Oceana, Inc. v. Ross, No. 17-5247, 2019 WL 1574916 (D.C. Cir. Apr. 12, 2019): 

When fishermen catch fish but do not sell or keep them for personal use, they harvest what is referred to as “bycatch.” Discarded fish might constitute fish of an “undesirable size, sex, or quality,” or fish that “fishermen are required by regulation to discard whenever caught.” 16 U.S.C. § 1802(2), (9), (38). Because a significant portion of bycatch do not survive (although some may be returned to the water), the phenomenon of bycatch can have detrimental effects on the marine ecosystem. 50 C.F.R. § 600.350(b). Accordingly, the Magnuson–Stevens Fishery Conservation and Management Act (“Magnuson–Stevens Act”), as amended by the Sustainable Fisheries Act (“Fisheries Act”), 16 U.S.C. § 1801 et seq., directs the National Marine Fisheries Service (“the Fisheries Service”) and regional councils to establish methodologies for collecting and reporting bycatch data.
Plaintiff Oceana, Inc. challenges the Standardized Bycatch Reporting Methodology (“Reporting Methodology”) adopted in 2015 by the Fisheries Service to track bycatch in fisheries in the Northeast region of the United States. Oceana claims that the reporting methodology violates the Magnuson–Stevens Act and the Administrative Procedure Act (“APA”). Defendant Fisheries Service1 and Oceana filed cross-motions for summary judgment. The District Court entered summary judgment for the Fisheries Service, finding that the Reporting Methodology satisfies applicable law. Oceana now appeals. We affirm the District Court because the Fisheries Service has met its obligation under the Fisheries Act to establish a standardized methodology. We further conclude that the District Court did not abuse its discretion in not requiring that the agency produce or include on a privilege log documents covered by the deliberative-process privilege.


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