United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 24, 2000 Decided April 25, 2000
No. 99-5308
Natural Resources Defense Council, Inc., et al.,
Appellants
v.
William M. Daley,
In his official capacity as Secretary of the
United States Department of Commerce, et al.,
Appellees
Pacific Marine Conservation Council and
Alaska Marine Conservation Council,
Amicus Curiae
Appeal from the United States District Court
for the District of Columbia
(No. 99cv00221)
Monica B. Goldberg argued the cause for appellants. With
her on the briefs were Stephen E. Roady, Eric A. Bilsky, and
Sarah Chasis.
Deborah A. Sivas was on the brief for amicus curiae Pacific
Marine Conservation Council and Alaska Marine Conserva-
tion Council.
James Eichner, Attorney, United States Department of
Justice, argued the cause for appellees. With him on the
brief were Lois J. Schiffer, Assistant Attorney General, and
David C. Shilton, Attorney.
Before: Edwards, Chief Judge, Henderson, Circuit Judge,
and Buckley, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Paralichthys dentatus, or summer
flounder, a commercially valuable species of flounder, dwell
off the Atlantic coast and are harvested primarily between
May and October from North Carolina to Maine. The sum-
mer flounder fishery is an "overfished" fishery, in the process
of recovering from severe depletion prevalent during the late
1980s and early 1990s. The Secretary of Commerce, advised
by the National Marine Fisheries Service ("the Service"), the
principal appellee in this case, annually sets a fishing quota
limiting each year's summer flounder catch, pursuant to the
Magnuson-Stevens Fishery Conservation and Management
Act ("the Fishery Act"), 16 U.S.C. ss 1801-1883 (1994 &
Supp. IV 1998). This case involves appellants' challenge to
the Service's quota for the 1999 summer flounder harvest.
Before the District Court, appellants alleged that the 1999
quota did not provide sufficient assurance that it would meet
the conservation goals of the Fishery Act and attendant
regulations. Appellants also claimed that the Service's con-
clusion that the quota had no significant environmental im-
pact was based on an inadequate environmental assessment,
thereby violating the National Environmental Policy Act
("NEPA"). On cross-motions for summary judgment, the
District Court granted judgment in favor of appellees. See
Natural Resources Defense Council, Inc. v. Daley, 62
F. Supp. 2d 102 (D.D.C. 1999).
We reverse the District Court and remand the case to the
Service for further proceedings consistent with this opinion.
The 1999 quota, when adopted, had a documented 18% likeli-
hood of meeting the statute's conservation goals. We hold
that, under the Fishery Act, the disputed quota is insufficient
to meet Congress' mandate to the Service to prevent overfish-
ing and to assure that specific conservation goals are met.
We also hold that the Service's proposal to supplement the
quota with other purportedly protective measures does not
satisfactorily ameliorate the quota's glaring deficiencies. Be-
cause of our disposition on these grounds, we have no need to
reach appellants' NEPA claims.
I. BACKGROUND
A. Regulatory Background
The Fishery Act was enacted to establish a federal-regional
partnership to manage fishery resources. Under the statute,
there are eight Regional Fishery Management Councils "to
exercise sound judgment in the stewardship of fishery re-
sources." 16 U.S.C. ss 1801(b)(5), 1852(a) (Supp. IV 1998).
Management Councils propose and monitor fishery manage-
ment plans "which will achieve and maintain, on a continuing
basis, the optimum yield from each fishery." Id. s 1801(b)(4)
(1994). Management Councils submit management plans to
the Secretary of Commerce (functionally the Service), who
may then adopt them through notice and comment rulemak-
ing. See id. s 1854(a) (Supp. IV 1998). An "optimum yield"
under the statute is defined as the "maximum sustainable
yield from the fishery." Id. s 1802(28)(B) (Supp. IV 1998).
If a fishery is "overfished," the management plan must
"provide[ ] for rebuilding to a level consistent with" the
maximum sustainable yield. Id. s 1802(28)(C). A fishery is
"overfished" if the rate of fishing mortality "jeopardizes the
capacity of a fishery to produce the maximum sustainable
yield on a continuing basis." Id. s 1802(29).
The Service defines overfishing and optimum yield accord-
ing to the fishing mortality rate ("F"). F represents that
part of a fish species' total mortality rate that is attributable
to harvesting by humans, whether through capture or dis-
card. Fish are "discarded" for many reasons, including, for
example, when they are the wrong species, undersized, or not
valuable enough. Values for F can range anywhere from 0 to
over 2, and only indirectly represent the amount of fish
captured by industry. For instance, an F of 1.4 means that
about 20% of all summer flounder that are alive at year 1 will
be alive at year 2. There is a specific F, termed "Fmax," that
is defined as that fishing mortality rate that will maximize the
harvest of a single class of fish over its entire life span.
Overfishing is fishing in excess of Fmax. See Amendment 7 To
The Fishery Management Plan for The Summer Flounder
Fishery at 9 (May 1995), reprinted in Joint Appendix ("J.A.")
316. Therefore, the basic goal of a management plan is to
achieve Fmax, thereby preventing overfishing and assuring
optimum yield.
B. The Summer Flounder Fishing Quota
From a commercial standpoint, the summer flounder is one
of the most important species of flounder in the United
States. All parties agree that the summer flounder fishery is
"overfished" and has been for some time. The Mid-Atlantic
Fishery Management Council ("MAFMC"), covering New
York, New Jersey, Delaware, Pennsylvania, Maryland, Virgi-
nia, and North Carolina, developed the original summer
flounder management plan with the assistance of two other
regional Management Councils and the Atlantic States Ma-
rine Fisheries Commission ("the Commission"), a consortium
of 15 coastal states and the District of Columbia. The
Service approved the original management plan in 1988;
however, the Service has amended the plan several times. At
the time relevant to the instant case, the plan was designed to
achieve a fishing mortality rate equal to Fmax by 1998.
Pursuant to the management plan, the Service must set a
quota each year fixing the total weight of summer flounder
that may be harvested by commercial and recreational fish-
ers. This quota is referred to as the "total allowable land-
ings" for the year, or "TAL." The Service allocates 60% of
the TAL to commercial fisheries and 40% of the quota to
recreational fisheries, and states receive allocations based
upon their share of the summer flounder fishery. States may
subdivide their allocated commercial quota between "inciden-
tal" and "directed" catch. Directed fisheries intentionally
harvest summer flounder. Fishers who catch juvenile flound-
er, or who are part of the directed fishery for another species
and catch summer flounder unintentionally, have harvested
incidental catch.
The TAL must meet several requirements. It must be
consistent with the 10 national standards of fishery conserva-
tion and management set out in the Fishery Act. See 16
U.S.C. s 1851(a)(1)-(10) (1994 & Supp. IV 1998). Most rele-
vant to the instant case, the quota must embody conservation
measures that "shall prevent overfishing while achieving, on a
continuing basis, the optimum yield from each fishery for the
United States fishing industry." Id. s 1851(a)(1) (1994). The
quota must also be "consistent with" the fishery management
plan. See id. s 1854(b)(1). Finally, under the applicable
regulations, the Regional Administrator of the Service must
annually adopt a final rule "implement[ing] the measures
necessary to assure that the applicable specified F will not be
exceeded." 50 C.F.R. s 648.100(c) (1999) (emphasis added).
The "applicable specified F" is also referred to as the "target
F."
There is a relatively direct relationship between the TAL
and the likelihood of achieving the target F. In general, the
higher the TAL, the less likely a plan is to achieve the target
F. In other words, the lower the target F, the lower the
TAL must be to attain the target F. The basic dispute
between the parties concerns whether the 1999 TAL provides
a sufficient guarantee that the target F for summer flounder
will be achieved.
For 1999, the summer flounder fishery management plan
mandated a target F equivalent to Fmax, which was 0.24. The
Summer Flounder Monitoring Committee, a MAFMC com-
mittee, had recommended a TAL of 14.645 million pounds,
while MAFMC had recommended a TAL of 20.20 million
pounds. The Service rejected MAFMC's recommendation as
"unacceptably risk-prone" for several reasons: (1) it had an
"unacceptably low probability" of 3% of achieving the target
F; (2) it had a 50% probability of achieving an F of 0.36,
which was "significantly higher" than the target F; (3) the
proposal relied on unpredictable data; and (4) MAFMC had
"yet to specify a harvest level that has achieved the annual
target F." Fisheries of the Northeastern United States;
Summer Flounder, Scup, and Black Sea Bass Fisheries, 63
Fed. Reg. 56,135, 56,136 (1998) (to be codified at 50 C.F.R. pt.
648) (proposed Oct. 21, 1998) ("Proposed TAL"). The Service
also rejected the Summer Flounder Monitoring Committee's
recommendation of a 14.645 million pound TAL. Although
the Committee's recommendation had a 50% chance of achiev-
ing the target F, the Service rejected the proposal without
any meaningful explanation.
On October 21, 1998, the Service proposed a TAL of 18.52
million pounds. See id. All parties agree that, at most, the
Service's proposal afforded only an 18% likelihood of achiev-
ing the target F. The Service also proposed an incidental
catch restriction "to address discards in this fishery that
should further reduce the overall mortality." Id. This mea-
sure provided that, within the commercial fishery, 32.7% of
the allocated quota be committed to incidental catch. In the
end, then, the Service proposed a TAL of 7.41 million pounds
for recreational harvest, 7.47 million pounds for directed
commercial harvesting, and 3.64 million pounds for incidental
commercial catch, for a total of 18.52 million pounds. See id.
The Service also considered recent changes in minimum mesh
size. On this point, the Service noted that, while MAFMC
felt that the "recently adopted mesh provision requiring 5.5
inch" mesh throughout the net would "substantially reduce
discard and discard mortality," the alleged benefits of mesh
had yet to be verified by anyone. Id.
Between the time of proposal of the 1999 TAL and its
adoption, the Service concluded that it did not have the
authority to impose any incidental catch restrictions on the
states. Therefore, the Service merely recommended that the
states adopt the incidental catch proposal, making the propos-
al entirely voluntary. The Commission, the body represent-
ing 15 coastal states and the District of Columbia, also
declined to command the states to adopt the proposal. Ac-
cording to an advisor to the Service's Assistant Administrator
for Fisheries, this development "result[ed] in an unknown but
probably substantial reduction in the likelihood that
[MAFMC's] rebuilding schedule will be achieved," and he
therefore recommended that the Service adopt the Summer
Flounder Monitoring Committee's recommended 14.645 mil-
lion pound TAL. See Memo from Gary Matlock to Rolland
Schmitten (Nov. 25, 1998), reprinted in J.A. 208.
The Service rejected this recommendation and, on Decem-
ber 31, 1998, issued the final TAL, adopting its initial propos-
al. The Service acknowledged that the Summer Flounder
Monitoring Committee's recommended quota had a 50%
chance of achieving the target F, while the Service's TAL had
only an 18% chance of achieving the target F. See Fisheries
of the Northeastern United States; Summer Flounder, Scup,
and Black Sea Bass Fisheries, 63 Fed. Reg. 72,203, 72,203-04
(1998) (codified at 50 C.F.R. pt. 648) ("Final TAL"). The
Service also recognized that the incidental catch provisions
were entirely voluntary. See id. at 72,204. The Service
simply recommended that states adopt the additional inciden-
tal catch provisions "[t]o improve the probability of achieving
the target [F]." Id. Nowhere did the Service analyze the
effect on fishing mortality of shifting from a mandatory to a
voluntary incidental catch provision.
The Service responded to comments that the TAL did not
sufficiently assure achievement of the target F by stating
that: (1) the TAL had a higher probability of meeting the
target F than MAFMC's 20.2 million pound recommendation;
and (2) the incidental catch recommendations "would improve
the likelihood that the target fishing mortality rate would be
attained." Id. at 72,206. In response to other comments, the
Service suggested that the 5.5 inch minimum mesh provision
might ameliorate other mortality concerns, but acknowledged
that the requirement had not been in effect long enough to
determine its efficacy. See id. at 72,208.
Appellants filed suit in District Court on January 29, 1999,
seeking, inter alia, (1) a declaratory judgment that defen-
dants violated the Fishery Act, the Administrative Procedure
Act ("APA"), and NEPA, and (2) remand to the agency to
impose a new summer flounder TAL. See Complaint at 25-
26, reprinted in J.A. 52-53. The District Court upheld the
Service's adoption of the 18.52 million pound TAL, deferring
to the agency under Chevron U.S.A. Inc. v. Natural Re-
sources Defense Council, Inc., 467 U.S. 837 (1984). The
District Court first determined that ss 1851 (a)(1) and (a)(8)
in the Fishery Act evinced competing interests between ad-
vancing conservation and minimizing adverse economic effects
and that Congress offered no insight as to how to balance
these concerns. See Natural Resources Defense Council, 62
F. Supp. 2d at 106-07. In addition, the trial court found that
the Fishery Act expressed no clear intent as to the particular
level of certainty a TAL must guarantee to be consistent with
16 U.S.C. s 1851(a)(1). See id. at 107. Given these perceived
ambiguities, the District Court deferred to the Service pursu-
ant to Chevron Step Two. This appeal followed.
II. ANALYSIS
As we recently held in Associated Builders & Contractors,
Inc. v. Herman, 166 F.3d 1248 (D.C. Cir. 1999),
[i]n a case like the instant one, in which the District
Court reviewed an agency action under the [APA], we
review the administrative action directly. See Troy
Corp. v. Browner, 120 F.3d 277, 281 (D.C. Cir. 1997);
Gas Appliance Mfrs. v. Department of Energy, 998 F.2d
1041, 1045 (D.C. Cir. 1993). In other words, we accord
no particular deference to the judgment of the District
Court. See Gas Appliance Mfrs., 998 F.2d at 1045.
Rather, on an independent review of the record, we will
uphold [the agency's] decision unless we find it to be
"arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law." 5 U.S.C. s 706(2)(A)
(1994).
Id. at 1254.
As for the Service's disputed interpretations of the Fishery
Act, we are guided by the Supreme Court's seminal decision
in
Chevron U.S.A., Inc., [467 U.S. at 837], [which] governs
review of agency interpretation of a statute which the
agency administers. Under the first step of Chevron,
the reviewing court "must first exhaust the 'traditional
tools of statutory construction' to determine whether
Congress has spoken to the precise question at issue."
Natural Resources Defense Council, Inc. v. Browner, 57
F.3d 1122, 1125 (D.C. Cir. 1995) (quoting Chevron, 467
U.S. at 843 n.9). The traditional tools include examina-
tion of the statute's text, legislative history, and struc-
ture, see Southern California Edison Co. v. FERC, 116
F.3d 507, 515 (D.C. Cir. 1997); as well as its purpose, see
First Nat'l Bank & Trust v. National Credit Union, 90
F.3d 525, 529-30 (D.C. Cir. 1996). This inquiry using the
traditional tools of construction may be characterized as
a search for the plain meaning of the statute. If this
search yields a clear result, then Congress has expressed
its intention as to the question, and deference is not
appropriate. See Hammontree v. NLRB, 894 F.2d 438,
441 (D.C. Cir. 1990). If, however, "the statute is silent
or ambiguous with respect to the specific issue," Chev-
ron, 467 U.S. at 843, Congress has not spoken clearly,
and a permissible agency interpretation of the statute
merits judicial deference. Id.
Bell Atlantic Tele. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir.
1997). Although agencies are entitled to deferential review
under Chevron Step Two, our judicial function is neither rote
nor meaningless:
[W]e will defer to [an agency's] interpretation[ ] if [it is]
reasonable and consistent with the statutory purpose and
legislative history. See Troy Corp. v. Browner, 120 F.3d
277, 285 (D.C. Cir. 1997) (noting that an agency's inter-
pretation must be "reasonable and consistent with the
statutory purpose"); City of Cleveland v. U.S. Nuclear
Regulatory Comm'n, 68 F.3d 1361, 1367 (D.C. Cir. 1995)
(providing that an agency's interpretation must be "rea-
sonable and consistent with the statutory scheme and
legislative history"). However, a court will not uphold
[an agency's] interpretation "that diverges from any real-
istic meaning of the statute." Massachusetts v. Depart-
ment of Transp., 93 F.3d 890, 893 (D.C. Cir. 1996).
GTE Serv. Corp. v. FCC, 205 F.3d 416, 421 (D.C. Cir. 2000).
This case presents a situation in which the Service's quota for
the 1999 summer flounder harvest so completely diverges
from any realistic meaning of the Fishery Act that it cannot
survive scrutiny under Chevron Step Two.
As an initial matter, we reject the District Court's sugges-
tion that there is a conflict between the Fishery Act's ex-
pressed commitments to conservation and to mitigating ad-
verse economic impacts. Compare 16 U.S.C. s 1851(a)(1)
(directing agency to "prevent overfishing" and ensure "the
optimum yield from each fishery"); with id. s 1851(a)(8)
(directing agency to "minimize adverse economic impacts" on
fishing communities). The Government concedes, and we
agree, that, under the Fishery Act, the Service must give
priority to conservation measures. It is only when two
different plans achieve similar conservation measures that the
Service takes into consideration adverse economic conse-
quences. This is confirmed both by the statute's plain lan-
guage and the regulations issued pursuant to the statute.
See id. s 1851(a)(8) (requiring fishery management plans,
"consistent with the conservation requirements of this chap-
ter," to take into account the effect of management plans on
fishing communities) (emphasis added); 50 C.F.R.
s 600.345(b)(1) (1999) ("[W]here two alternatives achieve sim-
ilar conservation goals, the alternative that ... minimizes the
adverse impacts on [fishing] communities would be the pre-
ferred alternative.") (emphasis added).
The real issue in this case is whether the 1999 TAL
satisfied the conservation goals of the Fishery Act, the man-
agement plan, and the Service's regulations. In considering
this question, it is important to recall that the Service oper-
ates under constraints from three different sources. First,
the statute requires the Service to act both to "prevent
overfishing" and to attain "optimum yield." 16 U.S.C.
s 1851(a)(1). Overfishing is commonly understood as fishing
that results in an F in excess of Fmax. Since Fmax for 1999
was equivalent to 0.24, this constraint required the Service to
issue regulations to prevent F from exceeding 0.24. Second,
any quota must be "consistent with" the fishery management
plan adopted by the Service. See id. s 1854(b)(1). In this
case the fishery management plan called for an F of 0.24.
Therefore, the quota had be to "consistent with" achieving
that F. Third, the Service is required to adopt a quota
"necessary to assure that the applicable specified F will not
be exceeded." 50 C.F.R. s 648.100(c). The "applicable speci-
fied F" for 1999 was Fmax, or 0.24.
All of these constraints, then, collapse into an inquiry as to
whether the Service's quota was "consistent with" and at the
level "necessary to assure" the achievement of an F of 0.24,
and whether it reasonably could be expected to "prevent" an
F greater than 0.24. In other words, the question is whether
the quota, as approved, sufficiently ensured that it would
achieve an F of 0.24. Appellants argue that the quota
violates applicable standards under both Chevron Step One
and Chevron Step Two. Because we find appellants' Chevron
Step Two arguments convincing, we have no need to reach
their alternative argument that the Service violated NEPA by
relying on an inadequate environmental assessment in pro-
mulgating the final rule.
Appellants' Chevron Step One "plain meaning" argument is
virtually indistinguishable from their Chevron Step Two rea-
sonableness argument. Appellants acknowledge that the
statutory terms "assure," "prevent," and "consistent with" do
not mandate a precise quota figure. However, appellants
contend that a TAL with only an 18% likelihood of achieving
the target F is so inherently unreasonable that it defies the
plain meaning of the statute. This is an appealing argument
on the facts of this case, because, as we explain below, the
Service's action is largely incomprehensible when one consid-
ers the principal purposes of the Fishery Act. Nonetheless,
we still view this case as governed by Chevron Step Two.
The statute does not prescribe a precise quota figure, so
there is no plain meaning on this point. Rather, we must
look to see whether the agency's disputed action reflects a
reasonable and permissible construction of the statute. In
light of what the statute does require, short of a specific quota
figure, it is clear here that the Service's position fails the test
of Chevron Step Two.
The 1999 quota is unreasonable, plain and simple. Govern-
ment counsel conceded at oral argument that, to meet its
statutory and regulatory mandate, the Service must have a
"fairly high level of confidence that the quota it recommends
will not result in an F greater than [the target F]." Fisher-
men's Dock Coop., Inc. v. Brown, 75 F.3d 164, 169-70 (4th
Cir. 1996). We agree. We also hold that, at the very least,
this means that "to assure" the achievement of the target F,
to "prevent overfishing," and to "be consistent with" the
fishery management plan, the TAL must have had at least a
50% chance of attaining an F of 0.24. This is not a surprising
result, because in related contexts, the Service has articulated
precisely this standard. See National Marine Fisheries Ser-
vice, Final Fishery Management Plan for Atlantic Tunas,
Swordfish and Sharks, Vol. I, at 288, reprinted in J.A. 382
(April 1999) (concluding that the Service should choose man-
agement measures that have "at least a 50-percent confi-
dence in target reference points," and when choosing between
two alternatives with a greater than 50% probability, should
choose the higher "unless there are strong reasons to do
otherwise").
The disputed 1999 TAL had at most an 18% likelihood of
achieving the target F. Viewed differently, it had at least an
82% chance of resulting in an F greater than the target F.
Only in Superman Comics' Bizarro world, where reality is
turned upside down, could the Service reasonably conclude
that a measure that is at least four times as likely to fail as to
succeed offers a "fairly high level of confidence."
Rather than argue that the quota alone provided enough
assurance, the Service contends instead that two additional
measures were adopted to increase the likelihood of achieving
the target F. These measures were: (1) the provision relat-
ing to minimum mesh size; and (2) the recommendation that
states voluntarily allocate a certain portion of the directed
commercial fishery toward incidental catch. There is nothing
in this record, however, to indicate that the proposals on
mesh size and voluntary state action would improve the level
of confidence so as to assure a reasonable likelihood of
achieving the target F.
The Service's reliance on its provision regarding minimum
mesh size for fishing nets is rather perplexing. We do not
question the Service's rational conclusion that it is important
to reduce the number of undersized flounder being captured,
given recent observations, in a species with a potential 20
year life span, that very few adult fish survive past three
years of age. See Projection for 1998 Summer Flounder
Quota at 2 (Aug. 1998), reprinted in J.A. 93. At the time the
1999 TAL was proposed, however, the Service acknowledged
that the mesh size provision's "benefits have not yet been
analyzed." Proposed TAL, 63 Fed. Reg. at 56,136. In fact,
the Service apparently placed little stock in MAFMC's predic-
tion that the minimum mesh size of 5.5 inches would reduce
the number of undersized fish caught. See id. In the final
rule, the Service stated only that the minimum mesh size
provision was "intended to address" discarding due to under-
sized catch; the Service acknowledged, however, that the
mesh provision had "not been in operation long enough to
determine if an adjustment to the mesh size is warranted."
Final TAL, 63 Fed. Reg. at 72,208. In short, there are no
meaningful data (or even well-founded predictions) to support
the assertion that a larger mesh size would reduce the
number of undersized fish caught. And the Service conduct-
ed no analysis whatsoever to determine the likely effect of
this measure on the probability of meeting the target F.
There is certainly nothing in the record to indicate that the
larger mesh size would make it likely that the TAL had at
least a 50% chance of achieving the target F.
The Service's second recommendation, that states set aside
a certain percentage of the commercial fishing quota for
incidental catch instead of directed commercial catch, also
fails to ameliorate the deficient 18% figure. First, in conclud-
ing that the TAL had an 18% likelihood of achieving the
target F, the Service assumed that at least 10% of the
commercial fishing quota would be allocated to incidental
catch. When defending its proposal to allocate 32.7% of the
commercial quota to incidental catch against a comment that
instead suggested a 10% figure, the Service observed that "[a]
10-percent incidental catch allocation in combination with the
18.52-million [pound] ... TAL would result in a less than 18-
percent probability of achieving the target F." Id. at 72,211
(emphasis added). Therefore, at least some of the incidental
catch proposal's assumed positive effects were already ac-
counted for in the 18% starting probability. The agency's
"double-counting" here indicates that the Service overstated
the positive effects that might come from the incidental catch
recommendation.
The second, and more serious, flaw in the Service's reliance
on its incidental catch proposal is that the proposal is merely
a recommendation to the states, not a mandatory require-
ment. The Service initially assumed that the incidental catch
proposal would be mandatory. When it was revised from a
mandatory to voluntary proposal, however, the Service never
assessed the impact of the change. Indeed, the record is
conspicuously silent on this point, almost as if the change
never occurred. At oral argument before this court, counsel
for the Government asserted that the Service could reason-
ably conclude that the states would comply with the recom-
mendation on incidental catch. But counsel conceded that
there is absolutely no demonstrated history in the relations
between the federal and state agencies to support such an
assumption, and there are no present assurances from the
states that they will comply with the Service's recommenda-
tion. Indeed, there is evidence in the record to suggest
resistance from some states to the Service's incidental catch
proposal. See id. at 72,207, 72,209-10 (reflecting comments
from Connecticut, Massachusetts, New Jersey, New York,
North Carolina, and Virginia stating, in sum, that the inciden-
tal catch allocation was too high, unenforceable, and beyond
the Service's power). We are left only with the Service's
unsupported conclusion that the incidental catch provision
"increases the probability of meeting the target F." Approv-
al of the Final Rule to Implement the 1999 Specifications for
the Summer Flounder, Scup, and Black Sea Bass Fisheries-
Decision Memorandum at 3 (Dec. 14, 1998), reprinted in J.A.
277. This is manifestly insufficient.
As we noted at the outset of this opinion, the Service's
quota for the 1999 summer flounder harvest so completely
"diverges from any realistic meaning" of the Fishery Act that
it cannot survive scrutiny under Chevron Step Two. See
GTE Serv. Corp., 205 F.3d at 421. The Service resists this
result by suggesting that we owe deference to the agency's
"scientific" judgments. See Br. for Appellees at 33. While
this may be so, we do not hear cases merely to rubber stamp
agency actions. To play that role would be "tantamount to
abdicating the judiciary's responsibility under the Administra-
tive Procedure Act." A.L. Pharma, Inc. v. Shalala, 62 F.3d
1484, 1491 (D.C. Cir. 1995). The Service cannot rely on
"reminders that its scientific determinations are entitled to
deference" in the absence of reasoned analysis "to 'cogently
explain' " why its additional recommended measures satisfied
the Fishery Act's requirements. Id. at 1492 (quoting Motor
Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 48 (1983)). Indeed, we can divine no scientific
judgment upon which the Service concluded that its measures
would satisfy its statutory mandate.
Here, the adopted quota guaranteed only an 18% probabili-
ty of achieving the principal conservation goal of the summer
flounder fishery management plan. The Service offered nei-
ther analysis nor data to support its claim that the two
additional measures aside from the quota would increase that
assurance beyond the at-least-50% likelihood required by
statute and regulation.
III. CONCLUSION
For the reasons articulated herein, we reverse the District
Court's judgment and remand the case to the Service for
further proceedings consistent with this opinion.