the next case for argument will be territory of american family versus the national marine fisheries service please the court robert lyman representing the national marine fisheries service i play nurser five minutes for a bottle american small filed suit challenging a two thousand and sixteen rule that was issued approved by the council that issued by the service from american samoa within fifty miles of the islands in the purpose was to provide an exclusive area for smaller aliya fishing vessels that were also from american samoa but by two thousand and thirteen or fourteen there's been a significant decline the number of a eve vassals fishing and the long line vessels fishery was collapsing so the agency it's didn't get rid of the private area but shrunk it from a fifty mile prohibition to twelve miles in american sewage some more than suit the agency to challenge the rule is it true that in making this determination to shrink the area that the record does not reflect consultation or consideration of  sessions the sessions are addressed in the final rule in the sense that there's a comment from american samoa saying you should consider these actions agency says we're here's the response the rules necessary for these reasons and there was no need to to  either on a parent's godrej theory or on a direct injury theory the nd reason is even if the sessions sessions here don't protect collective fishing rights they don't refer to fishing rights of any sort so there is not any applicable law there that the agency has to consider even if they did protect some sort of fishing rights and there's no language in the session saying so they would apply at the high seas area which is more than three miles beyond american samoa this rule the part of the world they're challenging fishing that american samoa is concerned about and i'll start with withstanding your parents patrick standing american small faces the same problem here that all fifty states have when they sued the federal government which is there's no parents standing to bring suit against the federal government for the states or for american samoa and this is a settled issue the supreme court announced this rule clearly in the snap decision back before that there's massachusetts versus mellon and from this court it's very clearly held the same in nevada versus burford so the result is that most of these records are also standing it is wrong because of this bar on a american samoa or a state suing the federal government our parents patrick theory melon it doesn't say it's going to repair the parent's voucher a bar for for states in its holding is based on massachusetts property interests its interest as a landowner in coastal land and not on a parent's patri theory but going back i don't i don't see them well in bars categorical if you read in snap the language which talks about a state not having standing to bring an action  but it limits that to relations with the federal government so this is a distinct and different answer pointed out in massachusetts e p a i'm having some trouble if i understand your argument said well massachusetts e p a didn't over melon you're correct but the question is is it complementary or consistent with i think it's perfectly complimentary consistent with melanie and snap and this kid court's set aside and this court said no you can't use permits patrick standing to do that and that's exactly what we have here we have american samoa saying no agency the fishery service your rule was inconsistent with the madison act which which which is that the state was beings when suing to protect from the operation of the federal statute and here this is a state or in this assume that it's covered isn't that a different type of law then the bar for law i don't think so it's the same challenge to a federal agency action it's the same argument that reading a footnote seventeen here which the court just issue we addressed this in a reply brief is this is exactly right that that discussion isn't about the scope of parents pantries standing but it's rather relates to that court preface about states receiving special solicitude in the standing analysis when it comes time for that court the massachusetts received a court to analyze the injury it's not it's not resting on parents poetry it's saying direct and that's what causes stand why massachusetts a standing so i don't think footnote seventeen as the d c circuit explained in the new job case means that that the parents batteries standing has been scaled back in a way the rule about the so called why isn't that correct i guess that's not direct standing because it's asserting the rights of its people and specifically it's it's not asserting its own right and so it's it's one of those direct standing is the state saying as in massachusetts or the example we own land climate change is causing sea rise it's taking away our land we are directly injured by reaction or ringback the other time when they're  a state says look you're a law requires of us a state or a territory or can suppose case to do x we have to do something that we don't want to do and that infringes our sovereign right to not do that and that's  and i appreciate that distinction but i guess the question here is why isn't it the territory's cultural rights which are you know they're not equivalent to tribal rights as we  direct property interest it's not direct sovereign interested in the governmental process either so i think it fits in the clause i saw bring down or which then means it falls on your parents patrick even if you look at this is a direct right and we don't think it is but if you do they still have a fishing and we think that could then impact our culture and that's not good enough they need a declaration or an affidavit from american samoa government officials spelling out how they are injured so they can show the concrete actual injury in fact that they need for standing and they haven't gone down that path and they've instead relied on primarily on this parents country theory that we think is flawed but even if you if you conceive of it as a direct injury they still haven't met their burden for stand consider the sensation and what it means and what the cultural so far i don't think they've made a procedural injury argument so i think that's missing from their brief so i don't think it's before the court just might make sure they don't think they made an argument that the failure to consider the sessions is a foundation for remanding well we're asking for a reversal but they they have argued that need should have considered the sessions well i don't think it's a procedural a procedural right as in masters to reverse the e p a where the court said here's a procedural right that's relevant to standing you have the right to petition and the right to sue on it and that's part of the clean air act  and also part of the a p a but they say they haven't identified that sort of failure here where there's a statutory procedural right that under the under the ice an act that that has not occurred they instead say we have a substantive claim that is it's pretty simple the sessions don't protect fishing rights because they say nothing about fishing rights and you can read the sessions and there's discussion of individual rights and property rights to property and land  but there's no discussion of rights to water or fishing rights and so we think on the merits that alone is enough to defeat their argument and even if there was some discussion of fishing rights those were then ceded to the united states because a session seat all sovereign rights to the land into the waters so that's a one way transfer of authority all sovereign rights to the united states in the sessions even if even if you disagree with us on the on that are going about the sessions we still have this argument about the high seas which we don't i don't think there's been much of a response to it in their in their brief at the time no one had rights beyond three miles from shore it was the high seas it was open to all there because the issue here is beyond the three mile mark the l v a the large vessel prohibited area now applies up to twelve miles and their complaint is that doesn't apply up to fifty miles and the high seas one was a three mile wide so we're we're well  evidence to show that one fisherman would be injured is that sufficient to confer parents patch standing and then my nd question is i i believe i heard you say earlier that in this process the national marine fisheries service actually considered these concerns these fishing rights concerns in response to comments so what would happen  if these summary judgment were called in this return to the agency what would the agency do with the agency do anything differently so the st the st question there is an affidavit in the record from a single only official men that they submitted that says i think this rule harms me but that doesn't create standing for american samoa for two reasons one it doesn't work in the parents couch or in fact it underscores that there is a distinct group of people who could be harmed by this role who could sue and in that case only a fisherman and historically active maybe twenty so it's a discrete group that could have sued directly instead of their consumer government who then could have participated by way of amis brief or or as a additional did and so it took a look at exactly if if americans was right the sessions are relevant here it's because they protect community a leo type fishing and the agency here took a look at the impacts on commuter daily efficiency and the impacts on the talking about fishing in a narrow sense and talking about cultural protection in a broader sense the sessions talk about so that's where i was concerned that you might and so they looked at community impact and the analysis was no impact here because we're not going to have a negative impact and only a fishing and that's the hook that's how the fish get from the waters to the community we're not impacting that that piece so we're not broadly i think it's a specific contextual land other property and reference to cultural practices in that category you read those all together i think it's talking about individual rights to land and not a collective right for example to fishing  of american someone this important case yawners also present here today is the honorable within a governor of american someone sitting in the back there i just want to inform the court of that he's here on behalf of the governor of american samore representing him in this important case may please the court this is not your typical case in some ways but it's not unusual for the next circuit to address issues of native cultural rights and that's what this case is about it's a case about protecting the cultural rights of a people that have sworn to be part of the united states government the greatest country in the world and the foundation of this union was based on the protection of cultural rights council is absolutely correct when my forefathers signed that deed obsession to give up our lands and our sovereignty we gave everything we held nothing back the only thing we held back was protection of our culture and what did the united states government do with that document they converted into federal law it's part of federal law that this agency should have considered but they did not and the court is absolutely correct and the petitioners have admitted they did not consider the what did they consider they considered a paper reduction act they thought that was more important than the deeds of session that protects the culture a people over one hundred and twenty years old they considered the information act again they thought that was more important they wrote studies and papers submitting their recommendation for approval of this law or this regulation saying that they considered all those things missing from that list of consideration is any consideration of the the petitioners have argued that we don't not have standing to be here we respectfully disagree whether it's parents patriarchy whether it's article three standing whether it's and that's the that's the area that my four for our forefathers agreed to give to the united states and the united states agreed to accept that and acknowledge that that is a horse and they're going to protect our rights in that area so that's the basis to doubt about that but that what i'm wondering where do we know that traditionally you fish fifty miles we know this from the record the agency record itself there is waters also this is a culture of this is an island group these are polynesians but i think we're talking about fifty miles roughly fifty miles is the the rule that was established by the agency back in two thousand and two and that rule in our view protected provided the protection we needed to nurture and preserve this culture of fishing because it's it's not just fishing in the ocean its utility that happens on land you know fishermen go out fishing when they bring their fish it's distributed communally to the village to the to the to the pastor and so this is not just an ocean it simply the game of taking away this protection affects the land and the facts the culture of the people in the lead the cut another point that i believe the government brought up is how you interpret the sessions because they talk about well one of them talks about lands and other property and the other one talks about property according to cut so has that ever been interpreted as to whether that property question this way the whole bill decision by the d c circuit is one decision that confirms that the two deeds are to be interpreted together because they talk about the same area and if you combine the two d s what it says is that the united states will protect the culture of americans out of these native peoples within the within the area within that area and that's what we're asking for now supreme court were in that case the only right provided in the document was the right to use ropes but based on the interpretation by the supreme court it not only included the right to to walk on the road but to carry goods on a road that's no different from this case what we're saying is the u s government agreed to protect our cultural rights within the ceded area the twenty eight thousand square miles there's no question and the agency admits that our culture includes a culture of fishing within that area and so i think it's very reasonable under par of on all income and coumadin for this court to confer to conclude that the deeds include the right to fish back though to the three mile question because i don't know how many i don't know what twenty thousand square miles actually but we're we're usually familiar with talking about the three mile limit we leased we decisions should be interpreted from the standpoint of the natives the concept of high seas is not a made up concept it's not a concept that the and the polynesian acknowledge this is a european cult concept you know the superpowers came down and these concepts came up and that's what we live in and we agree we're living on what at the  interpretation of this agreement should be interpreted based on the on the understanding of the natives at the time when they entered into this agreement as far as the chief or concerned they owned all of this water and the fish and they agreed to give it up too so that the high seas concept to us is a red herring it doesn't apply here at all one aspect of that is that the state or the territory in this case must prove a substantial number of its citizens have article three standing so there is one declaration in the record the declaration doesn't  the government of americans show that yes substantial number of its citizens have our three standing thank you your honor the question assumes that this case is just about fishing it's not it's about protecting culture the government of americans are more initiated this lawsuit to ensure that people who practice the cultural fishing practices continue because they're practicing of culture benefits all of us it ensures the preservation of our culture and then as i said earlier it's not just the people fishing it's the activity that happens after the fishing is done the distribution of the fish the sharing most of these fishermen don't fish to make money it's part of cultural obligations villagers gather they go fishing that's that's the the harm that you're working somewhere government is trying it's an actual harm to the american someone government because the government has an obligation under the constitution to protect culture and that is recognised by because it impacts our ability to protect culture impacts our our constitutional obligation in the sauce a little case that's what this court found federal action that impacts the local government's ability to execute their duties is basis for standing that's what this court held in washington utilities case where the agency in question was provided under state law the right to protect the communications right of the people of washington state this court held that was sufficient for standing because the federal action in that case interfered with the local government's ability to execute or of a geisha is exactly what's happening here this is there's room inhibits our ability to fulfill our obligation to the people of american someone and that's why peachtree twenty seven dollars also talks about the impact of this rule on their ability to fish that's what the american somewhere government is trying to protect we want these people to continue to fish whether they be money or not it's the longer prohibition area so those vessels could fish much closer than twelve miles from the shore they weren't prohibited in any way and this is even years after the next and statutes passed i think not express it consider talk about the sessions but nobody objected to it then but now when that's that area is reduced there's an objection white why is it different why did it not matter that they didn't consider two doesn't mean we can't sort of know and we're definitely asserting you know the two thousand and two rule it completely on the record statements by the agency that was done to protect the culture of american so more now it is  judgment argument and then there's the procedural argument basically what it what it requires is that the n s a requires the agency to consider th to get any further only we would we would prefer that they consider the deeds we we we are asking the court to require the agency to follow federal law the federal law requires them to consider a clickable law the deeds of session is in a political law just like the paper reduction act the information act are considered relevant law whether or not this court concludes that the deeds of session cover sufficient the mere fact that the days of session covers the entire area under the jurisdiction of this agency that alone is sufficient for it to be considered a political law let me just turn briefly on the issue of on the merits as i protects culture the culture of american some of the american some of people just doesn't it doesn't just exist in the deep ocean it exists on the land and because of that they failed to consider that they failed to consider th are seated my time as is done let me just briefly say that this record has determined based on the evidence communications directly from the agency itself that they did not consider they could not have considered and i know that i'm asking you who would make that determine the scope of what the sessions cause i believe that's an issue of law for this court to determine what the deeds provide and i think the evidence that we presented to the court the legal arguments of the court below shows that the deeds of session include the right to fish just like the tribal indian tribal rights in the here as to the impact of that we have fishermen that just underscores there is someone out there a person who has a direct injury who could have sued in had standing but that's not in this lawsuit there's no one in this lawsuit is a plaintiff other than the territory of american samoa you mention the washington utilities case that's reversed at the end and out of her suburban says that's no longer good law that's before the snap decision washington utilities and it's reversed and nevada vs burford as to the merits there's just no language in these sessions creating the right that they want a generic protection of all cultural rights and practices there's a mention of waters but those waters are seen it's not that's not the reference to cultural practices or rights that they need to prevail here and they try to backfill that with cites to the pair of otto and cougar den those are about indian treaty rights or reservation rights their specific language is address in this case about reservations for indian purposes and to be reversal thank you i would like to thank both counsel for excellent arguments at your command of the cases as well as the briefing it's very good on both sides the case of territory of americans versus national marine fisheries service