[00:00:00] Speaker 01: Case number 25-1542. [00:00:03] Speaker 01: Slash Creek Water Works Inc. [00:00:05] Speaker 01: at balance versus Howard W. Letnick in his official capacity as Secretary of Commerce and National Marine Fisheries Service. [00:00:14] Speaker 01: Mr. Atkinson for the at balance, Mr. Peterson for the at police. [00:00:19] Speaker 03: Good morning council. [00:00:20] Speaker 03: Mr. Atkinson, please proceed when you're ready. [00:00:23] Speaker 05: Thank you. [00:00:23] Speaker 05: Good morning. [00:00:24] Speaker 05: May it please the court. [00:00:25] Speaker 05: My name is Seth Atkinson and I'm here on behalf of the plaintiff's appellants in this matter. [00:00:30] Speaker 05: So today I'd like to walk the court through the AP Bell case and explain why that case deals with a different question of law than this matter does at hand. [00:00:41] Speaker 05: In our briefing, we set forth several options for how this court could deal with the AP Bell case, but we believe the best of those options is distinguishing it on the law. [00:00:51] Speaker 05: Because essentially, it ends up making far better sense of the case than any of those other approaches, and I'll get into why. [00:00:59] Speaker 05: I should note at the outset, I'm not planning on addressing timeliness or mootness. [00:01:03] Speaker 05: I think those are adequately covered in the briefing, but I'm happy to answer any questions you may have on those. [00:01:09] Speaker 05: So let's turn to the AP Bell opinion. [00:01:11] Speaker 05: If you have it handy, it's in the blue brief, page 45. [00:01:14] Speaker 05: It's not a problem if you don't. [00:01:16] Speaker 05: I'll help walk you through it. [00:01:17] Speaker 05: And if you have the reporter copy, it's on page 65, the reporter. [00:01:24] Speaker 05: So the main thing to notice here is this is a challenge to an overfishing limit. [00:01:31] Speaker 05: You see that in the first paragraph, the fourth and fifth sentences there where the court sets forth final amendment 53 set the overfishing limits in terms of landings, not catch. [00:01:42] Speaker 05: Appellants contend that this fails to establish catch limits or ensure accountability with them. [00:01:47] Speaker 05: So as a refresher, an overfishing limit is one of several upstream numbers that can be used in the course of setting an annual catch limit. [00:01:57] Speaker 05: It's essentially a stopping off point on the numerical chain from the stock assessment and projections over to the final annual catch limit that is ultimately set. [00:02:07] Speaker 05: It also has another use under a different part of the statute, but that's not an issue in this case. [00:02:12] Speaker 05: From the perspective of 16 USC section 1853A15, the annual catch limit requirement, the main relevance of the overfishing limit is that it can contribute to the reasoning or basis of the annual catch limit that's ultimately set. [00:02:29] Speaker 05: So to be clear, [00:02:30] Speaker 05: The overfishing limit is not a statutorily required part of the annual catch limit mechanism, something the agency created through its regulatory guidelines, which do not have the force of law. [00:02:41] Speaker 05: It's kind of regulatory infill, if you will, a suggested step to help justify the eventual annual catch limit. [00:02:48] Speaker 05: So the court in AP Bell is explicitly resolving an argument about an overfishing limit. [00:02:55] Speaker 05: In those fourth and fifth sentences, you see that the plaintiffs were arguing that by setting the overfishing limits in landings-only units, the agency had violated the statutory requirement for annual catch limits and accountability measures, so section 1853A15. [00:03:13] Speaker 05: But here's the thing. [00:03:15] Speaker 05: There's nothing in the statute that requires an overfishing limit to be used. [00:03:19] Speaker 05: And in some situations, it's not used at all. [00:03:22] Speaker 05: The annual catch limit is set a different way entirely, and that's fine from the perspective of the statute, so long as the catch limit ends up having a reasonable basis and is not arbitrary and capricious and so forth. [00:03:33] Speaker 05: So as a logical matter, if the statute doesn't require use of an overfishing limit at all, then it definitely doesn't require an overfishing limit to be set in one particular units or another. [00:03:45] Speaker 05: And that's exactly where the AP Bell Court goes in the following paragraph. [00:03:49] Speaker 05: You can see there's a few factual statements to start with. [00:03:53] Speaker 05: And then the fourth sentence there is really the key one. [00:03:56] Speaker 05: It says in section 1853, A-15 requires only the establishment of annual catch limits and accountability measures such that overfishing does not occur. [00:04:07] Speaker 05: And then it goes on to say, it does not require the further step of setting an overfishing limit that more directly accounts for bycatch. [00:04:15] Speaker 05: So let's break that down. [00:04:16] Speaker 05: The first part of that sentence is essentially a reminder to the reader that the statutory requirement here is for annual catch limits and overfishing. [00:04:24] Speaker 05: So that it's not for overfishing, excuse me, it will catch them as an accountability measure to prevent overfishing. [00:04:32] Speaker 05: That's what the statute actually requires. [00:04:34] Speaker 05: And the second part of that sentence is the holding and the observation that the statute actually doesn't require anything in particular of an overfishing limit. [00:04:43] Speaker 05: So it's the first part there is setting forth this is what the statute actually does require. [00:04:47] Speaker 05: And the second part of that sentence is saying with respect to an overfishing limit, it doesn't require anything at all. [00:04:54] Speaker 05: So this case is one in which the panel resolved a challenge to an overfishing limit. [00:05:00] Speaker 05: And its holding is that under section 1853A15, the agency is not required to do particularly anything vis-a-vis the overfishing limit if it is used at all. [00:05:11] Speaker 05: And that's sensible enough. [00:05:14] Speaker 05: We believe that's the best reading of AP Bell, because that's what the text of the opinion actually says when you look closely. [00:05:21] Speaker 05: And as a consequence, it's completely distinguishable from the case at hand. [00:05:26] Speaker 05: We're challenging the annual catch limit itself for failure to comply with the statutory requirement for an annual catch limit mechanism. [00:05:35] Speaker 05: There's a one-to-one correspondence between the subject of challenge in this case and the statutory requirement. [00:05:41] Speaker 05: Essentially, you can think of it as the plaintiffs in AP Bell shot at the wrong target, whereas here we're on target. [00:05:49] Speaker 03: So do you think your theory [00:05:52] Speaker 03: just has no implications for the challenge in AP Bell? [00:05:57] Speaker 03: That's right, your honor. [00:05:57] Speaker 03: I mean, well. [00:06:01] Speaker 03: If your theory is right. [00:06:03] Speaker 03: If our theory on the merits is right. [00:06:06] Speaker 03: Do you think that just doesn't have anything to do with the results in APBEL? [00:06:10] Speaker 05: I think the result in APBEL is a very minor and peripheral holding relative to the annual catch limit mechanism requirement in the statute. [00:06:21] Speaker 05: It's fairly ancillary and will affect very little going forward. [00:06:25] Speaker 05: It simply instructs the agency that it doesn't have to do anything in particular regarding overfishing limits. [00:06:32] Speaker 05: I think our case deals with a very central concept of what the agency has to do under the annual catch-limit mechanism, like what the annual catch-limit mechanism actually has to look like. [00:06:43] Speaker 05: So that's a very big question on the merits, whereas the AP Bell case was dealing with a small and fairly unimportant. [00:06:50] Speaker 03: But could the agency continue to do what it did in AP Bell vis-a-vis what you say is a distinct issue that was presented there, even if your theory on the merits prevails? [00:07:01] Speaker 03: I see what you're saying, sir. [00:07:02] Speaker 05: If a plaintiff challenged the eventual annual, so I'm going to assume we don't have it before us, but the annual catch limit, the eventual annual catch limit in AP Bell was set in landings only units. [00:07:20] Speaker 05: Let's assume that. [00:07:22] Speaker 05: If a plaintiff, and I'm also going to assume there is a non-trivial amount of debt discards in that fishery, so that is an incomplete annual catch limit. [00:07:31] Speaker 05: If a plaintiff going forward were to challenge that annual catch limit mechanism, it would be spot on with this case on all fours. [00:07:39] Speaker 05: But it would have to be a target to the annual, a target of challenge that is the annual catch limit mechanism itself, not the overfishing limit, which is a small ancillary part of the whole operation. [00:07:52] Speaker 05: Am I answering your question? [00:07:54] Speaker 03: I think so, but then it sort of seems like there is overlap then. [00:07:57] Speaker 03: If your theory prevails here, I'm not sure how the results in AP Bell could be the same. [00:08:07] Speaker 05: It can be the same until somebody challenges it. [00:08:13] Speaker 05: So we fully believe that what they're doing over there also violates the statute. [00:08:18] Speaker 05: I just think as a litigation matter, the plaintiffs in that case took aim and shot at the wrong target. [00:08:26] Speaker 05: They shot at the overfishing limit, which the statute doesn't require anything of. [00:08:31] Speaker 05: If they had gone after the annual catch limit mechanism itself, [00:08:34] Speaker 05: then the holding of the court would have to logically be relative to an annual catch limit mechanism vis-a-vis the statutory requirement. [00:08:42] Speaker 05: That's what we're doing here. [00:08:44] Speaker 05: They essentially missed in that case. [00:08:48] Speaker 05: Is that making sense? [00:08:49] Speaker 03: I think I understand the argument. [00:08:51] Speaker 05: Got it. [00:08:52] Speaker 05: So there's a second reason, I'll blaze through here, why we think this is the best reading of AP Bell. [00:08:57] Speaker 05: And it's more based on omity or avoidance. [00:09:01] Speaker 05: The reading I just gave you of that case is one in which the court's resolving a narrow question, precisely the one that was presented to it, nothing more. [00:09:10] Speaker 05: And it comes out correctly on the merits. [00:09:12] Speaker 05: There's, in fact, nothing in section 1853, 815 that requires anything in particular of an overfishing limit. [00:09:20] Speaker 05: There's a broader reading of AP Bell, one in which the court holds that as defendants say in their brief, page 36, the act only requires the agency to set an annual catch limit that it determines will prevent overfishing. [00:09:33] Speaker 05: To paraphrase, if we believe overfishing will not occur, our job is done. [00:09:37] Speaker 05: That's their takeaway. [00:09:39] Speaker 05: That's their read of AP Bell. [00:09:42] Speaker 05: If this were the holding of AP Bell, it would mean first that the court went well beyond the actual claimant issue in that case, and that it got the statutory interpretation of Section 1853, A-15 completely wrong. [00:09:59] Speaker 05: And we went in our briefs into detail about the tax structure and history. [00:10:02] Speaker 05: So I won't recap that here. [00:10:03] Speaker 05: I'll just use a simple analogy. [00:10:05] Speaker 05: But the annual catch limit requirement is very similar to the requirement to filing a tax return. [00:10:11] Speaker 05: It's a requirement to use a particular mechanism or structure for the purpose of vindicating a wider substantive mandate. [00:10:19] Speaker 05: The case of taxes, it's to ensure taxes owed are paid. [00:10:22] Speaker 05: In the case of annual catch limits, it's to ensure that overfishing is prevented. [00:10:28] Speaker 05: And reading this type of requirement as an outcome-based provision turns it completely on its head. [00:10:33] Speaker 05: It'd be like saying, as long as you think you've paid the right amount of taxes, you don't really have to worry about filing a tax return. [00:10:39] Speaker 05: That's not how it works. [00:10:41] Speaker 05: Congress made clear that tax returns and annual catch limits are a freestanding requirement independent from the underlying obligation to pay taxes or avoid overfishing. [00:10:51] Speaker 05: And more specifically, tax returns and annual catch limits are how the underlying requirement gets fleshed out, defined, and operationalized. [00:11:00] Speaker 05: They're structures that Congress ordered to be used for that purpose. [00:11:04] Speaker 05: It would be a bad misreading of 1853A15 to miss this. [00:11:10] Speaker 05: So if you consider those two possible readings, one is a narrow reading in which the court got it correct on the merits, and the other is a very broad reading where the court got it very wrong on the merits, I'd submit to you that as a matter of harmony and respect to the prior panel and maybe some kind of avoidance principle, this court should adopt the narrow reading in which the court gets it right. [00:11:31] Speaker 05: I see I'm also out of time. [00:11:33] Speaker 02: I'm sure my colleagues don't have additional questions for you. [00:11:37] Speaker 02: I do. [00:11:37] Speaker 02: So Mr. Atkinson, taking it from where you've led us, we're back to then to A15, pure and simple. [00:11:47] Speaker 02: And a plain statement of your claim at that point is I take it that what the agency has done here does not constitute setting an annual catch limit sufficient to prevent overfishing. [00:12:03] Speaker 05: That's right, Your Honor. [00:12:05] Speaker 05: The annual catch limit requirement indeed requires a limit on the catch annually. [00:12:12] Speaker 05: And it says that in the text, it's implied in the structure because it's necessary to limit all the catch. [00:12:18] Speaker 02: Go ahead. [00:12:19] Speaker 02: But as the previous court also said, catch itself is not defined in the statute, correct? [00:12:25] Speaker 05: It's not, Your Honor. [00:12:26] Speaker 05: It takes its plain meaning here. [00:12:27] Speaker 05: And in the world of fisheries, catch always means catch. [00:12:31] Speaker 05: This landing is dead discards. [00:12:32] Speaker 05: A dead fish is a dead fish. [00:12:33] Speaker 05: The agency, in fact, in its own regulatory guidelines, which are not binding, but it says exactly that. [00:12:39] Speaker 05: Catch is all catch. [00:12:41] Speaker 05: And everybody knew that at the time, Your Honor. [00:12:43] Speaker 05: And it has to be all catch. [00:12:46] Speaker 05: Because if the goal is, if this mechanism is to operate to prevent overfishing, [00:12:52] Speaker 05: Overfishing can be caused by dead fish writ large. [00:12:56] Speaker 05: It doesn't have to be landed fish. [00:12:57] Speaker 05: It doesn't have to be dead discards. [00:12:59] Speaker 05: Any dead fish, right? [00:13:01] Speaker 05: All dead fish count towards overfishing. [00:13:03] Speaker 05: So if this mechanism is to achieve its goal of preventing overfishing, it has to encompass all the catch in the fishery. [00:13:10] Speaker 05: It's like a budget, Your Honor. [00:13:12] Speaker 02: I think you said in your brief that if there were a strict relationship between landings and byproduct by catch, [00:13:22] Speaker 02: then there would be no necessity to get into anything other than landings. [00:13:28] Speaker 02: But then you said empirically, there is no such strict relationship. [00:13:33] Speaker 02: But suppose then the agency says, well, the relationship varies, so we can see that you have the data, but it's simply impractical to do more than shoot for something that we hope will work. [00:13:49] Speaker 02: measured in landings and we can course correct as we go from year to year. [00:13:52] Speaker 05: Understood, Your Honor. [00:13:56] Speaker 05: So the question essentially is about what if it's difficult to deal with dead discards? [00:14:01] Speaker 05: Can we just use landings as a proxy or as as the main part of the cash limit and go forward like that? [00:14:06] Speaker 02: Fair enough. [00:14:09] Speaker 05: So this statutory requirement was passed into law 20 years ago. [00:14:14] Speaker 05: At that time, Congress gave the agency between three and four years to implement it. [00:14:19] Speaker 05: They provided funding for the necessary science, management, technical overhauls that were needed. [00:14:24] Speaker 05: Everybody knew this was a big deal at the time. [00:14:27] Speaker 05: It's the single biggest amendment in the Act's 50-year history. [00:14:31] Speaker 05: And this now has been 20 years since that amendment passed in that fishery, and they're still not doing it. [00:14:39] Speaker 05: On some level, Your Honor, the statute says it, so do it response. [00:14:44] Speaker 02: It's really not. [00:14:46] Speaker 02: Is it your position that the agency is incorrect in saying that the problem of measuring discards by recreational fishermen is such that there's no way to do it? [00:14:58] Speaker 05: Your honor, we have no position on the different data sources relative to recreational debt discards. [00:15:04] Speaker 05: The statutory requirement is very clear here. [00:15:08] Speaker 05: The tech, structure, history all line up. [00:15:10] Speaker 05: This is a required mechanism the agency has to use, and it becomes ineffective when any non-trivial amount of cash is excluded from the mechanism. [00:15:20] Speaker 05: It's like a budget. [00:15:21] Speaker 05: It's like your household budget. [00:15:23] Speaker 05: If you have a budget and it only covers cash expenditures, [00:15:27] Speaker 05: That's not going to be an effective budget if you have any appreciable credit card spending. [00:15:31] Speaker 05: So this was known at the time Congress provided funding in a long runway for implementation. [00:15:38] Speaker 05: So it's an unambiguous statutory reform. [00:15:41] Speaker 02: I don't remember anything in your account of the evolution of the statute suggesting that the Congress understood that the measuring the bycatch was so challenging. [00:15:57] Speaker 05: No, sir. [00:15:59] Speaker 05: There's not a specific reference in the legislative history to recreational bycatch. [00:16:04] Speaker 05: Everybody understood that when you're talking about annual catch limits, you're limiting all the catch in a fishery. [00:16:09] Speaker 05: So this was a very broad requirement that was going to apply to all federal fisheries around the nation. [00:16:15] Speaker 05: Fisheries vary radically from region to region, even from fishery to fishery within the same region. [00:16:19] Speaker 05: So each is going to have its own [00:16:21] Speaker 05: unique problems. [00:16:22] Speaker 05: The issue of implementation, in fact, was discussed heavily at the time and Congress heard the arguments that this would be difficult, it was going to be hard, it was going to take time, we're not sure if we can do it, and they explicitly rejected that. [00:16:36] Speaker 05: They said this will be a requirement going forward, here's the money, here's the time, now go do it. [00:16:42] Speaker 05: You're right. [00:16:43] Speaker 05: It doesn't say explicitly in the legislative record about recreational debt discards. [00:16:48] Speaker 05: But that was part of the general implementation discussion at the time. [00:16:53] Speaker 03: But if I cannot follow up on Judge Ginsburg's questions for a second. [00:16:56] Speaker 03: So if it were taken as a given that a limitation on landings has the effect of limiting debt discards also, if you take that as a given, [00:17:11] Speaker 03: then would your challenge still exist? [00:17:15] Speaker 03: Or would you be okay with a limit that's framed just in terms of landing, even though the statute talks about a mechanism for specifying annual catch limits? [00:17:24] Speaker 05: Understood, sir. [00:17:26] Speaker 05: So in your household budget, [00:17:29] Speaker 05: credit card spending can only proceed in lockstep with your cash spending. [00:17:34] Speaker 05: That's what you're hypothesizing. [00:17:35] Speaker 05: Is it okay to only limit cash spending in that case? [00:17:38] Speaker 05: The answer is yes. [00:17:39] Speaker 05: You have a limit. [00:17:40] Speaker 03: Okay, but those is not lockstep. [00:17:42] Speaker 03: I mean, if it's not a direct ratio, there's not some mandate that says, you know, dead discards have to be point X of landings or something like that. [00:17:52] Speaker 03: But it's also true that limiting landings has the effect of limiting [00:17:58] Speaker 03: dead discards. [00:17:59] Speaker 03: It's just that we can't say, oh, if we limit landings to one, that means dead discards are going to be limited to one point X. We don't have that direct proportionality or some direct tracking mechanism to know exactly what that means for dead discards. [00:18:14] Speaker 03: But it's very prohibitively difficult to calculate dead discards. [00:18:20] Speaker 03: And so what we're going to do, the agency would say, is we know that even though we can't calculate dead discards, [00:18:26] Speaker 03: that limiting landings is going to have an effect on dead discards. [00:18:31] Speaker 03: What exactly that effect is going to be, we don't know. [00:18:33] Speaker 03: We just know that it's going to have an effect on limiting dead discards. [00:18:37] Speaker 03: So one way we're going to get at cash limit is to limit the one thing that we do know how to measure, which is landings. [00:18:45] Speaker 03: And we're going to do it that way. [00:18:46] Speaker 03: And then every year we're going to take stock of where we are as a general matter to try to figure out whether we're getting [00:18:52] Speaker 03: to an overfishing problem or not. [00:18:54] Speaker 03: But we're going to do it the one way we can. [00:18:56] Speaker 03: We're going to end them at landings, and that's going to have some effect on dead discards without us being able to say it's going to be the direct effect that results in X number of dead discards. [00:19:06] Speaker 05: So the answer is no. [00:19:08] Speaker 05: That would not comply with the statute. [00:19:10] Speaker 05: It's unambiguous that catch has to be limited. [00:19:12] Speaker 05: So what would the limit on catch be in that case? [00:19:16] Speaker 03: Catch would still be limited. [00:19:17] Speaker 03: It's just that you wouldn't have a number. [00:19:19] Speaker 03: The catch is going to be limited to whatever the number of catch is if you limit landings to X. There's still a catch limit. [00:19:26] Speaker 03: It's going to be a catch limit that's a result. [00:19:28] Speaker 03: It's not a priori setting that the catch limit is going to be 200. [00:19:33] Speaker 03: It's going to be whatever the catch is if we limit landings to 50. [00:19:38] Speaker 05: So your honor, that's pre 2006 management. [00:19:40] Speaker 05: You've just described it exactly. [00:19:42] Speaker 05: We put in place some measures. [00:19:43] Speaker 05: We think they're going to roughly limit things and we see how it worked. [00:19:47] Speaker 05: That's exactly why Congress put in place this statutory amendment. [00:19:52] Speaker 05: It's because under that system of essentially do your best and see how it came out, do your best to see how it came out. [00:19:58] Speaker 05: That was the only operationalization of national standard one. [00:20:03] Speaker 05: So under the act national standard one has prohibited nominally overfishing from the get go. [00:20:08] Speaker 05: For those first 30 years, what you described was exactly the management pattern. [00:20:13] Speaker 05: The managers would adopt a bundle of management measures, say we think this is going to limit catch enough to avoid overfishing, we'll check in on it next time we know, and we'll adjust it if not. [00:20:22] Speaker 05: And we'll check in again, we'll adjust it if not. [00:20:24] Speaker 05: That led to chronic overfishing, and it's documented very well in the legislative history here that that's what Congress was saying no to. [00:20:33] Speaker 05: You need an actual mechanism. [00:20:34] Speaker 03: Was there at that time a limitation on landings? [00:20:36] Speaker 03: An overall limitation on landings that was imposed? [00:20:39] Speaker 03: In some fisheries, yes. [00:20:41] Speaker 03: In individual fisheries? [00:20:43] Speaker 03: Yeah, from place to place. [00:20:44] Speaker 03: By whom was that imposed? [00:20:47] Speaker 05: The agency, sir. [00:20:49] Speaker 05: Am I not understanding your question? [00:20:51] Speaker 05: In some cases, absolutely. [00:20:53] Speaker 05: In other cases, there was no explicit cap, but it was, again, we set some measures, see how they worked. [00:20:58] Speaker 05: The see how it worked and try again approach is precisely what annual catch limits was intended to displace. [00:21:05] Speaker 05: It's a structure that the agency has to walk through on an annual basis to ensure that it's constraining catch prospectively, proactively. [00:21:14] Speaker 05: Instead of this in hindsight, how do we do, okay, we'll try again approach. [00:21:17] Speaker 05: So that's exactly it. [00:21:19] Speaker 05: And just to your question, your honor, I'd push back a little bit on the difficulty of doing this. [00:21:27] Speaker 05: There are ways, there are numbers for recreational debt discards. [00:21:31] Speaker 05: The agency absolutely has them. [00:21:33] Speaker 05: There are ongoing new efforts to generate better numbers. [00:21:38] Speaker 05: What you see in the record here around Amendment 43 in those letters to and from the science director and the regional administrator [00:21:49] Speaker 05: hesitate a little bit to say, but we're a product of the political moment in 2017 under a new administration that wanted to sort of ease what it saw as regulatory burdens. [00:22:00] Speaker 05: That was a moment in time the agency uses. [00:22:03] Speaker 05: It has numbers on debt discards. [00:22:05] Speaker 05: It continues to use them in stock assessments and other purposes. [00:22:08] Speaker 05: So these numbers exist and they're ongoing efforts right now to improve them. [00:22:13] Speaker 05: And that's exactly what the statute [00:22:15] Speaker 02: Mr. Edgerton, these are the numbers that exist. [00:22:18] Speaker 02: These are the numbers that are based on the recollections of recreational fishermen, is that correct? [00:22:25] Speaker 05: That's correct, Your Honor. [00:22:26] Speaker 02: It's a... It's determined that those numbers are unreliable. [00:22:32] Speaker 02: They exist, but they're not worth anything. [00:22:34] Speaker 05: Thank you for the question. [00:22:37] Speaker 05: That's not actually true, Your Honor. [00:22:39] Speaker 05: Those numbers are worth something. [00:22:42] Speaker 05: It's a multi-pronged survey that generates those numbers. [00:22:45] Speaker 05: There is an interview component. [00:22:46] Speaker 05: There is a, well, now it's an internet-based survey component. [00:22:51] Speaker 05: There's dockside intercepts. [00:22:53] Speaker 05: So they collect information in multiple ways that get integrated into the results of this multifaceted survey. [00:23:00] Speaker 05: And, oh, I had a second thought and I just lost it. [00:23:03] Speaker 05: I'm sorry. [00:23:04] Speaker 05: Maybe you can give a test bottle if you have it. [00:23:08] Speaker 03: Let me make sure my colleagues don't have additional questions for you at this point. [00:23:11] Speaker 03: We will give you some time for rebuttal. [00:23:12] Speaker 03: Okay, thank you. [00:23:15] Speaker 03: Okay, the government now. [00:23:23] Speaker 03: Peterson. [00:23:25] Speaker 04: Good morning, Your Honors. [00:23:27] Speaker 04: May it please the court? [00:23:28] Speaker 04: My name is Ezekiel Peterson here on behalf of the Fisheries Service. [00:23:32] Speaker 04: I want to start with AP Bell and the merits because that's where my friend on the other side started. [00:23:38] Speaker 04: I do just want to note that, so I think AP Bell controls this case. [00:23:43] Speaker 04: I think that's as far as this court needs to go. [00:23:46] Speaker 04: But even beyond that, what plaintiffs are asking this court to do is to read a requirement into the statute and read text into the statute that simply isn't there. [00:23:55] Speaker 04: The only requirement in the statute, and this is the reasoning of APBEL. [00:24:00] Speaker 04: I think plaintiffs have glossed past this a little bit. [00:24:03] Speaker 04: This is what APBEL says. [00:24:05] Speaker 04: Section 1853A15's only requirement is to, quote, establish annual cash limits and accountability measures such that overfishing does not occur. [00:24:16] Speaker 04: That's what AP Bell says and to add an additional requirement that those annual catch limits must also account for debt discards rather than just landings is reading additional text into the statute that's not there. [00:24:31] Speaker 04: Congress didn't say how the agency has to establish annual catch limits in order to ensure that overfishing does not occur. [00:24:39] Speaker 04: It just said that it has to do that. [00:24:42] Speaker 04: It necessarily leaves some discretion for the fisheries service to determine how to accomplish that goal. [00:24:48] Speaker 04: I think here the fishery service certainly explained in the records at page 230 and 232 why it took this specific approach to setting the annual catch limit for the South Atlantic red snapper fishery. [00:25:01] Speaker 04: Judge Ginsburg alluded to this, but the agency determined that these dead discards estimates at the time were not appropriate for management use. [00:25:10] Speaker 04: They had very high scientific uncertainty. [00:25:12] Speaker 04: They were based on Fisher [00:25:14] Speaker 04: recall. [00:25:15] Speaker 04: And the agency coupled that with a determination again at JA 230 that red snapper populations in biomass in the South Atlantic was increasing. [00:25:24] Speaker 04: They were reaching levels not seen since 1970s. [00:25:27] Speaker 04: Clearly the management was working. [00:25:31] Speaker 04: Thus the agency satisfied its requirement [00:25:33] Speaker 04: to the only statutory requirement to set an annual catch limit such that overfishing does not occur. [00:25:39] Speaker 04: That was a reasonable determination. [00:25:41] Speaker 04: That was all that was required under the statute. [00:25:46] Speaker 04: And that's what AP Bell says, too. [00:25:49] Speaker 04: It says that NIMS is not obligated under the Magnuson-Stevens Act to set an annual catch limit that directly accounts for dead discards. [00:25:58] Speaker 03: Certainly, that challenge was focused on- Where did you get that, that directly accounts for dead discards? [00:26:04] Speaker 03: You're not reading from the opinion, right? [00:26:07] Speaker 03: One moment, Your Honor. [00:26:10] Speaker 04: So it's a combination of the, I think, third and fourth sentence of that paragraph. [00:26:15] Speaker 04: Because the annual catch limits are based on the overfishing limits, the annual catch limits account for bycatch in the same fashion. [00:26:21] Speaker 04: And the statute only requires the establishment of annual catch limits such that overfishing does not occur, does not. [00:26:27] Speaker 04: So I'll grant you, Your Honor, there's [00:26:29] Speaker 04: one step of logical inference there. [00:26:32] Speaker 04: That's not a direct quote from the statute. [00:26:37] Speaker 04: But I think what AP Bell is getting at in this paragraph is that the overfishing limit is an upstream number that's used to calculate the annual catch limits. [00:26:45] Speaker 04: The only requirement in the statute is that the annual catch limit must be set such that [00:26:51] Speaker 04: Overfishing does not occur. [00:26:54] Speaker 04: And if the agency sets this upstream limit without including discards, that's perfectly acceptable. [00:27:02] Speaker 04: Plaintiff's reading of AP Bell, I think, would eviscerate that paragraph and that reasoning that AP Bell uses to get to its result. [00:27:16] Speaker 04: Essentially, if their theory on the merits prevails, it erases that conclusion. [00:27:19] Speaker 04: And all this court has to do is follow that holding from AP Bell. [00:27:27] Speaker 04: Unless the panel has questions about that or about the merits, I'm happy to answer those. [00:27:33] Speaker 03: I was also planning to... What's your response to the notion that if the agency is allowed to [00:27:43] Speaker 03: avoid directly figuring dead discards when it establishes a mechanism for specifying annual catch limits, then that effectively resuscitates the regime before the relevant statutory provisions came into being. [00:28:02] Speaker 04: I think that's wrong, Your Honor, because I think the agency is doing exactly what the statute commands. [00:28:07] Speaker 04: It's setting an annual catch limit, a measurable catch limit, [00:28:10] Speaker 04: And certainly the agency is specifically, as AP Bell explains, is defining catch in a certain way as far as landings and not discards. [00:28:20] Speaker 04: But it's setting an annual catch limit such that overfishing does not occur. [00:28:25] Speaker 04: And as I alluded to at JA 230 and at JA 390 in the most recent amendment, I think the situation on the ground bears out that that management approach has worked for the agency. [00:28:36] Speaker 04: At JA 390 and Amendment 59, the agency determines that the [00:28:40] Speaker 04: South Atlantic red snapper fishery is no longer overfished. [00:28:43] Speaker 04: So I don't think it's reverting back to a prior version of the statute because it's complying with all the text of the statute. [00:28:50] Speaker 04: The statute says, set an annual catch limit such that overfishing does not occur. [00:28:54] Speaker 04: And that's precisely what the agency is doing. [00:28:57] Speaker 02: And for this amendment. [00:28:58] Speaker 02: Oh, excuse me. [00:29:00] Speaker 02: Go ahead. [00:29:01] Speaker 02: Mr. Peterson, before the amendment, I think we heard from Mr. Atkinson that the agency was setting annual catch limits in some fisheries, but not others. [00:29:13] Speaker 02: Is that your understanding? [00:29:15] Speaker 04: I believe that's correct. [00:29:17] Speaker 02: Yes. [00:29:18] Speaker 02: And if so, then how were those limitations expressed? [00:29:23] Speaker 02: Was it in terms of landings? [00:29:25] Speaker 04: I am not sure, Your Honor. [00:29:28] Speaker 04: But I would imagine so. [00:29:31] Speaker 02: Well, part of his argument is that in the industry at the time, as well understood by the oversight people in Congress, catch meant all catch, not just the catch that ends up in landings. [00:29:49] Speaker 02: Does that seem like a matter of ordinary language or trade language? [00:29:55] Speaker 04: No, Your Honor, we don't think so. [00:29:57] Speaker 04: We think that the agency necessarily has some discretion within the scope of the statute in order to comply with the mandate to set an annual catch limit such that overfishing does not occur. [00:30:08] Speaker 04: And here, the agency explains why it has these guidelines that are cited in the brief that define catch generally to be including both dead discards and landings. [00:30:20] Speaker 04: But it gives a reasonable explanation, the agency does, as to why it [00:30:23] Speaker 04: departed from those guidelines. [00:30:26] Speaker 04: And that's something that AP Bell discusses as well. [00:30:29] Speaker 04: It's certainly within the agency's discretion to do so. [00:30:32] Speaker 02: Well, let me ask you this then. [00:30:33] Speaker 02: Before the amendments, what were the sort of alternative mechanisms that were used to limit or to try to avoid overfishing? [00:30:44] Speaker 02: I think the limitation on the recreational season was one. [00:30:49] Speaker 02: Was it not even before this amendment? [00:30:52] Speaker 04: I believe that's correct. [00:30:54] Speaker 04: Limitations on the open and closed date of the season. [00:30:56] Speaker 04: I'm not particularly well versed in the other limitations that were in place. [00:31:05] Speaker 03: So if you think that the agency would satisfy the statutory mandate to establish a mechanism for specifying annual cash limits, even if the limit that's specified is cabins to landings and a limit on landings has no relationship, no effect whatsoever on the number of dead discards. [00:31:28] Speaker 04: I think the agency has to make the determination that doing so would be acceptable such that overfishing does not occur because that's the statute. [00:31:41] Speaker 03: So it's a limit on landings. [00:31:44] Speaker 03: The agency says we're going to limit landings. [00:31:47] Speaker 03: That's an annual cash limit. [00:31:50] Speaker 03: And then we think that's not going to affect overfishing. [00:31:56] Speaker 03: We have no idea actually. [00:31:58] Speaker 03: Suppose the agency goes further and says, catch is generally thought of to include not just the number of landings, but also the number of dead discards. [00:32:10] Speaker 03: But we're only going to limit landings. [00:32:13] Speaker 03: And we don't think overfishing is going to occur as a result. [00:32:16] Speaker 03: We have no idea what the catch is going to be, actually, because we don't know what dead discards are. [00:32:20] Speaker 03: Yes. [00:32:22] Speaker 04: So I think that would be spatially in compliance with the statute. [00:32:25] Speaker 04: Let me say, though, that in compliance with the statute, that kind of reasoning could potentially be open to an APA, no arbitrary and capricious challenge that the agency didn't sufficiently flesh out its reasoning that, well, this annual catch limit would actually be such that overfishing would not occur. [00:32:43] Speaker 04: If plaintiffs are very clear, page 32 of their brief, that's not the kind of challenge that they're bringing here. [00:32:49] Speaker 04: What they're saying is that the agency can never exclude dead discards from the annual catch limit and still be in compliance with the statute. [00:32:59] Speaker 04: And that's just reading this requirement into the statute that doesn't exist in the text. [00:33:05] Speaker 03: What I just described, is that a characterization in your view of what the agency, in fact, did? [00:33:14] Speaker 04: Your Honor, I think the agency here has a more fulsome record of why specifically it does not expect overfishing to occur and why dead discard estimates are inappropriate for management use at JA 230 and 232. [00:33:30] Speaker 04: So there's more in the record than your explanation. [00:33:38] Speaker 04: But it certainly complies with the statute. [00:33:40] Speaker 04: It doesn't run afoul of any statutory [00:33:43] Speaker 03: Could the agency, for example, then come up with a scheme that limits the number of hours that vessels can be out in the water and say, if we limit the number of hours, we think that's going to limit overfishing. [00:33:59] Speaker 03: It's going to prevent overfishing. [00:34:01] Speaker 03: And that's our mechanism for specifying annual catch limits. [00:34:07] Speaker 04: I think potentially, so long as it offers a reasoned explanation for how over a certain number of hours vessels are expected to catch a certain number of fish, that is a limit on catch that certainly functions as a limit on catch. [00:34:21] Speaker 04: And if the agency provides the necessary explanation in the record as to why that sort of limit on catch would be effective at preventing overfishing, that could comply with the statute. [00:34:33] Speaker 03: And catch for those purposes wouldn't have to be the overall catch. [00:34:38] Speaker 03: In other words, it could exclude a significant component of the catch like landings or like discards. [00:34:46] Speaker 03: Your honor, I'm sorry, can you rephrase that? [00:34:48] Speaker 03: Yeah, I guess what I'm getting at is if you're going to get, if you're using hours, [00:34:53] Speaker 03: as hours that vessels are out in the water. [00:34:55] Speaker 03: I'm just making up stuff. [00:34:56] Speaker 03: Sure, sure. [00:34:57] Speaker 03: It doesn't have anything to do with the statute. [00:34:58] Speaker 03: It doesn't make any sense to anybody in the industry. [00:35:00] Speaker 03: But I'm just trying to understand the parameters of your reading. [00:35:03] Speaker 03: Understood. [00:35:04] Speaker 03: Because that kind of limit, a limit on hours, by any appearance, doesn't look like it's an annual catch limit, because it's not limiting catch at all. [00:35:14] Speaker 03: I mean, it might have the effect of limiting the catch, because the fewer hours you're in the water, the smaller the catch is going to be. [00:35:22] Speaker 04: I think that sort of limit would be very vulnerable to an APA type claim. [00:35:27] Speaker 04: I mean, the agency would have to really back up that sort of limit with. [00:35:32] Speaker 04: This is actually functionally a limit on catch because of XYZ. [00:35:37] Speaker 04: But that's pretty far removed from the situation we're in here. [00:35:40] Speaker 04: Here there is a limit on the number of landings. [00:35:43] Speaker 04: That's clearly directly tied to catch. [00:35:46] Speaker 04: And the agency backs up its explanation. [00:35:49] Speaker 03: But what you just said is only directly tied to catch. [00:35:52] Speaker 03: The landings is only directly tied to catch if landings has some relationship to dead district cars. [00:36:01] Speaker 04: Yes, your honor. [00:36:03] Speaker 04: It is tied to the entire red snapper mortality if there's some relationship to dead discards. [00:36:10] Speaker 04: That's correct. [00:36:12] Speaker 03: If you're considering catch to include dead discards, if the general understanding of catch includes dead discards because catch is not just the landings but is also dead discards, [00:36:24] Speaker 03: then in order to have an annual catch limit that's pegged to landings, there's another segment that's not being accounted for unless landings have something to do, some relationship with that other segment. [00:36:36] Speaker 04: I think that's generally true. [00:36:38] Speaker 04: I think we would push back on whether Hatch necessarily includes dead discards. [00:36:45] Speaker 03: Do you think we have to conclude? [00:36:47] Speaker 03: Put aside AP Bell for a second. [00:36:48] Speaker 03: I understand your argument about that. [00:36:50] Speaker 03: We shouldn't even be talking about any of this because it's foreclosed by AP Bell. [00:36:53] Speaker 03: Let's just get past that for a second. [00:36:58] Speaker 03: If we were to go straight to the merits without regard to precedent, would you say that in order to rule for the agency's interpretation, we'd have to conclude that catch can be limited to just landings without regard to dead discards? [00:37:15] Speaker 04: I think you would have to conclude that. [00:37:23] Speaker 04: Yes, Your Honor. [00:37:24] Speaker 03: That's your understanding of what the agency did and your argument is that? [00:37:27] Speaker 04: That's our understanding because in amendment 43, and again, I should just put a pin in the fact that this whole management system has changed now that we have amendment 59. [00:37:36] Speaker 04: But in amendment 43, the agency said that discard estimates are unreliable. [00:37:42] Speaker 04: They're based on very small sample sizes. [00:37:43] Speaker 04: They're not appropriate for management uses. [00:37:45] Speaker 04: We've seen this increase in red snapper biomass, the highest it's been since the 1970s. [00:37:51] Speaker 04: So we're going to put aside dead discards for now, set a limit in terms of landings, which is something we can actually, on the water, effectively manage for. [00:38:00] Speaker 04: And we will still expect to prevent overfishing. [00:38:06] Speaker 04: I see my time's up, unless the panel has any questions about the merits or any threshold issues. [00:38:12] Speaker 03: I have one question, I'm sorry, just very quickly on one threshold issue. [00:38:16] Speaker 03: So the timing, the timeliness question, does the government think that's a jurisdictional limit? [00:38:21] Speaker 04: No, Your Honor, we think that the court can do what the district court did and assume hypothetical statutory jurisdiction to reach the merits. [00:38:29] Speaker 03: I think that's different. [00:38:30] Speaker 03: Assuming hypothetical statutory jurisdiction seems different to me than saying that the timeliness requirement is not a jurisdictional requirement. [00:38:39] Speaker 04: I think in light of the most recent Supreme Court precedent, there's nothing that would suggest this is a jurisdictional statute of limitations. [00:38:48] Speaker 02: Mr. Peterson, why would we get into that if the statute on its face makes the filing timely, as the Ninth Circuit and Fourth Circuit decided? [00:39:02] Speaker 04: So, Your Honor, as to the timeliness issue, it's certainly the case that the statute under the 1990 amendments allows for the challenge of regulations and the challenge of actions taken under regulations. [00:39:17] Speaker 04: And it's undisputed here that the 2023 and 2024 temporary rules or actions taken under Amendment 43. [00:39:25] Speaker 03: But that language was at... Okay, sorry for the interruption. [00:39:30] Speaker 03: Judd Ginsburg, you're able to hear? [00:39:32] Speaker 02: Yes, I am, thanks. [00:39:33] Speaker 03: Okay, sure. [00:39:35] Speaker 03: Pick up where you are. [00:39:37] Speaker 04: We'll do. [00:39:39] Speaker 04: I'm just going to cut to the chase here on the timeliness issue. [00:39:41] Speaker 04: I think our position as the government aligns with what the district court said in its opinion at page 24, which is that Congress could have amended the statute to say that regulations were reviewable both 30 days after they were promulgated and 30 days after any sort of subsequent action was taken under them. [00:39:58] Speaker 04: But it didn't. [00:39:59] Speaker 04: It broke it up into the regulations after 30 days and actions after 30 days. [00:40:03] Speaker 04: And here, our argument [00:40:04] Speaker 04: is that where plaintiffs are challenging really, truly, facially the substance of the action that is taken in Amendment 43, they should have brought that challenge within 30 days. [00:40:15] Speaker 04: We acknowledge that the Ninth Circuit and the Eleventh Circuit have reached somewhat contrary results. [00:40:20] Speaker 04: We think those cases were largely based on fairness and equitable concerns that aren't present here. [00:40:25] Speaker 04: But our argument is that this claim should be barred by the 30-day statute of limitations, unless the court has any further questions. [00:40:36] Speaker 02: No, I think that is not the most literal reading of the statutory bill. [00:40:46] Speaker 04: Go ahead. [00:40:47] Speaker 04: Fair enough, Your Honor. [00:40:48] Speaker 04: And to the extent the court disagrees with us on the statute of limitations, the merits we think are clear that AP Bell controls here so the court can decide this case on the merits. [00:41:00] Speaker 04: Thank you. [00:41:02] Speaker 04: Thank you, counsel. [00:41:03] Speaker 04: Thank you, Your Honors. [00:41:06] Speaker 03: Mr. Atkinson will give you three minutes for a rebuttal. [00:41:14] Speaker 05: Thank you. [00:41:16] Speaker 05: Judge Ginsburg, your honor, I remembered what I was going to say. [00:41:18] Speaker 05: You were asking about dead discard data. [00:41:20] Speaker 05: In fact, they are used regularly, every stock assessment, as inputs to the stock assessment. [00:41:26] Speaker 05: So they are, in fact, usable, valid data points. [00:41:29] Speaker 05: They're used to evaluate the health of the stock. [00:41:31] Speaker 05: So that's where we were when it left off. [00:41:36] Speaker 05: So I just want to refocus here a bit. [00:41:38] Speaker 05: In this fishery, landings have almost no impact on the stock's overfishing status. [00:41:43] Speaker 05: Dead discards comprise 90% of catch in four years have been the driver of overfishing, including under Amendment 43, the only reason [00:41:52] Speaker 05: overfishing has nominally stopped since this last action in Amendment 59 is because the agency used that action to jack up the safe level of fishing. [00:42:03] Speaker 05: So it's not that the fishing rate has actually stopped at all. [00:42:07] Speaker 05: They've just raised the thresholds, and now we're under it. [00:42:11] Speaker 05: The stock's trajectory is overwhelmingly driven by dead discards, but the agency only constrains 10% of the catch here, the landings. [00:42:19] Speaker 05: in its annual catch limit mechanism. [00:42:21] Speaker 05: And they defend this as being consistent with the statute because they reasonably believed overfishing would not occur. [00:42:27] Speaker 05: So point one is it did for many years under amendment 43. [00:42:33] Speaker 05: Point two is [00:42:34] Speaker 05: That's sort of beside the point because the whole system is the problem here. [00:42:38] Speaker 05: That was pre-2006 management. [00:42:41] Speaker 05: The belief that overfishing would not occur was the only touchstone, the only reviewable point for federal fishery management prior to 2006, and that's the NRDCV daily case. [00:42:52] Speaker 05: So how the system worked was the agency would cobble together a bundle of management measures for a fishery, [00:42:58] Speaker 05: things like size limits, bag limits, seasons, et cetera, that they believed that bundle would not result in overfishing. [00:43:07] Speaker 05: Those would go on the water, those measures would go on the water, gears would tick by until the next stock assessment came out, and it would tell the agency, were you right or were you wrong about your belief that overfishing wouldn't occur under those? [00:43:19] Speaker 05: Sometimes they were right, sometimes they were wrong. [00:43:21] Speaker 05: If they were wrong, the only consequence was you need to try again with a new bundle of measures going forward based on the new information in the stock system. [00:43:29] Speaker 05: So assemble a new bundle that you think will not lead to overfishing going forward. [00:43:33] Speaker 05: Try again. [00:43:34] Speaker 05: So it was a do your best. [00:43:36] Speaker 05: And if that doesn't work, do your best again. [00:43:38] Speaker 05: And that's exactly what's happening here, Your Honor, with 90% of the cash. [00:43:42] Speaker 05: There is no limit. [00:43:44] Speaker 02: Where do you get the 90% and earlier the 10%? [00:43:47] Speaker 02: I mean, you're essentially saying there is a relationship between landings and total catch. [00:43:53] Speaker 05: No, your honor, 90% of the catch is simply the amount it has happened to be in the last several years. [00:44:02] Speaker 05: It varies. [00:44:03] Speaker 05: It has increasingly grown and grown and grown. [00:44:06] Speaker 05: Dead discards and landings as a proportion of total catch have shrunk over the past several decades. [00:44:13] Speaker 05: The 90 and 10% figures were from, we cite in the briefing where they were from. [00:44:17] Speaker 05: They were, I think, referring to the years [00:44:20] Speaker 05: twenty twenty one to twenty three or something like that. [00:44:23] Speaker 05: But it was a moment in time. [00:44:25] Speaker 05: That's what it happened to be. [00:44:27] Speaker 02: And you accept those that that percentage is roughly correct. [00:44:32] Speaker 05: Yes, your honor. [00:44:32] Speaker 02: And how was that determined? [00:44:35] Speaker 02: How was that determined? [00:44:38] Speaker 05: By the very numbers, your honor, that you were questioning whether they were useful. [00:44:44] Speaker 05: And those numbers show the amount of dead discards in the fishery and the landings numbers come from a different source. [00:44:51] Speaker 02: Okay, so those are the recollections and so on. [00:44:55] Speaker 05: I'm sorry, Your Honor? [00:44:56] Speaker 02: Those are the recollections of the recreational fishermen and so on, correct? [00:45:00] Speaker 02: 90%. [00:45:02] Speaker 05: That's right. [00:45:03] Speaker 05: I mean, it's from... [00:45:04] Speaker 05: MRIP, Marine Recreational Information Program. [00:45:07] Speaker 05: It is a multi-pronged complex survey that the agency runs nationwide with regional variation. [00:45:13] Speaker 05: It has many steps involved and different components. [00:45:15] Speaker 05: Some of them involve asking anglers about their recollection. [00:45:18] Speaker 05: That's right. [00:45:19] Speaker 05: But it produces, at the end of the day, estimates of landings and dead discards from the recreational fisheries. [00:45:24] Speaker 02: Did the council do that in the relevant years here? [00:45:28] Speaker 05: That has always been run, Your Honor. [00:45:29] Speaker 05: It's run by the National Marine Fisheries Service nationwide. [00:45:34] Speaker 02: So you say then those numbers are available, the agency could have used them. [00:45:39] Speaker 05: That's correct, Your Honor. [00:45:41] Speaker 02: And what would they show, 90% or roughly? [00:45:46] Speaker 05: Yes, Your Honor, they would show a very high level of fishing mortality, the vast majority of which is due to dead discards in this fishery. [00:45:54] Speaker 02: Okay, thank you. [00:45:57] Speaker 03: Okay, make sure I wasn't have additional questions for you. [00:46:01] Speaker 03: Thank you. [00:46:02] Speaker 03: Council. [00:46:02] Speaker 03: Thank you to both council. [00:46:03] Speaker 03: We'll take this case under submission.