Oceana, Inc. v. Locke, 10–5299.

• Decision Date: 19 July 2011
• Docket Number: No. 10–5299.,10–5299.
• Citation: 670 F.3d 1238
• Parties: OCEANA, INC., Appellant v. Gary F. LOCKE, in his official capacity as Secretary of the United States Department of Commerce, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

670 F.3d 1238

OCEANA, INC., Appellant

v.Gary F. LOCKE, in his official capacity as Secretary of the United States Department of Commerce, et al., Appellees.

No. 10–5299.

United States Court of Appeals, District of Columbia Circuit.

Argued May 13, 2011.Decided July 19, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cv–00318).Hyland Hunt argued the cause for appellant. On the briefs was Sara E. Robinson. Eric A. Bilsky and Avrum M. Goldberg entered appearances.

Robert J. Lundman, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was John L. Smeltzer, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, GINSBURG and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Oceana, Inc. brought this suit against the National Marine Fisheries Service challenging as unlawful the methodology it uses to track bycatch in the fisheries off the Northeastern coast of the United States. The district court concluded the methodology satisfies applicable law, see 16 U.S.C. § 1853(a)(11), and entered a summary judgment for the Fisheries Service, which Oceana now appeals. Because the Fisheries Service has merely described but has not, as the Fisheries Act requires, “established” a “standardized reporting methodology” to assess bycatch in the Northeastern fisheries, we reverse the judgment and instruct the district court to vacate the rule adopting the methodology and to remand the matter to the agency for further proceedings.

I. Background

The Magnuson–Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act, 16 U.S.C. §§ 1801–1884 (Fisheries Act), requires the Secretary of Commerce, through the Fisheries Service,^* to adopt policies that “to the extent practicable,” reduce the volume of bycatch, § 1851(a), that is, fish that are inadvertently or unavoidably captured by nets or other gear and then discarded, see § 1802(2) (defining bycatch as the “fish which are harvested in a fishery, but which are not sold or kept for personal use”). See also § 1801(c)(3) (stating congressional intent to “encourage [ ] development of practical measures that minimize bycatch and avoid unnecessary waste of fish”). The Fisheries Act further instructs the agency, in conjunction with eight regional councils, to “establish a standardized reporting methodology to assess the amount and type of bycatch” in each fishery in each region. § 1853(a)(11); see § 1852 (regarding role and authority of regional councils). The councils then use the reports to develop policies to minimize bycatch and bycatch mortality. See 50 C.F.R. § 600.350(d) (requiring regional council to create a database on bycatch and bycatch mortality that will help it “evaluate conservation and management measures”).

In order to comply with the directive in § 1853(a)(11) to “establish a ... methodology,” the Fisheries Service, working with the councils for the New England and Mid–Atlantic regions, proposed an “omnibus amendment” to the fishery management plans for each of the 13 fisheries in those regions, see 73 Fed.Reg. 4736 (Jan. 28, 2008). The Amendment requires the Service's regional officials to fund and allocate independent observers to gather data on bycatch from each “fishing mode,” or combination of vessel type and fishing gear. See id. at 4738. The Service must fund enough observer voyages to generate statistically reliable data. Id. at 4738 (“The amendment is intended to ensure that the data collected ... are sufficient to produce a coefficient of variation (CV) of the discard estimate of no more than 30 percent, in order to ensure that the effectiveness of the [Amendment] can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days”).

The Amendment separately authorizes the Service to invoke a “Prioritization Process,” however, “[i]n any year in which external operational constraints would prevent the [agency] from fully implementing the required at-sea observer coverage levels.” In those years the Service may, instead of complying with the levels set out in the Amendment, determine the “most appropriate” number and allocation of observers according to the “data needs” of the Service, its obligations under other statutes, and “any other criteria” it may identify. Id. The Amendment also commits the agency to consulting the regional councils about its proposed “prioritized allocations” before implementing them.^* Id.

Oceana filed suit in the district court claiming the Amendment violates the Fisheries Act, the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. The district court rejected all of Oceana's statutory claims, 725 F.Supp.2d 46 (2010), as well as its “Motion to Compel Completion of the Record” with documents the Service contends are privileged, 634 F.Supp.2d 49 (2009). Oceana appeals both rulings.

II. Analysis

In its primary argument on appeal, Oceana contends the Fisheries Service has not “established” a standardized bycatch reporting methodology, as the term is used in the Fisheries Act, § 1853(a)(11). We will defer to the Service's interpretation of what that provision requires so long as it is “rational and supported by the record,” C & W Fish Co. v. Fox, 931 F.2d 1556, 1562, (D.C.Cir.1991), and we will not set aside the agency's choice of a methodology unless it is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A); see § 1855(f) (providing for judicial review of regulations pursuant to the APA).^* Although the district court heard this dispute in the first instance, see § 1861(d), on appeal we review not the judgment of the district court but the agency's action directly, giving “no particular deference” to the district court's view of the law. Natural Res. Def. Council v. Daley, 209 F.3d 747, 752 (D.C.Cir.2000) (quoting Associated Builders & Contractors, Inc. v. Herman, 166 F.3d 1248, 1254 (D.C.Cir.1999)); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001) (“[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The entire case on review is a question of law.”) (internal quotation marks omitted).

Oceana argues the Amendment is not consistent with § 1853(a)(11) because, instead of establishing a methodology by which the agency will proceed, the Amendment describes “an optional methodology” that applies “in some years and not in others.” In response, the Service says it has established a methodology pegged to a benchmark of statistical precision that is binding upon it “unless external operational constraints, such as funding shortfalls” make compliance impossible; in other words, it is enough to satisfy § 1853(a)(11) that the Amendment “establishes” the methodology the agency will use when it can. Oceana, the Service adds, remains free to challenge the allocation of observers for any particular year.

The Fisheries Service rests its defense of the Amendment upon the scope of the phrase “external operational constraint,” which it says is a meaningful limitation upon the agency's discretion to depart from the standardized methodology it has prescribed. To address this argument we consult our decisions addressing similar statutory mandates, in regulatory regimes other than the Fisheries Act, to “establish” (or “prescribe” or “set,” or the like) a procedure or standard. Compare, e.g., Cement Kiln Recycling Coalition v. EPA, 493 F.3d 207 (D.C.Cir.2007) (concluding EPA reasonably prescribed process by which it would impose “terms and conditions [in permits] ... necessary to protect human health and the environment,” as required by Resource Conservation and Recovery Act, 42 U.S.C. § 6925, despite alleged vagueness of that standard); with Ethyl Corp. v. EPA, 306 F.3d 1144 (D.C.Cir.2002) (holding EPA did not sufficiently “establish methods and procedures for making tests” for new automobile models, as required by Clean Air Act, because regulation did not prescribe standard by which agency would approve an emissions test proposed by a manufacturer); and MST Express v. Dep't of Transp., 108 F.3d 401 (D.C.Cir.1997) (holding Secretary of Transportation did not satisfy mandate of Motor Carrier Safety Act to “prescribe regulations establishing a procedure to decide on the safety fitness of owners” because agency issued specific standards in informal document and left formal regulation vague).

Summarizing these cases most recently in Cement Kiln, 493 F.3d at 217, we considered the limits upon an agency's authority to reserve in advance some discretion to depart on a case-by-case basis from an otherwise applicable rule: The agency must adequately define the circumstances that “trigger” the case-by-case analysis, 493 F.3d at 222–23, and it must set an “identifiable standard” to guide its judgment when operating under that procedure, id. at 220–21 (quoting Ethyl Corp., 306 F.3d at 1149–50). The agency has broad discretion to use general terms for the “trigger” and the “identifiable standard,” however, unless the statute requires the agency to be more specific or the rule reflects an unreasonable interpretation of the statute. See id. at 217–18 (quoting Ethyl Corp., 306 F.3d at 1149). As we said in Cement Kiln, showing a rule is “impermissibly vague” when the statute is silent is “always a difficult burden for a petitioner to overcome.” Id. at 222–23.

The Amendment at issue here fails to survive this indulgent standard of review because it creates an exception so vague as to make the rule meaningless: The Fisheries Service apparently has given itself complete discretion to determine when an “external operational constraint prevents [it] from fully implementing the required coverage...