my name is jim cannon i am the attorney for the associations of mexican and venezuelan fisherman the tuna fleet which seeks to intervene in this appeal if he was brought by earth island institute group of animal rights activists they are contesting a decision by the department of commerce that decision allowed the mexican and venezuelan tuna fleets to mark their tuna with a do the cans the cans to be clear we're just here on the intervention yes john we have we have dismissed all the other aspects of this appeal we are purely on the question of intervention first i would point out that there are specially three factors whether the government would undoubtedly make all the arguments whether the government is capable and willing to make the arguments and whether there's any arguments what legitimate arguments are available at this stage of the proceedings to determine whether they're going to make the arguments that are key to your benefit not what they did or didn't do a year ago or two years ago i take your point but part of identifying what arguments they're likely to make is the history of the case and what have they done today and they didn't certainly defend my client's interests in was not they participated on the merits in our church one or both of your clients members of the i e t f they both my clients are the actual industry who are who are regulated know we like we could seek meek a status ranking it's important for us to be parties and it's actually important for the ninth circuit in that there are quite a few cases nonintervention this is seems to be a somewhat evidence we submitted a survey of consumers to see what they thought about the dolphin safe standard but ultimately rejected all of that he denied our motion and excluded all of that from the record if your status then was my status was different  added and so we did not participate in any of that and yet below it the agency level where we were submitting comments are my president was flying to washington to give testimony and so forth we were working the case and so we have quite a great knowledge of this file which it's three c d s if you were to print it out a few bills the table and so in the sense of was the record complete and why would we want to be an use this label and they have participated in an agency process that's been going on for five years and in fact before that in a legislative process attempting to lobby the congress and so them there are unable to participate so simple from an equitable standpoint imagine how they feel about this now have the decision been negative wouldn't they have had a right and agreed and been able to appeal on their own so i think the purpose here of fish and sea and i have recognizing the rights of the parties is really stronger by allowing intervention because whether or not you want to call it a right right to use a label or an obligation if we use the label now the federal trade commission and essentially enforce the law and prevent us how you want to characterize it we have an interest and i think that's why the case law uses the squarely in the statute itself in the language of the special purpose and in the findings are references to the purpose of this law was to be you might say and incentive congress recognize and take the position that the law is only intended to protect all things and they ignore the other aspect of the law which is the means of protection it's intended to protect often is how by creating motivation of the program but does mr hu song quite clearly say that there's a matter of self interest the fisherman with the dock these procedures is a matter of keeping the eco system in balance not not harvesting behavior here we have the fishermen who are behaving in this way and so they want to reward and want to be able to use the label and indeed the secretary finds you can use the label now because of the lower court's decision were they to continue using this label on their hands there is a statutory provision they could be brought before the f t c under five u s c section forty five for fox misleading advertisement i think we've got your argument you've got about pointed out that they discounted i sees arguments and that we would do things that really require for adequacy of representation that they would make the identical arguments every single thing case well i mean as they have to defend their decision in other words that there are reasons you like federal regulation and you also want to defend their decision i guess my question is more theoretical in order to demonstrate that there's an adequate representation of your viewpoint is it required that the party allegedly representing your interest be willing to make every single one of your arguments or do our case the say that it's the government interest and the government interest is broader and that's a sufficient difference to allow us to intervene the cases also talk about what is the private party the constituent of the government i think the southwest case uses the word ace before every agency decision because of the standard of review you have to review the agency decision for substantial evidence for arbitrary from presales so if if that were true there would be no intervention on the side of the ok i take that point but i do believe though that ultimately all of these are ministry of law cases involve a situation in which the private parties who want to intervene on the side of the government are always interested in the same ultimate result and air a cocky case for the hawaiian case the court says the question is whether the party would be substantially affected in a practical sense so those rules i think are drawn in a practical sense practical we have a huge record another set of eyes helping to go through the record and point out to the court where the error is isn't going to hurt thank you you have about half a minute  and it says that i mere difference in litigation strategy does not mean that there isn't an adequate representation in the our kaki case there are two presumptions that forward one is that if you have the same ultimate objective as a party that's is a party there is a presumption that their representation is going to be adequate now there are exceptions of course where the government representation is found not to be adequate those exceptions typically in two types of areas one is the want is a lot more complicated in this case not only because it was a different stage of the proceedings but also because that case involved extremely complicated h c p s and c c p s a broad agreements  involving private industry various pieces of the government environmental groups that covered a large number of issues and in that kind of situation where there might be compromises to be made and there might be trade  offs they were maybe more focused on the vernal pools and someone else might be more focused on something else it might make sense to allow additional people with separate interests from the government and because the government might choose to trade off one way or the other here we have no such issues if there is one finding or there is one issue it's a yes or no discussion instructs the secretary of commerce to make a determination he is instructed to answer the question yes or no in this case the court has  determined that the answer has to be no and that's all the rest of this case is much more like they're a cocky case that in which the government is also representing the party's interests and the government continue to do so  there are it different so the least in theory between a government department saying we like this policy we think it's reasonable we've studied it carefully  we'd like to put it into a final implementation and someone says the absence of this regulation is killing me economically i know made there is a distinction motivation there are apps absolutely and i wouldn't argue otherwise but the case law makes clear that it's long as the ultimate objective is the same and as long as the incentives are aligned there is no reason for intervention i mean there are a lot of cases of course where the government regulates areas and the government passes laws and obviously they impact people disproportionately and some laws essential equipped businesses you know put entire industries out of business but as long as the government continues to support the decision that's made and the government continues to litigate vigorously on that side as they have here and as they are continuing to do that the mere fact that someone is losing money does not mean that they're entitled intervention clients position be i think that it's likely there are although i haven't spoken with my client on on that particular question with respect to the future that we believe that the government is making you know all the arguments that need to be made if you don't even want to be in this making well we don't although i would have to admit your honor that if they presented an argument that was wholly different from an argument of the government you know those are completely new and the government didn't want to make that i would have a hard but the ultimate result i completely agree with your honor that was my law school and my former firm worked on that case so i'm very familiar with that and i do think that that's in that case there were a broad range of arguments defined right to use certainly a mall and they're affected and their pocketbooks are affected by statutory opportunity so why isn't t had contracts or had permits for example in the phoenix case i would think that the sierra club case with respect to the water rights here there is a fair expectation if you will a strong expectation of course that sales will be made i mean the t existing permit issued by the government and having an expectation that he would make sales but as i say i do want to keep our focus on the adequacy of representation because we have fought the government long and hard they are worthy  counsel thank you roger regarding the softness interface i think the complexity aspect of it also applies here i also think that it's clear from that case that we have the same sort of economic stake in the case that is different than the government's tak regarding whether we would be adequately served by being and i'm accustomed fact if we are not a party for example we have fallen protective appeal so is the commerce department if we are not a party and the commerce department decides we spend enough money on this