United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2011 Decided July 19, 2011

No. 10-5299

OCEANA, INC.,

APPELLANT

v.

GARY F. LOCKE, IN HIS OFFICIAL CAPACITY AS SECRETARY OF 

THE UNITED STATES DEPARTMENT OF COMMERCE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00318)

Hyland Hunt argued the cause for appellant. On the 

briefs was Sara E. Robinson. Eric A. Bilsky and Avrum M. 

Goldberg entered appearances.

Robert J. Lundman, Attorney, U.S. Department of 

Justice, argued the cause for appellees. With him on the brief 

was John L. Smeltzer, Attorney. R. Craig Lawrence, 

Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, GINSBURG and 

GARLAND, Circuit Judges.
2

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: Oceana, Inc. brought this suit 

against the National Marine Fisheries Service challenging as 

unlawful the methodology it uses to track bycatch in the 

fisheries off the Northeastern coast of the United States. The 

district court concluded the methodology satisfies applicable 

law, see 16 U.S.C. § 1853(a)(11), and entered a summary 

judgment for the Fisheries Service, which Oceana now 

appeals. Because the Fisheries Service has merely described 

but has not, as the Fisheries Act requires, “established” a 

“standardized reporting methodology” to assess bycatch in the 

Northeastern fisheries, we reverse the judgment and instruct 

the district court to vacate the rule adopting the methodology 

and to remand the matter to the agency for further 

proceedings.

I. Background

The Magnuson-Stevens Fishery Conservation and 

Management Act, as amended by the Sustainable Fisheries 

Act, 16 U.S.C. §§ 1801-1884 (Fisheries Act), requires the 

Secretary of Commerce, through the Fisheries Service,*

 * The Fisheries Service is a branch of the National Oceanic and 

Atmospheric Administration (NOAA), in the Department of 

Commerce. The Secretary of Commerce and the NOAA are also 

defendants and appellees in this lawsuit. For simplicity we refer 

only to the Service. 

to 

adopt policies that “to the extent practicable,” reduce the 

volume of bycatch, § 1851(a), that is, fish that are 

inadvertently or unavoidably captured by nets or other gear

and then discarded, see § 1802(2) (defining bycatch as the 

“fish which are harvested in a fishery, but which are not sold 

or kept for personal use”). See also § 1801(c)(3) (stating 
3

congressional intent to “encourage[] development of practical 

measures that minimize bycatch and avoid unnecessary waste 

of fish”). The Fisheries Act further instructs the agency, in 

conjunction with eight regional councils, to “establish a 

standardized reporting methodology to assess the amount and 

type of bycatch” in each fishery in each region. § 

1853(a)(11); see § 1852 (regarding role and authority of 

regional councils). The councils then use the reports to

develop policies to minimize bycatch and bycatch mortality. 

See 50 C.F.R. § 600.350(d) (requiring regional council to 

create a database on bycatch and bycatch mortality that will 

help it “evaluate conservation and management measures”).

In order to comply with the directive in § 1853(a)(11) to 

“establish a ... methodology,” the Fisheries Service, working 

with the councils for the New England and Mid-Atlantic 

regions, proposed an “omnibus amendment” to the fishery 

management plans for each of the 13 fisheries in those 

regions, see 73 Fed. Reg. 4736 (Jan. 28, 2008). The

Amendment requires the Service’s regional officials to fund 

and allocate independent observers to gather data on bycatch 

from each “fishing mode,” or combination of vessel type and 

fishing gear. See id. at 4738. The Service must fund enough 

observer voyages to generate statistically reliable data. Id. at 

4738 (“The amendment is intended to ensure that the data 

collected ... are sufficient to produce a coefficient of variation 

(CV) of the discard estimate of no more than 30 percent, in 

order to ensure that the effectiveness of the [Amendment] can 

be measured, tracked, and utilized to effectively allocate the 

appropriate number of observer sea days”). 

The Amendment separately authorizes the Service to 

invoke a “Prioritization Process,” however, “[i]n any year in 

which external operational constraints would prevent the 

[agency] from fully implementing the required at-sea observer 
4

coverage levels.” In those years the Service may, instead of 

complying with the levels set out in the Amendment, 

determine the “most appropriate” number and allocation of 

observers according to the “data needs” of the Service, its 

obligations under other statutes, and “any other criteria” it

may identify. Id. The Amendment also commits the agency 

to consulting the regional councils about its proposed 

“prioritized allocations” before implementing them.

*

Oceana filed suit in the district court claiming the 

Amendment violates the Fisheries Act, the Administrative 

Procedure Act (APA), 5 U.S.C. § 706(2)(A), and the National 

Environmental Policy Act (NEPA), 42 U.S.C. § 4332. The 

district court rejected all of Oceana’s statutory claims, 725 F. 

Supp. 2d 46 (2010), as well as its “Motion to Compel 

Completion of the Record” with documents the Service 

contends are privileged, 634 F. Supp. 2d 49 (2009). Oceana 

appeals both rulings.

Id.

 * The Amendment provides in relevant part: 

In any year in which external operational 

constraints would prevent NMFS from fully 

implementing the required at-sea observer 

coverage levels, the Regional Administrator and 

Science and Research Director will consult with 

the Councils to determine the most appropriate 

prioritization for how the available resources 

should be allocated. In order to facilitate this

consultation, in these years [they] will provide the 

councils, at the earliest practicable opportunity 

[with four types of information] ... . The Councils 

may choose to accept the proposed observer 

coverage allocation or to recommend revisions or 

additional considerations ... .” 73 Fed. Reg. at 

4738. 
5

II. Analysis

In its primary argument on appeal, Oceana contends the 

Fisheries Service has not “established” a standardized bycatch 

reporting methodology, as the term is used in the Fisheries 

Act, § 1853(a)(11). We will defer to the Service’s

interpretation of what that provision requires so long as it is 

“rational and supported by the record,” C & W Fishing Co. v. 

Fox, 931 F.2d 1556, 1562, (D.C. Cir. 1994), and we will not 

set aside the agency’s choice of a methodology unless it is

“arbitrary, capricious, an abuse of discretion or otherwise not 

in accordance with law,” 5 U.S.C. § 706(2)(A); see § 1855(f) 

(providing for judicial review of regulations pursuant to the 

APA).*

Oceana argues the Amendment is not consistent with § 

1853(a)(11) because, instead of establishing a methodology 

Although the district court heard this dispute in the 

first instance, see § 1861(d), on appeal we review not the 

judgment of the district court but the agency’s action directly, 

giving “no particular deference” to the district court’s view of 

the law. Natural Res. Def. Council v. Daley, 209 F.3d 747, 

752 (D.C. Cir. 2000) (quoting Associated Builders & 

Contractors, Inc. v. Herman, 166 F.3d 1248, 1254 (D.C. Cir. 

1999)); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 

1077, 1083 (D.C. Cir. 2000) (“[W]hen a party seeks review of 

agency action under the APA, the district judge sits as an 

appellate tribunal. The entire case on review is a question of 

law.”) (internal quotation marks omitted). 

 *

 Because we apply the same standard of review to the Amendment 

issued by the Service and to the Secretary’s approval thereof, see 

Fishing Co. of Alaska v. Gutierrez, 510 F.3d 328, 330 (D.C. Cir. 

2007) (rejecting as unreasonable Secretary’s determination that a 

procedurally defective rule proposed by the Fisheries Service was 

“consistent with applicable law”), we do not distinguish further 

between them. 
6

by which the agency will proceed, the Amendment describes 

“an optional methodology” that applies “in some years and 

not in others.” In response, the Service says it has established 

a methodology pegged to a benchmark of statistical precision 

that is binding upon it “unless external operational 

constraints, such as funding shortfalls” make compliance 

impossible; in other words, it is enough to satisfy § 

1853(a)(11) that the Amendment “establishes” the 

methodology the agency will use when it can. Oceana, the 

Service adds, remains free to challenge the allocation of 

observers for any particular year.

The Fisheries Service rests its defense of the Amendment 

upon the scope of the phrase “external operational constraint,” 

which it says is a meaningful limitation upon the agency’s 

discretion to depart from the standardized methodology it has 

prescribed. To address this argument we consult our 

decisions addressing similar statutory mandates, in regulatory 

regimes other than the Fisheries Act, to “establish” (or 

“prescribe” or “set,” or the like) a procedure or standard. 

Compare, e.g., Cement Kiln Recycling Coalition v. EPA, 493 

F.3d 207 (2007) (concluding EPA reasonably prescribed 

process by which it would impose “terms and conditions [in 

permits] ... necessary to protect human health and the 

environment,” as required by Resource Conservation and 

Recovery Act, 49 U.S.C. § 6925, despite alleged vagueness of 

that standard); with Ethyl Corp. v. EPA, 306 F.3d 1144 (2002) 

(holding EPA did not sufficiently “establish methods and 

procedures for making tests” for new automobile models, as 

required by Clean Air Act, because regulation did not 

prescribe standard by which agency would approve an

emissions test proposed by a manufacturer); and MST Express 

v. Dep’t of Transp., 108 F.3d 401 (1997) (holding Secretary 

of Transportation did not satisfy mandate of Motor Carrier 

Safety Act to “prescribe regulations establishing a procedure 
7

to decide on the safety fitness of owners” because agency 

issued specific standards in informal document and left formal

regulation vague).

Summarizing these cases most recently in Cement Kiln, 

493 F.3d at 217, we considered the limits upon an agency’s 

authority to reserve in advance some discretion to depart on a 

case-by-case basis from an otherwise applicable rule: The 

agency must adequately define the circumstances that 

“trigger” the case-by-case analysis, 493 F.3d at 222-23, and it 

must set an “identifiable standard” to guide its judgment when 

operating under that procedure, id. at 220-21 (quoting Ethyl 

Corp., 306 F.3d at 1149-50). The agency has broad discretion 

to use general terms for the “trigger” and the “identifiable 

standard,” however, unless the statute requires the agency to 

be more specific or the rule reflects an unreasonable 

interpretation of the statute. See id. at 217-18 (quoting Ethyl 

Corp., 306 F.3d at 1149). As we said in Cement Kiln, 

showing a rule is “impermissibly vague” when the statute is 

silent is “always a difficult burden for a petitioner to 

overcome.” Id. at 222-23.

The Amendment at issue here fails to survive this

indulgent standard of review because it creates an exception 

so vague as to make the rule meaningless: The Fisheries 

Service apparently has given itself complete discretion to 

determine when an “external operational constraint prevents

[it] from fully implementing the required coverage levels.” 

73 Fed. Reg. at 4738. As Oceana observes, nothing in the 

Amendment prevents the Service from announcing a 

“constraint” applies in any or indeed every year. 

In its brief the Service tells us a “funding constraint” is 

the “quintessential example” of an “external operational 

constraint scenario.” Neither that nor any other example is 
8

instanced in the Amendment itself but let us assume for the 

sake of the agency’s argument the term “external operational 

constraint” does not comprise every ill wind that blows the 

agency’s way but instead refers exclusively to a funding 

constraint. We would still have to conclude the Service failed 

to “establish” a standardized reporting methodology. The

Amendment prescribes no criterion or formula by which the 

Service determines whether the funding available to it in a 

particular year will prevent it from “fully implementing” the 

standardized methodology. Consequently, the agency can

declare a budgetary “constraint” in any year it finds doing so

convenient, with no detectable consistency from one year to 

another. Perhaps the only constant is that no agency ever has 

enough money to do everything it might want to do. Be that 

as it may, no reasonable interpretation of the statutory 

instruction to “establish a standardized methodology” would 

allow the agency to reserve to itself effectively complete

discretion to trigger an exemption. 

Nor is it clear even a “funding constraint” is necessarily

“outside the agency’s control,” as the Service implies: The 

Service nowhere claims the Congress appropriates a specific 

amount for the observation program or prohibits the Service 

from using other appropriated or, for that matter,

nonappropriated funds for that purpose. See Comments of 

Oceana Concerning the Northeast Region Standardized 

Bycatch Reporting Methodology Omnibus Amendment, Sept. 

24, 2007, at 8 (“While the ... Amendment established a 

mechanism which would allow regional councils to establish 

industry-funding for observers through future rulemakings,” 

see 73 Fed. Reg. at 4740, the Fisheries Service “never 

considered using industry funding to ensure that the 

[precision] standard was always achieved”). Because the 

agency determines both the amount of funding required for 

bycatch observation and the funding it will allocate for that 
9

purpose, it can determine the stringency of this supposedly

“external” constraint and thus free itself at will from the 

methodology it purportedly “established.” This will not do. 

In addition to setting an impermissibly vague “trigger,” 

Cement Kiln, 493 F.3d at 223, the Amendment does little to 

channel the agency’s exercise of discretion when it 

determines the “most appropriate” allocation of observers. 

The Amendment identifies a handful of factors upon which 

the agency “should” set its priorities, including the “data 

needs of upcoming stock assessments ... [and of] fishery 

management actions,” and the applicable “legal mandates” of

the Endangered Species Act and the Marine Mammal

Protection Act. These factors, which merely restate the 

agency’s statutory obligations, do not meaningfully constrain 

the agency in setting and implementing its priorities. 

Compare 73 Fed. Reg. at 4738/3, with Cement Kiln, 493 F.3d 

at 223 (holding EPA sufficiently identified standard by 

referencing “nine relatively specific factors”).

In sum, the Service’s defense of the Amendment is as

unpersuasive as it is conclusory. To Oceana’s argument that 

“key elements” of the methodology, including the standard of 

precision, are in fact “optional” because the agency may 

disregard them at will, the agency has responded, in effect, 

that the key elements and the methodology as a whole are 

binding upon it — except of course in the years when they are 

not. See, e.g., Govt. Br. at 26 (“The methodology does not 

change if funding is insufficient”). The agency appears to 

mean the methodology is “established” in some Platonic 

sense, serving as the model to which the agency will aspire, 

though it is never itself fully realized. (Ah, but a man’s reach 

should exceed his grasp, or what’s a heaven for?) Here we 

must agree with Oceana: The “prioritization process” is the 

exception that proves this rule and shows it is not a rule at all. 
10

Although the Service congratulates itself for having 

adopted an approach “particularly wise in this fiscal climate,” 

the self-proclaimed wisdom of the approach cannot save it 

because the Congress, in its more commanding wisdom, has 

not authorized it. Here, we take note of the second clause of 

subsection (a)(11), which directs the agency to adopt 

“conservation and management measures that [minimize 

bycatch and bycatch mortality] to the extent practicable.” The 

qualifier “to the extent practicable” does not appear in or 

modify the first clause of the same sentence, where the 

Service is directed to “establish” a standardized methodology. 

When a statute commands an agency without qualification to 

carry out a particular program in a particular way, the 

agency’s duty is clear; if it believes the statute untoward in 

some respect, then “it should take its concerns to Congress,” 

for “[i]n the meantime it must obey [the statute] as written.” 

Natural Res. Def. Council v. EPA, No. 10-1086, slip op. at 21 

(D.C. Cir. Jul. 1, 2011); cf. Pennsylvania v. Lynn, 501 F.2d 

848, 852 (D.C. Cir. 1974) (upholding Secretary’s “limited 

discretion” to terminate statutorily mandated housing 

programs he found were frustrating rather than advancing 

congressional intent).

III. Conclusion

Because the Amendment grants the Fisheries Service 

substantial discretion both to invoke and to make allocations

according to a non-standardized procedure, we hold the 

Service did not “establish” a standardized methodology under 

the Fisheries Act. At best the rule sets a benchmark from 

which the agency freely can and apparently does significantly 

depart in its annual allocation of observers.

*

 * Experience thus far tends to support this conclusion: The agency 

is yet to apply the “standardized” methodology it purportedly 

“established” because it has found itself subject to a “constraint” in 

We therefore 
11

reverse the judgment of the district court without reaching

either Oceana’s separate challenge under the NEPA, see 

NRDC v. Daley, 209 F.3d at 753, or its appeal of the order 

denying its motion for completion of the record, see Ctr. for 

Auto Safety v. Ruckelshaus, 747 F.2d 1, 6 (D.C. Cir. 1984); 

Metcalf v. Daley, 214 F.3d 1135, 1146 n.4 (9th Cir. 2000) 

(ruling that agency’s Environmental Assessment violated 

NEPA “renders moot” challenge to denial of motion to 

compel production of administrative record material because 

“[w]ith the preparation of a new EA, a new administrative 

record will also be generated”). We remand this matter to that 

court for the purpose of vacating the Amendment and 

remanding it to the agency for further proceedings consistent 

herewith.

So ordered.

 

each of the four years the final rule has been in effect. See 

Appellant Br. at 27-28 (of the observer voyages required under 

standardized methodology, agency funded less than 30 percent in 

2008 and roughly 40 percent in 2009). The plasticity of the 

Amendment being apparent on its face, however, and the 30-day 

deadline in § 1855(f) for seeking judicial review implying a 

congressional preference for immediate resolution, we see no 

reason to withhold judgment pending a challenge to the rule as 

applied. See Cement Kiln, 493 F.3d at 215; accord NRDC v. EPA, 

slip op. at 16.