judge may please the court in dismissing the lacy act indictments in these cases the district court incorrectly relied on an exception to the lacy act for activities regulated by a fishery management plan in effect under the magnusson stevens act a federal fisheries law that regulates fishing in federal waters the district court's reliance on that exception was in error for two main reasons first the plan that the district court invoked which is a management plan prepared by a group of states as part of the atlanta states marine fisheries commission interstate compact group was not in effect under the federal fishery law the magazine stevens act but second even if that plan were in effect as a legal matter under the mattress and stevens act the defendants activity which is regulated which is fishing in federal waters is not regulated by that plan that is so because the plan is  prepared by a group of states who can only have regulatory power to regulate fishing in state waters defendants fishing occurred in federal waters so it was an error for the district court to rely on the exception for activity regulated by the plant before turning to those arguments points i wanted to just provide a little bit of context that the defendants are four of approximately a dozen different individual commercial trawl fishing vessel captains who are all indicted under the lacy act and then the remaining cases that are not on appeal are still pending before the district court and the disposition of the lace you have charged in those cases will depend on the outcome here of those individuals so d and they they transported tons of striped bass that were caught in knowing violation of the secretary of commerce his regulation prohibiting that catch of striped bass and federal waters some of the defendants two of them here were also charged with making material false statements to the secretary of commerce is national marine fisheries service about where they were fishing they claim they were fishing only in state waters but vessel tracking indictments will show that the fishing did take place in federal waters contrary to their statements crux of your argument is that this plan will on the bass and not the states commissions prepared is not in effect under the mattress and stevens that one is that it was not prepared under the substantive legal authority of the magnusson stevens that i don't think anybody disputes that it didn't follow the procedur requirements of the magnusson stevens act normally that statute sets up a regime where federal counsels are prepare management plans for regulating fishing in federal waters and then they submit those to the secretary of commerce for her approval and they submit regulations that the secretary can can tinker with a little bit but only change for technical reasons before she sets them out for public notice and comment the bass act on the other hand doesn't any longer provide any authority for those federal fishery councils to prepare plans governing fishing in federal waters it simply has an authorization it once did but it no longer does it simply has an authorization for the secretary to issue  and it speaks principally to state regulation in state waters now the coastal management act that you're out there your honour's talking about was modeled after the commission's bassed act planning it authorizes the commission made advises the commission to continue preparing management plans governing fishing in state waters for other species but it does not speak to the preparation of plans by federal councils which are the traditional regime under the that now this is a very specific regime in the district court and it's expressed in some of my friend's briefs had some problems with the the complication of this the complexity of this regime but this is a specific highly specific regulatory regime that congress has chosen and it fits the striped bass the unique features of the striped bass particularly well given that congress has recognized that the striped bass is  primarily a state water fish but it travels in or jurisdictionally not only does it live a life cycle both in the ocean and in freshwater but it also migrates with the seasons up and down the atlantic coast in the winter time migratory populations tend to congregate in the southern states like the carolinas off the coast there and there's some perception in the public and this is expressed in some of the secretary of commerce is federal register notices and we've cited in our brief there's some perception in the public that large female bass fish tend to hang out in the winter in federal waters feeding fattening up before they go and spawn a little further north so there's a federal enforcement loophole that congress was attempting to correct when it authorized the secretary of commerce to issue this regulation it would be indeed strange if by the court's reasoning an important enforcement tool in in the federal government's criminal toolbox if you will was taken away from assisting the states in enforcing their own state law after all the lacy act itself was passed more than one hundred years ago to assist states with enforcing their own state laws when it came to wildlife that the problem there were lots of wildlife were taken in violation of state laws and then transported elsewhere where they could defend its cannot be prosecuted congress stepped in then to assist the states not by demanding federal regulation but by providing a tool for federal prosecution on wildlife taken in violation of state laws the bass act comes from a similar motivation congress was intended to help the states enforce their own laws and to help the state's commission complementing its efforts the first go wrong in his analysis so i think when he is identifying the plan prepared by the state's commission as a plan that is spoken to by section fifty one fifty eight see that's a critical mistake it's tricky because fifty one fifty eight c does talk about a plan but if you look back at the statutory history of that section it's referring to a time when the fishery councils the federal council were authorized to prepare a plan for baths they never did but that that provision got left in there so he relied on that to say this is a plan under the bass act but fifty one fifty eight  see that section talks about a plan being authorized under subsection a which only talks about regulation it doesn't talk about and it talks about the secretary's responsibilities not the commission's responsibilities so there's a disconnect there as well  the district court then airs again and saying that that plan even an accepting that the plan is effective under the bass act and and made effective as a magnuson act plan the district court errors in assuming that that plan regulates fishing in federal waters and that's the critical language in the lacey act exception it's an activity regulated by a fishery management plan the district court cited the commission's plan and it's not in the record but we quote it from we quote from it on page forty three of our blue brief and ten eleven of our gray reply brief and what that commission plan says is that management of striped bass in the easy which is federal waters is within the jurisdiction of the secretary of commerce so the plan itself expressed lee disclaims authority to regulate fishing in federal waters it says that is left for the secretary of commerce so even putting aside the question of the legal effect of that plan it simply is not the case that defendants fishing activity in federal waters was regulated by the particular i mean this is an area where congress has spoken with specificity of policy concerns to assist an iconic fish that's you know this conservation is and in trying with the nation's history and it's  i you know i think it's i'm coming up on this court to to look at the language of the statute and and the statutory history and to to see how the district court strayed from the correct interpretation there  in addition i mean i think that this is this fish by its nature poses challenges and managing for its conservation it because of its inner jurisdictional nature which congress recognized in the purpose  findings of the bass act there is no one sovereign that possesses authority to regulate this fish throughout its entire range so congress carefully divided the responsibilities between the states and the federal government maze of regulations you have to work your way through to get to the u s or in this particular case we have a veteran district court judge who sat down analyzed it and according to you got it wrong and if he gets it wrong as a practical matter how do we expect the average citizen the fisherman to know what he can do or can't do if a veteran district judge in your opinion gets it wrong well i think that the pa to the result is think the path is fairly clear i think the text of the plan itself when it says that the secretary of commerce regulates fishing in federal waters if it simply can't mean that the the states do the opposite that they regulate fishing and federal waters so i think that was one point that the district court nest that is fairly plain on the the face of the commission's plan but regardless of their is and scienter requirement in the lace yeah the defendant have to know that they don't have to know that the existence of the lacy act but unlike a lot of federal statutes they do have to know that their conduct was unlawful but the official even based on your argument this morning to get the result you want to reach you have to take the position that some of the words used in the regulation are inappropriate and should be disregarded but then this is not even normal construction of a statute or regulation that we would that we're talking about ignoring some of the language because you have to go back to legislative history to realize that that language should be in there well i think there's another i mean there are there are other ways that's one alternative way of understanding that provision you can accept that that language that we say is an error remains there and refers to the commission's plan and still by looking at that provisions reference to part and that of that statute discover i think the ordinary person can discover that that part they only talks about regulations not about planes and it talks only about the secretary of commerce not about the states and their commission so i think there are features of the statute that are complex and and and all of that but i think there's a path toward a clear result here that ordinary people can understand and i do think in in the one of these vagueness cases i mean there are too late cases we've we've cited in our brief where vainest challenges have been rejected granted they were  and they were in other contexts but in both context the court relied on the knowledge requirement that the hear the fish have to be taken knowingly in in violation of the secretary's regulation and i don't think there's any question that the government  order dismissing the lacie actresses in these cases are proper the government's theory of prosecution in this case is one that has never been approved by an appellate court before in terms of they are trying to apply the lacey act to a situation and allegation of illegal fishing for striped bass and easy and i'd like to address if i could just begin with the points that the government just pointed out where they claim that the district court got it wrong the first point that the government makes is well the government says that this issue fishery management plan that's been issued for striped bass undoubtedly by the commission is not a plan referred to in section fifty one fifty eight c of the bass act and we would submit that the government's got that wrong on a number of first of all the bass act itself authorizes the commission to issue such a plan it defines the word plan in the act as the plan that we're talking about in this case and it goes so far as to set standards for the commission to set incorporates the secretary's power will do just have the headers of regulate what does it say what was the section four point eight point eight point one says that with respect to federal waters the commission the the secretary will issue regulations covering the easy that is but how is that happen there's no no plan and like this well that's part of the plan your honor that's part that's written in the plan so it's part of the plan sham to do something is part of doing it it's not authorizing it it's saying that this is what the secretary is going to do the second and the government's argument on that point is that the commission is overstepping its bounds because it doesn't have jurisdiction to i'm just asking what is how does the management land regulate station in that area because the plan makes because the text of the plan makes part of it the regulation that is at issue in this case the secretar regulation the plan says in four point eight point eight point one this is part of our plan this write what the secretary makes for this regulation that's how it regulates the activity what what does it do what is the bill the fisherman to  the the commissions regulation says that it prohibits the taking of fish in the this taking of striped bass in the sea that regulation prohibits it the plan says this is the we're making part of the plan this regulation that's our response to the government's argument what are you arguing that a state can authorize the secretary to issue regulations no your honor what i'm saying is that this plan is making part of it the secretaries of regulation that the plan is not saying we tell the secretary to do a b c or d it is recognizing that the secretary makes that decision and it is incorporating into the plan the secretary's decision about fishing in the easy and the statutory scheme here reflects that because the striped bass at necessarily says we have this plan and then in subsection says any plan or regulation issue under subsection a the enforcement provisions of the magazine is after going to plot to it as if it were issued under the magnuson stevens act now the government says the plan is left in subsection c as a result of scribner's there and that is vital to the government's position to win this case the government the government has to be right about that i would submit respectfully that the government is wrong about that for a number of reasons number one is that occurred in the one nine hundred eighty eight prohibition on taking striped bass from that easy the point that the the basis of the district court's order and the basis that were to the court is that violation of that regulation is not prosecutable under this exempt because of this statutory scheme under this scotus statutory scheme congress is saying that we want this fishery management plan to be treated just like other fishery management plans that are issued under the magnuson stevens act and as to those the enforcement when i look at all these statutes and regulations and i ask myself what can you fish or can you not striped bass everything i read specifically addresses that says that any big fish you can catch on there's a moratorium yet through some hoarding to the government a tortured examination of the statues somehow we come up with the answer well even though everything's but explicit says you can't fish turns out you can fish legally and so  overgeneralization on the woods it's not going step by step but well if you take a broader view of it that's what to me you come up with in your honor and i think that ties into the second point that we've made in this case when you look at the broad view of this is as as judge fox in a district court said the term he used is an overwrought mess and what we're talking about here is the government is saying this conduct is prosecutable under statute the lac we say and the district court found for him it's that that doesn't mean that the government doesn't have some other remedy to pursue if they believe some violation has occur we're dealing with a discreet question of whether the lacie act provisions  and one of the questions i had in looking at the government's reply is well this lacy act exception talks about fishery management plans in effect under the mattress and stevens act where does that apply you know and i went and looked and it turns out that there are about thirty five fishery management plans that have been issued out there that cover about seventy five different species that say all different kinds of things about when you can fish when you can't fish what you can fish for how you can fish for it and all of those fit under this lacey act exception and the reason that's important is that means that fishing in violation of the secretary's regulations in the easy as to those seventy five species does not violate the lacie act so when the government argues in their brief that there's this big enforcement hole as a result of the district court's ruling that's not really accurate because we know as to all of these other species that are covered by other fishery management plans that they're not prosecut striped bass in federal waters being outside the jurisdiction of the fish if would could not be regulated by the bass and your honor i think that the question of jurisdiction or whether it's something that's part of the plan or two separate issues the commission is not authorized to issue is to is not authorized to tell the secretary to do a b c or d but what the commission can do is make part of the plan the regulation that's issued by the commission which is what they did in section four point eight point eight point one and the reason that we can say that is because we know that the bass act itself in visions that the secretary is going to issue these regulations and that there is going to be this plan that we're talking about in this case because it authorizes the plan to be created it authorizes the commission to make that plan it tells it it provides standards and fifty one fifty seven for the commission to do it again on the news magazines even so there is not your honor and that's and that's an important point you're wrong because the government argues that this is this vital commercial species and the regional councils they make the argument in the brief or the ones who should be making a plan and they have what we would suggest to the court they haven't because of this plan because of the commission's plan the council's haven't act because the bass act has the commission make that plan and so that's why they can't there is no traditional fishery management plan issued by the regional councils as would occur under the madison stevens act because we have this plan issued by the commission and that's why fifty one fifty eight c is important because congress in fifty one fifty eight c is saying we want this plan issued by the commission that we've authorized enforcement provisions of the manison stevens act to apply to it just as if it had been issued under the madison stevens act and that's one of the steps that the district court adopts in its ruling but it had about the saying that the commission can strip all government of it's a party to prosecute the lazy no it's not well it is your honor congress made that decision by enacting fifty one fifty eight c just like all those other fishery management plans issued under the magnusson stevens at the twenty five or thirty five or so those are prosecutable under the lacie act either under this exception congress has made that choice and while the department of justice may argue for a broad expanse of reading of the criminal statutes we know from the rules of statutory construction that the court has to interpret criminal statutes strictly if the commission adoption plan doesn't have to go to the secretary well it does not not under the basket and again that's congress choice that's congress choice and i think part of part of the problem that we would we would suggest the problem not exist with the government's theory in this case is they want to change what the bass act says the only way to give effect to subsection again in subsection c the government says well we just got to ignore the word plan as a scrivener's there a point i want to make in response to the lengthy argument that's made in the government's reply brief about that where they go through the legislative history in one nine hundred eighty eight is when the amendment occurs that the government says congress made a hundred five dash one forty six and when they restate the entire bass act in public law one of five that's one eight hundred six they still use the word plan in subsection c and i would suggest of the court they did that for a reason because they were referring to the fishery management plan issued by the commission the only place in the statute the only plan in the bass act that is referred to is this fishery management plan there is no other plan so congress had to be referring to this plan we would suggest of course and the only way to give effect to congress his words and their sports circuit precedent along the lines of it's the court do it it's the court's duty to give effect to every phrase and every word of  the only way to give effect to that word in subsection c is to find that congress is referring to this plan which means that this plan the met the enforcement provisions of this plan the enforcement provisions of the mag's and excuse me a plot of this plan as if it were issued under the magnuson stevens that and under the lacy act exception that means that the lacy act exception applies because the legislative history that we've pointed out in the doubleday case says we would say to the court has never been done because those reasonable regional councils recognized that the bass act authorizes the commission to issue the plant cover and strike that the plan is in place so that's why the councils haven't acted as to this species and i think the point that i'd like to make clear the court is the government i think in his briefing argues that well there's kind of this hole in the enforcement provisions as to this important species well the the management plans issued under the madison stevens act which on dow didley would fall under the lacie act exception include many important species salmon dolphin fish mahi mahi sea scallops all very commercially important species our point is that congress has made this decision congress has decided that in this scenario the magnuson stevens act applies and not the lacy as well this is this  want to fish in these war your honor i'm not saying it's legal i'm saying it's not prosecutable under the lacie act they are subject if this conduct were proven they are subject to whatever provisions would apply to them and literally they are civil penalties there are other potential there are potential criminal penalties under the madison steams act which would not a plot of the conduct that's alleged in this indictment but there are civil penalties that would apply and again that's congress's choice the government may not agree with that but that's congress choice but the point that we want to make to the court is we're not saying that if the government there's a difference between not legal to fish and prosecutable under the lacie act those are two different things simply violating the secretar could i don't think it does your honor because the issue is whether it's part of the plan whether it's in the plan and again our position is that the plan the you know the governments that the governments take on four point eight point eight point one i believe council used the war expressly disclaims we would say just the opposite we would say that the plan is embracing the commission's regulation it's making it part of the plan it's not expressly disclaiming anything if they intended to not make it part of the plan section four point eight point eight point one of the plan would not be there it would say anything about federal waters instead they included it and they do that is not part of the commission's issue but the commission is making that that part of their plan they are empowered under the bass act to make that point and congress is saying in the again i think at that step of the analysis judge i think if you step back and look at the big picture i think what congress is trying to do in fifty one fifty eight c is to say that we want this plan to be treated just like all of the other plans that are issued under the magnuson stevens act that's the that's the plain reading of fifty one fifty eight c and the government tries to get around that by essentially saying ignore the word plan and so that in section fifty one fifty and of course we would say that you can't ignore words that you especially where the statutes been amended three times since the time where the government says an error was made including one substantial revamp and that word was left in there every time already explained that plan does not regulate defendants fishing in federal waters the question of where in the commissions are don't look like water groet that's right i mean it's it's speaks to the secretary's authority to issue  regulation on federal waters but not a plan and the fact that there may be other plans for other species but not for the bass act simply further demonstrates our point that this plan is something  different it is not a plan under the madison and as far as what the plan says to purportedly regulate ass in federal waters then we've we've gone over the statement that they say that the secretary of commerce has that authority not the states but if you turn the page to the next very next page of the commission's plan it contains recommendations to the secretary of commerce about how to regulate bason federal waters that the secretary has never adopted in fact the commission is at the secretary you should allow fishing in federal waters the commission was on record as opposing the original the secretary's original regulation saying that we think there should be some fishing in federal waters allowed the secretary disagreed so it would be strange for the the recommendations in the commission's plan to be regarded as regulating fishing where the the commission has said things that the secretary isn't doing that she should do that simply is not the normal definition of how a sovereign regulates condo and in addition we do have this problem that the states cannot act to regulate fishing in federal waters and that is the centrally the conclusion of the district court i mean the discourse reasoning depends upon the opposite conclusion so that can't be correct my friend mentioned that this prosecution this type of prosecution has never been accepted by a federal court  said in our reply brief page twenty four several prior cases that we've brought and obtain pleas for but it's true this is an issue of first impression that does not however make the government's theory  not viable here addition as to whether there is indeed an enforcement loophole i mean the fact that there may be a difference for other species and that species that are not like the basket don't have their own separate statute where congress has recognized the inner jurisdictional problems of regulating the fish and that they depend upon the way the fish lives in behaves that that is something completely separate for those other fish to be regulated by these these other plants the bass is simply a unique fish that has the congress has specifically spoken to several times and it and that is fairly unique in the federal law for  get its own statute where congress has paid so much attention to it so to take away this in foresman tool from the government would disserve the purposes of both the bass act and the lacey act which seeks to assist  empower the federal government to assist the states in regulating species where those species are crossing jurisdictional line the the striped bass is a fish that by its nature poses conservation problems conservation challenges for regulators for both the states and for the federal government congress has examined this problem and several different statutes has specifically spoken to the question at issue and has chosen to separate clear lines of authority which we in the states on one hand coronating through the states commission and the federal government