good morning please the court my name is michael harris and i'm representing the appellant's friends of animals and predator defense on its face this case is about a plan to remove that is to literally shoot and kill more than sixteen hundred bar dolls for the purpose of assessing the impact of the removal on another species the northern spotted owl which has been in peril for decades primarily because of habitat loss but broadly this is also about the legal and ethical considerations when it comes to these types of human involvement in species on species conflict this isn't a case in which were put in cages and brought to the pacific northwest and inadvertently or maliciously let loose it's about a species that because of chang habitat conditions migrated across the country over a course of decades and now calls this area home as well this is a phenomenon that scientists are telling us we may see happen more frequently in the future so it's important that we try to understand the legal framework for this type of species migration before you get to the legal framework sure it seems from the record that the service trying to protect the spotted owl these are efforts that are made to ensure the survival of the species i agree is that not true i agree one of the things i'd like to point out is that you know we don't have any specific direction from congress on how to handle these type of species conflicts what the service doing is utilizing a number of resources and statutes that were designed to protect and conserve other species the problem that is raised by this particular conflict is both species have protections so it is true that there is a long type of scientific purpose for scientific purposes yes now the parties agree that protected under the mexican convention one of the four treaties that the micro bird treaty act implements what is a specific language in that convention that you're in the us and i was just getting there we're relying on article two paragraph a of the mexican convention which says that you can authorize the take of a protected bird when quote used for scientific purpose for propagation and for museum now this wildlife service will say all scientific purposes there is that's a limitless i mean any scientific purpose as they say whether it's to advance the science of the bird taken which we agree with well i think you i think they have broad discretion in implementing the treaties but section seven a for the migratory bird treaty act also says that in exercising that discretion you need to make sure that you are looking at the purposes and intent as right that you've got to say one of these this is a phrase here used for scientific purposes for propagation and for museums what's the common thread there what are these what is the context and meaning of these words and are well it is going to be a take for museums that obviously suggests killing of the species for it for what then and for again in scientific understanding what do museums do particular museums in hundred thirty six they are displaying specimens to gather broader education about it better scientific understanding about it understanding of its conservation needs what is propagation all about your propagating a bird in order to have a better understanding of its breeding behaviors understanding of its scientific and conservation needs those are limiting factors in those two terms that would you know which should be employed as well into the question of  o paragraph a of the mexican convention those were though that term needs to be read in context i thought that that it's for the birds that the scientific purpose is for the bird for generation scientific evidence for the bird similar i don't see for the bird in that statute or in that provision of the treaty well it says used for scientific purposes propagation and you just left out the word for use for scientific purposes for propagation and for museums i that's correct but those all relating to the bird this came up in another context in the turtle island restoration network case that cited by the government in their brief in which the court was asked to look at another set of exceptions for takes of migratory birds that one is under regulation for special purposes where it says you can authorize a take for the benefit of a bird species for scientific collect for scientific purposes to protect an individual bird or for other compelling justifications and the court using snatched canons of statutory construction said well there's got to be a common denominator here other compelling justifications can't mean you know for profit or or for something of like that and using you know looking at the context and trying to figure out how those words relate the court said what about the bird the permit has to be about the bird and that's what we're saying here article two of the mexican convention is authorizing scientific use as well as museum use and use for propagation for the benefit of the bird not the benefit of us now to be another of how and let's not directly how going to be for the benefit of the bird if you're going to shoot the bird and put it in a museum i don't understand it well because museums if you ask museum curator i think they would they feel that they're contributing conservation they research the bird today they use d n a samples to the masturbation by killing the bird well so that's so that's interesting so one of the things i think that the district court in the government sort of  took from arguments below were not defining conservation is protecting the bird keeping it alive making sure it doesn't go extinct the types of things maybe the endangered species act would do we believe conservation also means understanding the bird i mean we wouldn't be able to conserve species very well if we didn't have scientific understanding of their needs their habitat their d n a make a their breeding needs and so forth museums have contributed to that greatly i mean i've been in cape ball been cases where the expert witnesses on species conservation were museum curators and researchers for the museums so they do contribute to the conservation of scientific understanding as would some people say zoos do as well it's not an entertainment or for profit activity there is serious science that occurs within the walls of museums so our take is that you really need to look at the actual language and ask yourself what were the drafters of the mexican convention in hundred thirty six intending when they put in that phrase used for scientific purposes comma for propagation or for museum where they were really talking about taking birds for us for trying to pick study that has nothing to do with that bird itself and we just don't think that you could read it that way if you want to make sure all those words connect and fit together now i'm move on to another argument that was made in the district court in which actually makes up a good portion of the district court's opinion is that you know well isn't the purpose of the migratory bird act to keep a supply of these birds so we could use them and that's not totally accurate in the mexican convention there is two articles at issue here article one and article two in the district court conflates those articles are nickel two which we would like the court to focus on is really the protective teeth of that treaty and then sets out these limited exceptions like the one paragraph article one of the treaty sets out broad uses of certain birds for food sport commerce and industry the par is not being utilized for any of those nor is this permit issued for that what the district court does on page twenty one of her opinion is to sort of say oh the purposes of the treaty is for sport food and science but science is in article one what the district court has done is taken a narrow exception of the protections in article two and made it into one of the broad purposes for maintaining sustainable populations of birds in article one but that's not how they read together article one and article two have commonalities and work together but they have separate functions and goals and she c regulations or the regulation issue fifty c f r twenty one twenty three scientific collection permits it's not an interpretive regulation it doesn't have an interpretation in it it parrots the various provisions of the treaty you know says scientific permit scientific use scientific purpose it doesn't define well you know we have to go back a little bit further you have to go back to the statute sixteen u s c section seven zero four which gives the second secretary the authority to promulgated regulations for a take consistent with the treaties consistent with the tree price is that with the treaty the right and then you have to go then then you have to go to twenty one point eleven fifty c f r twenty one point eleven which says no shall take except except pursuant to a permit right when i take it then you go to the permitted permit requirement as scientific collection permit is required but that doesn't offer any definition of what a scientific purposes under article two of the mexican convention let alone any of the other conventions it's just sort of saying whatever that's not good they've issued a permit here for this particular scientific purpose why  well because it's again it's subject to the provisions of the stat of the of the treaties i guess what i'm saying in the context of chevron what i'm arguing here is two things i don't really think that the regulation provides any i mean it's  in their own admission admission it was an omission but it doesn't include anything it doesn't include any limiting factors or it doesn't even discuss what they believe the treaties mean but i would also argue that to the extent there is any definition here that has come up through the regulatory process it's just an unreasonable one it's just inconsistent with article two paragraph a when you don't just take the word scientific purpose of a context they get any deference to their interpretation of the statute through these regulations and through issuance of the program for this purpose ok so they did issue a definition just for this purpose right on august twenty ninth two thousand and fourteen one year after the permit was issued a permitting process  that this court has already said generally doesn't produce interpretations with the force of law but regardless of that the permitting process itself didn't even have a single sentence in any decision making document trying to explain why this was a scientific purpose for purposes of the mexican convention it wasn't until after the permit was issued after we initially commenced our litigation that they came out with a memorandum in a real that was never part of a public process that says oh by the way we're going to define it to mean whether it benefits the species itself which we think that's what the intent of the next invention was or if it benefits any other species that just doesn't hold the force of law to give deference to but again if you want to look at it as persuasive that's fine but you have to go back to the treaty i think this court has to convince itself that this treaty doesn't place limits on scientific purpose and we would say yes i think ok thank you may please the court my name is rachel heron on behalf of the u s fish and wildlife service friends of animals is asking this court to read into the migratory bird treaty act and the convention a requirement that does not appear in the text and that is not necessary to accomplish the laws intent fish and wildlife service thinks that for these reasons it is self evident that the conventions and act contain no such requirement and we think that this court can agree with that interpretation under any deference framework or under no deference framework at all unless this court has a particular place they'd like to start i want to respond to just a couple  saying that a few of the sort of close readings of the mexico convention that i heard council give just now do not appear anywhere in their briefing for this case that i am aware of in particular i'm talking about the suggestion that scientific use as used in the mexico convention should be read in light of the phrases that follow we do however agree that the mexico convention is the one that matters here  that being said we don't think that there's any reason the court needs to be troubled by that argument well should we should we read it the way he suggested oh no your honor i don't think you should and i think  yes to the extent mr harris was quite proper inside the number of them which is so she's not a tour birds of a feather flock together so you should take words in the context in which they are used that's correct we have no using this species well your honor i don't think that that i certainly don't think it needs to be read that way i mean this could be right i think as a series of three different options scientific use either or otherwise interfere with its habitat so yes i think it could be read consistent in that way but i also think that it's simply not necessary to assume that scientific use is limited only to those two things  e the only other point that i would make unless your honour's have other questions is that the migratory bird treaty act despite what i think counsel  indicated is about managing use not about preventing use and a lot of what friends of animals is arguing here depends for its force on the idea that there will be no limit to the use if this particular limit that doesn't appear in the text is read into the text however that is simply not the case because there is a more direct limit that the service it here to in this case which is that the take for whatever scientific purposes being authorized cannot be at a level that will imperil the species being taken and friends of animals has not provided any explanation of why that backstop isn't sufficient to safeguard against the concerns about excessive exploitation that they voice in their brief so because there is no textual hook for their requirement and because we think there is no need to read that requirement in order for the act purposes to be fulfilled we would ask this court  mexican treaty paragraph we're asking the court to look at that why doesn't propagation refer to both types of a holes i thought about that too right it says that the species taken will be used for propagation i think you've got to look at this a little historically too i mean i don't know if the migratory bird treaty act was intended to address or use for scientific purposes collar propagation or museum use right that's correct who could be propagation of the spot of the propagation if you took it individually i think you might you could just like if you took the words scientific need you could read him as much as you want into it but to start let's start with museum though how are you taking the species for museum purpose to benefit another purpose that's another purpose but as you said they need to be read in context and there's some pomander naam denominator among those and the common denominator appears to be that the species taken is just being directly used for those activities and you know if you look at the government's own profit explanation it gets the first part right used for the benefit or scientific understanding of that species the rest of it is just sort of ok is that really what the drafters meant when they when they enacted these conventions or not i see my time's up thank you counsel interesting case you appreciate your arguments this morning and safe travels