intervene are tout improvements in the fishery that have reduced the death toll from even higher levels in the past those improvements would not have happened if concerned citizens had not taken their government to court to compel strict compliance with the environmental laws that govern the fishery today we are discussing three laws that impose mandatory duties on the defendant agencies to ensure protection of our nation's environmental heritage as in the past citizens have had no choice but to take the government to court because the government has proven all too willing to bend the law to the demands this fishery let's turn first to the migratory bird treaty act which promotes the conservation of migratory birds by strictly prohibiting unauthorized harm to even a single bird have a question i just want to clear up whether you are if you argue this or not just to make sure exactly what you are arguing do you argue that the fish and wildlife service is without authority under the n b t h r regulate incidental take because they m b t a just not prohibit incidental take you make that argument in your br ok actually though we have a recent decision that just came out the protect our communities versus jewel and in that case a panel of this court reaffirmed our previous holding i think it's in seattle foundation case if you if you look at the case it's well let me let me let me let me preface that wrote let's do it this way let's just assume that it does and then you can answer and then you can tell me why why it doesn't but it seems to me that it might indicate the decision in protect our communities that the m b t a does not govern in direct b and if that is the case you just go with me for a little bit here if that's the case did the national marine fisheries need a permit in the first place ok i'm going to pr answer by saying your honor that in this case the question is not presented to the court whether the national in fisheries service needed an m b t permit rather the question is whether having applied for a permit and the fish and wildlife service having granted it whether the fish and wildlife service had regulatory authority or had the authority under its own regulations to issue the insult a permit but i understand the court's concern our reading of the project or community foundation case is that what the court was was whether an agency like the bureau of land management whose sole connection to the proposed wind project was to grant a lease whether the exercise of that regulatory just be clear in some take is when through and another activity you instantly take a migratory bird as opposed to intentionally do it now most of the fish while they surface regulations deal with intentional take whether it's depredation whether it's research on the birds whether it's banding those are all intentional so in the panel decision from last week they they don't question that the winded ministry might need a permit for it's insulting in that the further your honor if you look at the treatment of the navy situation that the district of columbia dealt with in the center for biological diversity versus piri context so this is on page nine of the court's opinion it's talking about it's distinguishing from the b l m context where the department of defense itself was trying to seek migratory bird treaty act coverage for its incidental take because again in that case the navy was not intentionally taking birds rather it was are they say agencies may be held liable for violations of the in bta when they themselves in gauging the taking of protective birds so the court recognized that the navy was engaged in the taking of protected birds even though it because the way i'm reading it is that the court held that the m p t eight does not contemplate an attenuated second carry liability on agencies like nymphs that quote that act in a purely regulatory capacity and  the tory acts do not directly or proximately cause the take of mike or tory birds within the meaning and so do you agree that this president does not control here because the direct capacity over the activities of the fishery so it's not just acting in a regulatory capacity but the national fishery service is acting in a managerial and then it goes on to say if so then yes would occupy him more directly supervisory supervisory position over regulatory regulated third party than that of a typical agency and that's that was absolutely correct the national fisheries service its relationship to the fishery here is not as  fishery and dams promulgates the regulations including the regulations set forth in fifty c f r six six five point one five which are the regulations about what the fishery needs to do or doesn't need to do with respect to avoiding dealing with imposing vicarious liability on a regulatory agency like b l m we're dealing with a manager who really decides you know calls the shots in terms with the fish we can do and not only the law suggests that but the fish and wildlife service  found the same thing i might interrupt just to get back to where he started no one should just want to tell us what's wrong with this permit in your view yes your honor i don't want to do when you've only got ten minutes last i don't want to hurt the sun on an issue which is interesting but may not be central  make me responsible for making sure the long whiners do what they're supposed to do because they control the fishery back to the question of so our basic theory of the case with respect to the n p t is that the regulations that birds and it's not just our interpretation the regulation but it's fish and wildlife services interpretation of the regulation up to the moment that they issued this permit we cited in a reply brief some regulations the fish and wildlife service promulgated in two thousand and nine under the bald and golden eagle protection act which is an a now and now we get statute it actually overlaps because bald eagles are protected as migratory birds at the time that the fish and wildlife service incidents take regulations for for these eagles industry the power industry expressed concern that quote utilities will still be liable under the migratory bird treaty act for in still take of other birds since no permit does not cover it's an old take for activities that are not directed towards migratory birds such as conservation activities that's exactly what came up in the navy context in center for biological diversity versus piri again fish and wildlife service repeatedly refused requests from the navy to get an insult a permit to allow military training activities to go forward now if the compelling justification prong of the special purpose permit allows anything one would think that it would allow that but the service was quite clear that it was not allowed and when the case then surely ended in injunction congress intervened and didn't say fish and wildlife authority under twenty one twenty seven they said promulgated a new regulation because we need a regulation that will allow for intel take now that's critical in this case because when you have an agency changing a longstanding  of interpretation to try and figure out what the regulation says tools like is an interpretation rendering language surplus tools like joost ungenerous is there something in the regulation that tells us how we're supposed to interpret this term compelling justification so the problem with fish and wildlife service is interpretation newly minted interpretation is that it would render superfluous all this language in the in the regulation that an activity needs to be related to m migratory bird related activity because if the only nexus to migratory bird that's required to fall under this provision is that you happen to be incidentally killing them while doing something else well that would cover everything that would cover the entire universe because you would need the m b t permit if you weren't harming the birds so this court and the supreme court have repeatedly said the courts must construe regulations to give effect to each provision you also as the supreme court did instead klein need to apply it just i'm generous so when you've got a series of provisions and then a catchall at the end it's important to know what those provisions are saying in this case the all of the previous language whether it has to do with a significant conservation benefit or important research or concern for individual birds they all have to do with an activity directed towards migratory birds and that's why in till this permit issued other regulations right yes i know this case probably has gone on for a long time and will continue to go on right this have the parties mediated to settle  conservation purposes and require the fishery to do everything that it reasonably can do to eliminate the tank or at least minimize the take and the record is replete with comments of fish  participate in the process who wanted to insist that the fishery would implement additional measures that have been identified by the fisheries service and others as being key to reducing migratory bird take and that's the only way to fulfill the conservation purpose of the statute but the fisheries service pushed back and said that they wouldn't consider any of those and as a result none of them were incorporated into into the permit but you know let's contrast here what the fish wildlife service did with the equal protection act where when they in a conscious way decided to implement in cell take regulations they provided that they will only issue and sell take fo never served for this purpose and that the service has repeatedly gone on record as saying can't be applied to this purpose and try and use it here it violates every every standard of statutory regulatory interpretation and most importantly you know under just basic notions of administrative law if you don't know why they determined that this fishery operation was a compelling justification whereas navy military readiness training was  es that they could have done a better job of explaining compelling justification but don't we sort of have in them materials that if that the fishery is economically important has little impact on the birds and i think the agency explains probably has a net benefit on danger turtle species by offsetting fishing by foreign castles that do not employ measures to mitigate harm to wildlife well you know obviously the government in the absence of any statement in the record as to why this compelling justification and what's constitutes justification they try to cobble something together now the environmental assessment is very clear that the that the fish and wildlife service did not agree that allowing this fishery to operate would result in any fewer migratory bird takes they do analyze an alternative alternative one that would result in less fishing and they say well then you'd be  going on here your honor you not only conservationists should be concerned about this but industry how would one how would industry know what they need to do to satisfy these so called compelling justification if if maybe training doesn't satisfy you but somehow a small fishery that has in significant environmental effects per the fish wildlife services environmental assessment if somehow that satisfies and i ask a question about this the sea turtles it seems like the national marine fisheries  a pretty thorough discussion of the direct and indirect effects on the sea turtles and as you know are our deference to the agencies is probably you know that it's highest when the scientific studies concluding that the fisheries operations would not jeopardize the sea turtles because it seems like you may be asking us to substitute our interpretation of the science for the agencies which we're not supposed to do  agency's choice of models they had they had an expert the prepared models one was called climate based but to be clear did not incorporate climate change it just incorporated some periodic changes in the ocean currents and one that was called classic they chose to use the climate based model we do not question that however even though there is there's there's deference as the national national  wildlife federation versus this case as in wild fish conservancy versus eleazar this court needs to make sure that the agency properly explained how it got from point a to point b so very briefly with respect to loggerheads the problem is that they have quite a climate based  model that said that turtles water heads were declining precipitously they chose not way a quasi extinction threshold as the as the as the measure of when one should be concerned about jeopardy you know they'll come back and say well that's not true extinction well we didn't choose it you know when when you choose a scientific method you need to explain consistent with your scientific method all of the  in the jeopardy which national wildlife federation versus nim says you cannot do by as they modeled it as their expert modeled it afford to eleven percent decrease in the population so they were the bad off under the status quo they're worse off with fishery they try and save that by reference to the spillover effect if we don't fish someone else will affect will fish and therefore it's better to let them kill a few turtles than someone else kill a lot of turtles the problem with that is you can only take into account bax they say we cannot quantify with precision the number of adult female mortalities all their analysis is based on adult few more talent and so we cannot quantify the reduction in risk if you can't quantify the female mortality is then you can take into account spillover effect which is why they're trying to hedge their bets and say with or without it there's still no jeopardy with respect to leather backs the problem there is this action is open ended it goes on forever i was most concerned about the larger his size and just their their own expert said use the client base for the first twenty five years then use the classic so that you and if you have available information like that you can't ignore that fails to give the benefit of  agree with with my friends first of all the issue whether a permit is required for the secretary of commerce in managing the fishery is not directly at issue in this case it's a logic behind seating question  question i mean it logically precedes the question of the permit challenge so sometimes courts reach out to resolve those questions court doesn't need to do that on the merits here we do think that decision does relate to the question of relief if this court w asked a similar question we're posing council but i just reading the protect our community community seems pretty clear they make a statement in there that  agencies themselves are not subject to the prohibitions of the m p t when acting in the regulatory capacities and the sergeant really not required to seek a permit to cover the separate actions of third parties regulated by those service can issue regulations so long as it determines the regulations allowed take that's compatible with the conventions the treaties that's pretty broad so there's been no challenge to the regulations here it's just a challenge to the application of the regulations to fishery that said the way we view the limitation on that you just articulated federal agencies do not have to apply for permits when they  permitting third party activities and incidentally take us it's not that the federal government doesn't believe that incidental take isn't compassed by the prohibition in the migratory bird treaty act it certainly is and we prosecute criminally  incidental take of migratory birds by private third parties it's just that when a federal agency regulates that activity it's even further removed in the chain of causation and so principles of proximate cause would limit the federal agencies liability and would not require it to seek a permit here we think that's what the protect case stands for and so i'll just touch on this brief i do think it bears upon whether the rip the relief that they could obtain would be effective because after all if the permit is vacated the secretary of commerce could choose just to continue to operate the fishery in the absence of choose to withdraw its permit application altogether and there wouldn't be any ability of a court after the protect case makes to the district court i think that's right i think you could be vacated but there's no obligation for the fish and wildlife service to complete an action on remand so long as you make clear that the permit is not required for the fishery right i mean i think both parties are taking the position in this litigation that the agency has the authority to issue the permit and if there's some challenge to that later that's a different case i think that may be true so i mean been the words related to birds and when fish and wildlife service grants these special purpose permits it does so very infrequently that's true but it has not established any sort of  set standards other than what's in the regulation on on when it's going to grant them and it has simply made decisions on a case by case basis so how we were in response to give it deference them so supporting the fish and wildlife services determinations that means only enough evidence for a reasonable fact finder to conclude that there was a compelling purpose so that's that's a fairly high hurdle for plaintiff to overcome there's also deference to the interpretation of the regulation under seminal rock and those related cases and we do believe that the fish wildlife services interpretation as articulated in this record  an interpretation of its regulation for this case that warrants that type of deference but granted there's nothing broader that i can point to so so what's the regulating that's going on now this isn't bearing on this case but aren't they doing some ri aren't they realizing now that they need to do some regulating here because if it's not that clear so more and more as wind energy projects become very common now and there are congressional mandates to promote wind energy on the public lands so forth this migratory bird issues come to the forefront and fish wildlife service is in the process of proposing a series of approaches to incidental take it hasn't finalized any approach could involve broader program of permanen under twenty one twenty seven to six of the twenty one twenty seven to issue an incidental take permit why did it believe it was necessary to create a new regulation this is a pretty limited regulation i mean special purpose is supposed to mean well special purpose is supposed to be pretty limited and there's argument here i think you know interesting argument being presented whether you beyond that narrow and i just have a hard time with the and i know you're you say that they had authority to issue the permit but i don't know it seems like under the protect our communities in seattle says they didn't need a permit and so i'm just trying to figure out how do you for sure grant a permit when it really wasn't necessary in the first place and then fish and wildlife service say no since the fisheries come to us we're going to issue a permit and we're going to do it under this very narrow exception that's normally used for you know very limited purposes and kind of  shoehorn under that exception and then at the same time say you know it's ok to go under that we don't need to go through the rule process seem process even though then you do go through you're going through it right now and i'm my second question is what's the status of that so i just it's i'm having a little trouble with this whole scenario as it's playing out and so why so  as you mentioned the rule is fairly narrow it's a federal agency making the application here for a congressionally mandated i mean regulated by statute fisher that i know that fisher is taking measures to reduce bird already and this is it is really something that doesn't happen often that a federal agency will seek one of these permits fish and wildlife service has a regulation that it interpreted as a requirement to process the permit not simply to turn it certainly could now i suppose you know return applications if it didn't have that policy and say this isn't required at all but that's that's not what it did yeah instead it went through this exception which it seems it completely changed its position the fish and wildlife service gave no explanation for why it changed his interpretation of the special purpose permit regulation before issuing a permit to the national marine fisheries so doesn't that alone you know because some sort of question on whether the decision is arbitrary and capricious i don't think there was a policy of never granting the for the navy if you asked the navy they probably would say there was a policy let me address that case if you look to the district court decision in that case when i described the rejection of the permit to the navy and one of the reasons given as recited and  know they're there reciting what the fish and wildlife service said in that case and they said that there was no way for the navy to monitor the take it was dropping bombs or whatever live fire and they couldn't keep track of what how many taken by contrast here when you have a fishery that has one hundred percent observer coverage on its vessels and they do that for the purposes of making chain this turtle the limits on turtle tank which are hard limits in their regulations but the observers on every vessel and every trip that goes out for the long line shall accept fishery they have observers who monitor the bycatch not just of turtles and fish but also birds and so there is a way to monitor the incidental take of birds here that was not present in the navy example they don't really explain that there are all sudden you know a change sort of in pursuing and accept sion under this u lated to as meaning including incidental bird take because the activity incidentally takes migratory birds and so this notion that this is a change in interpretation i don't think is benefits i mean the activity is necessary and the activity just not benefit the birds right yeah that's that's true you know and as to their argument that that has to be something special purpose permit covers i think if you look at that list of phrases that precedes other compelling purpose in the regulation one well except for you can see the fish and wildlife service failed to explain the compelling justification for the specially is permit so shouldn't we just romantic  so the agency can provide this requisite explanation for the unprecedented permian action well i mean that's that's an option our our position is not that we didn't concede that they failed to provide the explanation where is the explanation you're saying that report that you read from that's the explanation now that was that was one thousand nine hundred six kyra's the explanation is that there's not there's not a an explanation of a change in policy because they didn't view it as a change in policy and what they said in and even in adjudication they can flesh out an interpretation of the standards they're applying without applying to each and every case going forward in the future i want to ask question about the turtle's of you but before i do that you may have  status of this regulation going on right now told that they intend to issue some sort of proposal which they would publish notice of in the federal register within within the next before the end of the year i don't know the exact date what all that they put out was a notice of what's called scoping so it's not even a proposed rule yet but i'm told that they are in the process of trying to publish a proposal whether it's a rule or some that as mandated fishing in the exclusive economic zone and set up a very comprehensive statutory scheme and directed the secretary of commerce to you know through the system of preparing fishery management plans to develop fishery management plans that optimize the yield of fish and so it's a congressionally mandated program that if it were criminally liable or some otherwise prohibited from incidentally taking birds that just couldn't operate and that would occur your justification for you regardless of the texan i want to me that if your answer implies that it doesn't make any difference what the take is well there is no proven way to eliminate take altogether from your right i mean your answer implies that there is no threshold level which you couldn't for have a theory because congress and mandated that what you meant to say or you couldn't close the fish right well i mean if a tree has been closed entirely for justification was contained in the document even though it wasn't specifically made and that think the compelling justification you are arguing is that fishery is economically important and will have si significant impact on migratory birds yes that's that's a big part of it i mean what ok since it's not specifically made well what is your argument that that the compelling justification is satisfied it's all of the things you just mentioned as well as the fact that the fisheries congressionally authorized enabled if so economics congressional mandate  say that this fishery if this fishing can't go on some of the fish yes that will not and we have no ability to monitor those people who don't know that we don't moderate or direct them to reduce take here there's a fishery it's the high seas so they can go there anyway and that so many fish at u s ports are u s flagged vessels and that's right they could go there anyway it's just a matter of common what is the data show on the essence of foreign vessels coming in now asked you're posing council and i'm focusing on the climate based model prediction that the loggerhead sea turtle would become extinct within twenty five years it seems like well the end of the national marine fisheries found no jeopardy in looking at the buy it seems to support its decision by saying that the harm to the turtles will probably less severe than the model predicted but i'm curious can you point to the evidence that supports that conclusion though a couple things to unpack from your question one is that it's the prediction it's not that they will go extinct within twenty five years it's that the population would be reduced by fifty percent and so there's a difference at the outset of the action i mean you well there was a reference to the phrase the jargon that  the unfortunate chargen that the agency used was quasi extend extinction threshold which they just picked as a level below which to mark reductions and they said this is the level but under which fifty percent of the population will be  question extinction threshold and probably you're getting into the area where it might not be recovered they are going to be extinct but it's going to be hard to reverse and climate streams so true i'm not sure about recovery i think that recovery depends in part on the numbers in the population numbers the absolute numbers and what the agency saw from the classical model and from nesting data not just the models but the nesting data the time indicated that turtle knots for loggerheads were very high they were increasing and so trying to explain that with a normal population model it would indicate that populations we continue to increase total nasty numbers were very high at the time what the other model showed the climate based one was that the oscillations in the ocean temperatures beyond about twenty five years but let's see what happens up to twenty five years under this other explanation and they said ok even though the next thing is going up now under the classical model that say well keeps going up charles keep improving the other models well you get the ocean current changing archon temperatures changing and you have another period of a downward trend but that would presumably come back up so even if it's going down we're i think that the number we referenced was four t doesn't compass a lot of conservative assumptions about for example the annual estimated take of the annual estimated contribution of the action to loggerhead doubts was point three turtles and they rounded up mean it's a fairly startling statistic when viewed just taken out of the report in context maybe not but it's less than percents pretty high i mean that's getting to the levels we're looking at in the salmon case so the overall percentage of the population that would attribute it would be lost with this action over that twenty five year period though was determined to be zero point three five percent of the current population models that took it all into consideration but just a large part of that difference has to do with the spillover effect correct the four to seven percent range no no they have to be saying as opposed effect they still believe the population was large enough at that point in time as i said the high nesting numbers but those reductions would not result in the species being unable to recover unable to read and what not needs to function it please the court ryan stand here on behalf of intervene or why a long line association i just like to start by putting up some context out there which is why i think a intervener can help inform these cases i want to ask you a question about the turtles on that i understand that long lines are set for significant periods of time how is it then that the turtles that are hooked on the long lines usually survive why don't they drown because aren't they and the data shows that there's never been a turtle and that was dead so every single turtle the shells that fishery has has been released to life well do they kind of come up and then breathe or are they just how long can they go without breaking or what's that how does that work i don't know right well they can again i know that the i don't know the specific biology of a logger head toward a liberal democrat but i i know they can go a fairly significant period of time without breathing i know that oftentimes they are hooked on retrieval and so want to hooked on retrieval they're brought up to the surface and again the data shows that every single turtle that has been caught has been released alive and that's with one hundred percent observer coverage on these boats so it's pretty good there be some that drown that are just down there that you don't recover i suppose if one got off of a hook  that could that could happen we're not aware there's no data that suggests that is happening ok him give us context ok so you know the plaintiffs explain their view is that this is a small fishery that causes enormous harm and i would just point out that that is contrary to every agency finding that's been made about this fisheries since two thousand and fourteen or two thousand and four just to put it in context this is from twenty fifteen so i know the state is not this isn't records it's context this is a record information but the fishery set eleven hundred seventy eight total sets that was one point three million hooks and out of that one point three million hooks they hooked fifty five least an albatross six of which were released dead they took forty one black put it all trust ten of which were released only six leatherback turtles all released alive and they hooked only fifteen loggerhead turtles all of which were released alive in the can this is with one hundred percent observer coverage so for turtles that means that one is getting hooked one out of every city approximately sixty thousand hooks one out of fifty six sets so it is a rare occurrence that happens and the data are approximately similar perceive birds so the plane of subpoena pictures of these boats are out there constantly catching sea birds constantly catching turtle but that is just not true and as the record shows and as we set up in our briefing there's been numerous findings by the agency about how protected this fishery is and how it operates so well this is from the record the united states is a recognized leader in fisheries management worldwide and the white shell is that long line fisheries among all strictly regulated and sustainable suppliers of fresh seafood currently the while online cellcept fishery is among has the most recent the most restrictive regulations to minimize total sea turtle bycatch of any fishing fleet in the north and central pacific with one hundred percent observer coverage that's a time outside senate and that seems to be the preferred alternative if you're going to on most of the studies that have been done on site setting involved he said fisher you know solves it right there is some discussion in the documents that s your three seventeen about a case study had success with it didn't have success because it was not economically viable there was operational trouble with it and then there's a safety concern because i'm sorry typically shells that fisheries that's the a weight and you're the middle of the doing sides and requires you to set the way closer the hook and so some fishermen expressed a safety concern that and now cost and the government indicated that that would have some economic impact and i i didn't see any taint on you there are some questions about the e s a and this climate based model that i'd like to address of that would be fine the court first of all i'd like to point out that the government did not make a finding that this fishery would result cause a four to eleven percent decline in loggerhead turtles it reported in its biopic which is laid out with a lot of clarity numerous points  that it ran the model that all models aren't perfect in fact no model is accurate but they are just that a model and they ran this new model and it produced these results and they identified some caviar  one forty three one caviar was that it has been recently developed in a subject to additional development and refinement it was not based on the input of a lot of scientists in needed additional input it was predicted for only twenty five years another very important point that the district court recognized this is that is it e r forty four was that the model was run and it didn't account for the mortality of hatchlings from adult females that would be taken by the fishery and the reason why that is really important is that the data shows in this is that as you are for ninety six five twenty three and five thirty one that one out of every hatch lean turtle survives and so when this model we run the model and they assume the fishery takes an adult female turtle and we're going to assume it removes that traill for the fishery and we're going to assume that one hundred percent which is what the model  being removed because of the fishery that was all built into this model and so it was creating a not a not a very accurate representation of what the fishery would be responsible for taking because if that female would have lived one out of every thousand of those side also had a whole bunch of information about how many males there are the result looked at adult females is because the only abundance information they have are adult females that was having the arrogance that the other thing the model assumes which was that the fishery was going to be fishing at fifty five hundred sets a year immediately and the agency didn't expect the fishery to go to fifty five hundred sex you're immediately expected to gradually ramp up to that and still currently the fisheries fishing at twelve hundred to thirteen hundred sets a year and so it was because of all these factors that the agency concluded and this is this your one forty three and throughout that section of the buy up that you know also says primarily based on a qualitative evaluation of the general direction in magnitude of the probabilities that are projected information so what the plaintiffs are arguing with here is how the agency used the model in the agency's rationale which is very well explained in the buy up for why it was in the tribune in a finding based on that model that the fisheries causing four to eleven that even below that threshold loggerheads could be recoverable so it wasn't the same below that they were going to be unrecoverable and in fact the agency took i guess the point is here is the agency took all of this information there's a lot of information it all the information into account and said based upon the whole of all of this the two competing models all the cats and assumptions that we built into this and all of the other information we have we find that this fishery is not having it detectable influence on the population it's not imperiling the recovery or it does not cause in jeopardy the recovery or the survival of the species and so it's really the way the agency used the science and the assumptions it made in using the science of the plaintiffs to disagree with and that's where this court has to defer to the that the fishery is deferring to the government on defense of the permit the fishery didn't necessarily ask for the permit here and supportive of it because the fishery has been supportive of anything the government asked it to do to have it have the right impact on the environment i will say though however to protect our communities i think does control here that case says very clearly that when you have that the administrative procedure act is not target regulatory action by the b o m that permits a third party grantee to engage an otherwise lawful behavior and only incidentally leads to subsequently unlawful action the difference here or the reason found that way the reason it applies here is it has to be the government that's doing the act the n p t speaks about to kill or to harm government has to be doing the act the b l m wasn't doing the act they're here the nymphs is not the mental component by having it be a strict liability crime but it doesn't spell with the requirement that there be activists reus the actor do the act and so the b l m like names here isn't doing the act of taking turtle so it  that's why the court relied on no holding and that's why this court should follow it mr hanken referred to trying to distinguish this case i'm relying on the court's kind of speculative statement in there about how maybe that nationally fisheries service could be acting in a more manager subject to conditions and they all place conditions on it some more onerous than others but the principle of that case shouldn't distinguish among what type of agency manager what kind of a resource the fact is the agency is acting in a regulatory capacity and i think it's  a pretty fuzzy line or dangerous area for this court to go into if it's going to start distinguishing between which agencies are quite managerial and which ones are acting in a regulatory capacity and my time's up so i'll go and stop there tha bottle put on five minutes pl we only caught fifteen loggerheads yeah but you only caught fifteen loggerheads fishing at about one fifth the level that the national in fisheries service authorized you to fish they said you can fish without limit we assume five thousand five hundred sets there only set putting less than twelve hundred sets out there nonetheless they're catching fifteen loggerhead turtles if you scale that out you'd be looking at over sixty and they'd be going well beyond the authorized level take so this fishery does for its very small size and the few cents you put in the water it causes a lot of damage and that's what our concern is your honor now with respect and the other thing is he mentions that all these water has come back fisheries service analysis they look at that and they analyze the likelihood that release turtles are going to die otherwise it would have found that they've you know take no fatal take in the fishery but they do find they're going to that it's expert developed that it shows the values that those models came up with its use not our use but its use of the quasi extinction threshold is the main determinant of when you have jeopardy if you can figure out how when they wave their hands over that and say well it's ok then you should affirm but this court is required to insist that the agency are to kill eight how we got from point a to point b and that's particularly important in the context of the need to species act and that's for the for the loggerheads and for the leather backs when their own expert says there is a model of elbel in which i have a high degree of confidence it may not be good as good as the climate based model but it goes well out into the future and it says that if you continue taking a longer heads in this fishery you're going to have an almost ninety percent decrease in the key population of turtles that this fishery interacts with the agency ignores that sell take permits to commercial activities that are on it not focusing on bird conservation not withstanding they're clearly expressed statement in the two thousand and nine federal register that cited when i first got up here we do not have an insult a permit for the wind industry we don't have an insult a permit for anyone unless you're doing conservation related activities if you look at page eighty two in the excerpts of record they've issued to insult a permits fo tell the wind industry we have a federal policy to promote renewable energy that's what the court was talking about in protect our communities foundation we have money to be made in clean energy there's a societal value there but yet in two thousand and nine they said we don't have insult hate for your industry there is you know the courts been grappling with their failure to articulate a compelling justification for why they gave a permit to the fishery and i would recommend that look at supplemental xserve record page three five one where that's in the environmental assessment and they say one of the factors we need to look at is quote the degree to which the fishery will implement all practical methods to avoid the take  do they do that analysis absolutely not in the draft they do at page one fifty seven of the excerpts of record they say that they disagree the current regulations have reduced taking the fishery to the maximum extent practica that analysis is completely gone in the final they just ignore it altogether there is no connecting of point a to point b with respect to whether or not the fishery service needs a permit we've already talked about the piri case where the panel last attention to page eleven where they talk about obligations under the endangered species act i see that my time and i had finished ok the court on page eleven says in several cases implicating other environmental protection laws the agencies in question acted  awfully because the appropriately the inappropriate sorry improperly exercised the regulatory authority to sanction conduct by third parties that was itself unlawful and what the panel found as determinative is whether the agency had an affirmative duty to ensure that whoever they were regulating complied with the law they said bayle and did not have that affirmative duty under the e s a agencies do have the affirmative duty and we submit under the ma act where it is the fisheries service that approves all the fishery management plans and all the regulations implementing it and cannot pursue into sixteen u s c i believe the eighteen thirty eight cannot approve those for your arguments today very helpful and we will be in recess for the morning all right