nelson representing the secretary of commerce and the assistant administrator of the national marine fisheries service lark loss will present oral argument for five minutes of our time on behalf of miki addressing the issue of standing this case concerns the question whether tuna that may be lawfully imported in the united states can be labeled as dolphin safe the district court erred for two main reasons first the district court below ignored fundamental principles of administrative law and erred in finding that despite no was compliance with the international dolphin conservation program act of one thousand nine hundred seven its final finding was arbitrary and capricious under the administrative procedure act second the district court erred as a legal matter and for during the extraordinary ramadan of a ring and with instructions to preclude the secretary from subsequently complying with the id c p a each of those questions a review didn't know vote by this court and no deference is given to the district court's decision first the district court erred in three fundamental ways on the merits of this case it ignored fundamental principles of administrative law it this is a case where there was mixed scientific evidence that was reviewed by an agency and in those circumstances the united states supreme court has made very clear in baltimore gast and other cases and this court has has upheld those cases and interpreted them consistent with the administrative record that in scientific but the problem i'm having here is that the district court didn't ignore what the agency did what the district court said was that you didn't follow the statu certain studies had to be done but there was never any indication of how those had to be done or or much information on what was actually going to be required in those studies and the supreme court has also made clear in cases such as that where they say go realities here are that the fishery is a string we successful there's not a lot of dead dolphins to study and they've they've significantly reduced the death of dolphins from over three hundred thousand a year to less than two thousand two thousand a year so there were not as many studies at the end of the day that turned out that there were not as many dolphins that can be studied but but that is not inconsistent with the plain language of the statute simply says go conduct in a crop the study the only requirement that was given was they had to be over a three year period and there were no crops the analysis done in one thousand nine hundred ninety one the crops analysis done in two thousand and one a crop the analysis done in two thousand and one so there really isn't a question here that considering the deference due to the agency that they complied with that statute now admittedly it wasn't enough to to get population results but that wasn't a requirement the congress institute in fact this was just the two studies th judge henderson picked up on were just two pieces of a much larger puzzle that were put together there were forty some odd scientific records that were done there's thousands of pages in the record hundreds and hundreds of hours that were put into making this determination so it's really unfair to go in and pick out these two studies and say oh well this this is really how we're just going to throw this out so the  basic principle here is that agencies do deference not only on how the studies done but in how you're going to interpret that evidence and there were and the evidence here was inconclusive you know on at least three of the four major three the four major factors what we do know however is that the direct mortality was significantly with then normal range there's evidence the evidence in the record suggests that even considering the interact a fax they calculate separation of in the indirect effects of calc half separation the direct mortality was between thirty one percent for one species and thirty nine percent of the potential biological removal so what we can say with a surety is that the direct effects of the per se netting are not as significant harm to do these dolphins with regard to the ecosystem and with regard to  the additional the growth rate it was less conclusive here but that's exactly where agencies are entitled to deference is in determining which of th the i thought there was i thought i'm sorry i thought that was pretty much evidence that there wasn't much growth rate at all there is there's inconclusive evidence on what the growth rate is there is some suggestion that it's between one and two percent there is also present evidence that it might be lower than that and under one scenario there's no question that for one of the species there is the potential that it may be negative but the problem is none of that was conclusive estimate is that even if you accepted that the growth rate wasn't where it needed to be how can you tie that directly back to to the fishery and there wasn't enough evidence to do that to you we said you were required to to to do some definitive conclusions and that's exactly what the agency did here was make definitive conclusions on the best record available before him and tell me again why you couldn't do more  dead dolphins well there's a there's a whole number of reasons why he said they were doing so well well number one i mean so well what has to happen here first talk you have to go and train foreign individuals to go on these foreign vessels because there's no united states vessels that are actually doing this per se netting right now so you have to train them you've got to get you've got to get through customs they have to send your crops kids down through customs they had to train people they trained twenty five some odd people to do this and a lot of the foreign countries just didn't send him out on the boat once big went out on the boat you actually had to be on a boat where a dolphin was killed in the per se netting and the reality on the ground is it's just not happening very often and usually what's happening is about five thousand sets don there's only a thout the about a thousand little over a thousand of the of the these dolphins that are killed each year to get to the ranges that no initially had indicated had to be done it started said you can't do this you're not going to be able to get the population data that you need everybody recognized that it was going to be a problem so earth islands letter is sure which way that  are arguing is that congress told us going through with three year study we did a three year study with the best we could under the international concerns the cooperation that we had to receive the permits that we had received the training that had to be done the kits they had to be analyzed the scientists that had to analyze this data they did the best they could with what congress told them to do and there was no indication it actually doesn't make sense that congress would have imposed the restrictions that they including the chest body which is the catch and release and the necropsy study they also said go out and get information other any other information that's available so it's not congress did not limit no way to looking solely at these studies and that's one of the main problems that the district court had here was it picked up these two and said you were wrong on these therefore everything's wrong and ignored the fact that there was a lot of other evidence in the record and then across the study actually supported that these were healthy dolphins impact so which way does that cut i mean i think it's a fair assumption to say that it's it's inconclusive on those two main studies but the direct mortality and the other evidence that was in the record was enough that the secretary was with  circumstances can you take that discretion away from the agency to go on with further you know the problem with that argument and it's not a problem you correct me if i'm wrong congress to fix the cutoff date they funded for a period of time circumstances i understand remains when there's a cutoff date and the question of funds i'm not so sure this automatic a judge ferris that's a very good question a similar question went to the supreme court in two thousand and three and in that case the supreme court held on the six three decision that the cutoff date is is not determinative of whether you remain in this to the agency in the other option here would have been for no way to say hey we don't have enough evidence we need more time and i think they would have been well within their rights to do it instead they said we're going to make a finding here they have actually done additional studies there's a two thousand and three stock assessment study that's been done there's another one coming up in two thousand and seven our reply brief in a footnote outlines all the additional appropriations two point three million dollars has been appropriated for additional studies so there's a lot more that can be done there's a lot more that will be done and that's really what the law requires here this is not so rare of a circumstance  that that that the case should not be remanded back to the agency for further proceedings with that as you say i know that's not the reason that the court used to call it had its own reasons and that's what we're going to have to also deal with but was a totally different case by the way it was absolutely no evidence in the record at all at that point you know it was an initial finding and and basically my understanding there was just move on to the final finding doesn't really make sense to send the initial finding back when you had a final finding coming two years after that so i don't i don't believe that was actually sent back but but i mean kind of it was a different it's a totally different circumstance really i mean here the irreducible constitutional minimum for standing nor do the parties dispute whose burden it is to establish standing it is the plaintiff's burden the question is whether the plaintiffs have satisfied those requirements for standing and it is our position that it will lead to breach of private agreements with their dialin institute and it will make earth island institute monitoring out for its more difficult because captains on ships may lie i think in the course of briefing earth island  they're affidavit in support of their standing argument state is that they feel that they are a bill of the to enjoy study and watch dolphins will be jeopardized we think that that chain of causation and i don't mean to belittle it but it it is a chain of causation that has many links to it and we think that the links are not strong enough and that the timing of the alleged injury is not sufficient to fall within the parameters of set forth by the supreme court well this is not a case that involves endangered or threatened species it is a case in which the relief that the claim to seek will not have an outcome or not have an effect on the alleged injury because this isn't a case in which to know that it is not lawfully sold in the united states will become awfully so it will have no effect on the two no sold in fact it won't have an effect on the majority of tuna sold because earth i want has agreements with what is stated was about ninety percent of the canneries and hundreds and hundreds of processors and importers to maintain the dolphin safe label so what this case involve but it may affect whether or not people want to buy it and when the impact is based on third parties or based on hypothetical concerns then it's not direct and concrete enough i don't want to take up my council's rebuttal time so unless satisfied the requirements for standing supreme court in that case was unanimous on the issue of standing all nine justices found standing it was not an endangered species act case the question was whether the secretary should be forced to certify that your parent was not properly complying with international whaling commission requirements and in theory that might have caused japan to kill fewer whales and in theory that might have caused more whales to be available to the individuals who wanted to go view whales that was more than enough to satisfy the standing requirement and we fit precisely within that within that case the declaration submitted in support of the preliminary injunction requ made clear that numerous individuals had specific concrete plans to go view dolphins in the affected areas i also draw the court just briefly the court's attention to one case recently decided in the ninth circuit and in fact  authored the earth island institute another case where the plants vs root them back for fifty nine f third nine fifty four from august in that case there was no showing that the potential destruction of a certain amount of spotted owl habitat would kill a specific number of birds and that someone would specifically not then not see that bird and there was a challenge standing and a challenge was rejected so  mandate to do the studies that he was directed to do and it's it's pretty clear the answer that is no and i'm i'd like to get to that in in a few minutes but i think a potentially more important question here is whether setting aside that failure there was any evidence at all to support the secretary's finding and judge henderson looked at this record he looked at it for a long time looked at a thoroughly and carefully he wrote a long and detailed opinion and what was that all of the evidence although the evidence was not conclusive and we can see the evidence is not conclusive all of the evidence supported the view that it was the fishery that was causing these dolphins not to recover and if i could try to simplify the case a little bit i think the government wants to make it a complicated case but it's not a complicated case there are three questions are the dolphins recovering the government concedes that the dolphin populations are not recovering at best they might be growing a tiny bit they might recover in seventy eight years they might recover in two hundred years there is no dispute that something is having an adverse a significant adverse impa the government quite rightly went about trying to decide what was having that significant others in your view the literature they pulled together their own scientists they put together independent expert panels and they decided that there were three plausible reasons they could be having this impact there's a lag period which there was no evidence on and the government does not argue with the base of the secretary's decision so we're left with two choices it's either the huge change in the environment of the eastern proposition or it's the fishery or possibly both in which case it still be a significant adverse impact and the government admits that there is no evidence to support the view that the ecosystem could have changed enough to be the entire cause of the population's failure to accomplish in terms of that global warming isn't warming it's i don't know if it's global warming your  final science reporter are very clear that the data does not support the view that the environment is the cause of the dolphins not recovering and after the final science report dave pulled together the opinions five members of the expert panel on the ecosystem they all agreed that there might be some impact but it could not explain the failure to recover and so then we're left with one possible cause the only cause the fishery now what the government wants to do is say we've done all this study on the fishery and we can't exactly quantify how many cabins die because their mothers are killed and they can't get their milk and we can't quantify exactly how many dolphins are killed on vessels that don't have observers and we don't know exactly how many are killed because they are tired after being chased by speedboat for hours on end and are then killed by sharks and we admit that nobody knows for sure exactly but all of the scientists say that there is a definite effect and that the effect could well be enough to cause the entire lack of recovery now that situation to simply it's just a question all of the evidence points to one cause all the evidence points to the fact that the other potential cause is incorrect and on that basis we believe that the answer is clear and you probably anticipate that i'm now going to move to the re man point because this is related so what what the government argues that it is only in the rare case that you know we shouldn't allow the when they were supposed to start this program continually dragged its feet refused to conduct the studies it was supposed to conduct improperly assign default positions that i want to take allowed politics to govern their know anyone can make a mistake in terms of what congress tells them to do but the court in the first panel was very clear in saying two things one you cannot have a default position you must go and do the best you can with the best available scientific evidence and to you cannot allow political and political influences to a factor decision congress has asked you a yes or no scientific question and the evidence is quite clear that to address i agree but on this point i think that that's wrong judge henderson has seen the secretary and the agency and the litigation strategy for many many years and he had in front of him not only the cold record that is before this court but also the agency's actions in litigating the case and withholding documents that demonstrate the political meddling in continuing to advance the argument that they didn't have to do what congress told them and i think the judge henderson could evaluate that with his own eyes and ears and that futility the conclusion that the agency would not do what it's supposed to do even if given a third chance is one that is entitled to deference for that reason if i if i may your honor that is also a remain would also be futile for another reason and that is even if the government did finally do the chasing and circumvent task of study and the next process that evidence could not on its own support the conclusion that the fishery was not having a significant adverse impact and the reason for that is that it's not just the dolphins who are killed in the nets that are killed by  fishing practice it is the calves who would never be found in either of those studies it is the animals that suffer from kidney damage and muscle damage through the repeated stress of being chased as often as once a month by the speedboat who subsequently weaken and die it is through the predation of sharks and pilot whales on animals that are weakened by the chase and none of those animals would even show up in the studies those studies could provide additional evidence that chasing encirclement kills the dolphins and is sufficient to explain at least a portion of the failure to recover but there is no way they could prove the negative the only way to prove the negative or even to obtain evidence of the negative is to come up with another reason for the failure to recover and those the chest study in the next rossi study have nothing to do with the environment and would not provide any evidence at all on the other potential cause of the failure to recover so for those reasons we believe it in addition to the fact that you know congress did specifically mandate that the conclusions be made by two thousand and two and here we are in two thousand and six and soon as going to be two thousand and seven we believe that the time has passed or any further we ma and the reason i address this point first and i want now to go through to the question of whether the agency adequately conducted the studies they were required to do is you know hinted at by the by the remained issue it's not even important to decide  not necessary to decide the case to evaluate whether the studies were properly done or could have been properly done if they collected all the evidence they have and the evidence all points in one direction and on the basis on the alternative ground that the court is not convinced of that in the court except the government's view that there is a reasonable mix of scientific evidence here i want to touch briefly on on the required studies there's no question congress was very clear in fact your honor it was in sections section fourteen forty one that thirty five correctly instructs them to do the scientists said in advance of the next to study we need to study six hundred dolphins or we won't get any results that are relevant to the question of population and so obviously that's got to be the goal of the of the study obviously henderson called it orwellian which might be a little strong but it didn't really is a step too far congress does not say you need to do a study and that's good evidence and if all we did was say we think that was a bad study i wouldn't be here on this issue but it's not us that saying that the agency itself admits that the study was useless so they didn't conduct the study that congress requested them to conduct they may cross that fifty six dolphins to obtain no information the only real question is whether they are excused from doing what congress told them to do because it was effectively impossible  and i think you know and i hate to point a court back to our priest but i think the brief sets out very clearly mexico offered to cooperate secretary made no effort on the offer to cooperate the secretary made no effort ecuador venezuela offered to cooperate and the secretary came in at the very last second and got a few people trained and fuel and performed a portion of the study henderson indicated this is not a record that shows a secretary who is trying to do the right thing and is thwarted or is making serious efforts that secretary just did not want to do the studies and did not do them notwithstanding clear direction from congress and an indication from this court in the first decision that those studies were important and they had to do with congress told and if if i may i'd like to emphasize one final thing because really the crux of the cross of the dispute here is whether there is some evidence supporting the conclusion that there's no that there's interested from the final finding itself from the register i'd like to quote from which is excerpt of record five on page six thousand and thirty six in the middle column near the bottom this is what they have to say insomnia valuable information on indirect facts is limited and therefore bars population level inferences of the effects of stress on thought and stocks additional research is necessary to better therefore there is no significant adverse impact and i submit that that is exactly what the secretary did in the first case did not have enough information to be certain even though all the evidence pointed one way and said we are sold that would be we would have found the evidence we didn't find it so it's not snow it's not it's we attempted to find the evidence and i think i think i think that's what the secretary saying i think that maybe what the secretary's counsel is saying wrong but that is not what the secretary is saying what the secretary said in the federal registry which in the federal register is that we don't know yet and more information is ne now prior to writing that statement for consumption in the federal register of the internal documents show that they did know but even accepting at face value they say we need more information therefore we're going to say no notwithstanding the fact that there was plenty of information to show that it couldn't be the environment and that it could be even though we are one hundred percent certain the fishery and that there's no third alternative so really what is happening here is they're dolphin safe labeling standard because he was not absolutely certain and this court the first panel of this court was extremely clear that the secretary could not do that could not use lack of one hundred percent certainty to default that is not what is in the record and what judge henderson concluded from the record and the record is set out in our briefs is that several foreign car i mean the principle foreign countries that in this manner offer to cooperate want to cooperate discretion and it's very much in title do that in this case and the problem here and the problem below is the district court cannot replace its review of the facts with what the agency reviewed and that's the fundamental problem finally if i can just address the fourteen fourteen factors which your honor had talked about there are there are stressed studies that are required there's also in subsection b other research and that's really kind of the point here is that you can't just focus on remain an issue if this court does determine that there's a problem the case really should be reading and it the only real case that the other side decided is the sierra club case there was a very simple case there was a very simple issue there where the question was was the wind blow basically the question was was the wind blowing west or was the wind blowing north e p a said it was blowing north this court said no we looked at it it's blowing west you can't go back and undo that was the only question and this is much more complicated earth island just just said that you know that the it was very possible for us to do that and there's no evidence in the record that with it we could have done the studies let me quote to you from the letter that they wrote to the agency in one thousand nine hundred ninety we strongly recommend that names provide to members of congress a full explanation of the problems encountered including clarification of the commerce secretary is finding mandate the limitations of science in making absolute determinations and the lack of cooperation by mexico and other a t p tuna fishing nations where you heard here nor a large human is is the direct opposite that which is putting all the burden on the agency they wait for an explanation no they said go to congress and tell congress about the lack of cooperation from these other agencies and now you're hearing in their brief stack now that we know quote go to congress and tell them about the lack of cooperation by mexico and other e