Oceana, Inc. v. Ross, 454 F.Supp.3d 62

Background

Oceana challenged NMFS’s Amendment 5b for dusky shark management after the court in Oceana I (D.D.C.) remanded because the agency relied on observer data while excluding logbook data, making its bycatch assessment arbitrary and capricious.
The Court’s remand required NMFS to consider logbook data and explain whether, in light of all relevant data, additional accountability measures were necessary.
On remand NMFS issued a Supplementary Evaluation concluding it could not validly extrapolate from logbook/observer data (due to gaps, misidentification, infrequency) and that raw data show substantial declines in reported interactions and mortalities; it therefore kept its prior conclusion that no new measures were needed.
Oceana submitted an extra-record expert declaration (Dr. McAllister) criticizing the Remand Report’s analyses and offering alternative calculations.
The Court addressed whether to admit the declaration under APA extra-record exceptions and admitted limited portions: those portions asserting NMFS failed to consider year-by-year observer coverage and trips-per-year and other non-management explanations for bycatch declines; it denied admission of other portions that merely disagree with NMFS’s analytic choices or fill gaps in the record.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of extra-record expert declaration under APA (Dania Beach exceptions)	McAllister should be admitted as background and to show NMFS did not consider relevant factors and frustrated review.	Declaration is post-hoc, conflicts with record, and mostly offers alternative analyses rather than background; record is sufficient.	Granted in part: admit portions addressing whether NMFS considered observer coverage/trips and other causes of declines; deny the rest.
Whether NMFS failed to consider relevant factors (reporting rates, extrapolation methods, post-release mortality, observer coverage/trips, alternative causes)	McAllister identifies unconsidered factors (esp. trips/year and observer coverage) that could explain declines and undermine NMFS conclusions.	NMFS considered reporting differences, extrapolation methods, and post-release mortality and explained why extrapolation/estimation was not scientifically valid.	Court finds record addresses reporting rates, extrapolation methods, and post-release mortality; but is silent as to whether NMFS considered year-by-year observer coverage and trips/year — those McAllister portions admissible to test that omission.
Whether lack of public comment on the Remand Report justifies extra-record evidence	Lack of post-remand comment prevented submitting expert analyses earlier; this supports admission.	Lack of comment is not a standalone basis to supplement the record; prior notice-and-comment occurred for Amendment 5b.	Denied as a freestanding basis; lack of comment does not justify admitting otherwise impermissible portions of the declaration.

Key Cases Cited

Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard)
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (review limited to administrative record; courts must ensure agency considered relevant factors)
Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (court may not substitute its judgment for agency's)
City of Dania Beach v. FAA, 628 F.3d 581 (D.C. Cir. 2010) (three narrow circumstances permitting extra-record evidence)
Am. Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) (discussion of extra-record evidence limits)
Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44 (D.C. Cir. 2013) ("failure to explain" ground limited to gross procedural deficiencies)
Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) (extra-record evidence may not be used to re-litigate correctness of agency decision)
Oceana, Inc. v. Pritzker, 126 F. Supp. 3d 110 (D.D.C. 2015) (admission of extra-record evidence where no new notice-and-comment and declaration pinpointed gaps)