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Fishermen's Dock Coop., Inc. v. Brown

ELR Citation: 26 ELR 20812
Nos. No. 95-1002, 75 F.3d 164/(4th Cir., 02/02/1996)

The court reverses a district court decision that replaced the U.S. Department of Commerce's (DOC's) 1994 commercial catch quota for summer flounder with a higher quota. The district court held that because the agency estimated the number of flounder entering the population in 1994—or "recruitment"—to be lower than the geometric mean of the estimated recruitment for the previous five years, the agency's estimate of population size, and hence its catch quota, were not based on the best scientific information available. The court first holds that it owes the district court's decision no special deference, because the district court reached its decision wholly on the basis of the administrative record and the district court's own ad hoc self-education in statistics. The court notes that the quota derived from the estimate of the geometric mean had a 59 percent chance of producing the 1994 mortality rate determined by the fishery management plan for the region, whereas the quota DOC adopted had an 81 percent chance of producing that rate. The court further notes that no one disputes that these probabilities rest on anything but the best scientific information available. The court holds that DOC's reasons for recommending use of a lower recruitment estimate justify setting a quota that offered a high probability of achieving the regulatory goal of not exceeding the fishery management plan's 1994 mortality rate. As long as everyone agrees, as everyone does, that the regulations do not require 100 percent assurance of not exceeding the mortality rate, the choice of how muchassurance to indulge in must be a policy choice left to the reasonable exercise of the statutorily authorized decisionmakers' discretion. The court holds that DOC's process of setting the 1994 quota was conducted in good faith, pursued with a proper understanding of the law, based on the best scientific information available, and adequately justified by the agency. If there was an inevitable element of arbitrariness in the decision, there was no caprice. The district court could not properly hold that the quota was not based on the best scientific information available where the record demonstrates that the agency fully understood the meaning of the data before it and chose to adopt a quota that on the basis of that information offered a high probability of meeting its regulatory mandate while also allowing the fishing industry to increase its harvest for 1994 over that of 1993.

[Briefs and pleadings in this litigation are digested at ELR BRIEFS & PLEADS. 66441.]

Counsel for Plaintiffs
Jonathan F. Klein
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
David E. Frulla
Brand, Lowell & Ryan
923 15th St. NW, Washington DC 20005
(202) 662-9700

Before Niemeyer and Michael, JJ.