morning that this case has been appealed following a decision by this court that the government's allocation of pacific whiting to the macaw indian tribe lack any scientific basis and was purely a political decision the case was remanded for further consideration after we requested that the court send the matter back to the agency for the rulemaking our request was denied instead the district court allowed the government to simply supplement the record supplement of the record with two declarations we are now back before you again and i have four points i want to make this morning briefly first will be a point with respect to the procedure below the fact that it was not remained for rule making i would have preferred even that the regulation be vacated but it was not and procedure proper procedures were not followed in our opinion secondly the substantive question about whether the so called sliding scale meets the requirements of the magnuson act that is it must be based on the best scientific information available we believe it was still and continues to be a political decision i also want to make one other point about the sliding scale that was not made in the briefs and that is to analyze the reason why the sliding scale starts at the lower volume official at seventeen point five percent and then goes to fourteen percent which is kind of the reverse of the way one would think about it logically and finally i would like to comment about the fact that this case is is not moot and draw to the court's attention the federal register notice of cyber april thirty two thousand and four volumes sixty nine page two three six six seven determined that it is no longer overfished that in fact two hundred fifty thousand metric tons should be available to all fishermen in the united states but secondly and most important i think for consideration by this court it references the fact that the united states and canada entered into an agreement with respect to the management of this fish at least this particular stock of fish in which they are catering in cash numbers seventy three point eight percent to the united states and twenty six point one two percent to canada now one of the central questions in this case and will come back to this is how much of the fish how much of the pacific whiting passes through the macaw usual custom fishing grounds and we have varying opinions from the government but one of them they refer to is the possibility and i think a macaw tribe takes this decision all of the pacific why pass through the usual custom fishing  i guess the question that i think needs to be answered is why then didn't we give half of it to the canadians that all goes into their worst like why do we give money twenty three percent and why have we decided that we give between we believe that between thirty five and twenty percent belong to somehow go through macaw fishing grounds there is no scientific basis for any of these conclusions except probably for the us canada decision which i think is based on y manager the agency for further consideration one of the issues that we have argued is that at no time at no time was the national fishery service ever spell out in a proposed regulation or final regulation exactly why they thought the sliding scale was the best scientific information available and in fact as our briefs point out in one nine hundred ninety six after a independent interest process comes they came to their own conclusion and said that courts conclusion that because the agency absent quite like engaged in for their rule making that utilize the same allocation method that the public receive proper notice am i making is that their best argument their regulation and that was that quick and the fact is if you look at those references it's like well what we said in the u s the washington was the best available science and what did you say they didn't say that they only said through and through me so i believe his name was that the allocation of the sliding scale was within the legal right so we have a scientist giving a legal opinion he didn't give a biological  fact that if you have stated something publicly on the record in giving an opinion and then later you change it i think the case is basically so you better be very specific to set forth this particular considerations you went into and exactly what conclusions you drew for the action you took and i just i still say that if you step back and look at both those declarations neither of them really come to any specific conclusion about the most important size type and location and each year the amount is determined on the basis of biomass but for some reason just rusting did not believe it was acceptable but on the other hand her job is to tell the agency whether they were arbitrary capricious in the scientific opinions that they made but in this case we have an unusual situation we're just rushing seems to be in our biter of science in us the washington different then i think the standard should be in reviewing agency decisions she in fact drew some conclusions about the buy a lot biology of pacific whiting which were wrong flat wrong they aren't life sound and the agency did never comes to a conclusion about what is a scientific basis what are the what of the what are the data points that they used to determine their conclusion that's why it's so interesting about this seventeen and a half from fourteen does their percentage go down when there's more fish available if and i mean there's no biological reason to that none whatever it's internally inconsistent they say all the fish goes through there was at one time or another in the candidate well time isn't part of the criticism of biomass that it may not be at you may not be the best it may not be what is it the best information available because it's different amounts go through different harvestable each season they cook the science that's available they apply what is available and they make a decision based on the record articulating the reasons why it you know that's how we make decisions about how much you know how many endangered species are out there all kinds of things we use this kind of modeling and we do it not every year every couple years we take a debt with we check the data we look at it the agency then draws a conclusion from the data and says it's either this or that which is exactly that you know the they and then we rejected the department's allocation on the basis that it is not based on the best available evidence right yes and now what they're trying to do is bring in the best now certainly not but i pointed out some things that greece and real serious questions about the agency's determination number one why did they do it different before number two what was the reason for doing it changing their mind purely politics needed a political decision  settlement for judged that they thought would be problematic for them and they ignored the signs they haven't changed their mind they haven't done anything to look into this in any detail and now along comes this us canada decision which makes it raises the question about any of their conclusions because looks like not all the fish goes over to canada twenty three percent might that means that the vast majority pool up just south of a car in the macaw emanate we don't know we don't know any of these answers to these questions because they're not in the record and so they don't have what i think is a rational basis in the science in the scientific data to conclude that this percentage is better than another percentage and this is extremely important because it is that number even from two to five percent percentage points are really important and if the agency is going to make these kinds of decisions on the basis of you know politics morning your honor is my name is james kilborne i represent the u s department of commerce and the national marine fisheries service with me at counsel table as mark sloan i'm representing the macaw indian tribe and we intend to submit our time evenly ten minutes  and this course two thousand and two decision this court upheld the framework regulation that the commerce department adopted establishing and recognizing the tribal treaty fishery recognizing the usual and concluding that the agency had not given a scientific justification in the record for that allocation yet directed it basically gave two alternatives for the agency to pursue on remey and one was to adopt a new regulation or the other was to adopt or to provide scientific justification for the one nine hundred ninety nine ration or allocation in fact the agency here did both of those things it adopted just not one new rule it adopted a new rule in each of three successive years for two thousand and two two thousand and three and two thousand and four and it went through the appropriate a p a notice and comment procedures it based its decision based upon scientific information if the plaintiffs here did not challenge those regulations so the full administrative record of those regulations is not in the record currently before the court but parts of it have been submitted and from the parts that have been submitted you can just tell that those determinations were based on scientific judgments so that alone satisfies the direction of this court's two thousand and two direction to adopt a new regulation i hate let me tell you where i'm a little bit troubled it if it's left if i make the argument it you know you could look at this and say that no method seems clearly that vast now are ok accepting the fact that what the law requires is the best information available  should i be troubled by the fact that the department scientific conclusions directly contradict the department's earlier conclusions about using the  it's like i understand that time changes but let me let me expand consistency and i think that's what co counsel is pointing out that on any given day let me explain it this way before you distant before the agency can make the determination about what scientific information is relevant it still it first needs to decide what the appropriate legal framework yes the madison stevenson act requires subsequently the treaty right has been defined and that treaty right in titles the macaw to fifty percent of the fish that pass through the reservation through the usual and cu fishing areas and the problem with the bio mass approach is it does not square with the legal treaty right and what the what the plaintiffs what mid water consistently has done here is to ignore you take a look here i should like if you take a look at the two declarations that were submitted in the remain and proceeding are the robinson declaration and the methought declaration it tabs twenty four and twenty five of the macaw supplemental excerpts of record they in turn attached declarations that were submitted in the us be washington sub proceeding that the find the treaty right those from the five and robinson declarations to go through and explain our reciting and explain the scientific basis for the allocation according to the sliding scale approach now one thing i want to explain as the  here have made quite a bit over the fact that that nymphs has not established that all of the whiting passed through the usual custom fishing areas and that there is some doubt as to how much actually passed through we don't have to establish to a scientific certainty how many fish passed through that scientific certainty is not the test the test is the best available science and the treaty right here at the the amount of fish being allocated to the macaw is based upon what they have requested so the macaw are requesting something that is less than their full treaty right which is what is being done in the sliding scale approach the fourteen to the seventeen percent is what the macaw themselves are requesting and that isn't the full amount of their treaty right so in order to basically show a substantial scientific justification for the fourteen to seventeen percent really what would there would have to be evidence in the record to show that twice twice the fourteen to seventeen percent that he has twenty eight to thirty four percent of the whiting pass through the mccaughey una areas and there is that evidence in in these affidavits the affidavit show that whiting migrate from southern california up the coast are all quiting pass through at some point in their lifetime pass through the you any area now the next scientist may not agree that all pass through but  bulk of them pass through and that sort of a substantial bulk is more than fifty percent and that is more than enough to justify the fourteen to seventeen percent that  are thirty three yes now that under the sliding scale the rationale of the sliding scale approach is it is actually a scientifically based allocation formula because as the numbers of fish go up the macaw have said we will take a smaller percentage of the fish now in terms of gross numbers you know fourteen percent of two hundred thousand metric tons is certainly going to be larger than seventeen percent of one hundred thousand metric tons so if you're if you're looking at the amount of fish they're taking under the sliding scale approach they actually are getting a larger percentage of fish as the of the fish improves our guess larger but it at no time is it more than fifty percent and the evidence shows that that there is where the the fishing effort is concentrated and by this these scientific determinations of where these fish migrate i am has my ten minutes and i would like to reserve some time for my co counsel here morning your honor mark simone and i represent the macaw tribe in this course in two thousand and two decision the court essentially made two holdings first that the tribes entitled under its treaty to fifty percent of the harvest  inconsistent with the treaty in multiple respects and it made a scientific determination that the harvestable surplus passing through the tries usual and customary or was more than enough to support the allocations that had been requested by the try the first problem with the vinyl mask method was that artificially limited the harvestable surplus of fish in the macaw area far below the actual amount of fish present in the area under the biomass method names did not consider all fish present in the cost fishing area to be available for harvest there instead it plied a coast wide harvest rate and a small multiplier to reduce the harvestable surplus to a however under the treaty right under the conservation subsidy standard and it's can't just say that fish that are they are not available for harvest it has to have a legitimate conservation reason for that making that kind of production and from the beginning it expressed doubt whether we could do that i don't know i'm not familiar with that your honor it's it's similar never met one it's similar to the park which is harvested up in alaska and it took talk which is harvested up in alaska and the think dr myers addressed this issue this problem with the biomass method and he pointed out that there was no concept yes yes your honor and and then it's used to make other products other things like imitation crab is the one that comes to mind not that i know we should i have people in the audience who can answer questions i for the feel embarrassed standing after guessing the answers  the fish present to a harvest to the harvest rate wasn't necessary for conservation and that in fact it would be desirable to harvest more the fish in a higher because they tend to be older and larger and for conservation reasons associated with fisheries management tribes request under the framework regulation there are almost a hundred species of brown fish that names manage it it doesn't allocate all those fish for the tribes until the tribes come forward and say we'd like to harvest this species and we'd like an allocation so in this case mccaw came forward and they said we'd like to harvest whiting and this is our request for an allocation so the issue for them is not why did the pick whiting why did they ask for these many fish but