
I appreciate that.

[01:11:49] Speaker 05:
But if I'm understanding correctly,

[01:11:53] Speaker 05:
First, we have to make sure that the statute allows a third party to be involved at all.

[01:11:58] Speaker 05:
Here, of course, BA allows third party monitors to be carried on the ships.

[01:12:03] Speaker 05:
And then we would have to say, okay, if the agency is doing something related, issuing a rule related to that, then we have to make sure that the rule is connected to the purpose of conservation and management in order to be necessary appropriate.

[01:12:21] Speaker 01:
But once that box is checked, I'm not sure I'm seeing much more of a limit from you.

[01:12:34] Speaker 01:
specifically cited the language from Michigan against EPA that this court recited in its earlier decision about conferring flexibility on agencies.

[01:12:41] Speaker 01:
I think the specific language in the Supreme Court decision is about regulating subject to the limits of a flexible term.

[01:12:49] Speaker 01:
And I think the implication of what the Supreme Court said is that that is properly interpreted.

[01:12:53] Speaker 01:
The best meaning of those types of provisions is conferring a degree of discretion on the agency.

[01:12:59] Speaker 05:
Can I ask about one of Mr. Mulvey's hypotheticals, or I'm not sure he mentioned his hypothetical, but he mentioned air marshals.

[01:13:08] Speaker 05:
You know, kind of imagine that there's a necessary and appropriate clause in the statutes that require the airlines to carry air marshals.

[01:13:22] Speaker 05:
Do you think that that kind of catch-all provision would allow an agency

[01:13:29] Speaker 05:
with congressional silence to force the airlines to pay the salaries of the air marshals.

[01:13:35] Speaker 01:
It sounds to me based on sort of this this framing that it wouldn't I think that it would not that would not next because I think there are a couple distinctions from this type of provision one is that that's clearly a government employee.

[01:13:47] Speaker 01:
We have here a determination below that these observers are not government employees that wasn't challenged on appeal.

[01:13:53] Speaker 01:
And I think in the context of this hypothetical, there doesn't seem to be other textual evidence to support that there's authority to exercise

[01:14:04] Speaker 01:
necessary and appropriate authority in this way, whereas here we have a host of statutory provisions that support the agency's exercise of the system.

[01:14:12] Speaker 05:
Let me try one more.

[01:14:13] Speaker 05:
So imagine that there's a statutory provision that allows the IRS to use independent contractors to audit taxpayers.

[01:14:24] Speaker 05:
That's the statutory, I don't know whether, probably, I don't know who, anyways, imagine that's the world.

[01:14:31] Speaker 05:
And then there's a necessary and appropriate clause.

[01:14:32] Speaker 05:
So the statute says,

[01:14:34] Speaker 05:
Taxpayers must make their financial information available to third-party auditors who will report to the IRS, but they're not IRS employees, they're contractors.

[01:14:46] Speaker 05:
And also the IRS can issue regulations that are necessary and appropriate for the purpose of making sure people pay the right amount of taxes.

[01:14:55] Speaker 05:
In that situation, do you think that the IRS could require the taxpayer to pay the salary of the third-party auditor

[01:15:03] Speaker 01:
It sounds to me like probably not based off of the way the statute is phrased, where it's making information available to a third party.

[01:15:11] Speaker 01:
Here, there's just a requirement to carry an observer.

[01:15:14] Speaker 01:
So I think that the sort of language that the statute uses is important in sort of understanding where the necessary and appropriate type of authority comes into play, because it has to be within that general lane of authority.

[01:15:25] Speaker 08:
To me, a lot of this turns on whether there's something inherent in

[01:15:31] Speaker 08:
what the observers are doing that make them inherently governmental?

[01:15:36] Speaker 08:
Or is it more in the realm of stuff like equipment that we wouldn't say is inherently something that the government would otherwise be doing and therefore the government would pay for?

[01:15:45] Speaker 08:
And so in the Air Marshall's hypothetical, I'm not even sure necessary and appropriate is honestly doing a ton of work in my mind because it has to be both necessary and appropriate.

[01:15:56] Speaker 08:
And appropriate, it just seems, it's capacious,

[01:16:00] Speaker 08:
It's going to be inappropriate if it's something that seems intensely governmental, and the government ought to be, in all expectations, would be providing for it.

[01:16:07] Speaker 08:
And it's not going to be, and it is going to be appropriate if it's the type of thing that we'd ordinarily think, no, it's not so intensely governmental that the government has to pay for.

[01:16:14] Speaker 08:
We can imagine a world in which the regulated entity would pay for it, too.

[01:16:18] Speaker 08:
So with air marshals, with air equipment, I would imagine that the FAA, whoever it is, can require airlines to have certain equipment on board to deal with safety issues.

[01:16:28] Speaker 08:
And it doesn't seem inappropriate if we just carry out the comparison to say that the airline operators would pay for that.

[01:16:39] Speaker 08:
It does seem, though, kind of inappropriate to say these are federal air marshals, and you have to carry them on board, and then you also have to pay their salary while they're on board.

[01:16:48] Speaker 08:
That just doesn't seem like the type of thing that we'd ordinarily think would be contemplated, unless there was some other indication of the statute that that's to be provided for.

[01:16:55] Speaker 08:
So what's going to help me?

[01:16:59] Speaker 08:
meet out whether these observers are in the nature of, even if they're not technically government employees, that they're in the nature of government employees that you would just expect.

[01:17:09] Speaker 08:
They're performing governmental functions.

[01:17:10] Speaker 08:
They're doing governmental stuff on a day-to-day basis.

[01:17:14] Speaker 08:
The government's getting the benefit of this.

[01:17:16] Speaker 08:
So the government ought to be paying for it.

[01:17:18] Speaker 08:
And as opposed to equipment under B4, which I think I share your view, and I don't hear the other side to be objecting to this, that for equipment under B4, even if it's monitoring equipment,

[01:17:27] Speaker 08:
as opposed to machine monitors, as opposed to human monitors, it doesn't seem inappropriate to require the vessel operators to pay for that.

[01:17:34] Speaker 08:
What's the best stuff I can grasp onto to understand why the observers aren't in the nature of government employees that you'd expect the government to pay for and are more in the nature of monitoring equipment as to which you'd expect the air operator, the vessel operators here to pay for?

[01:17:53] Speaker 01:
long-winded, but I think I'm getting across hopefully what I'm trying to... So I think the appropriate way to think about observers is not as inspectors or law enforcement officers, because they're not fulfilling a sort of a government enforcement function, but rather collecting scientific data on the vessel to provide for the benefit of the fishery as a whole, including the fishing industry itself.

[01:18:18] Speaker 01:
It is, of course, true, I think, as you're getting it, that this information is coming to the government for use in conservation management.

[01:18:25] Speaker 01:
But it's consistent with, for example, in section 1853A5, I believe it is, authority that Congress put into the statute where the service can require vessels themselves to submit data to the government for use in conservation and management.

[01:18:42] Speaker 01:
So this is similarly structured such that the observers are providing data about the fishery to the government to use for the benefit of the fishing industry generally and the fishery as a whole.

[01:18:54] Speaker 01:
And so I think that's the distinction between something like an air marshal, which is clearly a governmental function in terms of law enforcement or inspection or something like that.

[01:19:03] Speaker 01:
Whereas this is essentially a scientific role in collecting data, which is not necessarily governmental.

[01:19:09] Speaker 01:
It's simply, you know, on the fishing vessel, this is a specialized person that provides the data that everybody needs so that we all know what's going on in the fishery and can implement appropriate conservation and management.

[01:19:24] Speaker 08:
So to pay for the observers, what are we talking about?

[01:19:28] Speaker 08:
How do these contracts usually work?

[01:19:30] Speaker 08:
It's a contract for the time that you're on the vessel and it's like by the hour or something?

[01:19:36] Speaker 08:
Or how does it work?

[01:19:37] Speaker 01:
I believe they contract for the trip.

[01:19:38] Speaker 01:
I'm not sure if the rate is calculated early or not.

[01:19:41] Speaker 01:
I apologize.

[01:19:42] Speaker 01:
The contract is sort of negotiated directly between the vessel and the observer services provider.

[01:19:48] Speaker 01:
Of course, the government certifies the observer service provider trains the observer, so it's not like we're wholly distant from this, but that is a relationship directly between the observer services provider and the vessel itself.

[01:20:00] Speaker 03:
Has that been true so far as you know, since the statute was enacted and even amended when the government was paying?

[01:20:12] Speaker 01:
So when the government pays for the observers, like for example in the SBRM program, often the government itself is providing the observer or it can contract with an observer services provider.

[01:20:22] Speaker 01:
Historically, for example, we talk about the North Pacific program that was implemented before the 1990 amendments that adopted 1853B8.

[01:20:30] Speaker 01:
That was a situation where they were under the regulation having the vessel contract directly with the observer to provide the service.

[01:20:39] Speaker 08:
And what is the government's relationship with the observers when they're under the penalty provision, when contracted, whatever the language of that provision says, contracted by observer services, contracted by an owner or operator?

[01:20:58] Speaker 08:
So in that situation where you have observer services that are contracted by an owner or operator, what is the government's role and interactions with

[01:21:07] Speaker 08:
the observers who are providing those observer services that are contracted by an owner or operator?

[01:21:12] Speaker 01:
So the government trains the observers and provides necessary, performs necessary functions to ensure that the scientific data is usable for the conservation and management purposes.

[01:21:23] Speaker 01:
The contract itself is directly with the vessel though, so in terms of that relationship that is direct.

[01:21:29] Speaker 01:
And the sanction is just to ensure that the vessel is not reneging on requirements under their own contracts to provide for the observer services.

[01:21:38] Speaker 08:
And when the government, when you say they provide the training and performing the license services, is that, that's directly with a company that has these observers as folks that are in their employ and that will be contracted out by a vessel operator?

[01:21:52] Speaker 01:
Correct.

[01:21:52] Speaker 01:
There are special observer services providers that are certified by the government.

[01:21:56] Speaker 01:
It's just a handful of companies that provide this and the New England fisheries that we're talking about here, and they employ the services and then contract them out for the observer services on the vessel.

[01:22:05] Speaker 08:
And is that the only purpose for which these observers exist?

[01:22:11] Speaker 01:
To collect information for.

[01:22:12] Speaker 01:
So observers sometimes provide information under different statutory programs.

[01:22:18] Speaker 01:
So for example, we have a separate standardized bycatch report, the SBIRM that's talked about in the briefing.

[01:22:23] Speaker 01:
And so sometimes they're collecting data for more than one purpose.

[01:22:26] Speaker 01:
But the observers essentially function just to collect data information and furtherance of the Magnuson-Stevens Act.

[01:22:34] Speaker 08:
And that raises in my mind another question that's somewhat related, which is that in answer to the question about what work the contracted by language could be doing in the penalty provision, Mr. Mulvey mentioned that you have the foreign vessels part, so that's one place in which they could be contracted by.

[01:22:51] Speaker 08:
And there's also some other statutes in which there's provisions for contract services for observers.

[01:22:58] Speaker 08:
In those other statutes, are those situations in which the

[01:23:02] Speaker 08:
the operator pays for the observers or those situations in which the government pays for the observers?

[01:23:10] Speaker 01:
So I'd like to come back to the foreign phishing, but first to directly answer this.

[01:23:15] Speaker 01:
I think because of the nature of the argumentation, I'm not sure exactly which programs we're talking about.

[01:23:21] Speaker 01:
There are several statutory schemes that provide for observers.

[01:23:28] Speaker 01:
their Endangered Species Act observers, Marine Mammal Protection Act observers, et cetera.

[01:23:33] Speaker 01:
And I think the main point that we've raised with respect to those statutes is that they are similarly structured without this kind of language about, you know,

[01:23:43] Speaker 01:
directly addressing a supposed requirement that Congress spell out, you know, that they have to bear the compliance costs.

[01:23:53] Speaker 01:
I can't speak to any particular program just because I'm not sure which ones we're talking about.

[01:23:58] Speaker 01:
Going back to the foreign fishing.

[01:23:59] Speaker 08:
No, no, but before you go back to that, but in those situations under the Endangered Species Act or whatever, are those

[01:24:06] Speaker 08:
situations in which the observers are paid for by the government, or are they paid for by whoever is required to have the observers, or is there at least some situations in which they're not paid for by the government?

[01:24:18] Speaker 01:
I'm not sure exactly the answer to that question, Your Honor.

[01:24:22] Speaker 01:
There are a variety of different observer programs.

[01:24:25] Speaker 01:
I can't think of one that would provide an adequate account of what this language is doing in the statute that would be authorized by a statutory program that meets the sort of requirements of plaintiff's arguments, but I don't have an answer to your question.

[01:24:40] Speaker 08:
What do you think contracted by, and then I'll in part let you get to your answer on the foreign vessel operators, but what do you think contracted by an owner or operator is referring to?

[01:24:51] Speaker 08:
It's referring at least in part to the foreign vessels.

[01:24:54] Speaker 01:
I don't think it's referring to the foreign vessels in particular.

[01:24:57] Speaker 01:
I think it's referring to general authority under marine resources laws like the ones that we're talking about and including 1853 to adopt observer requirements that may require under some circumstances the vessel to directly contract for observer services to comply with an observer requirement where it's not provided by the government.

[01:25:16] Speaker 08:
Okay, now 1821.

[01:25:18] Speaker 01:
So I don't think 1821, and this is 1821 H6, the supplementary observer program, is an adequate account of what that language is doing in 1858 for a couple reasons.

[01:25:29] Speaker 01:
First, I think if you look at 1858 itself, it says under any marine resource law, so it's clearly not referring specifically to the foreign fishing program.

[01:25:38] Speaker 01:
Second, just as a historical matter, Congress enacted the Magnuson-Stevens Act in 1976 to address foreign fishing specifically, but by around 1990, and I think the amicus brief from the conservation groups is helpful on this point, by around 1990, foreign fishing was largely displaced by domestic fishing, which is why we suddenly saw domestic observer programs, because

[01:26:01] Speaker 01:
We needed information about the fisheries and that was no longer coming from foreign fishing vessels.

[01:26:06] Speaker 01:
And the 1858 G1D was added in 1996.

[01:26:10] Speaker 01:
So it's just a bit historically odd to think about it that way.

[01:26:14] Speaker 01:
And then the last part is that 1858 G1D is essentially just a supplemental provision of a fee program.

[01:26:22] Speaker 01:
The fees are not, the fee program that is housed primarily in

[01:26:27] Speaker 01:
1821 H4, I apologize, is a situation where the fee is paid to the government as we sort of argue generally about these fee programs.

[01:26:37] Speaker 01:
H6 is just sort of a residual clause where when the government does have enough money to administer that program, the money is paid directly to the observer on a schedule of fees is the language that Congress used.

[01:26:50] Speaker 01:
So it's clearly thinking about this in the context of the fee program.

[01:26:53] Speaker 01:
And so it doesn't make sense for that to be why Congress in 1996 adopted 1858.

[01:26:58] Speaker 08:
So then do you think that 1858, because of this point you made about fees, that under that G1D just isn't dealing with 1821 at all?

[01:27:08] Speaker 08:
Or is it just that it is dealing with 1821 but it's not limited to that?

[01:27:11] Speaker 01:
I don't think so because 1821... You don't think so of which?

[01:27:13] Speaker 01:
I don't think it's dealing with 1821 at all because 1821

[01:27:17] Speaker 01:
H4, H1, H4, the sort of main fee program involves a fee payment to the government to provide U.S.

[01:27:27] Speaker 01:
observers, is the language used in the statute, U.S.

[01:27:30] Speaker 01:
observers that are placed onto foreign vessels.

[01:27:33] Speaker 01:
Foreign fishing is just an entirely different context essentially from domestic fishing.

[01:27:38] Speaker 01:
And so the only way that this sort of contractual thing is plausibly raised is through that supplementary H6 program, which for the reasons I outlined I don't think makes sense.

[01:27:47] Speaker 08:
And just go, those do involve contracts.

[01:27:51] Speaker 01:
Those involved, what Congress said is a schedule of fees paid directly to the observer.

[01:27:57] Speaker 01:
Again, this hasn't happened, so it's not, it's sort of like hypothetically talking about what the statute means in the abstract, but that's how it's referred to, is a schedule of fees rather than contracting.

[01:28:09] Speaker 01:
I think it's plausible, maybe that could be carried out through contracting, but I think it's just an odd way to account for what 1858 is doing.

[01:28:21] Speaker 05:
Can I ask you the same air marshals hypothetical, but the statute says they're private contractors.

[01:28:29] Speaker 05:
Do you give the same answer in that situation?

[01:28:34] Speaker 01:
They're private contractors that are typically employed by the government.

[01:28:38] Speaker 05:
It's like instead of the air marshals who work for the government, they're private contractors.

[01:28:42] Speaker 05:
The government pays them as a government contractor.

[01:28:46] Speaker 05:
That's in the statute.

[01:28:48] Speaker 01:
And so the obligation would be on the, I apologize.

[01:28:51] Speaker 05:
And then the airlines are obligated under the statute to carry the air marshals.

[01:28:57] Speaker 05:
And then there's, let's say there's a necessary appropriate catch all provision.

[01:29:02] Speaker 05:
And then the government agency comes along and says, airlines, we want you to pay the salaries of the air marshals.

[01:29:09] Speaker 05:
Would that be allowed?

[01:29:09] Speaker 01:
I think that's more plausible, but I think going back to the idea that there's something to, there are outer bounds to necessary and appropriate, and that sounds like a circumstance where the appropriate function might be doing some work as we were discussing earlier.

[01:29:22] Speaker 05:
Not very much work if it's allowable.

[01:29:29] Speaker 01:
I think it's plausible that it would be permissible, I just think,

[01:29:36] Speaker 01:
It's hard to talk about in the abstract because I imagine there would be lots of other independent constraints and, you know, you'd have to look at the rules.

[01:29:41] Speaker 05:
I understand that.

[01:29:42] Speaker 05:
And then you mentioned the monitors are not really there for enforcement.

[01:29:47] Speaker 05:
They serve more of a scientific role.

[01:29:50] Speaker 05:
I guess I thought one of the purposes of the monitors was to see if the fishermen in the particular boat are catching more fish than they're allowed to catch.

[01:30:02] Speaker 05:
And if so, to tell

[01:30:04] Speaker 05:
the government, the government that so that an enforcement action might be brought.

[01:30:09] Speaker 05:
Am I wrong about that?

[01:30:11] Speaker 01:
They submit data to the government and the government can take enforcement actions, but they're not serving an enforcement function.

[01:30:15] Speaker 05:
And so I give they serve a scientific purpose, but it sounds like they're quite, their purpose has quite a lot to do with enforcing laws about fishing.

[01:30:25] Speaker 01:
I don't think that's generally the case.

[01:30:26] Speaker 01:
They're providing information about sort of the nature of the catch and bycatch, the species that are being caught, and essentially providing information that's used for purposes of stock assessments to set annual catch limits, things like that.

[01:30:40] Speaker 01:
It's not an enforcement function.

[01:30:41] Speaker 05:
Does it ever lead to enforcement proceedings?

[01:30:44] Speaker 01:
I honestly can't think of a situation.

[01:30:46] Speaker 01:
I don't want to say that it hasn't happened, but I'm not aware specifically of a circumstance where an observer report led to an enforcement action.

[01:30:54] Speaker 05:
But again, I don't want to I think then in the Supreme Court, Loper bright, there was something like 5060 plus amicus briefs.

[01:31:04] Speaker 05:
Do you know if any of those amicus briefs were filed by fishermen in support of the government?

[01:31:11] Speaker 01:
None are coming.

[01:31:14] Speaker 05:
You would kind of expect it, right?

[01:31:15] Speaker 05:
If these monitors are such a great thing for fishermen and they're really like the fishermen's best friend, you'd think there'd be fishermen who couldn't just wait to tell the Supreme Court to save this program.

[01:31:26] Speaker 01:
Well, candidly, there's just a lot of, I guess, briefs, so it's a bit difficult to remember.

[01:31:30] Speaker 01:
But I will say that.

[01:31:31] Speaker 05:
I mean, I can check and find out.

[01:31:32] Speaker 05:
But you agree with the principle that if there weren't a lot of fishermen saying, we love this program,

[01:31:38] Speaker 05:
maybe that's a sign the fishermen don't love this program.

[01:31:41] Speaker 01:
Well, I do want to be clear that this is a very small program.

[01:31:44] Speaker 01:
There was only about 40 vessels with their relevant permits at the time that the rule was adopted.

[01:31:50] Speaker 01:
So this affects a very small corner.

[01:31:52] Speaker 05:
I thought the same, like, we're going to make you pay for your monitor's regulation had been used for other fishermen?

[01:32:01] Speaker 01:
It has been, yes.

[01:32:02] Speaker 05:
They might have wanted to save the program if they liked it a lot also, right?

[01:32:06] Speaker 01:
Sure.

[01:32:06] Speaker 01:
So I think another thing that I would just point out on this point is that, you know,

[01:32:12] Speaker 01:
The information that observers provide, I think, is really important to the statutory scheme.

[01:32:19] Speaker 01:
Congress made a big deal about this in section 1801, and as I was saying, section 1853A5 provides for the submission of data.

[01:32:28] Speaker 01:
There's information about using, rules about using the best scientific data, and that's because it's important for the agency to have a sufficient understanding of what's going on

[01:32:38] Speaker 01:
in the fishery so that it can increase the accuracy of its data and avoid, you know, more conservative regulation than is necessary, right?

[01:32:45] Speaker 01:
Because if we don't understand what's going on in the fishery, we may need to take actions like, you know, limiting access to the fishery, fishery closures, things like that.

[01:32:52] Speaker 01:
So this is to the benefit of the industry.

[01:32:54] Speaker 05:
I get, I mean, I definitely understand how it can be to the benefit of, as Judge Rogers said, the people eating fish and it could be

[01:33:02] Speaker 05:
They can serve a conservation goal and I don't doubt that maybe it has some benefit to the industry, but it sounds like you're trying to convince us that the benefits of the industry vastly outweigh the costs to the industry.

[01:33:14] Speaker 05:
The benefits of the individual fishermen on these little boats that go out and, you know, scrap, you know, make, scrape out a living.

[01:33:21] Speaker 05:
It sounds like your point is like the benefits to them are so much greater than the cost.

[01:33:25] Speaker 05:
I don't think you have to make that argument to win your case, but it seems like a heavy lift.

[01:33:29] Speaker 01:
I don't think that that's exactly the point that I'm trying to get at.

[01:33:34] Speaker 01:
I think it's important to just understand that this is not an enforcement program.

[01:33:37] Speaker 01:
This is for the benefit of the fishery and part of what Congress was getting at and things like national standard one.

[01:33:43] Speaker 01:
is ensuring, is directing the agency to, you know, one of the considerations is achieving optimum yield.

[01:33:49] Speaker 01:
So taking into account the need to balance these various factors like the benefits of the observer data with the costs to industry.

[01:33:56] Speaker 01:
And so I think that's the point that I'm getting at, is that this,

[01:34:00] Speaker 01:
the observers perform an important function.

[01:34:04] Speaker 01:
And to the extent there is weighing of benefits and costs, that is certainly something that the agency considers and that the fishermen can challenge our analysis of that.

[01:34:13] Speaker 01:
They can say it's arbitrary and capricious.

[01:34:15] Speaker 01:
They can say that we haven't complied with the national standards.

[01:34:17] Speaker 01:
But I just don't think it goes to questions of statutory authority.

[01:34:20] Speaker 05:
I can shift gears for a second.

[01:34:23] Speaker 05:
When it was paused in April, 2023,

[01:34:26] Speaker 05:
The government said it has to do with not having funding for the administrative costs to do things like train and certify the observers.

[01:34:36] Speaker 05:
Do you know if it's that the agency needed a line item from Congress for this particular cost and Congress didn't do it or if the agency has money and it decides how to spend that money and it kind of ran out of general funding because it prioritized some things over this thing?

[01:34:57] Speaker 01:
So my understanding of the way it works is there are various pools of appropriated funds that various offices within NOAA and the National Marine Fisheries Service can apply to for funding.

[01:35:06] Speaker 01:
And so this would be a circumstance where the New England regional employees from the service would be seeking funding from a limited pool of appropriated funds to use to fund this type of program.

[01:35:20] Speaker 01:
Sometimes they're not able to secure that.

[01:35:24] Speaker 03:
I did want to just- Can I ask you a question?

[01:35:28] Speaker 03:
When the statute was originally passed, one of the arguments made by the fishermen is that everyone understood the government was going to pay for the monitors.

[01:35:46] Speaker 03:
And indeed the government did pay for a number of years for the monitors.

[01:35:56] Speaker 03:
While we don't defer to the agency, that is a relevant context.

[01:36:04] Speaker 03:
Or is it that once the government ran short of funds, because Congress had failed to appropriate them, then in order to continue this operation, which

[01:36:28] Speaker 03:
in your words, is so important to the program for conservation and management.

[01:36:40] Speaker 03:
Then, I don't know if you want to rely on necessary and appropriate, but that I'm trying to get your best response to why isn't that irrelevant

[01:36:57] Speaker 03:
consideration and why isn't it a very strong indication that Congress did not intend for the private fishermen to pay the cost of monitor, even if they do not have a law enforcement purpose.

[01:37:18] Speaker 03:
And they're just there to collect the data that the government needs for the reasons that you mentioned.

[01:37:29] Speaker 01:
So I think...

[01:37:32] Speaker 01:
One response to that is that when Congress enacted the authority in Section 1853B8, the legislative history reflects that Congress was essentially codifying existing authority which the agency already had used to adopt this type of program in Alaska where the regulated vessels procure an observer at their own expense.

[01:38:00] Speaker 01:
So I think that informs kind of what Congress was up to, along with the other evidence that we've cited about how, you know, in the ground fish program, Congress issued appropriations instructions about refunding industry costs, and that suggests that the Congress is aware, you know, Congress can, you know, exercise options like withholding funds from implementing agency programs if it thinks that they're improper, you know, inconsistent with

[01:38:28] Speaker 01:
Congress is intent in the statute, but Congress hasn't done that.

[01:38:31] Speaker 01:
Congress is aware of these programs and they continue to proceed.

[01:38:37] Speaker 03:
Well, what I'm getting at in part is as Congress has added to the responsibilities of the federal agencies, it has not always provided the additional funding

[01:38:54] Speaker 03:
for the agency to maintain its then current staffing or administrative costs, much less added the staffing and fundings that the agency has said are necessary in order to carry out these new responsibilities.

[01:39:16] Speaker 03:
So here, I mean, the fisherman makes the point that nobody objected

[01:39:24] Speaker 03:
to this monitoring requirement because everybody who would be affected understood that the government was going to pay for the monitor and they would have to provide, you know, bunk and board and that they would have to purchase certain equipment that the government required under

[01:39:54] Speaker 03:
the council's plan for the Regent.

[01:40:02] Speaker 03:
So the court, I'm gonna put words in your mouth, but just tell me why it's inappropriate to do that.

[01:40:12] Speaker 03:
I understand your point about we had this Alaska program.

[01:40:17] Speaker 03:
So when Congress acted, everyone should have been on notice.

[01:40:22] Speaker 03:
that it would be possible that industry would have to pay.

[01:40:29] Speaker 03:
But then for a number of years, that possibility never arose.

[01:40:38] Speaker 03:
And it was a fairly substantial period of time.

[01:40:45] Speaker 03:
And then these emails come from the agency saying,

[01:40:52] Speaker 03:
to the fishermen.

[01:40:55] Speaker 03:
You pay this year.

[01:41:03] Speaker 01:
So I think in the context of this program, the regulation was promulgated in 2020.

[01:41:08] Speaker 01:
So the responsibility to comply with it followed closely on the actual promulgation of the rule.

[01:41:14] Speaker 01:
This didn't come out of nowhere.

[01:41:16] Speaker 01:
This was subject to notice and comment.

[01:41:18] Speaker 01:
People weighed in.

[01:41:21] Speaker 01:
you know, we implement these programs through bulletins and closures and things like that.

[01:41:27] Speaker 01:
So I think, you know, even if the agency doesn't exercise authority that it has been conferred as it was in the 1990 statute, that doesn't mean it lacked that authority.

[01:41:36] Speaker 01:
It simply means it didn't find it necessary and appropriate to use it or that it didn't have a reason to under Section 1853B8 to meet the information purposes of the Magnuson-Stevens Act.

[01:41:50] Speaker 03:
Do you know from your review of the record whether this issue of industry payment came up during the notice and comment period?

[01:42:03] Speaker 01:
In this role, it did, yes.

[01:42:07] Speaker 01:
And while we're on the subject of sort of the agency's implementation, I just wanted to speak briefly to the nature of our bulletin about sort of what's going on with the program and the reimbursements in particular.

[01:42:22] Speaker 01:
What happened with reimbursements is that it was for Etsy monitoring.

[01:42:25] Speaker 01:
It wasn't just for port side sampling and electronic monitoring.

[01:42:28] Speaker 01:
The agency had about $30,000 of agency, or excuse me, of industry costs were incurred during the period when the program was in operation and it had sufficient funds to reimburse that.

[01:42:41] Speaker 01:
So that did include that same monitoring of the type that we're talking about here.

[01:42:45] Speaker 01:
And I think it's a useful data point when we're considering the sort of costs of the program.

[01:42:50] Speaker 01:
This was in effect for the 2021, 2022 seasons.

[01:42:54] Speaker 01:
It was a total of,

[01:42:58] Speaker 01:
less than $30,000 of industry costs.

[01:43:02] Speaker 01:
Less than how much?

[01:43:03] Speaker 01:
Less than $30,000.

[01:43:04] Speaker 01:
We reimbursed $8,591 in 2021 and $21,743 in 2022.

[01:43:08] Speaker 01:
Industry-wide?

[01:43:10] Speaker 01:
For the herring fishery.

[01:43:12] Speaker 01:
And that includes things besides at sea monitoring, including electronic monitoring and port side sampling.

[01:43:19] Speaker 03:
Let me just ask you about that.

[01:43:21] Speaker 03:
I misspoke in asking you the question.

[01:43:24] Speaker 03:
What I was getting at

[01:43:25] Speaker 03:
was when the act was passed and then amended initially, was there any reference to industry payment?

[01:43:35] Speaker 03:
I understand it came up when the rule, and that's when all the fishermen came and submitted negative comments.

[01:43:44] Speaker 03:
But prior to that, I thought I understood you to say that

[01:43:51] Speaker 03:
you know, the act and the amendment were adopted in light of the Alaska program where industry was paying.

[01:43:58] Speaker 03:
So everyone was, as it were, on notice, but there was no record of opposition.

[01:44:08] Speaker 03:
And the fishermen argue that, well, that's because everybody thought the government was going to pay.

[01:44:14] Speaker 03:
And that's what happened for a long time.

[01:44:17] Speaker 03:
So it wasn't until

[01:44:20] Speaker 03:
the notice and comment on the rule that the industry realized that the government was proposing to have them pay for the monitors.

[01:44:33] Speaker 03:
That's what I was trying to get at.

[01:44:34] Speaker 03:
Was there, before that rulemaking, was there any notice other than the notice that you say, and I'm not suggesting

[01:44:45] Speaker 03:
you're not reporting accurately, but that when Congress amended the statute, it was essentially following what was going on in the Alaska program.

[01:44:58] Speaker 01:
Sure, so I would point to two things.

[01:45:00] Speaker 01:
So in the 1990 legislative history, that's where we cite to some of the testimony acknowledging that this was the current status quo in the Alaska fishery.

[01:45:09] Speaker 01:
The 1990 statute, the amendments also adopted the North Pacific Observer Program, which sort of displaced this type of model by adopting a fee program, which as we've explained, we think is distinct.

[01:45:20] Speaker 01:
So that kind of, I think, addressed why there was like a shift in

[01:45:23] Speaker 01:
perspective is because in that particular fishery, Congress had decided to authorize a different type of funding structure through a fee program.

[01:45:33] Speaker 08:
In terms of... But that fishery had industry payment at that time?

[01:45:37] Speaker 08:
It's just that it shifted to a fee structure of industry payment?

[01:45:40] Speaker 01:
Yes, there was an Alaska, an Alaska specific.

[01:45:43] Speaker 01:
That's the Alaska one.

[01:45:44] Speaker 01:
Yes.

[01:45:44] Speaker 01:
And then in terms of before this rulemaking, I think there was some reference to the gathol litigation in this northeastern region.

[01:45:53] Speaker 01:
We also had a northeast multi-species observer program that was challenged in litigation.

[01:45:59] Speaker 01:
So I think this is

[01:46:00] Speaker 01:
not the first time that the industry has become aware of this issue.

[01:46:03] Speaker 01:
That was during the legislative history for the statute?

[01:46:06] Speaker 01:
No, no.

[01:46:07] Speaker 01:
In terms of just events that occurred before this rulemaking is what I'm getting at.

[01:46:11] Speaker 05:
Yeah, but I think Judge Rogers was asking about the statute and the debate surrounding the statute.

[01:46:19] Speaker 05:
Right, yes.

[01:46:20] Speaker 05:
And as I understand it, the statute provided for industry funding for North Pacific slash Alaska, right?

[01:46:30] Speaker 05:
the industry was silent about the fishery here, right?

[01:46:37] Speaker 05:
And almost all fisheries, it was silent about industry funding, right?

[01:46:41] Speaker 05:
In the 1990 statute, correct?

[01:46:43] Speaker 05:
Right.

[01:46:43] Speaker 05:
And in the legislative history and debate about the 1990 amendments, there was no mention of

[01:46:58] Speaker 05:
industry funding outside of North Pacific and maybe foreign and limited catch.

[01:47:07] Speaker 01:
Is that right?

[01:47:09] Speaker 05:
Legislative history is silent about what you think the statute authorized, correct?

[01:47:15] Speaker 01:
I think the legislative history is not silent in so far as 1990 was when Congress adopted section 1853B8 and said it was codifying existing authority.

[01:47:25] Speaker 01:
What does existing authority mean?

[01:47:27] Speaker 01:
It means what was going on already, which was the Alaska program that involved this type of direct contracting structure.

[01:47:35] Speaker 05:
I still think that was a yes, aside from just take Alaska out of it.

[01:47:40] Speaker 05:
And the reason I say that is because there's this express statutory authorization in the amendment for industry funded monitoring in Alaska.

[01:47:48] Speaker 05:
So imagine Alaska doesn't exist.

[01:47:54] Speaker 05:
Was there anything in the legislative history about industry funding of monitors?

[01:48:03] Speaker 01:
For purposes of Section 1853 B-8, I think beyond what I've cited, I don't have anything else to say.

[01:48:08] Speaker 01:
Okay.

[01:48:09] Speaker 05:
And then the statute itself is silent about whether B-8 allows industry funding.

[01:48:18] Speaker 05:
You take from that silence an implication that the agency has authority.

[01:48:25] Speaker 05:
The appellants draw the opposite inference.

[01:48:29] Speaker 05:
Actually, they say maybe silence is never good enough.

[01:48:33] Speaker 05:
I think sometimes silence, by the way, is probably good enough.

[01:48:37] Speaker 05:
You can have express authorization for an agency or implications from express text.

[01:48:44] Speaker 05:
But absent some reason to think that the express text implies industry funding, you would admit that

[01:48:53] Speaker 05:
In that instance, silence suggests no agency authority, because agencies are creatures of Congress, so they can only do what Congress has either expressly said they can do or implied through text that they can do.

[01:49:08] Speaker 01:
I think as a general principle I agree, but I think in this particular context, you know, you look at cases like Brown and Williamson which talk about how context can inform whether a statutory term is ambiguous, et cetera.

[01:49:26] Speaker 01:
And so I think here what we've pointed to is provisions like 1858 and all the other provisions that expressly contemplate industry costs

[01:49:34] Speaker 01:
involved in complying with measures adopted under section 1853, none of which specify compliance costs expressly in them.

[01:49:41] Speaker 01:
We think that informs how the court should understand section 1853B8 and whether it speaks to the issue.

[01:49:49] Speaker 03:
All right, but I want to be clear about your response because I understood it somewhat differently.

[01:49:57] Speaker 03:
I suppose we can check this, but when the statute was passed,

[01:50:05] Speaker 03:
there had been a program in Alaska where industry was paying.

[01:50:14] Speaker 03:
That was the status quo and the act decided it wanted not to relieve the

[01:50:32] Speaker 03:
Alaska industry of paying the cost, but it wanted a different system for payment.

[01:50:41] Speaker 03:
And so the act included this fee system.

[01:50:49] Speaker 03:
Am I correctly hearing you?

[01:50:51] Speaker 01:
Yes, the 1990 statute did two things.

[01:50:55] Speaker 01:
It adopted 1853B8, which is the General Observer Program, and Congress understood that it was codifying the status quo.

[01:51:05] Speaker 01:
This is my gloss on it, but codifying the status quo in so doing.

[01:51:08] Speaker 01:
And separately, Congress made a choice to set up a different funding structure in the North Pacific, or offer us a different funding structure in the North Pacific.

[01:51:17] Speaker 08:
Okay, thank you, Council.

[01:51:18] Speaker 08:
Thank you.

[01:51:20] Speaker 08:
Mr. Mulvey will give you three minutes for a rebuttal.

[01:51:26] Speaker 07:
Thank you, Your Honor.

[01:51:27] Speaker 07:
Two main points.

[01:51:29] Speaker 07:
Since we're already talking about the 1990 amendments, I'd like to start there.

[01:51:33] Speaker 07:
Opposing counsel described the 1990 amendments in 1862 as displacing, to use his word, what came before.

[01:51:42] Speaker 03:
I mean, I think that's kind of an amazing concession because it demonstrates... No, it said, he actually said it was

[01:51:50] Speaker 03:
endorsing the status quo.

[01:51:54] Speaker 03:
And it decided that it simply wanted a different way for industry to pay.

[01:52:05] Speaker 03:
That it had been paying before the 1990 amendments.

[01:52:12] Speaker 03:
He used the word displaced, and he used it accurately because now... Because the amendment said we're displacing the status quo where the industry was paying in a certain way to set up a fee system.

[01:52:30] Speaker 03:
Did you not hear him say that?

[01:52:31] Speaker 03:
Because that was the whole point of my last question.

[01:52:34] Speaker 07:
Your Honor, 1862 is permissive.

[01:52:38] Speaker 07:
All right, this is something that was addressed in the principal briefing.

[01:52:41] Speaker 07:
1862 says the North Pacific Council may fund its observing through a system of fees.

[01:52:49] Speaker 07:
And yet, I think it's accurate, his use of the word displace, because now the North Pacific is funded, its observing is funded through fees.

[01:52:59] Speaker 03:
Right.

[01:53:00] Speaker 03:
But that doesn't mean it wasn't paying before.

[01:53:04] Speaker 03:
That's all I'm getting at.

[01:53:07] Speaker 03:
And you haven't shown anything to the contrary.

[01:53:10] Speaker 07:
Well, I disagree with that, Your Honor.

[01:53:12] Speaker 07:
I would say, first of all, that- What have you shown?

[01:53:15] Speaker 03:
So I'm clear.

[01:53:16] Speaker 07:
If the 1990 amendments merely codified the status quo- No, no, no.

[01:53:23] Speaker 03:
That's not what he said, Counsel.

[01:53:25] Speaker 03:
I was trying to clarify that point.

[01:53:27] Speaker 03:
There had been a system requiring industry to pay for the monitors.

[01:53:35] Speaker 03:
All right.

[01:53:36] Speaker 03:
Then the amendments came and

[01:53:41] Speaker 03:
It continued to require industry to pay, but the payments would be in accordance with this fee system instead of what had been going on before.

[01:53:56] Speaker 03:
And to that extent, it replaced the status quo.

[01:54:03] Speaker 03:
But I think there's a distinction here.

[01:54:06] Speaker 03:
That's all I'm getting at.

[01:54:09] Speaker 03:
I mean, this is something we can

[01:54:11] Speaker 03:
you know, verify on the record.

[01:54:14] Speaker 03:
It's not a question of argument.

[01:54:16] Speaker 03:
What was in the pre 1990 amendment statute as to the Alaska fishermen?

[01:54:21] Speaker 07:
The government's contention is that prior to the 1990 amendments,

[01:54:26] Speaker 07:
And really, this was only for a period of months.

[01:54:28] Speaker 07:
It wasn't as if there were a long-established industry funding program in the North Pacific.

[01:54:33] Speaker 03:
They didn't say anything about time council.

[01:54:37] Speaker 07:
No, but I'm mentioning that as to your point, because you were curious about how longstanding the agency's interpretation of its authority was.

[01:54:46] Speaker 07:
The government has explained that how it required industry funding in the North Pacific, or attempted to require it before the 1990 amendments,

[01:54:53] Speaker 07:
was by Fiat, simply directing the agencies to do it.

[01:54:58] Speaker 07:
If the 1990 amendments, if Congress somehow was attempting to codify in statute the status quo, then the government would not have needed to switch

[01:55:09] Speaker 07:
to a fee based system.

[01:55:11] Speaker 03:
No, but it decided the fee system would work better.

[01:55:15] Speaker 03:
I mean, it made a judgment about how, as I understand, I'm not trying to argue with you.

[01:55:19] Speaker 03:
It's just it decided the fee system would work better.

[01:55:23] Speaker 03:
That's the way they wanted to do it.

[01:55:26] Speaker 03:
And or it realized it didn't have authority.

[01:55:30] Speaker 03:
the payment obligation.

[01:55:32] Speaker 03:
That's all I was getting at.

[01:55:33] Speaker 07:
Or it realized that it had no authority otherwise.

[01:55:37] Speaker 03:
Could have, but that's not the way counsel presented it.

[01:55:40] Speaker 03:
I'm just saying there hadn't been any case law or anything saying you don't have any authority.

[01:55:47] Speaker 03:
It's still your argument, as I understand your argument, is that there was no express provision either before or after

[01:55:57] Speaker 03:
the 1990 amendments authorizing the agency to require industry to pay for the monitors.

[01:56:05] Speaker 07:
Our argument is that the most common sense way to read the 1990 amendments is to see that Congress, when it allowed a general authority for fishery management plans to require the carrying of an observer,

[01:56:22] Speaker 07:
was limited only to the carrying of the observer and that its decision to address funding in the North Pacific, the only fishery where there had ever been an attempt only months before the legislation to require industry funding, that its decision to require fees, the agency understood it at the time that 1862 was about the authority to require industry funding.

[01:56:44] Speaker 07:
And 1853B8 had nothing to do with that.

[01:56:47] Speaker 07:
Can I just ask about 1862?

[01:56:48] Speaker 08:
So if under 1862, if the agency decided that it wanted to continue industry funding in Alaska as it was before this statutory amendment, for the few months, I'll take your point.

[01:57:01] Speaker 08:
I'll say it was an hour.

[01:57:02] Speaker 08:
I don't care.

[01:57:03] Speaker 08:
But whatever it was that was going on beforehand, it wants to continue that.

[01:57:06] Speaker 08:
And then it reads the statute to say, as you rightly say, it says May.

[01:57:09] Speaker 08:
So you may do it through a fee system.

[01:57:11] Speaker 08:
And the agency decides, actually, we want to continue industry funding.

[01:57:15] Speaker 08:
We don't want to do it through a fee system, though.

[01:57:16] Speaker 08:
We want to go back to doing through a contracting system as before.

[01:57:20] Speaker 08:
Does 1862 give the authority to do that?

[01:57:24] Speaker 07:
No.

[01:57:24] Speaker 07:
1862 says that, well, let me back up.

[01:57:29] Speaker 07:
That would only be if you accept the premise that 1853B8 requires industry funding by fiat as some sort of compliance cost.

[01:57:37] Speaker 08:
No, no, it doesn't require it.

[01:57:38] Speaker 08:
It doesn't require it.

[01:57:39] Speaker 07:
My point is that the government has argued in its brief that 1862 mandated a particular outcome, but it didn't.

[01:57:47] Speaker 07:
It's permissive.

[01:57:47] Speaker 07:
I think Judge Walker pointed this out to me as dissent.

[01:57:50] Speaker 08:
Honestly, at this point, I don't care what the government has argued.

[01:57:52] Speaker 08:
I'm just asking you a question.

[01:57:53] Speaker 08:
1862 says,

[01:57:57] Speaker 08:
that it's permissive and that the North Pacific Council may come up with this fee, impose this fee-based system, that is industry funding, right?

[01:58:07] Speaker 08:
It is industry funding.

[01:58:07] Speaker 07:
And that's the way to pay if you want industry funding there.

[01:58:10] Speaker 08:
So my question is, if the agency wants to continue industry funding but not through the fee system and only under the North Pacific Council and say only in the way that it was being done before, does 1862, since it's permissive as to the fee program, does it also permit

[01:58:27] Speaker 08:
agency, I'm sorry, industry funding through a non-fee program only with respect to the North Pacific Council.

[01:58:33] Speaker 07:
I don't think so.

[01:58:34] Speaker 08:
Okay.

[01:58:35] Speaker 08:
I just wanted to make sure I understood your position on that.

[01:58:36] Speaker 07:
No, no, no.

[01:58:36] Speaker 08:
But I'm just saying in terms of- So you think it's fee system or nothing and only for the North Pacific Council?

[01:58:40] Speaker 07:
Correct.

[01:58:40] Speaker 07:
Or industry fund.

[01:58:41] Speaker 07:
I mean, excuse me, government funded observers.

[01:58:43] Speaker 08:
Yes, of course there's government fund.

[01:58:44] Speaker 07:
Right.

[01:58:44] Speaker 07:
Right.

[01:58:45] Speaker 07:
So the other thing in relation there until I get to the last point is I just want to stress again that from what happened in 1990,

[01:58:55] Speaker 07:
We don't see industry funding attempted by the government, again, in a mandatory way outside of explicit, you know, a lap or something until 2004.

[01:59:04] Speaker 07:
Got it.

[01:59:05] Speaker 07:
So there's no long standing.

[01:59:06] Speaker 07:
And it's striking that they don't ask for Skidmore type deference.

[01:59:10] Speaker 08:
Can I just ask one last question just as a practical matter?

[01:59:13] Speaker 08:
Sure.

[01:59:13] Speaker 08:
So I think I know the answer to this, but I just want to make sure this is right.

[01:59:16] Speaker 08:
If the world were as you think it is, which is that the statute only allows, apart from these specific provisions, that only allows for monitors if the government pays for it, would your clients still rather have a world in which they didn't have to carry the monitors all than a world in which they carry the monitors but they're government funded?

[01:59:39] Speaker 07:
At this point in time, I'd have to ask my client what their current views are.

[01:59:43] Speaker 07:
I mean, we don't... Go back to another time.

[01:59:45] Speaker 07:
Yeah.

[01:59:46] Speaker 07:
I mean, previously, we haven't challenged the legality of the presence of the monitor because we accept that that's in the statute.

[01:59:51] Speaker 07:
Not the legality.

[01:59:52] Speaker 07:
I'm not even talking about the legality.

[01:59:53] Speaker 08:
I'm just talking about what... If you could lobby Congress and you could have... You could just get your way, would you rather have a world in which you didn't have monitors at all or a world in which there were monitors but the government was going to pay for the full... I think many fishermen

[02:00:07] Speaker 07:
And this is evident in the public comment period here, but also if you just read anecdotally on the internet and in other forums at the Fish Council meetings, many fishermen do not appreciate the presence of a monitor on the boat.

[02:00:20] Speaker 07:
At all.

[02:00:20] Speaker 07:
Because it's a big imposition.

[02:00:21] Speaker 07:
I thought that was in your answer, but I just wanted to make sure that that's... Yeah.

[02:00:24] Speaker 07:
But that actually kind of gets at what the last point I wanted to make, and I know you only wanted me to speak for three minutes, but I want to really push back against this idea that the government pushes that the monitors are just like

[02:00:37] Speaker 07:
scientists collecting biological data.

[02:00:41] Speaker 07:
I think we have a number of examples in our briefing and also if you look at 50 CFR 64.11, they do a lot more than that.

[02:00:51] Speaker 07:
So they have to be on call to go to NOAA Office of Law Enforcement to talk about what they witnessed on the boat.

[02:00:58] Speaker 07:
If you look at 6411D, not only do they have to be let onto the boat, but they get to go on the bridge, they get to go through the communications logs, they get to go through the navigation logs.

[02:01:12] Speaker 07:
I mentioned that they need to report safety hazards, they need to report violations of law aside from whatever biological sampling or scientific collection they're doing.

[02:01:22] Speaker 07:
I mean, if you look, this is not, you can take notice of it because it's a handbook that's on the agency website.

[02:01:28] Speaker 07:
And I hadn't found it before the supplemental reply brief.

[02:01:32] Speaker 07:
But NOAA publishes a vessel owner and operator handbook about monitoring.

[02:01:38] Speaker 07:
And on page 30, and I can file a copy in the docket if you would find it helpful, if you can't find it online.

[02:01:44] Speaker 07:
It has a chart of what observers are supposed to do on board.

[02:01:48] Speaker 07:
And even before it gets to the scientific stuff,

[02:01:50] Speaker 07:
They have to do safety checks, talk to all the personnel.

[02:01:54] Speaker 07:
They have to collect economic information, including all the information, the data about the cost of the trip, the price of the fuel, how much ice, the cost of the ice, information about the fishing, the fish dealer they're dealing with, the vessel trip report numbers, all the information about the nets, dredges, mesh sizes, and gear configuration.

[02:02:11] Speaker 08:
Okay, so thank you for pointing us to that guidance, and we'll be sure that.

[02:02:14] Speaker 07:
So quite a bit.

[02:02:15] Speaker 07:
Your Honor, I would, all your Honors, we would ask that you reverse this report.

[02:02:19] Speaker 05:
Maybe one and a half questions, but maybe two.

[02:02:23] Speaker 05:
So along the lines of what you were just saying, let's say that a monitor is on the ship and they find that the fish is catching more fish than it's allowed to catch.

[02:02:34] Speaker 05:
What happens then?

[02:02:36] Speaker 07:
My understanding is that it's in the report that they submit directly to NOAA.

[02:02:40] Speaker 07:
Fishermen don't, as I understand it, don't get copies of this information.

[02:02:43] Speaker 07:
It's not theirs.

[02:02:44] Speaker 07:
It's government information.

[02:02:46] Speaker 07:
It goes to NOAA.

[02:02:48] Speaker 07:
I suppose it's within its discretion whether it decides to enforce or not, but the observer is on call to provide, to be interviewed or to provide further information.

[02:02:57] Speaker 05:
And Noah could enforce?

[02:02:59] Speaker 07:
If there's a violation of, yeah, of the rules of the fishery, I would imagine so.

[02:03:03] Speaker 05:
And the monitor would possibly be a witness in that enforcement action?

[02:03:06] Speaker 07:
That's what I would understand by the being on call.

[02:03:09] Speaker 05:
Okay.

[02:03:09] Speaker 03:
And then last thing, the government mentioned that- Counsel, could I, Judge Walker, just ask?

[02:03:15] Speaker 03:
My understanding of the record here

[02:03:18] Speaker 03:
was that the owner of the vessel has records as to, I don't know the technical term, how many pounds of herring it's catching, how many byproducts there are.

[02:03:36] Speaker 03:
So this is not secret information.

[02:03:38] Speaker 03:
And before the monitors, the boat owners collected this information.

[02:03:47] Speaker 03:
if for no other reason, so they could sell it per pound.

[02:03:52] Speaker 07:
So the vessel owners and operators do have their own information that they still compile in report, which is in some cases duplicative of what the observer is collecting.

[02:04:02] Speaker 03:
My point is that- That's my point.

[02:04:03] Speaker 03:
That's my point only.

[02:04:05] Speaker 03:
We're not talking about the observers doing something that the owners were doing.

[02:04:11] Speaker 07:
No, but my point is that what the observer is collecting for her own report, which isn't shared

[02:04:17] Speaker 07:
with the vessel owner or operator is extensive and more than just biological information.

[02:04:23] Speaker 02:
I understand.

[02:04:23] Speaker 02:
I take your point.

[02:04:25] Speaker 02:
Yes.

[02:04:25] Speaker 02:
Thank you.

[02:04:25] Speaker 07:
And I think that really does speak to how their function is, I mean, it's just unprecedented, I think.

[02:04:34] Speaker 07:
And again, there's no case or other context in statute that the government has yet been able to point to where somebody who serves that kind of enforcement purpose

[02:04:43] Speaker 07:
is funded by regulated entities.

[02:04:45] Speaker 07:
I mean, and I think for that and for all the reasons in our group.

[02:04:49] Speaker 05:
So the records suggest.

[02:04:50] Speaker 03:
Judge Walker had another question and I asked too.

[02:04:53] Speaker 05:
No, no worries at all.

[02:04:55] Speaker 05:
The record had something last time, I think again this time, that the costs per trip could be as high as around $700.

[02:05:04] Speaker 05:
Correct.

[02:05:06] Speaker 05:
The government said that over the course of a year or two, there were only $30,000 in costs to the industry that went toward paying these monitors.

[02:05:17] Speaker 05:
So don't.

[02:05:20] Speaker 05:
I am hardly a math major here, but I think that comes out to about 42 trips total, which can't, I think, possibly be the number of trips that happened over two years.

[02:05:32] Speaker 05:
So I don't, I don't know, what, what, what?

[02:05:35] Speaker 07:
I'm happy to speak to that, but I'll have to, I'll be giving you information that's not in the record, and I don't know if you're comfortable with that.

[02:05:41] Speaker 05:
I think the government opened the door to that.

[02:05:42] Speaker 05:
Okay.

[02:05:42] Speaker 05:
And then we can decide what.

[02:05:43] Speaker 07:
So, and maybe, so the problem with the notice is that it doesn't disaggregate

[02:05:50] Speaker 07:
the totals for the reimbursements according to what went where.

[02:05:56] Speaker 07:
So for port side sampling costs, port side infrastructure improvement, and then monitor training.

[02:06:02] Speaker 07:
Some of the reimbursements actually went to the monitoring service providers to train more monitors.

[02:06:07] Speaker 07:
We got from the council,

[02:06:10] Speaker 07:
something of a breakdown.

[02:06:12] Speaker 07:
And our understanding is that only three trips were reimbursed.

[02:06:19] Speaker 07:
None of those were our clients.

[02:06:21] Speaker 07:
There were three trips early on before COVID.

[02:06:25] Speaker 07:
I think it was before COVID when they started waiving trips coverage.

[02:06:30] Speaker 07:
There were only three trips reimbursed and that the bulk $22,000 or $22,400 went to infrastructure.

[02:06:39] Speaker 07:
4.7 to training and 3,000 to sampling, which included portside and at sea.

[02:06:46] Speaker 05:
Why were only three trips reimbursed?

[02:06:49] Speaker 07:
That's a question for me.

[02:06:52] Speaker 07:
There was a very brief time, given where how the fishing years started and when COVID hit in March and, you know, government stopped making the observers go on boats and so forth.

[02:07:06] Speaker 07:
Okay.

[02:07:08] Speaker 08:
Thank you, counsel.

[02:07:09] Speaker 08:
Thank you to both counsel.

[02:07:09] Speaker 08:
We'll take these cases under submission.