Oceana, Inc. v. Ross

920 F.3d 855

OCEANA, INC., Appellant

v.Wilbur ROSS, in His Official Capacity as Secretary of the United States Department of Commerce, et al., Appellees

No. 17-5247

United States Court of Appeals, District of Columbia Circuit.

Argued October 22, 2018

Decided April 12, 2019

Lide E. Paterno argued the cause for appellant. With him on the briefs were Pratik A. Shah, James E. Tysse, Stanley E. Woodward Jr., and Alexandra Harrison.

Avi Kupfer, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, and Andrew C. Mergen, Attorney.

Before: Tatel, Wilkins, and Katsas, Circuit Judges.

Wilkins, Circuit Judge:

When fishermen catch fish but do not sell or keep them for personal use, they harvest what is referred to as "bycatch." Discarded fish might constitute fish of an "undesirable size, sex, or quality," or fish that "fishermen are required by regulation to discard whenever caught." 16 U.S.C. § 1802(2), (9), (38). Because a significant portion of bycatch do not survive (although some may be returned to the water), the phenomenon of bycatch can have detrimental effects on the marine ecosystem. 50 C.F.R. § 600.350(b). Accordingly, the Magnuson–Stevens Fishery Conservation and Management Act ("Magnuson–Stevens Act"), as amended by the Sustainable Fisheries Act ("Fisheries Act"), 16 U.S.C. § 1801 et seq ., directs the National Marine Fisheries Service ("the Fisheries Service") and regional councils to establish methodologies for collecting and reporting bycatch data.

Plaintiff Oceana, Inc. challenges the Standardized Bycatch Reporting Methodology ("Reporting Methodology") adopted in 2015 by the Fisheries Service to track bycatch in fisheries in the Northeast region of the United States. Oceana claims that the reporting methodology violates the Magnuson–Stevens Act and the Administrative Procedure Act ("APA"). Defendant Fisheries Service¹ and Oceana filed cross-motions for summary judgment. The District Court entered summary judgment for the Fisheries Service, finding that the Reporting Methodology satisfies applicable law. Oceana now appeals. We affirm the District Court because the Fisheries Service has met its obligation under the Fisheries Act to establish a standardized methodology. We further conclude that the District Court did not abuse its discretion in not requiring that the agency produce or include on a privilege log documents covered by the deliberative-process privilege.

I.

A.

In 1976, Congress adopted the Magnuson–Stevens Act to, among other things, "conserve and manage the fishery resources found off the coasts of the United States." 16 U.S.C. § 1801(b)(1) (2000). Under this act, the Fisheries Service and eight regional councils are tasked with developing Fishery Management Plans, which the Secretary of Commerce may approve after public notice and comment. 16 U.S.C. §§ 1853(c), 1854(a). The Secretary then promulgates final regulations to implement the Fishery Management Plan. 16 U.S.C. § 1854(b).

The Magnuson–Stevens Act, as amended by the Fisheries Act, provides that, "to the extent practicable," Fishery Management Plans must minimize bycatch. 16 U.S.C. § 1851(a)(9). The Magnuson–Stevens Act defines bycatch as "fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards." 16 U.S.C. § 1802(2). Minimizing bycatch is important because "[b]ycatch can ... impede efforts to protect marine ecosystems and achieve sustainable fisheries and the full benefits they can provide to the Nation." 50 C.F.R. § 600.350(b). Bycatch may not only "preclude other more productive uses of fishery resources," but also "increase substantially the uncertainty concerning total fishing-related mortality." Id .

Under the Fisheries Act, Fishery Management Plans must "establish a standardized reporting methodology to assess the amount and type of bycatch." 16 U.S.C. § 1853(a)(11). Pursuant to § 1851(a)(2), "[c]onservation and management measures shall be based upon the best scientific information available."

B.

In 2008, the Fisheries Service promulgated an omnibus amendment to the Fishery Management Plans covering the Northeast region. See 73 Fed. Reg. 4736 (Jan. 28, 2008) (the "2008 Amendment"). The 2008 Amendment outlined a methodology that would allocate bycatch observers to more than fifty "fishing modes." With enough observers, the Fisheries Service reasoned, the bycatch rates would be statistically reliable. Oceana, Inc. v. Locke , 670 F.3d 1238, 1239 (D.C. Cir. 2011). The 2008 Amendment also authorized the Fisheries Service to invoke a "prioritization process" to depart from its allocation rule whenever "external operational constraints would prevent [the Fisheries Service] from fully implementing the required [ ] observer coverage levels." Id . at 1240.

Oceana filed a lawsuit alleging that the 2008 Amendment did not establish a standardized methodology "because it create[d] a ‘loophole’ that allow[ed] the [Fisheries Service] Regional Administrator to avoid applying the minimum acceptable level of observer coverage under the [Reporting Methodology] in any year ‘in which external operational constraints would prevent [Fisheries Service] from fully implementing the required at-sea observer coverage levels.’ " Oceana, Inc. v. Locke , 725 F.Supp.2d 46, 54 (D.D.C. 2010). Such an external constraint could be due to "funding shortfalls," id . at 55 ; but notably, the Fisheries Service determined both the amount of funding required for bycatch observation and the funding it would allocate for that purpose, Locke , 670 F.3d at 1242. In Oceana, Inc. v. Locke , the District Court upheld the 2008 Amendment, see 725 F.Supp.2d at 72, but we reversed, Locke , 670 F.3d at 1243. We held that "[b]ecause the [2008] Amendment grants the Fisheries Service substantial discretion both to invoke and to make allocations according to a non-standardized procedure ... the Service did not ‘establish’ a standardized methodology under the Fisheries Act." Locke , 670 F.3d at 1243. This Court directed the District Court to vacate the 2008 Amendment and remand it to the agency. Id .

C.

In response to this Court’s remand of the 2008 Amendment, the Fisheries Service promulgated the Reporting Methodology at issue in this appeal. 80 Fed. Reg. 37182 (June 30, 2015). To obtain data on the number of discarded fish (bycatch) in a fishery, the Fisheries Service uses the Northeast Fisheries Observer Program, which places an at-sea observer in vessels that are permitted to participate in federal fisheries. 80 Fed. Reg. 37183. According to the Reporting Methodology, these observers "are generally biologists trained to collect information onboard fishing vessels." J.A. 596. They are instructed to record all catch and bycatch caught in the net and identify them to "the lowest taxonomic level possible." J.A. 596-97. Because it would be too expensive and infeasible to place a human observer on all the vessels in the Northeast fisheries at all times, the Fisheries Service places observers on only a sample of fishing trip vessels. This sampling process employs a statistical design that allocates observers to vessels so as to reduce bias and obtain a sufficiently precise bycatch estimate. In turn, the Fisheries Service can extrapolate the sample data to the entire fleet.

Oceana filed a complaint in District Court for a declaration that the Reporting Methodology violates federal law, including the Fisheries Act and the APA. The complaint alleged that the Reporting Methodology did not establish a standardized reporting methodology for bycatch, in that the 2015 Amendment permitted adaptation to available funding. Oceana further argued that the formula for calculating the target number of observer trips should have been based on species that are not only federally but also non-federally managed.

In the District Court, the Fisheries Service filed an administrative record. The filing included an index of withheld privileged documents, classifying the documents as withheld because of Attorney-Client Privilege, Attorney Work Product, Deliberative Process Privilege, or Non-Responsive. The Fisheries Service later supplemented its administrative record with eight additional documents and supplemented its filing with a revised index of privileged documents. Oceana moved to compel the Fisheries Service to "conduct a complete review of its agency files, including email correspondence" and "to includ[e] all such responsive documents from that search." Oceana, Inc. v. Pritzker , 217 F.Supp.3d 310, 315 (D.D.C. 2016) (citations omitted). The District Court denied Oceana’s motion and subsequently granted the Fisheries Service’s motion for summary judgment. Oceana appeals both rulings.

II.

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." Locke , 670 F.3d at 1240 (quoting Nat. Res. Defense Council v. Daley , 209 F.3d 747, 752 (D.C. Cir. 2000) ). However, we will defer to the Fisheries Service’s interpretation of what the Fisheries Act requires, provided it is "rational and supported by the record." C & W Fish Co. v. Fox , 931 F.2d 1556, 1562 (D.C. Cir. 1991). The Fisheries Service’s methodology must be "based upon the best scientific information available," 16 U.S.C. § 1851(a)(2), and cannot be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U.S.C. § 706(2)(A).

A.

Oceana contends the Fisheries Service has not "established a standardized reporting methodology to assess the amount and type of bycatch occurring in fisher[ies]" as required by the Fisheries Act. 16 U.S.C. § 1853(a)(11). Specifically, Oceana argues that the Reporting Methodology permits the Fisheries Service to depart from its observer allocation methodology whenever it decides to dedicate...