35 F.4th 904
D.C. Cir.2022Background
- Plaintiff Oceana, a conservation NGO, challenged NMFS amendments (Amendment 5b) to the Atlantic highly migratory species Fishery Management Plan addressing dusky shark bycatch under the Magnuson‑Stevens Act.
- The dusky shark is long‑lived, late‑maturing, low‑productivity, and vulnerable to overfishing; the western Atlantic population migrates along the U.S. coast.
- Since 1999 NMFS has maintained a zero annual catch limit (ACL) for dusky sharks and prohibited retention; other protections (finning ban, area closures, sandbar‑shark restrictions) were previously adopted.
- Amendment 5b reaffirmed the zero ACL and added measures aimed at reducing bycatch mortality: training/certification, circle‑hook requirements (non‑stainless, corrodible), dehookers and leader‑cutting protocols, and communication/relocation rules.
- The district court previously remanded on data issues but, after explanation from NMFS, upheld Amendment 5b; the agency relied on studies and reasoned analysis to support its measures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NMFS violated Magnuson‑Stevens by failing to limit dusky‑shark bycatch or provide accountability to the zero ACL | Oceana: NMFS did not effectively limit bycatch or hold fisheries accountable to the zero ACL; bycatch not meaningfully constrained | NMFS: the zero ACL includes bycatch mortality; Amendment 5b (closure + mitigation measures) functions as accountability and conservation measures | Court: ACL of zero includes bycatch mortality; Amendment 5b’s measures are reasonable accountability/conservation steps; no statutory violation affirmed |
| Whether NMFS had to show a quantified likelihood (per Daley) that Amendment 5b would achieve required mortality reductions (35%) | Oceana: NMFS failed to demonstrate a reasonable chance measures would produce the needed reduction; Daley requires showing substantial likelihood of preventing overfishing | NMFS: Daley inapposite; here the fishery was closed (ACL=0) and NMFS relied on empirical studies and reasoned judgment that measures will reduce mortality | Court: Daley standard does not apply; NMFS provided reasoned, evidence‑based support for measures (circle hooks, training, etc.); agency action upheld |
Key Cases Cited
- United States v. Maine, 469 U.S. 504 (1985) (States’ jurisdictional limits over territorial sea discussed)
- Oceana, Inc. v. Gutierrez, 488 F.3d 1020 (D.C. Cir. 2007) (agency use of logbook data and bycatch analysis affirmed)
- Natural Resources Defense Council v. Daley, 209 F.3d 747 (D.C. Cir. 2000) (discussing agency burdens when setting harvest quotas)
- Shafer & Freeman Lakes Env’t Conservation Corp. v. FERC, 992 F.3d 1071 (D.C. Cir. 2021) (review requires agency reasoning supported by reliable evidence)
- Anglers Conservation Network v. Pritzker, 809 F.3d 664 (D.C. Cir. 2016) (structure of regional Fishery Management Councils and management of highly migratory species)