the national park service is decision to enforce its regulations in waters where congress gave it no administrative jurisdiction the hearing association in the proposed amended complaint allege specific instances in which its members were ordered to stop fishing pole their nets and vacate those waters those orders were final agency actions subject to judicial review under the administrative procedure act those fishermen were not required to disobey the orders and subject themselves to citation and arrest in order to challenge the agency's actions the council excuse me we're talking about this final action are we looking at the situation where there is heightened patrolling of the water versus the actual stating that there will be no fish and you will be prosecuted immediately for doing so that you think there was some discrepancy with respect to that so that's the crucial distinction here your honor and why we contend this new complaint is not foreclosed by the mandate the st panel construed our complaint to challenge heightening of patrols in the waters that is a program matic decision that does not affect the rights of any individual it's said that might late later lead to practical effects but we are not there it is at best a st step in the enforcement process by contrast the amended complaint alleges specific instances on which orders were given those affected the rights and responsibilities of the parties who received those orders specifically if they don't dissipate they would be subject to arrest prosecution and potential criminal penalties said the complaint should be dismissed did not say with prejudice a simple dismissal does not foreclose the possibility of amendment in any context and that that's true district court and it's true as to the rule of the mandate substantively the court engaged in a construction of the complaint it there was information in the record about interactions between the patrols and the fisherman and there were statements that oral argument about those things but the court elected to construe the complaint as challenging of the patrols and not those things in an act of judicial restraint well that it was true in in  bicycle trails as well bicycle trails they shut down the whole way that that they did that didn't get you home free it seems to me the problem that i find with you case is that you're trying to get to an agency and i understand that and i understand why you want to do it i'm i'm not opposed to fishermen heard anything like that i ate their product all the time but we have a process that you have to go through and it isn't that the agent closed up you have to get the agency to make a final decision in the case of the united states versus wild fish conservatory chief judge thomas outlined that specifically that it isn't enough that some agent does something you have to complain to the agency and until that action takes place there's no case and in the end to judge thomas is case they're opening up tons of water and it was quite a quite a program it's more than just get out of the fishing boat so how well how he was established that the agency has actually ruled on this case sure i would point the court the case so i don't believe the opinion specifies it describes an informal meeting between the tribe and representative of the agencies in which those representatives referred to an informal opinion that they would following the meeting there was an exchange of letters that referred back to the informal opinion given orally at the meeting and that was sufficient to constitute a final agency action challenge and challengeable under the a p a now we have go you have to prove the nd step if you did went to the agency and so your honor at paragraph sixty through sixty five of the proposed amended complaint we described the exact same types of meetings and exchange of letters with the agency about whether it would in force the commercial fishing prohibition in these waters and the indication was that it was and so i think here is what this is what cabins this case  is that the individual officer orders directing us to directing fishermen to leave the waters you are clearly on this record reflective of the agency's decision to enforce and that furthermore that's a final decision the excerpts for this appeal believe we did in the st what corresponds to you referring to because you do have letters from the department of interior to commercial herring fisherman november th two thousand and twelve is that what you're referring to your friend is something different so i don't believe the informal exchange of letters for example between counsel is included in the record we do have the informational notices which are letters from the agency sent to the california department of fish and wildlife and requested to be provided to the fishermen that set forth the agency position excerpt of record seventy four dollars which is attached to the whole history your honor where the agency st suggested that it might have jurisdiction over the waters started providing these letters to fish and game asking them to provide them to the fisherman so the state of california disputed jurisdiction for several years did not provide them and that dispute was finally resolved several years before the actions challenged in this case and fish and game started providing the notices to the fish and so they were in fact received there were notices other than an agent with the badge coming all in and saying get out of the water that's correct this one for example is signed by frank dean the  that's that's e r seventy four dollars correct and there's a series of these that went out only several of them attached to the complaint but they are alleged in the complaint which is the one of the complaint allege about after that letter was sent out i thought there was some other further interaction that occurred there yes there are so so that was those are the meetings referenced that there graph sixty to sixty four and that we think are comparable to those that occurred in navajo nation subsequent to that there was a one year delay until the national park service acquired a boat to be able to patrol the waters position and we have throughout the litigation taking them at their word but i think what they do in this case is they are in disha that the orders to the fishermen to leave the waters are in fact final agency actions because those  ders are consistent with the stated position of the agency the touchstone of the inquiry is whether these orders meet the bennett test and there are two aspects of that one is whether the decision process the agency is at it and the nd is whether rights are determined i think it's clearly met in dense the informational notices began in two thousand and three infortunate began november of two thousand and eleven and eight years on and there's no indication that there's any ongoing process at the agency that would change the position that is set forth in the informational notices in its response to the herring agency and the position that its officers are taking in the field those also determine the rights and obligations  fisherman there's no intermediate unfortunate step in this instance to challenge they were the patrols were the st step a program matic decision about when and where to go on the waters the orders were the next step the only the only way to trigger a further agency decision would be to not comply with those orders and subject oneself to a rest and we don't believe that is required i'd like to reserve the right of my time good morning i'm a police court and i had some words for the department of the interior and the associations prior appealing this case this court squarely decided that the park service of pledged enforcement of a commercial fishing prohibition through alleged heightened patrols did not constitute reviewable final agency action the court accordingly remanded with instructions that the district court dismissed for lack of subject matter jurisdiction and the district court did so in the course of that rain man the district court correctly rejected the associations attempt to relate a gate the final agency action issues this court squarely decided already final agency action is unnecessary jurisdictional element of this case the rule of mandate seemed to regard the agency action that was being challenge this essentially the president's or the patrolling in the bay whereas the plaintiffs have now said we've come forward with specific instances where fishermen were told the remove their natur that they couldn't they couldn't fish in a particular area and that they comply with those and that does seem different then at least how the prior panel conceived of the prior complaint i'm happy to do that your hon prior panel opinion it's very clear that the panel gave the association an opportunity to clarify what it in fact sought to challenge in this litigation the association is incorrect and it's a misrepresentation that the prior panel limited its analysis to the associations complaint the associate the court gave that gave them the association the opportunity to clarify what are you challenging here what final agency action has the park service taken and i would point the court to excerpts of record one hundred and ten dollars footnote to the court's prior opinion the association previously clarified that it did not seek to challenge the notices that it spent the most of this argument discussing they clarified they did not seek to challenge those they did not claim those are finally agency action and i think judge wallace your point your questions were directly on point because the problem here is not a pleading defect there's not the absence of there's not a failure to plead an existing final agency action there is no finally see action in this case there are three operative you know there are three possibilities for how the association could obtain review of this issue and this was the prior panel mentioned one of them which is the petition rule making petition when the when the regulation was promulgated if they were aggrieved they could have challenge the regulation they had six years to do that under the could allow a member to be sanctioned and we recognize that that's not a good option and we're not saying it is necessary it has an assessment the supreme court said several times you don't have to do that you don't have to violate the law to be able to have finally agency action well the supreme court you may be talking thinking about susan b anthony list and that's a standing decision but there are a number of cases for instance that we have cited that there does need to be i mean there needs to be a final agency action in the case you know even the filing of an administrative complaint we've cited f t c the standard oil california supreme court has held is not reviewable so there there there is a standing component of that and we have that challenge standing but what they could do if they don't want to subject themselves to enforcement your honor is petition the agency for a rule make well you have mandatory meal you could do that but the question is whether they were required to do that that if you petitioned the agency and they either it can do general making which is a cumbersome process or they don't that may lead to final agency action which could then be a challenge but i think their point is that what they have alleged is that there were serious of notices that set forth the department of interior position on this and then individual fishermen were specifically told in the waters of san francisco bay that they could not do something which they understood to be on pain of penalty and so given those allegations i'm not sure why this wouldn't be the consummation of the agency's process on this issue i have to it's a two part answer the st answer is that this was already presented to the prior panel it's already decided it's rule of mandate and lot of cases prevent related cation of this issue but nd what your honor is referring to and there's really very little difference st of all also between the st to meant complaint and  the prohibition to its members they're alleging the same exact thing and the nd amanda complaint all they have added is names of their members and dates there's no difference substantively in the allegations it's the same issue that this court already decided but your the allegations of the complaint something considerably beyond just mere patrolling there's no sanction there's no order there's there is no no there isn't it's the same it's the same conduct that this court already evaluated and determined it's not final agency action and judge wallace was getting to this point is there anything from d c is no there is no sanction so you don't even have an agency action within the definition of the a p a let alone a final agency action which is of course that marks the consummation of the agents to seize decision making process and it has final consequence or it has legal consequences neither of these products is satisfied here that consequences of which they complain flow from the regulation they're the park services restatement of that has no legal consequences we have cited numerous cases in our brief that support this proposition that in agencies that stand for this important proposition that agencies re statement of existing law and an agency statement of opinion of how existing framework applies to particular facts is not reviewable and you know that i i understand but i understand that part of your argument that you can't have agency action by every agent running around on their own to get to the agency they must be the agency involved i get that and i i get the and the agency and there was that discussion no i can understand your argument that just because one of the enforcing agency you can fish here is not agency has action i can understand that there has to be more but isn't there more if the council's argument when there is interaction with the agency and there are some documents coming forth from that what you response to th argument no and they point it they point at the court i believe to allegations sixty or sixty four dollars those allegations are describing the same informational notices that they told the prior panel that they were not challenging there's nothing new those are the eleven dollars twelve cents notices that the park service issued annually for years restating the prohibition and then they're talking about same patrols and communications it's ident this is the same conduct it is the exact prohibition and the park service is opinion that it applies in these waters that is exactly what your honor is discussing is not finally now just hypothetically if they petition the park service to amend or change its rule and there was a you know a decision on that there would be a clear decision that there would be a focus for a p a review there would be a proper record you know this is this sort of alleging what happened and sort of a factual inquiry of what actually happened here and when and is unusual for an a p a case there is normally a clear final agency action and a record that develops that is the consummation of that decision now and a rule making petition would provide that and that's what you would have but your honor there is absolutely nothing of that sort now and to the extent that that association is saying that we now would like to challenge the informational notices they again footnote two of the prior penal opinion they said clearly we do not seek to challenge those that may also be in their briefs and this in this appeal it was looking for it but i couldn't find it in the limit is in essence the point that the informational notices give context to what is a new allegation in the complaint about specific interactions between national park service rangers or other people edge of the operating at their direction that once you had those interactions in san francisco bay were fishermen were told in some cases to actually remove their nets or that they could not fish somewhere they had they had the benefit at least by the allegations of the complaint of a prior notice that they had received stating that people who fished in these waters would be subject to at the same the allegations are describing the exact same height and patrols with a little bit more detail can i ask you how do you address the sturgeon case which has been in this court on two occasions in the supreme court on two occasions recognizing that you didn't address this jurisdictional issue that we're discussing here this morning but the facts are fairly similar in terms of somebody who had  who was stopped by park service op officers and told not to use in that case is hovercraft and one might imagine if there was a big jurisdictional problem given the lengthy history of that case it would have been noticed so what do you think is the difference between that case and this one well the st the st point of course that we have made is that you know final agency action wasn't raised and starch and other issues were raised and sturgeon but to the extent that this court or the supreme court assumed that your requirement to be satisfied holding has no precedential weight that steel company and its progeny but beyond that there are factual differ yes you know whether the united states makes a final agency action argument in a case is a case by case determination now is the association as mentioned sturgeon petition the park service for its in its allegation sturgeon position the park service and october tw filed suit before there was an answer now the state of alaska of course was also a plaintiff in sturgeon it filed a complaint an intervention alaska did a rulemaking petition and its petition was denied so you had to petitions and st you don't have that here the facts are quite different on that point but the main point is that the issue wasn't raised there and it wasn't addressed contrast to that here where it has been raised and it's also been decided by a prior panel of this court and i would like to return to that point for a moment because the rule of mandate and the law of the case are quite important they serve very important interests that in finality efficiency respect for the decisions of higher courts that are important here this court and also if i could explain for a minute what normally happens in a dismissal for lack of subject matter jurisdiction without prejudice it's without prejudice to a new lawsuit if there is there's no prejudice on the merits of this they could file a new lawsuit if there is a final agency action that decision though is is precedential and precludes of as to the final agency action issue but there is no prejudice that they could file a new  lawsuit but as i was trying to explain earlier it hoping to explain a law suit on a proper final agency action would be a different lawsuit because they'd have a different record there would there you know for and there would be a proper focus for the court review this case isn't that all you have here is exactly the same thing that the prior panel that you have the park service restating its regulatory prohibition which has been on the books for decades you have communications to the members you have no enforcement you have no sanction there's not again there's not an agency action there certainly not a final agency and they had ample opportunity to make this argument before the prior urgent decision had already been decided so any assumption of jurisdiction that happened had already occurred but this was flushed out before the prior panel the prior panel concluded that there was no final agency action and respect for that decision is required if there are no further questions i'll rest thank you counsel review the question is whether there's a final agency action that a p a makes those actions reviewable without regard for whether rulemaking petition could also be brought and that's clearly shown in sakit where  the property owners received an order affecting their property it was based on a regulation about what waters are waters of the united states they could have had a rule making petition seeking to change s procedures for what counts as waters of the united states that fact did not preclude their review of the final agency action order to remediate the property practically speaking of a rule making petition doesn't address our issues the rule is facially valid i'd point the court to the hypothetical we mentioned our briefs golden gate park in san francisco property imagine tomorrow the park service issued a notice that said we will be prohibiting campfires in golden gate park in the upcoming season the next day rangers enter golden gate park and extinguish people direct people to extinguish their barbecues and take their fires outside of the park no one would think the issue there is the agency's regulation prohibiting campfires in the national parks the issue is the enforcement action council counsel brought up a list of cases that refer to agency restatements a position and i think the parties are in agreement that informational notices were that in this case and judge press had it exactly right we do not challenge those informational notices standing alone and the government has said that those are not final agency actions so the parties are in agreement on that but the orders to the fisherman are not simple restatements of position at the very least there's a factual question about that on which we're entitled to be credited about what occurred but they conduct resembles none of the conduct in the cases that involve three statements of agency position those include a frequently asked question sheet a response to an informal request for an opinion before a city files a licensing application on nd appeal was your reason why these specific interactions were implanted in the original complaint came back to this court the st time around so we believe we had sufficiently alleged final agency action and that was not challenged until the st appeal that was not challenged in the lower court and that's the entirety entire explanation for the delay in this case is that that only became an issue once this court had looked at the complaint and ruled as it did i would just say as to the rule of mandate the st panel was careful to decide only on the issues it decided on and it would be a mistake to reinterpret them as deciding issues so san francisco hearing association versus the u s department of the interior's now submitted