Oceana, Inc. v. Gina Raimondo ( 2022 )

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”1 that travel
across the Councils’ regional boundaries in the Atlantic,2 the
Fisheries Service directly undertakes management of the 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
1
The Act defines “highly migratory species” as “tuna species,
marlin (Tetrapturus spp. and Makaira spp.), oceanic sharks, sailfishes
(Istiophorus spp.), and swordfish (Xiphias gladius).” 16 U.S.C.
§ 1802(21).
2
The boundaries, that is, of the following: the New England
Council, Mid-Atlantic Council, South Atlantic Council, Gulf Council,
and Caribbean Council. 16 U.S.C. § 1852(a)(3).
3
Merry Camhi et al., Dusky Shark, in SHARKS, RAYS AND
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 commercial fishermen 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,4 selling at
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 Atlantic Highly Migratory Species (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
4
“The rapid expansion of the commercial shark fishery in the US
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
5
No fewer than sixteen states and three territories impose some
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 fishing7 and bottom
longline fishing8 continued to pose a threat to the dusky shark.
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
6
The 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. Such term does not
include fish released alive under a recreational catch and release
fishery management program.” 16 U.S.C. § 1802(2).
7
“Pelagic longline means a longline that is suspended by floats
in the water column and that is not fixed to or in contact with the
ocean bottom.” 50 C.F.R. § 635.2.
8
“Bottom longline means a longline that is deployed with enough
weights and/or anchors to maintain contact with the ocean bottom.”
Id.7
be put out at dusk and retrieved at dawn;9 if the target is tuna,
the line will be put out at dawn and picked up at dusk.10 See
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 percent-
median 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
9
Swordfish feed at night. See Peter Ward et al., A Fish Lost at
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.
10
Id. at 182.
8
identify dusky sharks;11 new protocols for releasing hooked
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.12 Id.
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 gut-
hooking. 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.
11
See 82 Fed. Reg. at 16,479, 16,488; see also J.A. 580, 594.
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.
12
Under the regulations, vessels must relocate “at least one
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 23.14 On remand the
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.
13
Our discussion centers on the regulations applied to longline
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 “non-
offset, 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).
14
We have sustained the Service’s reliance on logbooks in
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)15 because it failed
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
15
Each fisheries management plan must “establish a mechanism
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.”16 Appellee Br. 30; see 50 C.F.R. § 600.310(f)(1)(i).
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”17 measures under 16 U.S.C. § 1851(a). It suggests
those measures cannot qualify as “accountability” measures
because they may not succeed in holding fisherman to the zero
16
See 50 C.F.R. § 600.310(f)(1)(i) (“Catch includes fish that are
retained for any purpose, as well as mortality of fish that are
discarded.”).
17
Oceana also cites 16 U.S.C. § 1853(a)(1), which calls for
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 twenty-
five 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.