looks like four against one are ready to hear your argument as soon as you can get yourself  seven anyway the issue of the national trade address was whether or not customs itself was miley's action corrected this non action as as action it it if i've missed something you tell me because if it looks to me like the decision of the board of internet sites i just just what quickly over the section nine issue said no jurisdiction there it actually was just set for argument relates to a biological opinion that was done on the state department's approval of agreement to enter into the pacific salmon trade and it relates to the state department's role not only in approval of the treaty but also its ongoing role in review of u s fisheries that affect the same fish the issue for the ninth circuit is whether it was dismissed by the western district in part redress ability which sets out the jurisdiction of the board of international trade it gives it jurisdiction over matters that arise out of any law of the united states providing for three embargoes or other ones that they diverge fictions on the importation of merchandise for reasons other than the protection of public health or safety now am i incorrect that the board of international trade  i guess i'm arguing or not arguing i'm suggesting that maybe you got it right the first time the endangered species act jurisdiction over the endangered species act in the district courts of the united states not  international trade you agree with that cases basically involving dolphins dolphins a fishing and sea turtles litter devices both involved in international agreements and efforts to enforce restrictions on fisheries and failure to inspect the plots of fish to discover that there is an endangered species inside the box and that's what they didn't do not what they did do so how is that an act and the non circular is an action according to you but they are allowing the fish into the united states it is presented to them the reason that the issue the fact that they're not looking in the boxes and gore is because they have the discretion to do so what the supreme court whether or not the patient is required and the substantive obligation to act in a way that doesn't jeopardize if it less rests with customs because it is in that position of screening the border and until it has a process which requires and consult with the agency with your station national fishery service to determine whether or not the actions that they're engaged in have an effect on the species and that's what we're asking for here business in this case period full stop so what the result would be if they did have serious diction is not our concern and i guess the question would be what court would interest action to jurisdiction over any law of the united states providing for embargoes or other quantitative restrictions section one of the endangered species act contains a plank approach ishan upon importance so under the enacted in the one nine hundred seventy s and it was not until the one nine hundred eighty s when the court of international treaties created and so there was no means for and congress has not updated the statute however this new or statute is very specific with respect to jurisdiction for barbadoes we generally take precedent over the more general statute in the provided the district courts with jurisdiction in this narrow subset of endangered species act cases and then under that's correct and in this case the court the court of international trade got very correctly and the only question in this case is whether an exercise discretion which is what it is religion here is quote  action authorized funded or carried out by an agency under section seven to the endangered species act that that's the only question here the regulation that defines action  or for that you point to as we cited in our brief it page twenty five it's very clear that actions are affirmative actions by the agency not anything that can be plucked out of the infinite number of things not an agency actually has and vision by the statute in fact another player could allege that customs chokes agents from the airport and brought them up to the border to check coolers and cars coming across the border and now tire parts are being smuggled in through the airport and higher and in fact this is an inherently discretionary on force function by the agency that is not subject to the consultation requirement when all this along those lines yes and those those are the kinds of things that are specifically identified in the regulation those are firmly of agency actions in this case the plaintiffs are attempting to turn the whole action vs inaction question on its head and that case which also involved allegations that government agencies did not use their regulatory power did not consult upon how to use their regulatory powers in a discretionary manner and that's it the circuits on that issue in the tenth circuit for the grid case made clear that contrary to civic reverse our analysis makes painfully apparent that quote standards guidelines policies criteria lynda's it nations and the like appearing with it l r court decision in southern utah wilderness alliance was very clear about exactly what the standard it is for compelling agency action and there needs to be a clear statutory mandate that customs or agency actually undertake some specific action is simply not enough to come into court and say he  the one that you say is the more specific that it was nineteen the one was on the court of international trade the endangered species act was nineteen seventy three all right and all these years no one has and now suddenly you see you're consistently your position has at least been consistent and that you would just assume the out from under the ninth circuit where these things seem to be adjudicated and  translate the favorable parts of that jurisprudence to this court doesn't it trouble you that the statute is since the early one nine hundred eighty s has not been used for these thirty my clients are trying to accomplish and that's what this report looked at what we're trying to accomplish and who that is why belong in the organization trade we're trying to discourage it we're trying to discourage the practice  the case but your view at least initially was the right place where your lawsuit is in a district court and i did that given that i'm sort of curious why you didn't try to get the case transferred back to the district where is the right place to try to do it surgeries conclusion was looking at the statute and looking at case law presented by the government that the question of restricting imports was properly considered for their national interests whether then we understand that way that you're taking them all it yes seem to get sort of bootstrapping the language going back to the organic statute here that that constitutes a lot of the united states providing for