Oceana, Inc. v. Ross

• Decision Date: 17 April 2020
• Docket Number: Case No. 17-cv-829 (CRC)
• Citation: 454 F.Supp.3d 62
• Parties: OCEANA, INC., Plaintiff, v. Wilbur L. ROSS in his official capacity as U.S. Secretary of Commerce, et al., Defendants.
• Court: U.S. District Court — District of Columbia

454 F.Supp.3d 62

OCEANA, INC., Plaintiff,

v.Wilbur L. ROSS in his official capacity as U.S. Secretary of Commerce, et al., Defendants.

Case No. 17-cv-829 (CRC)

United States District Court, District of Columbia.

Signed April 17, 2020

Stephen D. Mashuda, Earthjustice, Seattle, WA, Andrea A. Treece, Pro Hac Vice, Brettny Elaine Hardy, Pro Hac Vice, Earthjustice, San Francisco, CA, for Plaintiff.

Kaitlyn Ashley Poirier, Meredith L. Flax, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

The National Marine Fisheries Service ("NMFS" or the "Service") is responsible for developing management plans to promote the sustainability of particular species of ocean fish. In 2017, Plaintiff Oceana, Inc. brought a challenge under the Administrative Procedure Act ("APA") to the Service's most recent management plan for one such species: the dusky shark. The Court granted summary judgment to Oceana and remanded to the agency to consider a certain type of data that it had overlooked and to re-evaluate the need for remedial accountability measures in light of the more comprehensive data. See Oceana, Inc. v. Ross ("Oceana I"), 363 F. Supp. 3d 67 (D.D.C. 2019) (Cooper, J.). After examining the relevant data on remand, the Service stuck to its original conclusion that no additional accountability measures were needed. Oceana now challenges the agency's remand evaluation as arbitrary and capricious under the APA. Before reaching the merits of that challenge, the Court must first resolve Oceana's motion to admit an extra-record declaration from a fisheries scientist that analyzes the agency's remand evaluation. The Court will admit portions of the declaration for the limited purpose of considering whether the agency failed to consider other potential causes of the decline in reported dusky shark interactions and deaths and deny the motion in all other respects.

I. Background

The Magnuson-Stevens Act ("MSA") tasks the Fisheries Service with preparing management plans for all "highly migratory" fisheries under its jurisdiction in the Atlantic. See 16 U.S.C. § 1854(g)(1).¹ These plans must contain measures which are "necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery." Id. § 1853(a)(1)(A). Such measures include setting annual catch limits for each fishery and species of fish. See 50 C.F.R. § 600.310.

This case concerns the Service's efforts to protect the dusky shark, a species "[p]articularly vulnerable to ... human overfishing." Oceana I, 363 F. Supp. 3d at 72. The rise of commercial and recreational shark fisheries in the 1980s and 1990s wiped out much of the Atlantic's dusky shark stock. Id. at 71–73. "A major culprit was bycatch: fishermen didn't want dusky sharks, but they were catching them anyway while targeting other fish." Id. at 73 ; see also 16 U.S.C. § 1802(2) (defining "bycatch" as "fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discard and regulatory discards"). To restore the dusky shark population, the Service implemented a series of reforms beginning in 1999, including prohibiting possession of dusky sharks, decreasing the catch limits for non-prohibited sharks, and implementing time and area closures. Oceana I, 363 F. Supp. 3d at 73–74. Despite these reforms, dusky shark stock assessments conducted by the Service persistently returned bleak results. Id.

The Service's latest plan to address the overfishing and management of dusky sharks takes the form of an amendment—Amendment 5b—to its Highly Migratory Species Fishery Management Plan, which was promulgated as a Final Rule in 2017. Administrative Record ("A.R.") 7564–94. Oceana subsequently filed suit challenging Amendment 5b under the APA and MSA. In March 2019, the Court granted to summary judgment to Oceana. It concluded that the Service's decision to exclude logbook data (comprehensive catch data reported by commercial fisherman) and to rely exclusively on observer data (catch data collected sporadically by independent observers employed by the Service and stationed on select fishing vessels) "render[ed] its assessment of the dusky shark bycatch problem arbitrary and capricious." Oceana I, 363 F. Supp. 3d at 77–78, 84. The agency's failure to consider the more comprehensive logbook data made it premature to evaluate its conclusions that dusky shark catch was small and that additional accountability measures were unnecessary. Id. at 93–94. The Court therefore remanded to the Service to consider the logbook data and to explain whether it could be used in conjunction with the observer data to estimate dusky shark catch. Remand Order 1 (Apr. 19, 2019). The Court also directed the Service to explain whether, considering all of the relevant data, it continues to conclude that additional accountability measures are unnecessary because only a small amount of catch occurs and is unlikely to result in overfishing. Id. at 1–2.

In August 2019, the Service completed its remand analysis and filed a Supplementary Evaluation of Dusky Shark Bycatch Data ("Remand Report"). A.R. 10217–64. The agency considered raw data on dusky shark interactions and mortalities from three mandatory federal logbook reporting programs—the Highly Migratory Species Logbook ("HMS Logbook"), the Southeast Coastal Fisheries Logbook ("SE Logbook"), and the Northeast Vessel Trip Reports ("NE Logbook"), A.R. 10222–32, 10266–68,² and from six mandatory federal observer programs, id. at 10232–38, 10268–69.³ The Service concluded that there was no scientifically valid basis for estimating dusky shark catch from the logbook and observer data because of large gaps in the data (resulting from numerous reports of zero annual catches in some fisheries) and because dusky sharks are easily misidentified and are caught infrequently and in varying conditions and circumstances. Id. at 10253–62. Opting to rely only on the raw data instead, the agency determined that dusky shark interactions and deaths have sharply declined, that catch is small, occurs primarily in HMS fisheries, and is not likely to result in overfishing, and that no additional accountability measures are needed. Id. at 10250–53.

Oceana challenges the Remand Report under the APA and MSA. To support its challenge, Oceana relies on an extra-record declaration from a fisheries scientist that it enlisted to evaluate the scientific validity of the Remand Report. Before the Court may pass on the merits of Oceana's challenge, it must decide whether to admit that declaration.

II. Legal Framework

The APA requires courts to set aside agency action as arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency[.]" Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ; 5 U.S.C. § 706(2)(A).⁴ In making that determination, courts are only to "review the whole record or those parts of it cited by a party." 5 U.S.C. § 706. The full administrative record consists of "all documents and materials that the agency directly or indirectly considered" in making its decision. Maritel, Inc. v. Collins, 422 F. Supp. 2d 188, 196 (D.D.C. 2006) (internal quotation marks omitted); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). These restrictions are necessary to enforce the proscription that "[t]he reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry." Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985).

However, "[t]here are two situations in which a plaintiff may seek to add evidence or documents to the administrative record." Oceana, Inc. v. Ross, 290 F. Supp. 3d 73, 77 (D.D.C. 2018) (Cooper, J.). "First, a plaintiff may seek to include ‘extra-judicial evidence that was not initially before the agency’ but that the plaintiff ‘believes should nonetheless be included in the administrative record.’ " Id. (quoting Univ. of Colo. Health at Memorial Hosp. v. Burwell, 151 F. Supp. 3d 1, 13 (D.D.C. 2015) ). "Second, a plaintiff may seek to ‘include evidence that should have been properly a part of the administrative record but was excluded by the agency.’ " Id. (quoting Univ. of Colo., 151 F. Supp. 3d at 13 ). The parties agree that the declaration at issue, which was created after the agency submitted its remand report, qualifies as the former.

Oceana must therefore "demonstrate unusual circumstances justifying a departure from th[e] general rule" against judicial consideration of extra-record evidence. City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010) (quoting Tex. Rural Legal Aid v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir. 1991) ); see also Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008). The D.C. Circuit has identified three such unusual circumstances: "(1) if the agency ‘deliberately or negligently excluded documents that may have been adverse to its decision,’ (2) if background information [is] needed ‘to determine whether the agency considered all the relevant factors,’ or (3) if the ‘agency failed to explain administrative action so as to frustrate judicial review.’ " Dania Beach, 628 F.3d at 590 (quoting Am. Wildlands, 530 F.3d at 1002 ).⁵ Oceana contends that the second and third circumstances justify the admission of the extra-record evidence at issue here.⁶

III. Analysis

Oceana seeks to admit an extra-record declaration from Dr. Murdoch...