# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2011 Decided July 19, 2011

No. 10

- 5299

O CEANA

, I NC

.,

A PPELLANT

v.

G ARY F. L OCKE

, IN HIS OFFICIAL CAPA CITY AS S ECRETARY OF

THE U NITED S TATES D EPARTMENT OF C OMMERCE

, ET AL

., A PPELLEES

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 appearance s.

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: S ENTELLE

, Chief Judge

, G INSBURG and
G ARLAND

, Circuit Judges

.2

Opinion for the Court filed by Circuit Judge G INSBURG

.
G INSBURG

, 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 of f the Northeastern coast of the United States. The district court concluded the methodology satisfie s applicable law, see 16 U.S.C. § 1853(a)(11) , and entered a summary judg ment for th e Fisheries Service , which Oceana now appeals. Bec ause 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 vac ate 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 (Fisher ies 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 NOA A are also defendants and appell ees 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

an d 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) (stating3

congressional intent to “encourage[] development of practical measures that minimize bycatch and avoid unnecessary waste of fish”). T he Fisher ies Act further instructs the agency , in conjunction with eight regional councils, to “establish a
standardized r eporting 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 by catch mortality.

S ee 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” ).

I n order to comply with the directive in § 1853(a)(11) to “establish a ... methodology

, ” t he 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

, s ee 73 Fed. Reg. 4736 (Jan. 2 8, 2008). Th e A mendment requires the Service’s regional offic ials 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 mus t fund enough
observer voyages t o 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 [ A mendment] can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days ”)

.

The Amendme nt 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 observer4

coverage levels

. ” In those years t he 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 identif y

. Id. The Amendment also commits the agency

to consult ing the regional councils about its proposed “prioritized allocations” before implementing them

. *

Oceana filed su it in the district court claiming the
Amendment violat e s the Fisher ies 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 “M otion to C ompel
C ompletion of the R ecord ” 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
additio nal considerations ... .” 73 Fed. Reg. at
4738.5

II. Analysis

In its primary argument on a ppeal, 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 o r otherwise not in accordance with law

, ” 5 U.S.C. § 706(2)(A); s ee § 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 w e revi ew 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 &

Contr actors, 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. T he 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) (rej ecting 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, t he Service says it has established a methodology pegged to a benchmark of statistical precision
that is binding upon it “unless external operational
constrai n ts, such as funding shortfalls” make compliance impossible ; in other words, i t 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 limit ation upon the agency’s
discretion to depart from the standard ized 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 proc edure or standard

. C ompare, 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 a n 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 establish ing a procedure7

to decide on the safety fitness of owners ” because agency issued specific standards in informal document and left formal

r egu lation vague ).

Summarizing these cases most recently in Cement Kiln

, 493 F.3d at 217, we considered the limit s upon an agency ’s authority to reserve in advance some discretion to depart on a

case

- by

- case basis from an otherwise applicable rule : T he
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). T he agency has broad discretion

to use general terms for the “trigger” and the “identifiable standard,” however, unless the statute require s the agency to
be more specific or the rule reflect s a n un reasonable 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.

T he Amendment at issue here fails to survive this
i ndulgent standard of review because it creates an exception
so vague as to make the rule meaningless : T he Fisheries
Service apparently has given itself complete discretion to determine when an “external opera tional constraint prevent s [it ] from fully implementing the required coverage levels.” 73 Fed. Reg. at 4738. As Oceana observes

, n othing 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 is8

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. W e would still have to conclude the Service failed
to “establish” a standardized re porting methodology. The Amendment prescribes no criteri on or formula by which the
Service determine s whether the funding available to it in a particular year will prevent it from “fully implementing” the standardized methodology

. Consequently, t he 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 t hat as it may, n o 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 no where claims the Congress appropriates a specific amount for the observation program or prohibits the Service from using other appropriated or , for that matte r, nonappropriated funds for that purpose. See Comments of Oceana Concerning the Northeast Region Standardized Bycatch Reporti n g Methodology Omnibus Amendment, Sept. 24, 2007, at 8 (“While the

... Amendment established a mechanism which would allow regiona l 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 that9

purpose , it can determine the stringency of this supposedly
“external” constraint and thus free it self at will from the methodology it purporte dly “established.” T his 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
need s 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 set ting and implement ing 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, t he 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 el ements 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?) H ere 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. Co nclusion

B ecause 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 conclusio n: The agency is yet to apply the “standardized” methodology it purportedly “established” because it has found itself subject to a “constraint” in We therefore11

reverse t he judgment of the district court without reach ing
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. 198 4) ; 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 administrativ e record will also be generated”)

. W e remand this matter to that

court for the purpose of vacat ing 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 voyage s required under standardized methodology, agency funded less than 30 percent in
2008 a nd 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 im plying 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.