United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 27, 2023 Decided March 1, 2024
No. 23-5026
A.P. BELL FISH COMPANY, INC., ET AL.,
APPELLANTS
v.
GINA RAIMONDO, IN HER 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. 1:22-cv-01260)
J. Timothy Hobbs Jr. argued the cause for appellants. With
him on the briefs were Michael Scanlon and John Longstreth.
Natalie J. Reid entered an appearance.
John Sterne, Jr. was on the brief for amici curiae Charter
Fisherman=s Association, et al. in support of appellants.
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Dina B. Mishra, Attorney, U.S. Department of Justice,
argued the cause for appellees. On the brief were Todd Kim,
Assistant Attorney General, Amanda C. Leiter, Senior Counsel,
and Daniel Halainen, Attorney. Kevin W. McArdle, Attorney,
entered an appearance.
Elizabeth B. Murrill, Solicitor General, Office of the
Attorney General for the State of Louisiana, and Lawrence E.
Marino, Special Assistant Attorney General, were on the brief
for intervenor-appellee State of Louisiana.
Joshua Counts Cumby and Jeffrey E. Richardson were on
the brief for intervenor-appellee Coastal Conservation
Association.
Before: MILLETT and PILLARD, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
ROGERS.
ROGERS, Senior Circuit Judge: The National Marine
Fisheries Service promulgated a Final Rule implementing Final
Amendment 53 to the Fishery Management Plan for the Reef
Fish Resources of the Gulf of Mexico. 87 Fed. Reg. 25573
(May 2, 2022). Final Amendment 53 modifies the allocation of
red grouper between the commercial and recreational sectors.
Commercial fishers challenge Final Amendment 53 for relying
on inconsistent economic analyses and failing to comply with
the Magnuson-Stevens Fishery Conservation and Management
Act. For the following reasons, the court affirms in part and
reverses in part the grant of summary judgment, and remands
the case, without vacating the rule, so the Fisheries Service can
address whether the economic analysis underlying Final
Amendment 53 was sufficiently different from that discredited
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in adopting Final Amendment 28 in 2016 and the implications
of further analysis for National Standards 4 and 9.
I.
In 1976, Congress enacted the Magnuson-Stevens Fishery
Conservation and Management Act, 16 U.S.C. § 1801 et seq.,
(“the Act”) “to conserve and manage the fishery resources . . .
of the United States,” to “promote domestic commercial and
recreational fishing under sound conservation and management
principles,” and to protect marine fisheries, among other
purposes. Id. § 1801(b)(1), (b)(3), (a)(6). The Secretary of
Commerce and eight Regional Fishery Management Councils
share responsibility for federal fishery management. See id. §§
1801(b)(5), 1802(39), 1852. The Act authorizes the Secretary
of Commerce to delegate to the Fisheries Service the authority
to implement proposed fishery management plans and their
amendments. See id. §§ 1854, 1855(d).
Regional Councils prepare and implement fishery
management plans to “achieve and maintain, on a continuing
basis, the optimum yield from each fishery.” Nat. Res. Def.
Council, Inc. v. Daley, 209 F.3d 747, 749 (D.C. Cir. 2000)
(quoting 16 U.S.C. § 1801(b)(4)). Among other requirements,
the plans must be consistent with the ten national standards of
fishery conservation and management in the Act and set annual
catch limits to prevent overfishing. 16 U.S.C. § 1853(a)(1)(C),
(a)(15). Most relevant, National Standard 4 provides that the
allocation of fishing privileges shall be “reasonably calculated
to promote conservation,” id. § 1851(a)(4)(B), and under
National Standard 9, “to the extent practicable” shall “minimize
bycatch and[,] . . . to the extent bycatch cannot be avoided,
minimize the mortality of such bycatch,” id. § 1851(a)(9). Fish
that are caught but not sold or retained for personal use are
“bycatch.” Id. § 1802(2).
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The Gulf of Mexico Fishery Management Council (“the
Council”) manages the reef fish fishery, including the red
grouper. Red grouper is a fish primarily found in offshore hard
bottom areas in the eastern Gulf of Mexico. The 2019
assessment of red grouper showed that the stock is not
overfished and that overfishing is not occurring. Compared to
the commercial sector, recreational fishers release a higher
number of red grouper and tend to catch smaller, younger fish.
The recreational sector consequently has higher levels of
bycatch and bycatch mortality than the commercial sector.
Collecting data from recreational fishers, the Fisheries Service
determines their allocation of the total annual catch of red
grouper. Final Amendment 30B allocated 76% of the annual
catch limit to the commercial sector and 24% to the recreational
sector using data from landings (i.e., fish brought to shore) from
1986 to 2005. 74 Fed. Reg. 17603, 17608 (Apr. 16, 2009).
In 2007, Congress directed the Fisheries Service to
improve the quality and accuracy of its data collection. See 16
U.S.C. § 1881(g)(3)(A). The following year the Fisheries
Service created a new survey methodology. In Final
Amendment 53, the Council recommended changing the
commercial- and recreational-sector allocations to reflect
updated data from new surveys. The Council’s Scientific
Committee proposed six allocation alternatives. The Council
selected Alternative 3 because it “best reflects the historical
participation by the commercial and recreational sectors, fairly
and equitably distributes the needed reduction in catch between
the sectors, and provides the greatest net economic benefits to
the Nation.” 87 Fed. Reg. at 25578. Alternative 3 became Final
Amendment 53, reducing the commercial sector allocation
from 76% to 59.3%, and increasing the recreational sector
allocation from 24% to 40.7%. See id. at 25587.
The Council submitted Final Amendment 53 to the
Fisheries Service. On December 9, 2021, the Fisheries Service
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published a notice of availability and request for public
comment. 86 Fed. Reg. 70078 (Dec. 9, 2021). On May 2,
2022, the Fisheries Service published the Final Rule, to take
effect on June 1, 2022. 87 Fed. Reg. at 25573 (“the Final
Rule”).
II.
Appellants, who are commercial fishers joined by two
trade organizations, challenged the Final Rule on several
grounds, including that Final Amendment 53 violates the Act
and the Administrative Procedure Act (“APA”), 5 U.S.C. §
706(2)(A), (D). The district court was unpersuaded and granted
summary judgment to the Secretary. A.P. Bell Fish Co., et al.
v. Raimondo et al., No. 22-cv-1260, 2023 WL 6159985, at *21
(D.D.C. Sept. 21, 2023). On appeal, appellants renew their
argument that Final Amendment 53 arbitrarily relies on an
economic analysis that the Fisheries Service had previously
rejected. They also contend that Final Amendment 53 lacks the
required catch limits and accountability measures, 16 U.S.C.
§ 1853(a)(15), and violates National Standards 4 and 9. The
Secretary of Commerce, joined by the National Oceanic and
Atmospheric Administration and the Fisheries Service
(hereinafter “the Secretary”), responds that the Fisheries
Service reconciled any inconsistencies with prior economic
analyses, and that even if there are inconsistencies, it provided
independent justifications for selecting Alternative 3 and Final
Amendment 53 complies with the Act. The court’s review is
limited by the APA, 16 U.S.C. § 1855(f)(1)(B) (referencing 5
U.S.C. § 706(2)(A)–(D)), and in reviewing agency action
directly affords “‘no particular deference’ to the district court’s
view of the law.” Oceana, Inc. v. Locke, 670 F.3d 1238, 1240
(D.C. Cir. 2011) (quoting Daley, 209 F.3d at 752).
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A.
Final Amendment 28 revised the commercial and
recreational allocations for the red snapper. 81 Fed. Reg. 25576
(Apr. 28, 2016). The Fisheries Service considered alternatives
with differing allocation ratios of the red snapper between the
commercial and recreational sectors. See id. at 25582. It
determined that compared to the status quo the alternatives
“would be expected to result in economic losses to the
commercial sector and generate economic benefits for the
recreational sector.” Gulf of Mex. Fish. Mgmt. Council, Red
Snap. Alloc’n: Final Amend. 28 (2015) at xiv (hereinafter
“Final Amend. 28”). The Fisheries Service explained that it
was “not possible to provide policy-relevant rankings of the
reallocation alternatives in this amendment based on the
expected net benefits to the nation,” i.e., “the sum of the change
in economic benefits to the recreational and commercial
sectors.” Id. at 90. It concluded that “the use of the
equimarginal principle, which means comparing the marginal
values of the commercial and recreational sectors to determine
the level of allocation to each sector that result in the greatest
net economic benefits, is no longer valid.” 81 Fed. Reg. at
25580. “[T]he recreational sector’s open access system is not
conducive to an efficient allocation within the sector,” id.,
because its “quota is not assigned to those participants who
have the highest willingness to pay.” Final Amend. 28 at 90.
Yet in Final Amendment 53 the Fisheries Service ranked
allocation alternatives using the net-economic-benefit analysis
it had rejected in adopting Final Amendment 28. Compare Gulf
of Mex. Fish. Mgmt. Council, Red Grouper Alloc’ns & Ann.
Catch Levels & Targets: Final Amend. 53 (Sept. 2021) at 104
(hereinafter “Final Amend. 53”), with Final Amend. 28 at 90,
278. The only explanation offered for this departure was that it
was using the benefit measure to compare alternatives rather
than to calculate a maximum net benefit. 87 Fed. Reg. at
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25586. This appears to be a distinction without a difference.
Nowhere in the record has the court found an explanation by
the Fisheries Service of how an invalid methodology is any
better at comparing the net benefit of options than calculating a
maximum net benefit. Nor did questioning during oral
argument prove illuminating. See, e.g., Oral Arg. at 1:32:24–
1:36:20.
The court generally remands agency decisions that are not
supported by the record. See Dist. Hosp. Partners, L.P. v.
Burwell, 786 F.3d 46, 60 (D.C. Cir. 2015). And a remand is
required here because the court cannot discern whether “[the
Fisheries Service] would have reached the same ultimate result
had the errors [identified by the court] not been made.” Hermes
Consol., LLC v. EPA, 787 F.3d 568, 579 (D.C. Cir. 2015)
(internal quotation marks omitted); see also Salt River Project
Agric. Improvement & Power Dist. v. United States, 762 F.2d
1053, 1060 n.8 (D.C. Cir. 1985). Throughout the rulemaking
the Fisheries Service relied on the challenged economic
analysis to support adoption of Alternative 3. For instance, the
Fisheries Service noted that “[t]he Council determined that this
allocation is fair and equitable and provides the greatest net
economic benefits.” Approval of Amend. 53 Mem. 1 (Mar. 8,
2022). Similarly, the Fisheries Service reiterated that the
allocation in Alternative 3 “is fair and equitable and provides
the greatest net economic benefits.” Approval of a Final Rule
to Implement Amend. 53 Mem. 2 (Apr. 14, 2022). The
Fisheries Service also relied on this economic analysis in
responding to comments that Final Amendment 53 complies
with National Standards 4, 5, and 9. 87 Fed. Reg. at 25577–79.
Indeed, it stated that four of the five alternatives were not
selected, in part, because they would have resulted in “lower
net economic benefits to the Nation compared to the action in
the Final Rule.” Id. at 25589. Although the Fisheries Service
gave other reasons for not selecting each alternative, the weight
placed on each is indiscernible. Consequently, the court
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“cannot conclude with sufficient certainty that [it] would have
made the same decision absent its errors.” Hermes Consol.,
LLC, 787 F.3d at 579.
B.
Remand without vacatur is appropriate. There would
appear to be a “strong possibility” that the Fisheries Service can
differentiate between the two economic analyses. U.S. Sugar
Corp. v. EPA, 830 F.3d 579, 652 (D.C. Cir. 2016); see Allied-
Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 151
(D.C. Cir. 1993). In technical areas, further explanation, with
sufficient support from studies, may adequately inform the
court of the Fisheries Service’s reasoning. See, e.g., Final
Amend. 28 at 90.
III.
Appellants also contend that Final Amendment 53 is
inconsistent with the statutory catch limit and National
Standards 4 and 9. 16 U.S.C. §§ 1853(a)(15), 1851(a)(4), (9).
A.
Title 16 U.S.C. § 1853(a)(15) provides that “[a]ny fishery
management plan . . . shall . . . 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.” Id.
§ 1853(a)(15). The Act does not define “catch,” but the
regulatory guidelines define “catch” to include both landed fish
and dead discards. 50 C.F.R. § 600.310(f)(1)(i). Regional
Councils must set an overfishing limit, defined as “the annual
amount of catch that corresponds to” certain scientific
estimates. Id. § 600.310(e)(2)(i)(D). Final Amendment 53 set
the overfishing limit in terms of landings, not catch. See 87
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Fed. Reg. at 25576. Appellants contend that this fails to
establish “catch limits” or ensure accountability with them.
The district court properly rejected this argument. A.P. Bell
Fish, 2023 WL 6159985, at *17 & n.10. The overfishing limit
recommended by the Council “accounts for all sources of
mortality, including bycatch, because the stock assessment
factors in that mortality. Because the annual catch limits are
based on that overfishing limit, the annual catch limits account
for bycatch in the same fashion.” Id. at *17 n.10 (internal
citations omitted). “Section 1853(a)(15) requires ‘only the
establishment of [annual catch limits and accountability
measures] such that overfishing does not occur,’” and does not
require “the further step of setting an overfishing limit . . . that
more directly accounts for bycatch.” Id. (alteration in original)
(internal citations omitted). Therefore, summary judgment to
the Secretary was appropriate in that respect.
B.
National Standard 4 provides that “[i]f it becomes
necessary to allocate or assign fishing privileges among various
United States fishermen, such allocation shall be . . . reasonably
calculated to promote conservation.” 16 U.S.C.
§ 1851(a)(4)(B). By regulation the Fisheries Service provides:
An allocation scheme may promote conservation by
encouraging a rational, more easily managed use of
the resource. Or, it may promote conservation (in the
sense of wise use) by optimizing the yield in terms of
size, value, market mix, price, or economic or social
benefit of the product.
50 C.F.R. § 600.325(c)(3)(ii). Further, the Fisheries Service
explained that Final Amendment 53’s allocation “promotes
wise use by considering both the biological impacts to the red
grouper stock, including preventing overfishing, and the
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economic and social impacts to fishery participants.” 87 Fed.
Reg. at 25578.
Appellants urge that the plain text of National Standard 4
requires allocations of fishing privileges to independently
promote conservation. Appellants’ Br. 26. But it is not clear
that Final Amendment 53 was an allocation for purposes of
National Standard 4. Final Amendment 53 relies on the same
historical landings as Final Amendment 30B. 87 Fed. Reg. at
25574. The only difference is that Final Amendment 53 uses
more accurate survey data to extrapolate the historical
recreational catch and enforce the recreational catch limit. See
Final Amend. 53 at 16–17, 22. It is unclear such a
methodological change effects a new allocation of fishing
rights.
Even assuming without deciding that Final Amendment 53
is an allocation, the court need not now decide whether
“conservation” should be interpreted with reference to wise use
and the optimum yield, as the Secretary urges, or with reference
solely to the vitality of a fishing stock, as appellants suggest.
Compare Appellees’ Br. for the Secretary 30–31, with
Appellants’ Br. 25–26. National Standard 4 applies to Final
Amendment 53 as a whole and not just to the quota allocation
component, Appellants’ Br. 25–26. Under either definition,
Final Amendment 53 might be sufficient to promote
conservation by substantially reducing catch limits and
promoting wise use. This may well depend on how the
Fisheries Service addresses its reliance on the economic
analysis it rejected in Final Amendment 28.
C.
National Standard 9 directs the Fisheries Service, “to the
extent practicable,” to “minimize bycatch and[,] . . . to the
extent bycatch cannot be avoided, [to] minimize the mortality
of such bycatch.” 16 U.S.C. § 1851(a)(9). The Fisheries
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Service concluded, “[g]iven the numerous factors that the
Council must consider in selecting the appropriate allocation,
[that Final] Amendment 53 does minimize bycatch and bycatch
mortality to the extent practicable.” 87 Fed. Reg. at 25579. Yet
in balancing the practical constraints and the Act’s competing
objectives, the Fisheries Service had relied on the conclusion
that Alternative 3 “results in the smallest reduction in net
economic benefits to the Nation of the alternatives considered.”
Id. As noted regarding National Standard 4, the Fisheries
Service may need to revisit whether further bycatch
minimization is not practicable and provide additional support.
The Fisheries Service admitted that it did not consider
measures to “directly reduce the bycatch of red grouper and
other species.” Final Amend. 53 at 207. Instead, it referenced
the potential future use of measures that had already proved
insufficient, including “catch limits, in-season and post-season
accountability measures [], season and area closures, a
minimum size limit, and a recreational bag limit,” 87 Fed. Reg.
at 25573, as well as gear requirements, Letter from the
Secretary 2 (filed Sept. 30, 2023). Beyond that, the Fisheries
Service reasoned that bycatch will decrease because overall
catch limits are being reduced. Final Amend. 53 at 207. But
this approach suggests that virtually any allocation that reduces
a catch limit will satisfy National Standard 9, at least so long as
the Fisheries Service reasonably concludes that additional
measures were not practicable. The Fisheries Service appears
not to have explained how that is a reasonable application of
National Standard 9.
Accordingly, the court affirms in part and reverses in part
the grant of summary judgment to the Secretary. The court will
not reach the extent of the Fisheries Service’s obligations under
National Standard 9, and remands, without vacating the Final
Rule implementing Final Amendment 53, so the Fisheries
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Service can further explain its economic methodology and the
effects on analysis of National Standards 4 and 9.