defense counsel center for biological diversity animal welfare institute versus wilbur l los pasadena secretary of commerce at all this is case number tw because you now have a decision on the comparability issues and i think there are a lot of questions in my mind as to how all of that fits in if at all with the issue that's before us which is a preliminary injunction predicated on the failure to take action at the time now i don't i have a bunch of questions and i want you to answer some of them but my st question is  why isn't all of this something that has to be decided initially by the trial court since there are numerous legal and factual issues that are raised by the new developments in this case well we ok the young declaration it actually talks about and this is not something that's in front of us but i know that you gave us links to all sorts of materials young declaration i mean could you give us some background here you're talking about a final agency determination but the young declaration which i believe mr young is with the government she explains that on november th two thousand and eighteen there was a  memorandum issued by the government and compare ability findings but then just three days later there was a change at ministration in mexico yes and then subsequent to that change in administration i understand that none of the actual regulation that had been discussed or that mexico had originally proffered had been put into effect so it makes me again go back to  drenas point that isn't this a factual issue i mean you say there's a finally just a determination but your own declaration from its young says that there has to be a comparability finding still on the basis that the government of mexico has to f to put in place a regulatory comparable ineffectiveness to the u s regulatory program and i'm reading from paragraph twenty of miss young as to flourish yes your honor there was a final inclusive agency action and it was published in the f at something you said raises a question that i had about where we are in terms of the statutory language u s standards is that the government's position that the comparability  flecked only those fishers in gear types authorized to fish in the upper gulf of california and the agency then removes all gold that fisheries listed as operating in the upper gulf from the list of foreign fisher what is that all about i tried to understand that in the context of export and exempt fisheries and it didn't make any sense to me can you explain what that paragraph it's all yes yes your honor i'll try to do as as you what is the the l the santa clara and also all of the ones that have been stake an awful lot of the importation of fish from those fisheries is banned by the u s is that correct under different statutory authorities under the m m p under the agency's final determination in november there will be a ban on the corvina fisher identified and in there in terms of implementing that ban as it's doing now the agency will be putting and will be requiring certificates of miss ability for coming from the illegal fisheries setting aside the injunction that's in place if the injunction were not in place with those fish now be import of all now easily by down which now the reason would be what what to export that to swim bladder into the united states and which has happened then that that seven individuals were prosecuted for criminal violations by the u s attorney's office is that's wildlife trafficking and that smuggling the valid for a limited period unless we vote and wondering whether they've been revote given miss young statement that i had asked her about earlier where the she said that it new comparability findings need to be made responding to its concerns that the government's ago as i understand it has never implemented in is not currently implementing the regulations under which the us gave them the comparability findings the plan the plan that as pursuant to the regulatory scheme may decide to take further action and and it and actually may impose it has the authority under the regulatory the regulations to provide any part in that as farmer try county and then what the what the trial court has provided here not going to help because we can't prevent illegal fishing from going on in mexico and the that what i what i see here is that the only thing that has not been tested or done yet after all these years of talk and talk is the important ben and we're looking at the p b the are the potential for biological reduction and it seems to me is becoming a p b r the potential for by biological  one claim must be dismissed as moot and we can go ahead and proceed and we are committed to the trial court that where the agency to do that would promptly found a minister at a record that can be pricked judicial review but we need to follow the a p a here and this is just not following the e p a in any way in response to one of judge those questions a few minutes ago i thought you said but correct me if i'm wrong that the comparability finding w predicated on a an agreement that mexico entered into with respect to what would happen going forward not with respect to what was happening now on  ban is not and that's why the import been placed on that fishery but there also was it was based on the plan right and that's referred to in the papers as the plan but as i understand it mexico never implemented in has not yet complied with the plan is no saint so that means the judge presents question when he said that the basis for the for the agency's determination that has been taking measures and committed to take further measures and the mag and the agencies view currently as ms young verity and her declaration is that the agency is that mexico from the stamp of the agency appears not to be living up to its commitments that there's industry makes another determination consistent with the regulations remain de pose it could indeed but i think the statute allows you to have that time period i mean there is no compliance right now with the state the plan so what in the statute allows her to be in negotiation before import well in order to in order to do an import and a nice to be a finding that lawful regulated fisheries are are having that heated by catch applies to those for fisheries shrimp it would not be part of the import and because there is no legal authorized you will not fishery for shrimp shrimp as i said in judgment is not is a legal immaculate fishing is illegal and the for questions are i'll give you enough for example on exactly how the different regulatory regimes work exactly what they just did ok what you did what if you explained to me why it is that ms mccarthy has mischaracterized the consequence of taking those other fisheries off exempt category and is taken off the loft that it is illegal to import fish from those issues period not under the m m p a but under us law other watch that issue wrong that fisheries need not list from mexico the shrimp village fisheries now their final whopping twenty seven thousand dollars clude a trip from mexico the mexican government protests of saying hey you know these fisheries are illegal we're not exporting and the agency said and keeping an eye on the law because of evidence of continued illegal fishing and the key to mortality and that's in the public record that's what eighty three federal register and i ask you something so you're saying there's something that should have been taking off the list if they said that they were going to keep on the west but that doesn't and maybe i'm just confused but that doesn't seem to me to demonstrate whether when something's on the last list that means that it can come into the country when it's not in the  correct our position is that whether or not a fish fishery is on or off the list of foreign fisheries which i hope by regulation and by their terms doesn't even start until two thousand and twenty two so that's not in the media import ban but even then  know well you mean if something is off the law that it is not there is not a ban until two thousand and twenty two i thought being off the loft took you an up from the m p a and put you under the statutes that prohibit the imports from illegal  fishing we really should be having a discussion of these fundamental points where the parties are in disagreement these these have to be matters that are very clear i just find it well during that we're sitting here discussing really basic things about the way this whole system works and we're getting different answers from both sides i understand your honor i think that part of the complexity here stems from the fact that we have complementary and and dealing with invasive species the magnuson act ills with sort of just fisheries fisheries not helping fisheries management the marine mammal protection act which is at issue here the priority and that is to ensure that marine mammal were  what it does is it directly incentivizes foreign governments to change to improve their practices in order to re enter a lucrative market are you saying then that the illegal fish are not embargo that illegally quote fish that are awful  are not subject to they're not part of an embargo your honor under the marine mammal protection act there's not been the agency has not made a finding that you know to use that mexico as mexico's protect been done that needs to be done yes no yes you're right i apologize it's complicated they have curves you can make it as simple as you can because so far i'm feeling underwater with respect to the there comparability finding is restricted to that which means that their band is restrict that and that means that because it's difficult to police which fish are coming over the border the fact that it takes a more comprehensive be and will still it's likely to still give plaintiffs more relief because otherwise can be hard to tell you know it's easier to tell there's no bill that caught caribbean at all versus well as this one from santa clara versus and philippe we think that a comprehensive ban is both what the statute requires and what the facts here looking at the other register noticed by march th two thousand and eighteen it says effective generally st two thousand and twenty two fish and fish products from fisheries identified by the assistant and ministry are in the be imported in the united states if the harvesting nation has applied for and received to compare ability for id so does this language effective january st two thousand and twenty two is that the language you're relying on you for your your honor but i would say in addition to that argument does not turn solely on that the lot itself regulates what is it what's termed commercial fishing operation that does not distinguish between legal and legal fisheries and in fact part of what's argument that it doesn't matter what's happening underneath under all these that matters or that the numbers show that the book keepers and diminishing in number and that under the marine mammal protection that there's a remedy for that and then this remedy needs to be applied in that remedies an important ban and that in preventive seems to me apply it regardless of the other statutes whether it's legal fishing illegal fishing or any type of it maybe just two or three i mean i just don't understand i thought your argument was going to be a difference in what you your you are going to back your honour's correctly that is the core of our argument i was trying to address issues more related to to move and action that finance recently took your honour's absolutely correct the standards are being exceeded the marine mammal protection act is unambiguous in opposing a discreet and nondiscretionary duty on the age of you do you not agree with the welfare head you two parter and i think st i think it's important to note that their definition of us standard says shifted throughout the course of the fall they just had that but they settled on one that and this mccarthy is telling us that this is the current definition of u s standards that you think that is whether you look at it through the chevron lens are just as a matter of statutory construction is that correct in your view i think it is correct but incomplete your honor and the reason i would say that is if we look at even the break in the tory taxes she's pointing to so if we look at fifty  of potential biological removal level for a particularly mammal stock or comparable scientific metric and so either way we're getting at it your honor whether it's looking directly at potential biological removal which is all over the statute itself or if we're looking at as  findings are respect the seven nonviolent fish are not the fisheries we're suing over i think that's the critical distinction they keep on using the term comparability final but they're specific to these different fisheries issue and we sued over for specific gill net fisheries is at issue in this case that the paxil made some sort of comparability so you're saying there's three other fisheries at least there are in your suit in the basis for your suit they do not have comparability findings well that's correct your honor they declined to make a finding one way or another and they declined on the basis that they concluded that there was no legal bill that fishing going on in those areas no your honor we're actually left with you where you say no you're on she made no i'm not correct chart that they didn't make a finding to the infant i thought you were saying that they didn't address them at all didn't even consider them but it might be misunderstanding you they strike them from the law they remove them from the law and they did consider them to that extent they did but it's not the consideration that's rick that not the consideration not the determination that's required by national not sort of what's at issue are we only down to trying to figure out  contrary to what mr mccarthy is telling us that that the m m p a applies to illegal fishing is that is that part of the crux of the question now because it sounds like that's where you're heading your argument is that these fisheries that used to own that but were not on comparability determination but rather take an awful lot of are nonetheless under the m m p amish mccarthy s that they don't belong under the m p a because the m m p a only regulates legal fishing and therefore they have to be dealt with under other statutory provisions is that what the dispute the core of the dispute it decided that the statute in the regulation itself doesn't make a distinction between illegal and legal and so it applies to all and that's a determination again that's a merits question and does not it does not go to whether this case is still alive mind actually maybe if your colleague can find it you can continue with your argument that would be  me so i don't feel compelled to sit don't i do have a question that that goes back to the question of where this fits into the a p a is this in your view still a seven or sixty one southwest utah case distinguishes between the two and says that in effect there's a big difference between i'm not sure that this isn't a slight overstatement but a big difference between not acting and six to plaintiffs says which is you did something which was not correct under the statute that's that's what every a p a review case since nine so we're just going to take these fisheries off the list of foreign fisheries that's not the same thing as an actual comparability determination which we know what a comparability determination looks like right because they made it for the seven nonviolent fishery yes and they made a negative comparability fighting for the santa clara corvina fishery they didn't issue any similar sort of final determination comparability for the fisheries that are still at issue in our case i ask you something i was looking at the definition of export fishery in the regulation and as part of that it says commercial fishing operations not specifically identified in the current list of foreign fisheries as either exempt or expert fisheries are deemed to be export fisheries until the next list of foreign fisheries is published so what does that mean it sounds to me like it means that it doesn't matter whether it's on the list or not it's again this is the the list as a function of the agency regulation we still think that it's whether the import ban is required is that the trigger for that your honor the statute is whether there is remember i catch in excess of united states standards and your honor is correct that united states standards includes potential biological immoveable which there is no dispute here that that level is being exceeded here and that's a consistent factual position that the agency is not trying to back away from and it's no exaggeration your honor say that the accuser is on the brink of extinction and as you were just saying the statute makes the remedy in this case clear the agency may prefer negotiations and may prefer these alternate route remeasure as it may seek to as it says it's brief want to avoid market disruption these may all but these are not concerns congress allows the agency to take into account because the command of the statute is clear united states standards are being exceeded and an import ban under the n p a is the remedy that congress chose on page four yes did you have a particular stock that you're looking at or is it you just yet if you don't mind enhanced no i have it i just want to know what particular language  to disagree with you do have an alternative argument there was some suggestion earlier that maybe removing those fisheries from the last list is enough to constitute agency action on those fisheries but you're not arguing that right don't your only argument is simply that the statute doesn't pertain to illegal fisheries rights and we're saying that the statute does not pertain to legal fisheries and therefore in accordance with the statute and the regulations the you get to that is because the agency has construed the word commercial to refer only to legal fishing rights and there's nothing in the act itself that says commercial is limited to legal right yet your specious a chevron interpretation there with my reference u s standards those of the raf and the us standard refers to the domestic fishers which are licensed fishing the agencies instructed by congress to compare apples and oranges and you don't compare you don't compare fish it's banned it's banned under under those statutory authorities the m p a provides an import ban for commercial fisheries because it and the and part of the part of the the intended and beneficiary where the domestic fisheries of the american domestic fisheries that was a congress had intended it's and and ok the other thing i wanted to do your honor and judge stall i incorrectly responded to your question about the mexican agreement regulatory program and i asked writers to compare that definition proposed and successfully achieved by the apple ease themselves with the simplistic with all due respect to the trial kits truck or simplistic definition of united states standards applied at  and entitle to define it has defined it and regulations that have the force of law that have been in effect since two thousand and seventeen and then when there was about this five year period the impression given is that that everyone  just read to us and it's talking about i think their point here though is that they want to make sure there's procedural requirements that will make sure that whatever the definition is that it has some there's some way for the agency to actually apply that and have impacts but there's a lot of different ways you can read it but it says it's important that it have both a substantive bypass bycatch standard and procedural requirements that will allow and us to ensure nations are meeting the bycatch standard muncher i read it in the way that you're reading it now well in any account they did not they did not endorse what they're defending right now is the simplistic a question of united states standard two four h into the regulations has a date on the st page of the federal register entry which is fifty four to ninety that is january one two think your honor that statement is not at all inconsistent with the position that we're taking that our comment letter stated that united states standards includes potential biological move all and it's just about part of the potential biological removal levels for a quorum around which the structure of the base because it's looking at the current status of the the population of the marine mammal species and what it's threatening at six threatening us is a sense of how much mortality manmade mortality can tolerate and our common