charter for fishery conservation like a lot of federal conservation staff use it sets up a model of co operative federalism the access to councils that are composed of state representatives and those councils have a basic function develop fishery management plans to meet national standards and manage those fisheries for the benefit of the nation as a result of amendment twelve in this case to salmon f and b and then soon the council effectively written that part of the act  to turn over that fishery to state management and moving forward that fishery will be managed under state standards not national standards and only managed for the benefit of alaskans not the benefit of the nation this wholesale turnover of federal conservation in the district judge in this case said the parties do not dispute this fisheries requires conservation management is it your understanding of the record that's right that's our seventeenth that there isn't a dispute to the fish requires conservation measurement it's been under conservation and management for over a hundred years it's a highly competitive fishery it's one hundred percent allocated it's heavily utilized and if there were no conservation management measures in place for this fish or it would be over fish like that so they went on to say but it doesn't require federal right that's going on to say i rewriting the act to insert the word federal in there that's exactly what their argument is and i think that this ultimately just reflects a policy disagreement with what congress instructed council city it's not that they don't understand what the mandate is it's not that they don't know what congress told us to do is that they disagree with whether it's a good idea when we have a fishery here that's been under state management essentially forever but certainly certainly for all time period relevant to this case and let's assume for a moment that we disagree with your contention that the council was arbitrary and capricious in finding that state situ in a perfectly good job managing to fish or what's the f m p supposed to do under those circumstances well i think the act provides a mechanism expressly to do that it's the delegation process which is let's have the council set up a fishery management plan that is consistent with the national standards if the state is doing a good job we can incorporate state management conservation measures into the fishery management plan and then we can delegate david a manager of that fishery to the state and what that have a delegation to the state that's right there with a plan that's right but so if we did have a state managing consistent with the n s a you're saying we'd still would have to have a plan that delegated to sacto and that's exactly what it says in the a and there's a reason because it ensures continued ongoing compliance with the standards of the magnuson act the process and you won't find anywhere in the statute or any criteria for winter for as appropriate or what to do when i take that  took the cook inlet a talent look at now this part of the easy they took it out yeah this is miller we're out of the out they took the one area where fishing and fishing was actually happening and i said we're not going to produce a fishery management plan for that area so is there anything other than the said on our brief the legislative history from eight hundred seventy six you've got senator gravel saying hey can't we make an exception for alaska alaska is different we do a great job of managing fisheries we've been doing it forever we were doing it since you before state who we should be the ones managing this fisher conservation zones you didn't state when and only if two conditions exist the fisheries is not crossing of the boundaries and the state to state is capable and willing to provide conservation and management consistent with the national they are given p where is the requirement that the state manage that fishery in a manner consistent with the n s a there isn't one they don't have to if not in the stats you so and it also doesn't give them authority over all that full so if if consistent with the with the fishery management plan and if there's no fisherman your plants i don't care what you do with that fisheries i've already decided that it doesn't require conservation and management so there is no standard which is why you see there's no standard in section eight for each fishery under its authority that requires conservation management and so the council had to decide there was no need for any conservation or management of this area so they didn't have to prepare any f m p but in this case there's no ideas what with the nature of an f m p if the federal government decided to look alaska is doing a great job so what would universe job so i think that is exactly the procedure that is set up and so what would it look like i think what the council could have done and what i think the act required to do if it was going to go down this route with the take let's just take those measures that are stated using and incorporate those measurement matters that they think there you know sustainable sound policy or whatever is consistent with the magnuson act what let's review it and let's put it into the fishery management plan and then you might challenge that and say well it's not consistent with the federal law that's right that's right that's what's really going on here isn't it to state the state managers in a way different lead into federal act seems to require i know that's not what's in front of us but that's really what's what's going on as it turns in this disguise this fishery is there life a sitting in the courtroom during the fishing season because this is so important to them they want this fishery managed for for in perpetuity and and this process is not just this and it's not just the national standards that are oregon and alaska to make these complicated management decision and the cook and sound fisheries is facing these kind of difficult problems and those problems are only going to get worse over time as we face ocean acidification problems like climate change problems and the state were not saying the state the argument which is that even if they have some discretion it's arbitrary caprices so this is a challenge to the regulation that the implements amendment to the current structure and the challenges that it's contrary to la i must admit that i've always had a difficult time figuring out what a hard look at this but it does seem to me in this case that it was apparent that the a major deficiencies if you will in the state's ability to protect the species were in front of the chintzy everybody of the state's jurisdiction was limited in some respect and stated well but that's not likely to happen very often and we've been managing it for a long time and a pparently those only happen in a big big way once with mr big yeah so my question is what if we all that's in front of the agency and agency says we believe alaska why isn't that a sufficient well i think that is a start to a hard look and the other side of that hard look is address the comments that were put forward by the fishermen i mean if anyone is going to know how to exploit a fishery a lot mr big it's going to be the and we put forth explanation that i think not so and that's what those arguments about whether or not the states play and really would have fish and they regulate the fishery and really and so my question is so what kind of a record does the agency have to make to let us conclude that it gave a hard look or do we just have to know that all these issues were in front of the agency and it considered them and came out one way or the other i think an explanation in the record as to as to why they just basically say i mean they basically say well first they say you know we're not actually relying on the state's ability to prosecute and they say that in the record so a lot of we saw in the briefing was what the state will prosecute the state will process additional to me that says we're not relying on your ability to prosecute because we know that there may be a few circumstances where they can't but we don't think they're all that important now i mean i'm reading something into it and so when they probably did the regulation they did give quite went through all the categorized comments and they responded to them which what didn't they respond more later exactly didn't they respond to we made specific comments about why and the mechanisms by which someone would exploited fishery and those were addressed and addition that we also made i think it's very do a supplemental and they should reflect that and in the final decision if they thought it was a need to supplement this they should have said in their federal register notice that came out five months after the disaster happened they should have said you know what this is just what we already talked about we don't need to do a supplemental but it's not a record of just making this up after the fact and saying well we need to do a supplemental but they were still at the decision before them and and and and just the tail up on that it also does render their decision but the disaster also alaska this court should affirm the district court judgment upholding the approval and then flamini regulations for amendment twelve to the federal fisheries management plan for salmon fisheries off the coast of alaska the amendment removed from the scope of the planned many to many area three discrete areas where net fishing for salmon has historically occurred since state these pockets of net fishing have been managed by the state of alaska which is allowed comprehensive management of salmon fishing in federal waters adjacent state coastal waters and lead rivers the practical effect of the amendment was to continue the status quo of state the statue does not talk about an area fishery it's not just about a fishery and the fishery in this case is salmon all species a salmon and there is a fishery management plant so the eric sense but they do not require federal conservation and management so that you're going right where i want to ask you a question therefore if we do not agree with your point that the word federal must be read into this statute do you now because the concept of i think that been in addition to federal i think you have to look at the national standards and you know perhaps i'm saying a step away but i think it's important point that the national standards are to circumstances why can't you just explicitly defer to the state within the plan if well what happened here is what we called the fall but i guess the question i think you're asking is whether there is an explicit delegate i'm sorry delegation right well the final roll talks at length as does the e a s to the explanation as to why delegation was not the selected alternative and the result in general is that you didn't do delegation because the states incorporate it into a plan was because it's not consistent with the m s a correct what the m s a would require of an delegated fishery management plan is that certain requirements in section three zero three be included in the in which the state's plan would not have met with which would include an annual catch limit and the point is that the reason that deferral was chosen among the reasons is because an annual  limit does not contribute to the conservation management the species it's it's simply added regulation that's not serving a positive purpose for the conservation measures of this so it's let's get back to the language of the statute you i said if you don't  federal and you think you still when we're so i take it you read subsection a as giving you the ability to defer under what circumstances the the circumstances and i think this goes back to the fact that it's amendment not a question of whether they do a federal man and throw management plan what we did just that i don't want to keep going back to you have no federal management plan that covers this year graphic carrier correct and the question is whether the act requires work it's not whether you can accept it out of the question is whether the act requires one the act does not require that a fishery management plan include the entire easy and it's in fact the n it should be the word federal into the act now instead of that argument now say well where else is the act tell me that if an area requires conservation management and we don't read the word federal into it you get to decide not to manage it well i think there's two  reinforce i think first of all it's it is ambiguous as to what needs to be in the fishery management plan and that the other areas that we've pointed to that support a deferral is first of all national standards seven in particular and also national standard three the the amendment has to comply with us in the national standard three talks about how you formulate a management unit to make sense and and national consensus one but i don't want to i don't want to i don't want to cut off your arm but this we're having difficulty and you know it seems missing joe that those national standards deal with the standards that relate to and f m p do they not right and this was  amendment to an f m p which exempted the area from the f and pretty in the words what they're saying is when you're promulgating f a p how much do it according to the following seven i think more national standards you're saying i could use the national standards to determine that no f m p is required in an area where conservation management is required yes when it comes when it comes to naps in the form of an amendment that is absolutely what it's going to be looking at and i'd like to you know sort of course attention to part of our period where this kind of legal mechanism is use frequently and never challenged before never challenged because most regulated parties are not asking for duel regulation but but the fact that you do it a lot doesn't mean doesn't help us determine whether it's legal if there's never been any legal challenge to it there's no stopping going on here least of these fishermen don't have to challenge your use of it in massachusetts or someplace else do that correct but i think the point i was trying to make is that the direction that they're taking that would be a big change in the way things are managed not just in upper cook and but it would be a real shift and from the way that the agency has done this for a long time and the you know the third very first fishery management plan for salmon fisheries off of alaska did not include all of the easy it was and the western part was and later the there are fishery management plans for alaska fisheries that the management yours is only a portion of the at that time that they decided that it was necessary district court case for example we looked at this fishery and these particular species don't require a plant they're doing ok it's not being overfished but that's not what happened here you agree that the this fishery needs to be managed you're just chevron step to case this interpretation is articulated and i know some comment rule making and therefore we are you know once you get to chevron step to then that should be controlling you first look at the text of the we're dealing with where does it say federal where does that come from it can't just writing it in the question as each fishery under its authority that requires conservation and you say which requires shall and i know there's an argument that shall means may but the district judge rejected that one i think and that's you know that's a hard argument for you because the statute uses may in other portions so the challenge is mandatory for a moment so right what is what's is to whether you need to prepare a fishery management plan and that is reasonably interpreted in our view particularly given the fact that the congress amended the statute to recognize state for if you look at the full phrase you inquire is for the purpose of preparing a fishery management plan and chopping it up to say first to decide whether in the abstract or generic sensors conservation management the sentence makes it not plain straightforward and that's what we're sort of missing each other there we only get to go jeff on step two if the statutes not if the statute isn't plain in a big big statutory contracts suggests that what what the way that is approached and was approached here is doesn't pay sharee need an f m p and i'm not and they're not lemon that one little you know pocket they're talking about does the fish the fisher as it is a question of their natural views whether the fishery requires conservation then manage then of a group and they prepared there is a fishery management plan for salmon fisheries this system would not work but for the fact that the fishery management plan prohibits fishing for you know they the huge area the easy and so whether it's required or not depends on the inquiry that was was done here  amount there is i i can't separate the fact that there is inspector all there is a federal f m p for salmon fisheries and then the question becomes does it have to include as what would happen a delegation is incorrect and what would happen in a delegate what they want to get at our state you know the escapement goals the allocation of fishing between commercial lot about the state of alaska thank you very much on appreciate the five minutes you're supposing for the state of alaska to try to adjust the questions that come up your honour's every fishery requires some conservation and management no matter how abundant a species might be there has to be at least some management some permits some record keeping something so under plaintiffs reading of the statute that every issue that requires conservation management requires a fishery management plan then every fisheries going to ha management got to d c we're going to d c district court decision it says with respect to some species and some in some area the the federal agency correctly decided or decided not arbitrar conservation management wasn't required so i don't understand why why we can't say there's just when this is so far off and fishermen don't go there there's not so many fish there we don't it doesn't require a conservation management isn't theirs is under some areas like that let me just your question are and i want to make one of the point in the district of d c can you notice mr majority anglers case the court did find that the herring shot fishery need to conservation management there was there were conservation management measures in that fisheries were bycatch provisions if in the mackerel fishery they caught a certain amount by catch of herring chad they would shut down the mackerel fishery that is conservation management a fishing for having a chance it wasn't the case that there were just so many herring in chad they don't need conservation management the key the district court in that case  the question was does it need conservation management that inclusion in the federal fishery management plan would provide that's another way of saying this is the federal i pads and we'll send you take it in that opinion if you to the footnote says the district court in this case was dead wrong that you don't every fishery gets a plan now it says every fish or conservation congress and that language they said was to clarify that that councils do not need to implement a plan for every fishery it doesn't question if it doesn't get clearer than that that you can use makes sense if councils were preparing a federal plan that requires federal regulation it doesn't make sense otherwise and if you if you were to read it otherwise with you say read federal and this is the statute i say just read the context if you read it otherwise park in cook inlet tens of millions of salmon run through the fishery every year it's one of the best fishing locations in the world this is not some little pocket that day that they excluded her a couple times something surprising which is that if they were to somehow incorporate the state's key escapement based management goals that the whole thing would fall apart well i mean the fishery management plan has two parts the west area and the eastern area but for the east area the council did bait management goals as a surrogate for annual catch limits set do they somehow can't do this is simply not correct what the truth is they don't want to do it and that's been evident since one nine hundred seventy six  i heard the counsel for the federal government come up and say you know this system wouldn't work but for the fact that those fifty men who planned elsewhere in the west area that prohibit fishing in the rest key point to section three and seven those go into the contents of what's in a plant there's nothing in the statute itself that talks about when a plan is required and i'll stop there ok thank you counsel we appreciate all arguments on this interesting case