morning jonathan would for the appellants of hell for two collectively as the fisherman and please the court electors are two minutes for a battle this appeal can be resolved through a straightforward application of the administrative procedure the a p a provides that any final agency action long nine hundred sixty five requires the service to implement protections for southern california's fishery in its fisherman and does it no with order to terminate those protections well the early rule clearly says we're going to terminate all of the following conditions why didn't you challenge of then if there is no authority to terminate so we didn't have to challenge that then the the lesson from this court decision and when river and the center for biological diversity cases is that a prior agency action that might also be illegal for the same reason doesn't shield subsequent agency act wind river is really quite a different case what happened in wind river that it was quite an forseeable that this would ever be applied to the particular piece of property in question here the this property in question of acres that there was never in question whatsoever we know exactly where we're at what they're talking about geographical areas both for the management area and then for the smaller area in which the you see orders are placed and the earlier rules pacifically says we terminate in the following if any of the following condition well what more do you need to know in order to make the challenge you're now seeking to bring so once again the the the answer your question is no court has ever accepted the argument that if an earlier it is action is legal for the same reasons you can't challenge arm and it exempts fisherman from the e s a that there's it's a little tick of the experimental population the experimental population is now gone which means that because the experimental population is now gone the exemption from the ends of little tick requirement of course is also gone because there are no there are no c r s as to which that would apply though we're drifting into the merits a little bit which isn't before this court where a planet we are listeners and i'm trying to figure out is what  came to this court and said that the agency has adopted a new right to regulation which is an agency action that imp incorporates it and is illegal for the same reasons that is exactly what's happening here the twenty five rule is clearly an agency action which terminates the mandatory protections in a statute that violates it and is challengeable under the a p a i don't see the two thousand and twelve rule is doing anything other than was clearly contemplated in the nine hundred eighty seven rule that's true but it still violates the because under the a p a you need to have an agency action the challenge in this challenge is the two thousand and twelve rule and so that hadn't yet been finalized and even thought of that agency action could to challenge the theory it's true could have been used against a prior agency action but that's when river and c b d says that that doesn't block subsequent challenges because because it wasn't for suitable that they might terminate no she didn't say that at all it just simply says that because this is an agency x and the later regulation it can be challenging under the a p a and the if he doesn't think anything like the limitation that your honor's questions is suggesting that you have to attack the first agency action that's vulnerable on these grounds you can challenge any of the later ones but to get at the earlier question you it they're going to do no they didn't say they want to do it they said that if any of these criteria are satisfied and if we can't decide why they were the program might have failed then we can go but all that was speculated the agent the they were going to challenge that would have come in and say in fact it is going to fail the service isn't going to know why and thus someday down the road they're going to violate the statute under the a p a you need you can't bring the claim until the combination of the process that violates the statute here that's the twenty twelve rule not the eighty seven regulation and so as i said a key aspect of any a p a challenge is to identify what is the agency actually agency action is actually being challenging the point is absolutely clear on this if i could direct the court to the first paragraph of the complaint which is in the excerpt the records of page twenty one in twenty two it expressly says that in december of last year the service violated the statute by ending the management zone that is an a p a claim they have identified need to see action and argued that it violates a statute or is contrary to law that's all that's required and there are no other limitations from the a p a no court for this court nor any other court have ever accepted subject to challenge there is no limitation like if your theory would call an earlier wind that you can't bring it if that were true when rivers wrongly decided because a petition to resend the old regulation would be on the exact same theory that would call the old regulation to would be wrong decided because the theory against the regulation would also mean that the earlier definition was illegally decided so it's simply not true that any court has ever accepted that arthur are arguing here is completely consistent with this court's decisions in wind river and in c b d and i would direct you to the fifth circuit in dunn mccampbell the fifth circuit like this one follows wind river and in that case the fifth circuit explained the reason why when river says you can challenge individual enforcement actions or petitions miles is because those are agency actions chant subject to challenge the government's argument is clearly inconsistent with the rational now of when river and c b d and if all must be rejected and as i think part of the confusion is because in wind river in c b d this court hughes terminology that is similar to this court's analysis for when characterizing claims as either facial or as applied in c b d the court said that you can't bring a facial challenge to the old regulation i think what it meant was something like a direct challenge that you claims that are failed regulation is invalid in all are essentially all of it that locations and as applied claims that hinge on some unique aspect of the particular plaintiffs or the case that's clearly not what it was getting at because if it was see what is wrong with decided their argument in c b d was that this new regulation is invalid because the definition because they as they alleged it incorporated the definition of the originally legal definition which was illegal in all applications this being one of them it must be illegal the same in wind river if they filed a petition asking for the repeal of the regulation they couldn't directly challenge that too would be a facial claim under th facial forces as applied but none of them in just the similarity of language language doesn't mean that some sorts of agency actions including the twenty two over would issue here become immune to just review because the firy supporting them your honor rachel heron on behalf of the federal law police the fisherman sole claim in this case should be viewed as a facial challenge to the one nine hundred eighty seven rule establishing a terminable sea otter translocation program and when the claim is viewed in that light it was properly dismissed i think that in that case there is that would be a closer case b and the reason that i'm hesitating here is because the reason that this should be viewed in the government's view as a challenge to the one thousand nine hundred seven rule i stems from the particular regulatory and statutory context here and specifically the fact that the fishermen could have brought this claim in one thousand nine hundred seven that they chose not to that what they are essentially challenging now in substance is the one nine hundred eighty seven but if it's a challenge if it really is what you say it is which is the challenge of the eighty seven rule the  four rule could have been challenged on various grounds all that the government is arguing in this case is that these particular plaintiffs needed to bring this challenge at an earlier time because that challenge was available to them and because with the earlier time so that they could have they could have bought the claim you want to answer that question it's necessary to take a look at the broader statutory context in which the nine hundred eighty seven will happen so i hope you'll indulge me on that and what's important there is that the law at issue here public law ninety nine six twenty five all parties agree gave the service discretion as to whether it was going to and not to see order translocation program no party has argue that the service was compelled to do so and that's important because when the service decided that it was going to use its discretion it did so with a condition and that condition was particularly that the  terminations when expressed criteria were met when the service and acted that particular kind of trans occasion program they were doing something that was irreconcilable with the view of the statute that the fishermen advance so the fishermen knew at that point that they could challenge and they had incentive at that point to challenge because the one nine hundred eighty seven rule itself was introducing sea otters to a location that sea otters had not been in for decades if not a century or more and the fact of moving them there in the first place would arguably have impacted them enough to impacted the fishermen enough to give them standing to sue at that they could have and in fact did file an administrative petition with the agency seeking a change in their rules and then go to court when they received a denial of that petition which is what happened here in not  the government doesn't contest that they can go to the agency and with an administrative petition seeking a change in the rule and that they would then in fact be able and that's not barred by the six year statute they have that done that in twenty say you've got a petition you've got to wait you've got away long enough to claim the non action by the agency and then bring one of those really difficult to bring actions that says the agency should have ac to get to the second answer so the first answer is that in the vast majority of cases the government agrees that things should proceed by the simpler mechanism that there can be a challenge to a later action that applies an order action and that there can be a challenge by someone who was not aggrieved by the first action in response to that new application in the new action it is simply the case that there was not a new application in the tw don't generally need anything more for an a p a challenge the problem here is that the government is simply contending that their challenge is not properly viewed as a challenge to the two thousand and twelve rule because of the  scheme because of the fact they could have brought this claim in one nine hundred eighty seven and because of the fact that the only thing they are challenging now are things that were available to challenge them in one thousand nine hundred seven your honor i would also point out that the effects of treating this as a what they are doing and what their complaint seeks is in essence and in substance a rewrite of the one nine hundred eighty seven that requires the service to keep in place parts of the one seven rule that the fishermen like preventing them the service from from taking from continuing to implement parts of that they don't like counsel may i interject a question please of course like the comment about what's troubling me about this case if your position is they should have challenged the terminations provisions within the eighty seven  but at the same time well now that the eighty seven row apart from those provisions was favorable to the for fishing interests because it gave them a and i'm wondering if it would make more sense in terms of administrative law to say they can challenge their actual termination challenging what was said back in may he said your honor to address the first part of your question first i don't think that it is fair to say that the one nine hundred eighty seven rule  whole was was not favorable to the fisherman such that they were not aggrieved at that time it is true that there are provisions of the one thousand nine hundred seven rule that the fishermen like and that they are seeking to preserve exemptions from take liability incidental take liability in the management zone being the chief one however the net effect of the one nine hundred eighty seven rule was to move sea otters to a location that the administrative record at that point showed had been a productive commercial shellfish fishery and that was going to be impacting impacting the fishermen's ability to do any shellfishing in the translocation zone itself so not the area where they got you know this exemption from the incidental take liability but from the particular area that the others were being moved that act certainly agreed to th and we said it could have been the basis for a challenge to the rule on whatever grounds were available to them at that time and with regard to the second half of your question your honor the government would agree that to the extent the very the very thing that the fishermen are challenging and in fact the only thing that the fishermen are challenging are the things that were clearly asserted in the one nine hundred eighty seven rule itself it's simply not the case here that any circumstances that the fishermen have challenged the district court gave them an explicit opportunity after it dismissed the case against them to amend their complaint to clarify if they were not actually only challenging the ability to terminate on any grounds if they had other grounds that may have come into being later than the one nine hundred eighty seven rule and they declined to do so so you can see that they were challenging it based on that excess exercise of discretion to terminate that would be we preclude your honor the government i absolutely agree is that to the extent they were challenging the services determination in two thousand and twelve that the creature you for terminations had been met that challenge could absolutely go forward at this time thank you i like to begin by addressing the complaint there's simply no way to characterize this complaint of the challenge to anything other than the two thousand and twelve rule the twenty two over was identified as the cause of the fishermen's injury it's what eliminated the protections for them and their fishery and what's the basis for your challenge the twenty twelve rule we argue that it exceeded the agency's statutory authority in violated the statute because it has no with order to do what it did in the twenty first and is the argument you're making against the two thousand argument is that under the statute the agency can set up an experimental program to destroy terminable is that right it can set up the pro you can actually terminate it it's not want to make sure  ve on the same page because i think we are i think your argument is that the agency did not have the authority under the statute to set up a terminable program so i write no our complaint says our complaint says that they didn't have a terminate the program at the the protections in the twenty twelve rule that's the only thing we seek relief against we see anything but the argument as to why they can't terminate is because what because they can't have them they don't have a legal right to terminate it right on the statute that  so in other words the one nine hundred eighty seven rule is wrong because the eighty seven rule sets out the ability to terminate parts of it but it's important point out that's exactly true that would be the same thing to be true if we filed the petition which the government admits we can do and bring this exact tricky case in a sense because a basically i have to say i'm sympathetic to allowing challenges to be brought later rather than forcing them to be brought earlier on pain of losing them so i start out with the basic idea that the wind river line of cases is a good line i cases and the line of cases this is too late sorry about that is a undesirable set their line of cases so i start out with a general proposition favorable to what you're doing here but it seems to me then what's happened is that hundred eighty seven you saw exactly what was going on there you didn't have some i think you are you would have been thrown out of court for lack of standing if you challenge that earlier rule because there was a fish really you were being locked out of that is to say in the relocation zone it seems to me that maybe you want to lose on the merits or stead of on the statute of limitations but it seems to me that you're trying to have your cake and eat it too well so the merits obviously end up with court but i disagree i don't think we're going to challenge the establishment of the translations on the sat you clearly allows them to do like so that with some injured us the statute allows that the only injures us and i see them getting close to my time is the terminations of the protections that apply outside of it within the management that's what they contends legal and that only that provision was only violated in the two thousand and twelve rule they weren't harmed by the regulations indication that some day perhaps a third circumstance of them at the agency might do this the just like to clarify something is it your argument that if the united states were to be preserved and continue on for a thousand that area that the agency would have to keep this program going with the protections you've got for a thousand years could not trauma know the program so the go on forever congress chose to allow any finally it is actually a challenge on the grounds and the governments that we can at least challenge one than all of titian to get exactly the result we want here well if we can do it that way we have to be able to do with this one because