obligated to carry out the core requirements of the act want to counsel declines to do so in the first instance if left to steer the district court opinion could blow a crippling hole in the act because it would transform most if not all of the requirements that congress established to me situation because the magnuson act includes both mandatory and discretionary provisions so in this section of the act which is the part of the act that all is a grant of authority to the agency to act when the council fails to act it says may because it may make establish its own secretarial amendment when the council fails to go forward with a discretionary but it doesn't then it doesn't have to want to description or a provision right but already made his so when the statutes are read as a whole that it has to when the council fails to act on a mandatory provision look at the overall statutory scheme congress set up the magnuson act to take immediate action to conserve and manage fisher resources and to place them under sound management if that may is read to  but in this situation if you look at the structure of the act the section that we're talking about right now eight hundred fifty four eight hundred fifty four a and b state clearly that the secretary shall review draft fishery management plans in amendments and regulations to ensure that consisted with a national standards and all the required provisions of the aca is mars other  is mandatory in the situations where these core requirements of the act of congress carefully drafted to fulfill the acts purposes are net are not met by the council the structure of this section demonstrates that  hundred fifty four eight indeed deal with those situations when an amendment is submitted a draft amendment is submitted to the secretary puir to review the secretary reviews it to make sure that it complies with the act if it doesn't comply with the act or other law it sends it back to the council to take another shot at making it comply but if the council doesn't act in the first instance or the council doesn't act in the second instance when it's set said back by the secretary that's when we get to eight hundred fifty four c and if that first actually dealt with a discretionary provision under eight hundred fifty three b then there is no obligation on the secretary to act because congress didn't say that fishery management plans have to require those types of measures but if it's a required provision like a requirement to add a stock to a fishery management plan it's in need of conservation management or required to end overfishing then the secretary's obligation to act undersea congress carefully crafted it to use the word maybe because it's a grant of authority it's not a great of discretion to the fisheries service to ignore all the requirements of the atoms no other courts that have looked at similar situations have agreed that it's the fishery service this ultimately responsible for ensuring that the x provisions are met the courts and the flaherty case begin case and the related e c n case all recognized and stated that it's the fishery service that's ultimately responsible for making sure that the provisions of the act are carried required or there's a requirement of the fishery service the council has taken up the world making process and then it stopped the rule making process so we're in a situation where we have a requirement under the act but there's no dispute that these fish these were here in chad require conservation management there's no dispute that eight hundred fifty to each requires that fish that need conservation management be added to the act the dispute is that the fishery service argues that this is a grant of discretion for them to ignore the mandatory provisions of the act the act can be read consistently if the way that i'm arguing  if the made in this section is used as a grant of authority it would be an absurd reading of the act to view this as a strictly discretionary provision because it would allow the fishery service to ignore all of the requirements of the act and that's clearly not what congress intended when it wrote this long statute that is designed to put our fishery resources of the country under sound management your honour's i'd also like to address the right to review under the magnusson act and seven zero six two as well as our view that the fishery service here did take depleted populations of rearing shed under a sound fishery management plan it's hurting our clients who are small businessman recreational fishermen who are unable to go out and harvest the predators that should be without the intervention of third you're trying to because it's the fisheries service that's alternately responsible for ensuring that fishery management plans are put in place with all the required provisions in the act including provisions so that's that's the time of year which is nearly year round when this case would apply most directly east fish swim out to sea the co mingle with the fish the mackerel and the squid and butter fi regulations in place for state waters that are put in place through the atlantic states marine fisheries commission but that only covers the area of shore out to three miles so during a small part of the year when they're in this  in these waters there are regulations in place but during the other times of the year when they're out at sea there are virtually no regulations in place and none of the required provisions of the acts such as the requirements to manage populations according to that you know scientific evidence of you know how abundant they should be and catch limits and measures to protect essential fish habitat none of those provisions are in place for the one hundred and ninety seven miles in the easy to go beyond the state waters it's when these fish are in those waters that they're caught in large numbers by macro fishermen and thus it has star rule me saying there were committees formed and there are were meetings held for over the course of sixteen months to initiate this rulemaking and then rulemaking stopped and under the a the denial for rule making qualifies as a federal action  good morning robert london representing the national marine fisheries service i just want to start right away with eight hundred fifty four c that's the provision that plaintiffs claim creates the mandatory duty here if you look at the plane language it just does not it those the statutory language says the secretary shall review the council's action so that the council approves an amendment it's transmitted to the secretary then the secretary asked to review that amendment either approve it partially approve it or disapprove it but if the contrast here is with a fifty eight hundred fifty four seat when no such amendment is transmitted and there was no amendment transmitted here then it's discretionary authority and the secretary decide whether to or not look at the entire statutory scheme that helps them i don't think it does the statute here is clear that the councils are distinct from the secretary to fisheries service the councils in the first instance are to prepare fishery management plans and  simply be lumped together with the secretary of the fishery service this isn't a crippling hole in the statute and as when it's a scrap rather it reflects congress choice to give the secretary discretionary authority said in response about the last two weeks and it said that they're rejecting their argument the magazines are fighting a problem with our need of with the agencies need to work in a set timeline for remedial briefing so they've got the same already believe me here so you can just report with respect that amendment fourteen and amended fourteen is one of the changes in addition one that is when the council voted not to proceed with amendment fifty it said we're going to take a look at this again in three years in the meantime  council's working committees have continued to study this the freer deadline is a year from now and the council will take up the question again so this wasn't completely cut off forever or it's rather postpone for further study decision in a moment fourteen explains further why that's the case this is complicated complicating questions of overlap there's lots of issues of why the river area chad aren't doing as well as they could dams of river access clean water is their a different stocks of these fish up and down they can exceed board some of them are depleted compared to the historical level others are less the pleated end of the but the bottom line is the data is just incomplete that's and that there was no basis at this point for a listing of the danger species act and that's the same reasoning that applies here with respect to how to the stocks to the fishery plan this is a complete further study make sense that's what the council said it was going to do and now we're about a year away from the they the secretary has discretion so i think the review would be that the secretary abused her discretion in refusing to take the action plaintiffs have asked for but there would be a record created they would say we want you to have these stocks secretar four see to that to the management plan the secretary would look at that would consider the submissions from the parties who wanted that and would have to explain why or why not she is doing that and that would then be reviewable but it would be  here because it is a discretionary decision fisher service is the expert of this field and we'll be here arguing that should be very deferential but it's a way to get to court and the district court noted that avenue here and made clear that the secretary and they brought that both under the magazine exactly eight hundred fifty five f two and under a p a seven of six to make you do concede that there is standing with the claim for relief under case is that if we cite the parker case and i think plaintiffs cited the vietnam veterans case they seem to say you assume the validity of their legal claim i'm not entirely sure what that means to be to be frank if that's the distinction that is simply assumptions of fact that are seriously then i think there would be a question about about redress ability and traceability or causation as well because remember this i mean or it may not make any that this court is also said that it is long as you don't reach the merits of their claim here think reaching the merits of their claim would be holding that there is a mandatory duty that this if the secretary is not satisfied i think you could still side of the on the threshold question of there meant it was not stopped by the fisheries service it was a vote by the council not to proceed with the amendment fifteen at this time and nothing that was transmitted to that the service in the service then did not take any action or the magazines even that so that means they both don't have standing with respect to that claim because there's nothing that's because nothing traceable to the action by the fisheries service and there's nothing that's regrettable because there is no action to make it or set aside there's no proceeding that fishery service the fisheries service has characterized this is a purely matter of choice for the agency that congress established but that is frankly inconsistent with the purposes of the act as i said before to create a comprehensive scheme for managing stocks of fish that require comprehensive or they require conservation measuring to bring them under sun management issues your honor th that's an open question but you're right it appears that there are not a federal agency and the courts that have looked at this and we believe the statute make clear that it's the fisheries service it's the responsible party here every the council has economic problem for our clients and for clients like them all along the coast the fishery service could simply choose because of this word made in this grant of authority to ignore all the provisions of the act that are designed to protect doing the river here in chad populations have been declining for over fifty years and much more precipitous later since these big industrial federal fisheries have ramped up and that has effects on straight sweet fish who fish