United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2022 Decided June 7, 2022

No. 21-5120

OCEANA, INC.,

APPELLANT

v.

GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS SECRETARY

OF COMMERCE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-00829)

Andrea A. Treece was on the brief for appellant. With her

on the briefs were Stephen D. Mashuda and Brettny E. Hardy.

Ariel Mourrain, Attorney, U.S. Department of Justice,

argued the cause for appellees. On the brief were Todd Kim,

Assistant Attorney General, and Brian C. Toth and Michael T.

Gray, Attorneys.

Before: ROGERS and RAO, Circuit Judges, and RANDOLPH,

Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
2

RANDOLPH.

RANDOLPH, Senior Circuit Judge: This appeal from the

judgment of the district court (Cooper, J.) presents issues

regarding a federal agency’s amendments to its fisheries

management plan for tuna, swordfish and sharks that migrate

along the Atlantic coast.

I.

Oceana, Inc., an organization dedicated to protecting

oceans of the world, brought this action claiming that the

agency’s rulemaking failed to provide sufficient protection for

the dusky shark (Carcharhinus obscurus). Oceana’s standing is

unchallenged and rests on affidavits from its members.

The federal agency is the National Marine Fisheries

Service, an agency in the Department of Commerce. The

Fisheries Service is responsible for administering the Fishery

Conservation and Management Act of 1976, Pub. L. No. 94-265,

90 Stat. 331, commonly known as the Magnuson-Stevens Act. 

The Act is intended to “promote domestic commercial and

recreational fishing under sound conservation and management

principles,” 16 U.S.C § 1801(b)(3), in the “exclusive economic

zone” of the United States, id. § 1801(b)(1), an area extending

200 nautical miles seaward from each State’s coastline, see

Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 10, 1983). 

Within each coastal State’s territorial sea, which generally

extends three geographic miles from its coastline, the State has

jurisdiction to regulate fishing. See United States v. Maine, 469

U.S. 504, 513 (1985).

There are eight regional Fishery Management Councils for

the coastal fisheries in the Atlantic and Pacific. See Anglers

Conservation Network v. Pritzker, 809 F.3d 664, 667 (D.C. Cir.
3

2016). With respect to “highly migratory species” that travel 1

across the Councils’ regional boundaries in the Atlantic, the 2

Fisheries Service directly undertakes management ofthe fishery. 

16 U.S.C. § 1852(a)(3). 

The dusky shark is such a “highly migratory species.” This

shark inhabits temperate and tropical coastal seas throughout the

world. Distinct dusky shark populations in the western Atlantic

Ocean travel north in the spring as far as the coast of

Massachusetts and then, in the fall, southward as far as the Gulf

of Mexico and the Caribbean. Along the coast, these sharks are

found in the surf and seaward as far as the Continental Shelf.

Dusky sharks may grow as large as twelve feet in length

and weigh as much as 400 pounds. The “biology of this species

. . . is characterized by very late age at first reproduction (~ 20

years), high longevity (> 40 years), and very limited

reproductive potential, which result in low population growth

rates and long generation times (30 years).” E. CORTÉS ET AL.,

STOCK ASSESSMENT OF DUSKY SHARK IN THE U.S. ATLANTIC

AND GULF OF MEXICO 49 (2006). The shark bears small litters

after a long gestation period, estimated to “be as long as 22–24

months.”3

The Act defines “highly migratory species” as “tuna species, 1

marlin (Tetrapturus spp. and Makaira spp.), oceanic sharks, sailfishes

(Istiophorus spp.), and swordfish (Xiphias gladius).” 16 U.S.C.

§ 1802(21).

The boundaries, that is, of the following: the New England 2

Council, Mid-Atlantic Council, South Atlantic Council, Gulf Council,

and Caribbean Council. 16 U.S.C. § 1852(a)(3). 

Merry Camhi et al., Dusky Shark, in SHARKS, RAYS AND

3

CHIMAERAS: THE STATUS OF THE CHONDRICHTHYAN FISHES 298

(Fowler et al. eds., 2005) (citation omitted). 
4

To know this is to understand why commercial fishermen

landing unlimited numbers of dusky sharks in the coastal

Atlantic Ocean pose a threat to the species in that region. One

might wonder why commercialfishermen would, as they had for

decades, even bother to target dusky sharks. By all accounts

shark meat is barely palatable. Fishermen nevertheless sought

out this species to satisfy the demand for shark-fin soup. This

is a Chinese dish, for centuries considered a delicacy, selling at 4

one time in fancy restaurants in California and elsewhere for as

much as $100 a bowl, most of which consisted of chicken stock. 

It apparently did not matter that shark fins, like those of the

dusky shark, have no taste and no nutritional benefit.

Overfishing of the dusky sharks in the Atlantic regions

threatened the species. See Endangered and Threatened Wildlife

and Plants; Notice of 12-Month Finding on Petitions to List the

Northwest Atlantic Population of the Dusky Shark as

Threatened or Endangered Under the Endangered Species Act

(ESA), 79 Fed. Reg. 74,684, 74,688 (Dec. 16, 2014). Congress

and the Fisheries Service, over the years, have taken actions that

have protected the Atlantic dusky shark population. In 1993, the

Fisheries Service banned “shark finning” in the Atlantic fishery. 

See AtlanticHighly MigratorySpecies (HMS) Fisheries; Fishery

Management Plan (FMP), Plan Amendment, and Consolidation

of Regulations, 64 Fed. Reg. 29,090, 29,108 (May 28, 1999); see

also 50 C.F.R. § 678.21(a) (1993). Seven years later, Congress

passed the Shark Finning Prohibition Act, Pub. L. No. 106-557,

114 Stat. 2772 (2000), which amended the Magnuson-Stevens

Act to prohibit the removal of “any of the fins of a shark

“The rapid expansion of the commercial shark fishery in the US 4

in the late 1980s was fuelled in large part by the demand for shark fins

in the markets of Asia. Duskies have one of the most sought after fins

for shark fin soup because of their large size and high fin needle

content (ceratotrichia) . . ..” Id. at 299 (citations omitted). 
5

(including the tail) at sea.” 16 U.S.C. § 1857(1)(P)(i); see also

Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1140

(9th Cir. 2015).5

In 1999, the Fisheries Service amended the Atlantic

Fisheries Management Plan for highly migratory species to

prohibit vessel operators from retaining dusky sharks. See 50

C.F.R. § 635.22(c) (2000); 50 C.F.R. pt. 635, app. A (2000);

Amendments to the Fishery Management Plan for Atlantic

Tunas, Swordfish, and Sharks and the Fishery Management Plan

for Atlantic Billfish, 71 Fed. Reg. 58,058, 58,142 (Oct. 2, 2006);

64 Fed. Reg. at 29,108–09, 29,160. In other words, the annual

catch limit for dusky sharks became zero. See Oceana, Inc. v.

Raimondo (Oceana II), 530 F. Supp. 3d 16, 19, 21 (D.D.C.

2021). The prohibition on vessel operators retaining,

possessing, landing, selling, or purchasing dusky sharks remains

in effect. 50 C.F.R. § 635.24(a)(5); 50 C.F.R. pt. 635, app. A

(2016). In 2006, the Service took the added step of prohibiting

fishing for and possessing sandbar sharks, “a doppelganger of

the dusky whose targeting had resulted in sizable dusky shark

bycatch.” Oceana II, 530 F. Supp. 3d at 19. The Service

adopted this measure because most dusky-shark bycatch was

occurring in longline fishing, especially for sandbar sharks and

 No fewer than sixteen states and three territories impose some 5

prohibition on shark finning or possession of shark fins. See AM.

SAMOA CODE ANN. § 24.0961; CAL. FISH & GAME CODE §§ 2021,

2021.5, 7704(c); DEL. CODE ANN. tit. 7, § 928A; FLA. STAT. ANN.

§ 379.2426; 5 GUAM CODE ANN. § 63114.1; HAW. REV. STAT. § 188-

40.7; 515 ILL.COMP.STAT. § 5/5-30;LA.STAT.ANN § 56:326(E);MD.

CODE ANN. NAT. RES. § 4-747; MASS. GEN. LAWS ANN. ch. 130,

§ 106; NEV. REV. STAT. ANN. § 597.905(1); N.M. STAT. ANN. §§ 17-

10-2(A), 17-10-3(A); N.J. STAT. ANN. § 23:2B-23; N.Y. ENV’T.

CONSERV. LAW§ 13-0338; 2 N. MAR.I.CODE § 5651; OR.REV. STAT.

ANN. § 509.160; 20 R.I. GEN. LAWS ANN. § 20-1-29; TEX. PARKS &

WILD. CODE ANN. § 66.2161; WASH. REV. CODE ANN. § 77.15.770.
6

other large coastal sharks.6

Also, in 2003, the Fisheries Service closed a large area in

the mid-Atlantic off the coast of North Carolina to bottom

longline fishing from January 1st through July 31st of each year

“in part, because of high bycatch and mortality rates of dusky

sharks on bottom longline gear in that area.” Appellee Br. 9

(citing Atlantic Highly Migratory Species; Atlantic Shark

Management Measures, 68 Fed. Reg. 74,746, 74,760–63 (Dec.

24, 2003)).

Even so, pelagic (open ocean) longline fishing and bottom 7

longline fishing continued to pose a threat to the dusky shark. 8

This type of fishing in the Atlantic and adjacent regions

concentrates on tuna and swordfish. Fishermen determine

where to fish by locating temperature fronts between cooler and

warmer water masses. Vessels deploy lines five to forty miles

long across these fronts. The mainline is rigged with

gangions—leaders attached to the main line—containing baited

hooks. If the intended catch is swordfish, the line will usually

The Act defines “bycatch” as “fish which are harvested in a

6

fishery, but which are not sold or kept for personal use, and includes

economic discards and regulatory discards. Such term does not

include fish released alive under a recreational catch and release

fishery management program.” 16 U.S.C. § 1802(2).

 “Pelagic longline means a longline that is suspended by floats 7

in the water column and that is not fixed to or in contact with the

ocean bottom.” 50 C.F.R. § 635.2.

“Bottom longline means a longline that is deployed with enough

8

weights and/or anchors to maintain contact with the ocean bottom.” 

Id.
7

be put out at dusk and retrieved at dawn; if the target is tuna, 9

the line will be put out at dawn and picked up at dusk. See 10

Oceana, Inc. v. Gutierrez (Oceana I), 488 F.3d 1020, 1021

(D.C. Cir. 2007).

Although dusky sharks can no longer be the target of

longline fishermen, they remain a “bycatch.” Based on a 2016

updated stock assessment, the Fisheries Service found that

dusky shark bycatch mortality had to be reduced by thirty-five

percent of 2015 levels for the population to recover by 2107. 

See Atlantic Highly Migratory Species; Atlantic Shark

Management Measures; Final Amendment 5b, 82 Fed. Reg.

16,478, 16,479 (Apr. 4, 2017). The 2016 study showed

significant progress in reducing overfishing of dusky sharks.

Nonetheless, the study determined that a further twelve percentmedian reduction in mortality from 2015 levels was needed to

end overfishing.

In response, the Service amended its 2006 Fisheries

Management Plan for Atlantic highly migratory species. The

amendments, collectively called Amendment 5b, reconfirmed

the closure of the dusky-shark fishery and the annual catch limit

of zero. Id. at 16,484. In addition, Amendment 5b added

greater training and certification requirements for fishermen to

Swordfish feed at night. See Peter Ward et al., A Fish Lost at 9

Sea: The Effect of Soak Time on Pelagic Longline Catches, 102

FISHERY BULL. 179, 179, 182 (2005). Studies in the coastal Pacific

Ocean found that a “soak time of 5 hours and 3500 hooks (if that were

possible) would result in a total catch of about two swordfish.” Id. at

187.

Id. at 182.

10
8

identify dusky sharks; new protocols for releasing hooked 11

sharks; a requirement to use circle hooks for bottom-longline

fisheries; and communication protocols for fishermen to alert

others to avoid areas where dusky sharks are encountered. Id. 12

at 16,479.

On circle hooks, “the point is turned perpendicularly back

to the shank to form a generally circular, or oval, shape.” 50

C.F.R. § 635.2. They are so designed to catch the lip of the fish

and, unlike traditional J-hooks, circle hooks rarely result in guthooking. Circle hooks will therefore decrease post-release

mortality as compared to J-hooks. See 82 Fed. Reg. at

16,479–80; see also J.A. 687.

Circle hooks had already been mandated for pelagic

longline fishing in the Atlantic in order to protect leatherback

sea turtles and facilitate their release when they became

entangled in the lines and foul-hooked. See Oceana I, 488 F.3d

at 1022–23. As a bycatch mitigation measure, Amendment 5b

applied the same requirement to bottom longline fishing for tuna

and swordfish. 

See 82 Fed. Reg. at 16,479, 16,488; see also J.A. 580, 594. 11

Receiving the certification needed to retain non-prohibited sharks

from recreational, vessel-based fishing will include taking a training

course focused on “shark identification and regulation.” 82 Fed. Reg.

at 16,488; see also J.A. 580, 694.

Under the regulations, vessels must relocate “at least one 12

nautical mile away from the location” where a dusky shark is

encountered. Oceana II, 530 F. Supp. 3d at 51; see 50 C.F.R.

§ 635.21(c)(6)(ii), (d)(2)(iii). This is typical for regulations regarding

protected species. For instance, the Service requires vessels to move

at least one nautical mile away from a location where sea turtles or

smalltooth sawfish are caught. See 50 C.F.R. § 635.21(b)(3).
9

The hooks for pelagic and bottom landline fishing must be

non-stainless steel and thus corrodible. This too is an important 

bycatch-mortality mitigation measure. Pursuant to Amendment

5b, each vessel must have on board dehooker devices so that

dusky sharks (and other species) may be released while they are

still in the water. If the devices fail, the crew member must free

the shark by cutting the gangion—the leader attached to the

main line—“so that less than three feet (91.4 cm) of line remains

attached to the hook.” 50 C.F.R. § 635.21(c)(6)(i). The shark

will then swim away with a hook attached to its jaws and a short

run of line. The hook will then corrode quickly in saltwater,

thus “minimizing injuries to released sharks.” J.A. 602.13

This brings us to the procedural setting of the case. District

Judge Cooper issued two comprehensive opinions. In the first,

“the Court questioned [the Fisheries Service’s] exclusion of

logbook data from its assessment of the magnitude of the dusky

shark bycatch problem and found that these issues warranted

remand.” Oceana II, 530 F. Supp. 3d at 23. On remand the 14

Service explained why there was “no scientifically valid basis to

extrapolate dusky shark bycatch data from logbooks and other

sources to estimate the total amount of dusky shark bycatch.” 

Id. at 24.

Our discussion centers on the regulations applied to longline 13

commercial fishermen. The Service also regulates gill-netting (50

C.F.R. § 635.21(g)) and recreational fishing. Rod-and-reel fishing for

non-prohibited sharks, for example, may be done only with “nonoffset, corrodible circle hooks,” 50 C.F.R. § 635.22(c)(1), “except

when fishing with flies or artificial lures.” Id. § 635.21(f)(2). The

same requirements apply to handline fishing. Id. § 635.21(k);see also

id. § 635.22(c)(1).

We have sustained the Service’s reliance on logbooks in 14

assessing bycatch. See Oceana I, 488 F.3d at 1024–25.
10

Oceana then renewed its challenge to Amendment 5b. The

court found the Service’s treatment of the data unproblematic. 

Judge Cooper also concluded that the Service did not violate the

Magnuson-Stevens Act by failing to enact stricter regulations. 

Id. at 30–54. 

II. 

Oceana describes its appeal as raising two issues. 

A.

Oceana’s first issue is whether the Fisheries Service

violated the Magnuson-Stevens Act “by failing to actually limit

bycatch of the overfished dusky shark or hold fisheries

accountable to any level of dusky shark bycatch, despite the fact

that bycatch is the cause of dusky shark overfishing and the sole

impediment to rebuilding the population?”

Oceana’s arguments on this issue are muddled. For more

than two decades, the “annual catch limit” for dusky sharks has

been zero. In its opening brief, Oceana complained that the

Fisheries Service violated section 1853(a)(15) because it failed 15

to include bycatch within the annual zero catch limit. In

response, the Fisheries Service’s brief pointed out that it did

indeed include bycatch: “the annual catch limit of zero applies

not just to landing, retention, possession, and sale of dusky

sharks, but also to bycatch of dusky sharks resulting in

Each fisheries management plan must “establish a mechanism 15

for specifying annual catch limits in the plan (including a multiyear

plan), implementing regulations, or annual specifications, at a level

such that overfishing does not occur in the fishery, including measures

to ensure accountability.” 16 U.S.C. § 1853(a)(15).
11

mortality.” Appellee Br. 30; see 50 C.F.R. § 600.310(f)(1)(i). 16

In its reply brief, Oceana tried to recover from its error. 

Oceana’s argument became that although the Service included

bycatch mortality in the annual catch limit, this did not count. 

Why? Because “[i]f bycatch mortality is always above zero,

then the catch limit of zero does not act as a numerical limit on

bycatch mortality.” In other words, if the speed limit is set at 

60 m.p.h. and drivers exceed it, there really is no speed limit. 

We sought clarification at oral argument. Oceana’s counsel

conceded that under the Act “catch” includes bycatch mortality,

but not other bycatch (e.g., live dusky sharks that are released by

dehooking or cutting the leader). See Oral Argument Recording,

Oceana, Inc. v. Raimondo, No. 21-5120, at 1:50–2:22 (Mar. 18,

2022).

So we move on to the remainder of Oceana’s first

issue—namely, whether the Fisheries Service has implemented

any accountability measures to enforce the zero catch limit for

dusky sharks.

Oceana views the new protocols in Amendment 5b—such

as the training and circle-hook requirements—not as

“accountability” measures, but as “conservation and

management” measures under 16 U.S.C. § 1851(a). It suggests 17

those measures cannot qualify as “accountability” measures

because they may not succeed in holding fisherman to the zero

See 50 C.F.R. § 600.310(f)(1)(i) (“Catch includes fish that are 16

retained for any purpose, as well as mortality of fish that are

discarded.”). 

Oceana also cites 16 U.S.C. § 1853(a)(1), which calls for 17

conservation-and-management measures.
12

catch limit. That is, the measures do not hold fisherman

“accountable” to the limit. This argument makes the same error

as Oceana’s “limit” argument. Ticketing speeders is an

accountability measure even though drivers sometimes speed. 

So too with the measures in Amendment 5b, including closure

of the dusky-shark fishery—if fisherman are not permitted to

fish for dusky sharks this will implement the zero catch limit. 

That at least is how the Fisheries Service views its actions. See

82 Fed. Reg. at 16,484. Further, Amendment 5b provides

additional measures to “reduce dusky shark mortality” through

“bycatch reduction.” J.A. 701. These measures supplement the

Fisheries Service’s preexisting measures to curb the overfishing

of dusky sharks by reducing bycatch. See, e.g., J.A. 345. 

It is important to keep in mind that the rules of the Fisheries

Service under this Act are directed not at lawyers and

bureaucrats, but at captains of fishing ships and their crews. 

Those subject to the rules would find it difficult to see a material

difference in the ends sought by accountability measures and

those sought by conservation-and-management measures. The

Act’s overall aim is to prevent overfishing. See, e.g., 16 U.S.C.

§ 1801(a); 50 C.F.R. § 600.310(b)(2)(ii)–(iii). Sections 1851(a)

and 1853(a)(15), for instance, each call for measures to help

prevent overfishing. Compare 16 U.S.C. § 1851(a)(1), with id.

§ 1853(a)(15). Given this common goal, one would expect

accountability measures and conservation-and-management

measures to overlap. The training requirements, for example,

could be both a management measure—seeking to limit

bycatch—and an accountability measure—removing an excuse

for thinking that a dusky shark is another species. In terms of

preserving and enhancing the dusky shark population in the

western Atlantic, nothing much—including the legality of

Amendment 5b—turns on how one protective measure or

another is pigeon-holed. 
13

B.

Oceana’s second issue is whether the Fisheries Service

violated the Magnuson-Stevens Act “when it failed to establish

a reasonable likelihood that training measures, communication

protocols, and minor gear changes would reduce dusky shark

bycatch by 35 percent, the minimum reduction needed to meet

the statutory requirement to rebuild the population?”

Relying on Natural Resources Defense Council, Inc. v.

Daley, 209 F.3d 747, 753–56 (D.C. Cir. 2000), Oceana argues

that the Service had to show that Amendment 5b would result in

at least a fifty percent chance that the Atlantic dusky shark

population would rebound. In Daley, the Service set a harvest

quota for summer flounder that appeared too high to prevent

overfishing. Id.

Daley does not control here. The Service is not attempting

to balance a catch quota with preventing overfishing. See id. at

754. Rather, the Service has closed the dusky-shark fishery and

set the lowest possible number of allowable catches: zero. 82

Fed. Reg. at 16,484. In short, unlike in Daley, the Service here

is not promoting an overly optimistic sustainability projection to

justify a more liberal fishing quota. 

Oceana also criticizes the studies and evaluations the

Service relied upon in adopting its Amendment 5b protocols. In

what is an all-too-familiar mode of appellate brief writing,

Oceana wastes space plucking quotations from our court’s

opinions and stringing them together without analysis. Thus,

Oceana reminds us, as if we needed reminding, that our court

does not “rubber-stamp” agency action, that we do not “accept

bare conclusory allegations as fact,” and that we do not defer to

“unsupported suppositions.” Appellant Br. 49–50 (internal

quotation marks omitted).
14

Oceana should be reassured, although assurances are not

needed, that we have never used or even owned a rubber stamp,

that we have never, ever considered an allegation alone to be a

fact, and that we have never credited a “supposition” that was

lacking in support. See Oceana, Inc. v. Ross, 920 F.3d 855, 863

(D.C. Cir. 2019).

As to the regulations regarding hooks, the Service relied on

evidence supporting its conclusion that circle-hook usage will

decrease dusky-shark mortality. The Service found that twentyfive percent of bottom longline vessels did not use circle hooks. 

Oceana cites a study finding no significant difference in

mortality rates between the use of circle hooks and J-hooks to

argue that the requirement will have no appreciable impact. See

J.A. 464. But the Service cited multiple studies finding reduced

at-vessel shark mortality when circle hooks were used instead of

J-hooks. See 82 Fed. Reg. at 16,491; see also J.A. 376–77, 687. 

The Service’s reliance on the cited studies, J.A. 599, its

acknowledgment of contrary evidence, J.A. 687, and its stated

reasons for reaching its conclusions, J.A. 599, 687, amount to

decisionmaking based on reasoning having reliable evidentiary

support. See Shafer & Freeman Lakes Env’t Conservation

Corp. v. FERC, 992 F.3d 1071, 1093 (D.C. Cir. 2021). No more

is required. 

Oceana also blames the Service for failing to show that

Amendment 5b’s new training requirements will be efficacious. 

The Service explained that the requirements should help

recreational fishermen identify and properly handle caught

dusky sharks. 82 Fed. Reg. at 16,488; J.A. 595. The Service

recognized that it could not “quantify the total mortality

reduction” that this particular measure would bring. J.A. 682. 

But the Service cited two studies in concluding that “education

to fishermen can significantly improve compliance rates, reduce

mistaken/illegal landings, [and] reduce post-release mortality
15

rates . . ..” Id. The Service therefore had solid grounds on

which to conclude that the training-and-certification

requirements would reduce dusky-shark mortality. See Oceana

I, 488 F.3d at 1025.

The judgment of the district court is affirmed.