United States Court of Appeals, District of Columbia Circuit
October 22, 2018
from the United States District Court for the District of
Columbia (No. 1:15-cv-01220)
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.
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
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.
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 Service 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.
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).
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.
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."
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.
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  Amendment
grants the Fisheries Service substantial discretion both to
invoke and to make allocations according to ...