protect southern california's fishery and its fisherman from the consequences of the establishment of an auto population within the region we contend that that issue can be resolved based on the clear text of the statute the statute doesn't utter one word about authorizing terminations or identify any criteria to guide the exercise of that power on the contrary congress repeatedly uses used mandatory discretion list language to describe describe these conditions it says that the agency shall adopt a regulation which must contain these protections and for good measure congress said the agency shall implement those protections based on that i think we can say that the statute is unambiguous lee imposes the discretion as obligation on the agency should affirm the decision below that the fishermen have standing based on their interest in the future of the fishery and if you do you don't have to reach the question of their standing as the objects of the regulation just in case the court is inclined to say something about that theory of standing or to court to reject the rightness arguments presented by the u s fish and wiser vis there is absolutely no right the rightness problem in this case this court has repeatedly held in order to have a right a p a action all you need person in this court present shows that all you need is an incremental step to knock out a absolutely go obstacle to the result you seek and we do that the service is contention that it has no obligation to respect the its  statutes requirement to implement the management zone is a complete obstacle to the relief the fishermen seek the argument the service present against redress ability has been rejected by the d c circuit as a breathtaking attack on the legitimacy of judicial review of agency actions in here and there are two reasons why that's clearly the case first the service is the only party that can try to develop lethal and nonlethal feasible means to implement the management sounds protections if you are on fire the fishermen went out and tried to do that we would be committing a federal crime because it is illegal to intentionally take a sea otter by catching it or trying to move it and the search and the statute puts the obligation on the service to decide whether a particular means is feasible and non lethal so in those circumstances it is unfair to put the burden on the party challenging a complete obstacle to the relief they seek just because the service contends that it's possible to exercise its discretion in the future in a particular way and there is absolutely of the management zone and putting them somewhere else is going to be harmful to the sea otters it's going to disrupt their communities if they have families or non lethal means are identified by the service you would have to implement them it's the service has said that there are no feasible non lethal means to remove this to be the case the sea otters and it did that after experimenting with this program for several years and concluding that it was detrimental to its contrary to the whole purpose of the statute to begin with so how how can you think that you would get any relief  all by having this issue go back to the service for examination so you're correct your honor that for three years of service tried to implement this in the one nine hundred ninety three decided the means they had at the time were non theists when in fact lethal congress for saw this possibility and there's actually language in legislative history explaining that there was an expectation the service might have to work overtime to develop those means they might not be apparent from the beginning and that's essentially the process that we're trying to restore what congress intended with the statute was the service would have an ongoing obligation to do this and it's possible that any particular time it may not be able to find it but just because the service has no please go ahead ok well what i was going to ask was this if i were to assume for sake of argument that you're correct that there's a dress ability and standing then you still have the issue of of how the statute is to be interpreted and i don't really understand the argument that the service can't terminate an experimental program when the evidence they have shows that it's harmful to the see how first the evidence doesn't show that the creation of the southern california population is harmful to the sea otters what this shows is that the implementation methods to was going to decide what the consequences of establishing an auto population in southern california would be if it meant to leave that to the services discretion it would been no reason for it to define all of the protections for so then the southern california fishery  used the mandatory non discretion list language that it did so here congress said the agency must adopt this regular shell about this regulation that it must contains the civic protections defined by congress and for good measure congress said in the provision titled implementation that the service shall implement those protections this is the statue where congress decided that it would make the decision about what the consequences would be of us damaging the program not leave that to the agency and i think it's important to remember what result the agency is defending here today there is a healthy and growing population of sea otters in nicholas island and none of the protections that congress and the statute follow from that result apply and it's clear on the face of the statute that that is the result congress for the ones that are there have migrated there because of the ones that they moved there something like only fourteen of those survived out of one hundred twenty or one hundred forty is not about the situation that's right there so the initial population was very small because most moved back the pan population well some of them died right after being brought there to us so really though what you're asking this court to do is to tell the service will go back and that's great even if there were no feasible non lethal means that would still provide relief to our clients and that has been the case for the last twenty five years the incident take exemption has been in place up until two thousand and twelve the other population has remained on santa claus island and has grown there's more there than migration into the man says i'm from the north but that doesn't go to the channel islands and what isn't there is what grew out of the population established under this statute and in two thousand and twelve the population was growing at a rate of about seven percent and had already  exceeded fifty otters so the final point i want to make on the merits this morning is that if congress intice a pay didn't intended to give the service this authority to terminate these mandatory protection it would have said so at some point we have a statute that congress acted before the plane which doesn't utter a word about terminations are identifying any criteria guides exercised and we also have a statute on the same subject after in one thousand nine hundred three when the service made these determination isn't a political here but on chevron two then how can you say that the interpretation of the statute is not a permissible reasonable so we believe in terms of the public on nine hundred sixty five it's clear on a compromise statute congress was giving the service something the power to create the population that exists on cynically nicholas island today on the condition that these protections of the fishery would be implemented that is would allow congress to overcome the political conflict that was preventing the adoption of the statute for years and the services interpretation is completely inconsistent with that purpose they argue that congress silently without providing any criteria to guide its hand authorizes service to dispense with all of the fishermen's benefit believe so in this court held in a previous appeal of this case that that is no obstacle to the fishermen challenging this final agency action on the grounds that it violates the statute so even if their legal theory would mean that part of that regulation was also invalid the the agency could repeal these protections for the fishermen it would have said something about that it wouldn't simply excluded the sea otter in reliance on implementation of this program course congress could have also if they didn't want to department to have the ability to terminate they could have done something about that too but they didn't congress can always be more clear but here you have no language in the statute that ambiguously or on invigorates the authorizes germination there's not a word about it and congress repeatedly use your honor says may it please the court my name is rachel heron on behalf of the federal appellate issues with me at counsel's table our margaret hall andrea trees and linda cropp for the intervenors if it's agreeable to your honor's we will be sharing time in the last failure and i know that there's a standing issue in this case but if it's ok with your honor's to go a little bit out of order i'd like to start in with the statutory issue and particularly in dress what council for the  have argued that because there's not that kind of a statement here then the the consequence must be that the service has no authority to terminate but i think that when you look at this language that's in the statute as well as the history and the purpose of the statute you actually come to the absolute reverse result and starting with the language what congress did here was give the service the option to an active program it told the service that any such program would have to be adopted by regulation which is a format that generally allows for terminations absent some contrary indication and it specifically said that the population that was set up and this regulation would be experimental now given all of those indications in the statute that this program would not necessarily have to endure forever you would expect that congress would say something if it actually intended for the program to have to continue for all time and i think that that would be especially the case when you look at the history here which was that at the time congress passed the statute there was already a proposed rule from the service saying this is what we plan to do if we get this statutory authority and the preamble to that rule plainly states that if it is deemed a failure and it set forth criteria about failure the program would be terminated and counsel made the comment that this was a compromise statute was that was a compromise the very creation of the management so that it wouldn't necessarily penalize the fisherman certainly i think that this i would say that i think the primary purpose of this statute was sea otter conservation but we don't dispute that there was absolutely an attempt to compromise here now i think the failure of this program makes the sort of compromise that was envisioned by the statute in a political it kind of falls apart because when you look at how the statute was designed the idea was that there would be an establishment of a new starter colony and then in the area surrounding that colony there would be this immunity from incidental tate the theory obviously being that perhaps this new c of auditors its members would go out into this area where people are doing their jobs and potentially create hassles for them now when you don't have an established colony on that island the the fairness impulse the need the justification for that area of incidental take immunity falls apart and here in this case we acknowledge that yes there are still otters on sand nicholas island not the number that would have established a would have constituted an established population as the service defined that term but it's a number of authors however when you look at the record it shows that the authors that are on senegalese island are not venturing out into the management the former management zone the authors that to the extent there are others in that zone today that are found there are these migrants from the parent population that have begun moving into the former management zone completely independently understanding is that those are descended from the authors that were originally brought to the island as part of this translocation program what of the distinction that i was trying to draw is that the otters that are not on the island that are in this surrounding management zone they are ones that have come from the parent pop all right understanding q and so what i think that for all of those reasons it doesn't make sense for there to be an expectation that the service would continue to sort of look at this compromise as it was set up for ever with no ability to terminate when all of the kind of factual predicates that made this compromise make sense have fallen apart in practice and as i said the service was clear at the outset that that was the plan and congress allowed this to go forward anyhow and didn't say anything to suggest that there would be no ability to terminate in fact when you look at their legislative history there are numerous indications that we pointed out in both the committee reports and statements of individual legislators saying that this program would be able to be  terminated all of those factors i think show that even if this isn't a chevron step one case in the services favor this is at least a reasonable interpretation in the event of the failures that occurred and one other point i wanted to make was that there had we pointed out at least one of the opponents in this case california baloney if you look at page seven of the supplemental excerpts of record that were put filed at service facs stated in comments during the development of this program that they were pleased to see from the nation could hear you all of which i think simply goes to show that the idea that this program could never be terminated i think is a relatively recent one and i don't think it is a compelled read to require terminations and it that it doesn't even need to be about to be required term to require that there never be terminations in order to be fair to the fishing interests take counsel do  get to the issue of standing yes your honor so i mean pretty close to the five minutes you gave i understand your honor i will turn to standing right now so on the issue of standing i think with regard to the argument that the plaintiffs are the objects of the regulation and that they have standing on that count i think that both of the district court judges that underlie these two consolidated cases found that the findings of the courts there with regard to the harm to the fishery argument we haven't contested that the potential of harm to the fishery would be a cognizable injury the issue here is redress ability  which was a very similar in that you had a situation where you had a challenge to and he didn't see action but even if there was a success in that particular challenge there would be no change in terms of the actual facts and ability to get relief unless the agency took a totally separate action that wasn't going to be influenced by the decision in the case at hand look that kind of winds here wouldn't you have to go back and see if you could attempt to that you know agency tried for a couple years and then kind of gave up but when you look at the record what happened was the agency tried it made adjustments those adjustments they hold and it found that there were no feasible non lethal methods and then when you in the in the summary judgment briefing of the case that was before judge walter the plaintiffs in fact conceded that there were no feasible non lethal methods and that therefore there was no requirement that they continue on about it we just said well let nature take its course you know there's some growing at least in the management zone of the migration and the incidental taking r season in fact we just see what happens well i think that that's a problem here and i want to be cognizant of the time for the intervenors but just to answer that question i think it's important to keep in mind that although we have pointed out that we think that fishermen's activities that have brought this case are very unlikely to cause incidental to take in the management zone they're not the only people that use the management zone there are other types of fisheries other types of activities including construction or drilling activities that could be very detrimental authors as we've pointed out in the record various points and so i think any solution that kind of created a kind of sort of hybrid left over of this program and left these authors vulnerable especially considering that the authors  in the management zone today are ones that came from the parent population who were never intended to be affected by this at all given that congress was very clear that the management's own was not to overlap with the parent population i think that that is an outcome that that is to be avoided and that it would be certainly preferable and consistent with the statute for this court to instead simply affirm the determination decision all right so now we will hear from the friends of the s go ahead two and a half minutes right good morning in may it please the court and maggie hall appearing on behalf of the intervener conservation groups the critical merits question for this court today is whether the fish and wildlife service had the authority to terminate a discretionary se recovery program that harms the very species the program was meant to protect the answer to this question is yes because congress on a big u s lee expressed its intent through the text and purpose of the public law that showed the seattle recovery program to fail it could be terminated in fact no one disputes that the program was discretionary to begin with that's because the killing was of a loss as the service may develop and implement the plan the congress also made its intent clear that implementation might not be permanent by using the term experiment an experiment is inherently uncertain because it tests a hypothesis that may or may not achieve an intended result which here is recovery and wanted for in terms that see second point to like shall and must only appear in provisions that alter the requirements of a plan should the service choose to implement one they do not address whether the service has the authority to implement the program and that the statute really must be read in harmony see sex reading would read the discretion and recovery language out of th it would also produce absurd results requiring the fish and wildlife service to implement a failed program even though we know that ninety percent of the sea otters that were tens located either died left or disappeared that would violate not only the public law it implementing regulations but also the endangered species act and could not possibly be what congress had intended instead the statute must be read in light of its purpose and context here the whole translocation program came from the  two recovery plan when it was thought that the species could go extinct due to one cat stop event so creating an additional population was intended to prevent extinction therefore the service started developing the program pursuant to section ten j but had to stop because of a conflict with the marine mammal protection act but the point is this was always intended to be a recovery program under the endangered species act and the terms of the statute have to be read in light of that recovery and conservation purpose and if the service were to continue to implement the program that would in fact violate the endangered species act because they've already determined in their two thousand biological opinion that the implementation would cause jeopardy to the species as a whole and therefore the service cannot on the one hand implement the failed program and not face liability under the e s a thank you good morning honors andrea trees on behalf of interveners conservation groups i simply want to emphasize the context of public law ninety nine sixty five within the overall duty to avoid jeopardy under the endangered species act nothing in that stand alone statute exempted the service from its duty to make sure that its implementation of the program as a whole would not prevent the recovery of the california sea otter instead of promoting it as it was supposed to and as my colleagues have noted the service did determine that both the movement of individual authors and in the containment of authors as a whole would prevent the recovery of the species and would in fact jeopardize its continued existence and therefore the idea that the service would even be forced to wind more means can to move around individual authors also does not get at the services core interpretation or determination that containing those orders and not allowing the species to naturally progress and expand its range in fact statutory language and one on the on the equities first the courts now allow the one sentence in the statute that includes discretionary language to dwarf all of the explicit and repeated mandatory language in context a sentence that says a service may develop and implement this it and you shouldn't let the hypothetical a theoretical possibility serious had rejected the authority guide interpretation because that was always farfetched the service had already it came up with the idea of moving sea otters lobby congress for years to get this statute passed which is only possible because of this compromise it's simply impossible to imagine that the agency might not have taken that authority on the equities i think it's important to remember what it is that the service is defending here there is a established populations and it goes silent as a result of this compromise has got its benefit of the bargain and yet the fishermen don't have theirs the service didn't for instance try to adjust the management down to reflect that there whether or not the parent population needs that area at the top and this actually provides some criteria it's says the management should well the service is getting a both ways in other words they're getting a population growth albeit it's in the management zone by migration you know the same time by their term and in the program you're people are going to get the incident  case that you want to raise is no the only difference is a challenge different agency actions one the petitioner ones the rule making but on the standing and merits questions are the same pretty much the same arguments right yeah we don't have to reargue