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DC Circuit Reels in Fisheries Service in Bycatch Rule Case

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By Robyn Hagan Cain on July 20, 2011 1:19 PM

The Fisheries Service does not have blanket discretion in determining how to carry out its federally-mandated duties. That's the word out of the DC Circuit Court of Appeals in Oceana v. Locke.

The case involved a Fisheries Act amendment requiring the Fisheries Service to establish a "standardized reporting methodology" to assess the amount and type of bycatch, (fish which are harvested in a fishery, but which are not sold or kept for personal use), in an effort to reduce bycatch in each of the Service's eight regions.

The Service proposed an omnibus amendment to encourage compliance with the bycatch mitigation requirement. The amendment provided for "at-sea observers" to collect data about bycatch in the region; it also authorized the Service to invoke a "Prioritization Process," permitting the Service to determine the "most appropriate" method of meeting the data collection requirement in years when "external operational constraint" prevented the agency from fully complying with the at-sea observer coverage level.

Oceana sued, claiming the amendment violated the Fisheries Act, the Administrative Procedure Act, and the National Environmental Policy Act, and noting that nothing in the amendment prevented the Service from announcing a "constraint" applied in any, or indeed every, year.

While the court recognized the novelty of the Service's compliance-when-convenient approach, it ruled that, in order reserve advance discretion to depart from a rule, an agency must adequately develop circumstances that trigger a "case-by-case" analysis. The court opined that "the Service apparently has given itself complete discretion to determine when an "external operational constraint prevents [it] from fully implementing the required coverage levels."

With budget cuts on the rise nationwide, more government agencies are likely to face financial constraints in carrying out their mandated duties. In order to avoid prolonged litigation like the Fisheries Service faced in this case, agencies should develop clearly-defined criteria to trigger exceptions to the rules they execute.

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