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Oceana, Inc. v. Locke

ELR Citation: 41 ELR 20239
Nos. 10-5299, (D.C. Cir., 07/19/2011)

The D.C. Circuit vacated the National Marine Fisheries Service's (NMFS') methodology for tracking bycatch in the fisheries off the Northeastern coast of the United States. The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act, requires the NMFS, in conjunction with eight regional councils, to "establish a standardized reporting methodology to assess the amount and type of bycatch" in each fishery in each region. To comply with this requirement, the NMFS issued an "omnibus amendment" to the fishery management plans in the New England and Mid-Atlantic regions. But because the amendment grants the NMFS substantial discretion both to invoke and to make allocations according to a non-standardized procedure, the NMFS did not "establish" a standardized methodology under the Fisheries Act. At best, the rule sets a benchmark from which the agency freely can and apparently does significantly depart in its annual allocation of observers. Accordingly, the court reversed the lower court decision in favor of the NMFS and instructed it to vacate the amendment and to remand the matter to the agency for further proceedings.