DC Circuit Sinks Challenge to Fishing Bycatch Rule

(AP Photo/Robert F. Bukaty, file)

WASHINGTON (CN) – The D.C. Circuit on Friday upheld the government’s method of counting fish and other sea life that are unintentionally swept up in commercial fishing nets.

Fishing boats often throw back this unwanted haul, known as bycatch, but the creatures often do not survive the ordeal. Concerned about the impact to the undersea habitat, Congress has required the National Marine Fisheries Service to develop a way of counting bycatch.

The NMFS changed its method for counting bycatch in 2015, after a court struck down an earlier change because it included a provision that allowed the government to go around the normal method if it had a budget shortfall. Because the agency controlled the amount of money that went towards counting bycatch, the D.C. Circuit held the policy was not the standardized method Congress had called for.

The 2015 change puts trained reporters, typically biologists, on a sample of fishing boats to count bycatch. Their numbers are then extrapolated across entire fleets, giving the government an estimate to work with.

Conservation group Oceana challenged the new rule in federal court, claiming it too allows the NMFS to play with how it allocates its money to circumvent its standard reporting requirements. The group also challenged the agency’s method of calculating bycatch and faulted it for not considering alternative proposals.

But a federal judge disagreed with the group’s claims, leading the case to the D.C. Circuit.

In a 17-page opinion issued Friday, U.S. Circuit Judge Robert Wilkins wrote the NMFS developed a reasonable way to count bycatch that cannot be toyed with like the previous version of the rule.

The new method does allow the agency to limit the number of observers depending on how much money it has available, but it does so using a rigid formula, Wilkins wrote.

“Congress did not instruct that a ‘standardized reporting methodology’ must be constant across all possible funding scenarios,” Wilkins wrote. “Rather the Fisheries Service adopts a rational interpretation of the act by establishing a dynamic but non-discretionary methodology.”

The three-judge panel also upheld the method the NMFS adopted to count bycatch, saying the formula fulfills Congress’ goals.

U.S. Circuit Judges David Tatel and Gregory Katsas joined Wilkins’ opinion.

Eric Bilsky, senior attorney and assistant general counsel for Oceana, said the group will continue advocating for more data on fisheries even with the setback at the D.C. Circuit.

“Science-based fisheries run on data,” Bilsky said in a statement Friday. “Oceana will continue to fight for responsible fisheries management grounded in science and broader transparency of fishing activities, so that that public and decision makers can know about fisheries impacts, the seafood supply chain, fisheries subsidies, illegal fishing and other key issues.”

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