920 F.3d 855
D.C. Cir.2019Background
- Magnuson–Stevens Act (as amended) requires Fishery Management Plans to "establish a standardized reporting methodology to assess the amount and type of bycatch" and to base measures on the best scientific information available.
- In 2008 the Fisheries Service adopted an amendment allocating at-sea observers across many fishing modes but included a prioritization "loophole" to reduce coverage for "external operational constraints." D.C. Circuit vacated that 2008 Amendment in Locke.
- Following remand, the Fisheries Service issued a 2015 Standardized Bycatch Reporting Methodology (Reporting Methodology) using sampled at-sea observers allocated by a formula aiming for a 30% coefficient of variation (CV) for fifteen federally managed species groups, then adjusting by analytic filters and a non-discretionary funding-adjustment formula.
- Oceana sued, arguing the 2015 Methodology (1) failed to "establish" a standardized methodology because it permits departures tied to funding, (2) improperly excluded non-federally managed species from the allocation formula, (3) arbitrarily rejected electronic monitoring, and (4) the agency improperly withheld deliberative documents without logging them.
- District Court granted summary judgment to the Fisheries Service; Oceana appealed. The D.C. Circuit reviews the agency action under the APA arbitrary-and-capricious standard, deferring to reasonable agency interpretations supported by the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2015 Reporting Methodology "establishes" a standardized methodology under 16 U.S.C. § 1853(a)(11) given funding-based adjustments | Oceana: Funding-adjustment lets agency effectively depart from the methodology at its discretion, so it is not "established." | Fisheries Service: Funding adjustment is a non-discretionary, formulaic step; methodology is standardized and dynamic across funding levels; funding allocation is an appropriations/administrative decision. | Held: Methodology is "established"; accounting for funding via a formulaic adjustment does not violate the statute. |
| Whether the Methodology must base observer allocation on non-federally managed species | Oceana: Bycatch includes non-federally managed species; excluding them from allocation undermines comprehensiveness and standardization. | Fisheries Service: "Standardized" modifies the reporting methodology, not the universe of species; observers record all species; agency permissibly focused allocation on federally managed species driving most discards. | Held: Permissible to base allocation on federally managed species while still reporting all species; statute does not require inclusion of all species in allocation formula. |
| Whether excluding electronic monitoring (EM) was arbitrary and capricious / inconsistent with "best scientific information available" | Oceana: Agency failed to reassess EM capabilities and costs post-2008 and unlawfully rejected EM. | Fisheries Service: Considered comments and evidence; concluded EM is not yet equivalent to observers for complex multispecies data needs; relied on record and is owed deference on technical/scientific judgment. | Held: Agency’s explanation is adequate and non-arbitrary; deferral appropriate on technical uncertainties. |
| Whether the district court abused discretion by allowing the agency to withhold predecisional/deliberative documents without logging them | Oceana: Agency should have produced or logged deliberative documents relevant to scientific choices. | Fisheries Service: Predecisional/deliberative documents are immaterial to the administrative record and not discoverable absent bad faith; agency provided proper certification. | Held: No abuse of discretion; agency need not place such immaterial predecisional documents on a privilege log absent special circumstances. |
Key Cases Cited
- Oceana, Inc. v. Locke, 670 F.3d 1238 (D.C. Cir. 2011) (vacating 2008 Amendment for failing to establish a standardized methodology)
- Lincoln v. Vigil, 508 U.S. 182 (1993) (appropriation and funding allocation decisions are generally committed to agency discretion)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious review requires reasoned explanation supported by the record)
- Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) (courts are highly deferential to agency technical judgments but must ensure relevant factors were considered)
- In re Subpoena Duces Tecum, 156 F.3d 1279 (D.C. Cir. 1998) (agency deliberations not part of administrative record are immaterial absent bad faith)