Fishermen's Dock v. Brown , 75 F.3d 164 ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FISHERMEN'S DOCK COOPERATIVE,
INCORPORATED, of Point Pleasant
Beach, New Jersey; BELFORD
SEAFOOD COOPERATIVE, of Belford,
New Jersey; WANCHESE FISH
COMPANY, of Virginia, North
Carolina and Massachusetts;
SEAFARERS INTERNATIONAL UNION,
Plaintiffs-Appellees,
v.
RONALD H. BROWN, Secretary of
Commerce,
Defendant-Appellant,
No. 95-1002
NATURAL RESOURCES DEFENSE
COUNCIL, INCORPORATED; AMERICAN
SPORTFISHING ASSOCIATION; CENTER
FOR MARINE CONSERVATION;
CHESAPEAKE BAY FOUNDATION;
COASTAL CONSERVATION ASSOCIATION;
CONSERVATION LAW FOUNDATION,
INCORPORATED; ENVIRONMENTAL
DEFENSE FUND, INCORPORATED; LONG
ISLAND SOUNDKEEPER FUND;
NATIONAL AUDUBON SOCIETY; TROUT
UNLIMITED,
Amici Curiae.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, District Judge.
(CA-94-338-2)
Argued: October 30, 1995
Decided: February 2, 1996
Before NIEMEYER and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Reversed by published opinion. Senior Judge Phillips wrote the opin-
ion, in which Judge Niemeyer and Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Jonathan Flint Klein, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellant. David Earl
Frulla, BRAND, LOWELL & RYAN, P.C., Washington, D.C., for
Appellees. ON BRIEF: Lois J. Schiffer, Assistant Attorney General,
Robert L. Klarquist, Charles W. Brooks, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Helen F. Fahey,
United States Attorney, George M. Kelley, III, Assistant United
States Attorney, Norfolk, Virginia; Mariam McCall, Joel G. MacDon-
ald, Office of the General Counsel, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, Silver Spring, Maryland, for
Appellant. Stanley M. Brand, BRAND, LOWELL & RYAN, P.C.,
Washington, D.C., for Appellees. Peter Lehner, Sarah Chasis, Wil-
liam Schrenk, NATURAL RESOURCES DEFENSE COUNCIL,
INC., New York, New York, for Amici Curiae.
_________________________________________________________________
OPINION
PHILLIPS, Senior Circuit Judge:
The Secretary of Commerce (the Secretary) appeals a district court
order that invalidated the Department of Commerce's commercial
catch quota for summer flounder for 1994 and that imposed another
quota in its place. Because the district court misapplied the statutory
2
requirement that the Department set the quota in accord with the "best
scientific information available," and consequently erred in invalidat-
ing the agency-set quota, we reverse.
I
This case involves a challenge by a coalition of commercial fishers
(the Coalition) to the 1994 commercial catch quota for summer floun-
der promulgated by the Department of Commerce (the Department).
The Department sets the quota every year through a complex process
mandated by the Magnuson Fishery Conservation and Management
Act, 16 U.S.C. § 1801 et seq., and by federal regulations, 50 C.F.R.
Part 625. Within the Department of Commerce are eight regional fish-
ery management councils, established by the Act, whose job it is to
develop plans for the conservation and management of the fish in
each council's respective section of the American coastal waters.
Among these bodies is the Mid-Atlantic Fishery Management Council
("the Council"), which has among its responsibilities the management
of the summer flounder fishery, including the annual setting of the
commercial catch quota.
Before it could set annual quotas, the Council was required to
develop a Fishery Management Plan for Summer Flounder, which it
did in 1992. Amendments to the plan were promulgated in 1993 and
1994 as well. As part of this Plan, the Council had to set for each of
several years a "target fishing mortality rate." The fishing mortality
rate is a statistic called F that expresses the depletion of the stock of
fish attributable to fishers, whether by capture or by discard of fatally
wounded fish or otherwise, in a given year. For 1994, the Fishery
Management Plan set a target F of 0.53 and thus required that the
commercial catch quota for 1994 be set at a level that would ensure
that the actual F would not exceed 0.53. See 50 C.F.R.
§ 625.20(b)/(c).
The process of setting the quota began, for present purposes, with
the holding of a Stock Assessment Workshop, a gathering of marine
scientists whose mission it was to estimate the size, age structure, and
any other relevant characteristics of current populations of various
species of fish off the Atlantic coast. The numbers produced by the
Workshop for summer flounder were then presented to the Summer
3
Flounder Monitoring Committee (the Monitoring Committee), a sub-
unit of the Council, on September 1, 1993 with recommendations
from Council staff. The Monitoring Committee is a group of scientists
constituted by the Department who are required to recommend,
among other things, a commercial catch quota. The quota for 1994
was to be based on the scientific information from the Workshop and
was to be designed to ensure that the "fishing mortality rate," F, did
not exceed the 0.53 level previously announced as the 1994 target by
the Fishery Management Plan. The Monitoring Committee recom-
mended a quota of 16,005,560 pounds. That recommendation then
went to the Demersal Species Committee of the Council and to the
Atlantic States Marine Fisheries Commission, an interstate organiza-
tion with which the Council cooperates. Those two bodies, meeting
jointly on September 23, approved the Monitoring Committee's rec-
ommendation and passed it on to the Council which, in turn, recom-
mended it to the Regional Director for approval. After the requisite
notice and comment, during which no objections pertinent to this
appeal seem to have been filed, the quota became final in early 1994.
At the heart of the case is the way the Monitoring Committee used
the Workshop's data regarding the "recruitment" of summer flounder
--that is, the number of new flounder expected to appear in the popu-
lation in 1994. At the Committee's annual quota-setting meeting, staff
member Wendy Gabriel had presented the Committee with the geo-
metric mean of the previous five years' estimated recruitments and
the values one standard deviation above and below that mean. Then,
on recommendation of Council staff, and specifically following the
lead of Gabriel's presentation of the recruitment statistics to the Com-
mittee, the Committee chose to recommend that the quota be set on
the basis of a conservative estimate of recruitment. In particular, the
staff had recommended, and the Committee then chose to use, an esti-
mate of recruitment equal to the figure one standard deviation below
the geometric mean rather than a recruitment estimate equal to that
geometric mean. As a direct consequence, the Committee recom-
mended that the previous year's quota be increased for 1994 only to
about 16 million pounds (a 28% increase) whereas incorporation of
the geometric-mean estimate would have boosted the quota to about
19 million pounds.
The lower quota was ratified at every step of review and published
in the Federal Register accompanied by four justifications that closely
4
reflected those articulated in the original staff recommendation. As
articulated in the Federal Register, the four reasons for using the
lower estimate were the following: First, the summer flounder popula-
tion was composed mainly of fish aged 2 and under; so an overesti-
mate in recruitment would have great power to cause an overestimate
in overall stock size and thus "would result in quotas that would
exceed the target fishery mortality rate (F level)." Second, "the proba-
bility of achieving the target F level is higher at the lower harvest
level" with staff estimating an 80% probability that the proposed
quota would keep actual F under target F. Third, three risky
assumptions--that the previous year's quota would prove to have
been adhered to, that all landings get reported, and that discard rates
would not increase--underlay the estimate of the stock size and sug-
gested that the stock-size curve might be overly optimistic. Fourth,
since the target F was scheduled to decrease dramatically for 1996,
it was better to err on the safe side now so as to minimize the chances
of having to reduce the 1996 quota even more than was already antici-
pated. J.A. 350. In short, the Council believed that the uncertainty in
the recruitment estimates was so great and the long-term flounder
population so fragile a resource for the fishers, especially in light of
a coming reduction in the target fishing mortality rate for 1996, that
a low estimate of recruitment was the prudent estimate.
In challenging the quota, the Coalition argued that use of the lower
estimate rather than the geometric mean in calculating the quota con-
stituted a failure to use the best scientific information available as
required by 16 U.S.C. § 1851(a)(2). After holding a three-day hearing
to have the administrative record explained, the district court agreed
and held that the quota, therefore, represented an arbitrary and capri-
cious decision on the part of the Department. The court concluded
that only the geometric-mean estimate could constitute the best scien-
tific information available in this case. On this basis, the court held
that "the 1994 commercial catch quota is invalidated to the extent that
it deviates downward from the figure reached using the best scientific
information available, which was 19.05 million pounds for 1994,"
Fishermen's Dock Cooperative v. Brown, 867 F. Supp. 385, 386
(E.D. Va. 1994), and ordered that the quota be reset at that figure. The
key parts of the district court's opinion read as follows:
The Court finds that the use of figures one standard devia-
tion below the mean was arbitrary and capricious. The use
5
of a figure one standard deviation below the mean was cho-
sen not because it was the best scientific information avail-
able, but solely because it increased the percentages of
reaching not a balanced result but a result which protected
the summer flounder stock to the detriment of the fishermen.
....
. . . The Council chose to implement a quota one standard
deviation below the geometric mean, resulting in a quota of
16.005 million pounds rather than a quota of 19.05 million
pounds, a sixteen percent difference. Defendant's designees
explained that using the lower figure increased the probabil-
ity of reaching 0.53, the target fishing mortality for 1994,
from 59% at the geometric mean to 81% with the lower fig-
ure.
This Court finds that the Council's decision to implement
a quota one standard deviation below the geometric mean
failed to utilize the best scientific information available, and
therefore was arbitrary and capricious.
....
. . . The commercial catch quota . . . should be reset using
the figure derived from the best scientific information
available--19.05 million pounds, the geometric mean,
replacing the quota set at one standard deviation below the
mean, or 16.005 million pounds.
. . . Accordingly, this Court . . . ORDERS that the 1994
summer flounder commercial catch quota be invalidated to
the extent that it is less than 19.05 million pounds.
Fishermen's Dock, 867 F. Supp. at 396-97.
This appeal by the Secretary followed. A number of environmental
organizations and recreational fishers' organizations have filed an
amicus brief in support of the Secretary's position.
6
II
In view of the nature of the district court's proceedings in this case,
it is important that we define at the outset the standard under which
we review its decision. We start with the standard under which the
district court reviewed the agency action. It is prescribed in the
Administrative Procedure Act (APA) and incorporated by the Magnu-
son Act at 16 U.S.C. § 1855(b)(1)(B):
The reviewing court shall--
....
(2) hold unlawful and set aside agency action, findings,
and conclusions found to be--
(A) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction, author-
ity, or limitations, or short of statutory right;
(D) without observance of procedure required
by law; . . . .
5 U.S.C. § 706(2)(A)-(D).
Our review of district court decisions made in review of agency
action is generally de novo. Thus, we generally review the agency's
action from the same position as that of the district court and seek to
determine, as did the district court, whether on the administrative
record the agency action was arbitrary and capricious or otherwise
illegal under the statutory standards quoted above. Virginia Agricul-
tural Growers Ass'n v. Donovan, 774 F.2d 89, 93 (4th Cir. 1985)
("The trial court was obligated to look to the administrative record
and its view of the record is not entitled to deference."); Natural
7
Resources Defense Council v. United States Environmental Protec-
tion Agency, 16 F.3d 1395, 1400-01 (4th Cir. 1993) (court of appeals
review looks to the agency's action "to determine whether the record
reveals that a rational basis exists for its decision").
The Coalition points out, however, that where a district court has
legitimately expanded the administrative record by holding a supple-
mentary hearing, its decision might then be entitled to some unspeci-
fied degree of deference from our court in review. It relies on then-
Judge Breyer's exploration of the intricacies of judicial review under
the APA in Sierra Club v. Marsh, 769 F.2d 868, 871-72 (1st Cir.
1985):
We should be more willing, or be less willing, to differ with
a district court about the `reasonableness' or`arbitrariness'
of an agency decision, depending upon the particular fea-
tures of the particular case that seem to make a more inde-
pendent, or a less independent, appellate court scrutiny of
the administrative record appropriate. Where, for example,
the district court's judgment turns on matters of fact that it
has determined, or upon evidence presented by witnesses in
court, or even upon lengthy district court proceedings in
which knowledgeable counsel explain the agency's
decision-making process in detail, we will show appropriate
hesitation to overturn that judgment. [Citations omitted.]
But, where the district court simply reviews a set of agency
documents and, applying the same legal standard as we
apply here, reaches a particular legal conclusion about the
`reasonableness' of an agency's action, we have greater
legal freedom to differ with the district court's ultimate
characterization of agency behavior.
Countering the suggestion that any deference is owed here, the Secre-
tary challenges the propriety of the district court's expansion of the
record, contending that its three-day hearing and ensuing expansion
of the record was not warranted.
Whatever the propriety of conducting such a hearing, we do not
think it need have any effect on our review process. We have care-
fully reviewed the record of that hearing and are satisfied that none
8
of the testimony received actually had the effect of substantively
expanding the factual record before the agency. The testimony
received essentially served only to educate the district court in the
complexities of geometric means, standard deviations and
probabilities--an education equally available to us. Because we are
therefore satisfied that the district court reached its decision wholly
on the basis of the administrative record itself and its own ad hoc self-
education in statistics, we owe its decision no special deference deriv-
ing from the extended hearing it conducted. Consequently, we will
proceed to conduct our own independent review of the administrative
record as being effectively the unexpanded record reviewed by the
district court.
III
The district court held that, at least in the circumstances of this
case, the statutory requirement that the agency use the "best scientific
information available" translated to a rule of law that the agency use
the geometric mean as its estimate of recruitment in setting the com-
mercial catch quota for 1994. The Secretary argues on appeal that the
agency's action in this case was in no way arbitrary, capricious, or
otherwise illegal and that, even if it was, the district court overreached
its authority in imposing a new quota rather than remanding to the
agency.
We agree with the essentials of the Secretary's primary argument.
In explaining why, it is important at the outset to point out the limited
scope of the Coalition's challenge to the agency action. It does not
challenge the Fishery Management Plan or its target fishing mortality
rate for 1994. It does not challenge the procedures used in producing
the quota or the scientific validity of the data underlying the quota.
It challenges only the Department's choice to rely on one estimate of
recruitment rather than another, and contends that the district court
was correct to hold that there was only one estimate consistent with
use of the best scientific information available as required by 16
U.S.C. § 1851(a)(2). We disagree on that basic point. The district
court's holding that the available scientific information on recruitment
dictated one and only one possible quota reveals a critical misunder-
standing of the nature of the information available.
9
The Act mandates that the agency conform to several"national
standards," including the following:
Any fishery management plan prepared, and any regula-
tion promulgated to implement any such plan, pursuant to
this subchapter shall be consistent with the following
national standards for fishery conservation and manage-
ment:
(1) Conservation and management measures shall pre-
vent overfishing while achieving, on a continuing basis, the
optimum yield from each fishery for the United States fish-
ing industry.
(2) Conservation and management measures shall be
based upon the best scientific information available.
....
(6) Conservation and management measures shall take
into account and allow for variations among, and contingen-
cies in, fisheries, fishery resources, and catches.
16 U.S.C. § 1851(a).
No one contends that the Council's Fishery Management Plan is
inconsistent with the above statutory standards. That Plan is imple-
mented by 50 C.F.R. Part 625, which provides, in pertinent part, as
follows:
§ 625.20 Catch Quotas and Other Restrictions
(a) Annual Review. The Summer Flounder Monitoring
Committee will review [certain data including"recent esti-
mates of recruitment"] . . . to determine the allowable levels
of fishing and other restrictions necessary to result in a fish-
ing mortality rate of 0.53 in 1993 through 1995, and a fish-
ing mortality rate of 0.23 in 1996 and thereafter . . . .
10
(b) Recommended Measures. Based on this review, the
Summer Flounder Monitoring Committee will recommend
. . . the following measures to assure that the fishing mortal-
ity rate specified in paragraph (a) of this section is not
exceeded:
(1) The commercial quota will be set from a
range of 0 to the maximum allowed to achieve the
fishing mortality rate specified in paragraph (a) of
this section; . . . .
Next, in subsection (c), the regulations call for the Demersal Species
Committee, the Council, and the Regional Director (both before and
after public comment), each in turn, to consider what quota is "neces-
sary to assure that the applicable fishing mortality rate specified in
paragraph (a) of this section is not exceeded ." (Emphasis added.) This
quoted language appears four separate times in that subsection.
The sum of these provisions is that the Monitoring Committee is
required to seek a fairly high level of confidence that the quota it rec-
ommends will not result in an F greater than 0.53, even as it must be
equally concerned to provide the fishing industry with an "optimum
yield" both in the current year and over the long term. Although the
regulatory language repeatedly calls for the Council to "assure" that
the target F is "not exceeded," it cannot be taken to require 100%
assurance. If taken literally, that language could mean that the Moni-
toring Committee would have to recommend something close to clos-
ing of the fishery to "assure" an acceptable F. But, of course, the
statute does not contemplate regulatory overkill. It anticipates an "op-
timum yield" for the fishing industry that is consistent with reason-
able assurance that the actual F will be less than or equal to the target
F.
Also, while the language assumes that such a quota can be estab-
lished on the basis of the "best scientific information available"--and
so requires that the quota be set on that basis--it appears to say noth-
ing about how that term is to be defined. It only mandates the consti-
tution of committees of scientists to provide and evaluate such
information.
11
In this case, the Monitoring Committee had before it, among other
things, three estimates or predictions of recruitment for 1994 that
were derived from research that, at least for purposes of this appeal,
everyone agrees constituted the best scientific information available.
One of the estimates was the geometric mean of the estimated recruit-
ments for the years 1988 through 1992; that is, the midpoint of the
probability curve of all possible recruitment estimates for 1994 as
derived from the estimated actual recruitments of the previous five
years. The other two estimates for 1994 were produced by traveling
one standard deviation above and below the geometric mean along the
curve of 1994 recruitment estimates. As is always true of the single-
standard-deviation points along a normal curve, these high and low
estimates represented the upper and lower limits of a range of esti-
mates within which there was a 68% probability that the true recruit-
ment would eventually lie. The geometric mean was just the middle
value in that range, and the single-standard-deviation values were
simply standard statistical markers for indicating the degree of uncer-
tainty in the data.
Thus, to illustrate, if the geometric mean were about 30 million fish
with a standard deviation of about 10 million, all the Monitoring
Committee would know from the three estimates presented to it was
that the best science available predicted a 68% chance that the actual
recruitment for 1994 would be somewhere between 20 million and 40
million fish. No single point estimate on the curve had any assigned
probability of being the ultimately correct one. But any range of esti-
mates on the curve had a particular and easily derived probability of
containing the ultimately correct number.
One of the properties of the curve, then, was that it could provide
the scientists and the administrators with the available research's best
conclusions as to the ranges within which the actual 1994 recruitment
was likely to lie. But another even more important property was that
that curve apparently implied another curve; and this second curve
provided, for any chosen point estimate of recruitment, the probability
that the quota derived from that point estimate would ultimately pro-
duce an actual F for 1994 of 0.53 or less. Crucially for this case, that
latter curve in fact indicated that the 19-million-pound quota, derived
from the estimate at the geometric mean, carried a 59% chance of
eventually producing a 1994 F of 0.53 or less, whereas the 16-
12
million-pound quota, derived from the estimate one standard devia-
tion below the mean, carried an 81% chance of eventually producing
a 1994 F of 0.53 or less. And no one disputes the validity of these
probabilities; no one suggests that they rested on anything but the best
scientific information available.
On the basis of this best available scientific information, then, the
Monitoring Committee had to estimate what the true recruitment
would be. If it estimated too high and set the quota accordingly high,
then the smaller actual recruitment would be decimated by fishers
operating under the high quota, with the result that F would exceed
0.53. Alternatively, the Monitoring Committee could estimate that
actual recruitment would be low and thereby increase its chances of
not exceeding target F. Since the Fishery Management Plan called for
assurance that target F would not be exceeded but not such absolute
assurance as would result in grievously undershooting target F and
denying the fishing industry its "optimum yield," the Agency's deci-
sionmakers necessarily had some discretion to decide what precise
degree of assurance it would seek within the uncertainty of the data.
In exercising that discretion, these decision-makers consistently
offered the four reasons recited above for recommending use of the
lower of the two recruitment estimates and thus the lower of the two
quotas that they had considered in light of the data presented: first, the
truncated age structure of the summer flounder population, which
magnified the risk to target F involved in any overestimate of the size
of the recruitment class; second, the general proposition that a lower
recruitment estimate provided a higher probability of assuring that
actual F would turn out to be less than or equal to target F; third, the
recognition that certain assumptions underlying the estimate of the
flounder stock size might be overly optimistic; and, fourth, the belief
that, since target F was to decrease significantly in 1996, it was better
to deal with the current uncertainty in recruitment estimates by erring
on the conservative side rather than risking an exacerbation of the
painful quota decrease that had to come soon in any case.1 J.A. 350.
_________________________________________________________________
1 The Coalition argues in passing that this last justification is an unau-
thorized acceleration of the Fishery Management Plan's call for a reduc-
tion in target F in 1996 (not in 1994). That argument is correct as far as
13
These reasons do not justify the precise choice of an 81% probabil-
ity of success or the choice to plug into the formula the specific
recruitment estimate located at the one-standard-deviation-below-the-
geometric-mean mark. See Brief of Appellee-Coalition at 36-39. Nor
do they consistently explain why the choice of a conservative
recruitment estimate was the best way to modify the quota rather than
using a higher recruitment estimate but then simply lowering the
quota itself to take account of all the uncertainties in the data. But
they do reflect the Monitoring Committee's understanding that the
recruitment estimate was the main source of uncertainty along the
way to making a stock-size estimate and then setting a quota; and they
do justify setting a quota that, taking that uncertainty into account,
offered a high probability--if not 100% assurance--of achieving the
regulatory goal of not exceeding target F. Moreover, at the Monitor-
ing Committee's meeting and later in the process, the point was made
that, "happenstantial" as the lower figure might be, it had the benefit
of both providing a high probability of staying under target F and still
allowing a substantial (28%) increase in the quota from the year
before. It thus showed commercial fishers that the Department's mea-
sures were not simply relentless attacks on the industry but beneficial
over the long term for all concerned as the Act contemplated. J.A.
189, 193, 325-27. The option of setting the quota so as to provide a
90% or 95% probability of success was also considered but rejected
as too heavy a short-term burden on the fishing industry. J.A. 325,
193.
In this situation, to assert, as the district court did, that the "best sci-
entific information" required use of the geometric-mean estimate to
dictate a quota that had only a 59% chance of not causing F to be
exceeded, rather than use of an estimate that would provide an 81%
chance of not causing F to be exceeded, is to misconstrue what the
_________________________________________________________________
it goes. But the Department's mandate in setting quotas is to manage
great uncertainties in the data as best it can while taking the long view
of the state of the fishery and its users, whether fishers or conservation-
ists or anyone else. In that context, it seems fair to allow the Department
to bolster its decision to err on the safe side with its observation that, if
in fact its estimate proved to be low, it would at least have the benefit
of easing the transition to the new target F in 1996.
14
best scientific information really shows in the context of the statute
and regulations. A quota "based on" that information and designed to
"assure" that the target F was not exceeded while still providing the
fishing industry with an "optimum yield" could not properly be deter-
mined by a court in judicial review to be, as a matter of law, only one
that happened to provide a 59% chance of not exceeding F. The dis-
trict court was correct that the specific choice of an 81% probability
largely because it happened to correspond to one of the three recruit-
ment estimates presented to the committee--when those three esti-
mates were presented merely as indicators of the degree of
uncertainty in the data--was, in a sense, arbitrary. But, within the
terms of the statute and regulations, so would have been the choice
of a 59% probability. See Brief of Amici Curiae at 27-28.
When the regulations say that the Committee's recommendation
should "assure" that target F is not exceeded, they do not say what
probability of success (as derived from the best scientific information
available) constitutes "assurance" of success. As long as everyone
agrees, as everyone does, that the regulations do not require 100%
assurance, the choice of how much assurance to indulge in must be
a policy choice left to the reasonable exercise of the discretion of the
statutorily authorized decision-makers. And that choice inevitably
contains a degree of arbitrariness.
In the event, those decisionmakers seem to have allowed them-
selves to gravitate to a specific number--within the general range
suggested by their reasoning--largely because that number happened
to have been on the table as a standard deviation. If allowing them-
selves to gravitate in that way constituted arbitrariness in the selection
of the final number within the acceptable range of assurance, then the
Monitoring Committee indulged only in the kind of arbitrariness that
is inherent in the exercise of discretion amid uncertainty and not in
the kind of arbitrariness that the statute condemns when it exists in
tandem with capriciousness.
To dispute this conclusion, the Coalition cites a handful of cases
for the proposition that the APA requires a tighter connection than the
agency has articulated here between the specific regulation adopted
and the regulation's justifications. But evaluation of agency reasoning
is inevitably an ad hoc enterprise, and the Coalition's cited cases sim-
15
ply do not present factual situations similar enough to our case to sug-
gest that the agency failed to justify itself adequately. In fact, these
cases do little but reaffirm the requirement that the agency have
engaged in reasoned decision-making within the specific regulatory
context.
Thus, in Gas Appliance Mfrs. Ass'n v. Department of Energy, 998
F.2d 1041, 1047 (D.C. Cir. 1993), the court found a Department of
Energy cost-benefit analysis inadequate because the Department had
offered no information at all on how private companies might be able
to conform to the assumptions of the analysis, much less what the
costs of conforming might be or how those costs might compare to
the benefits to be had. In Parravano v. Babbitt , 837 F.Supp. 1034,
1046 (N.D. Cal. 1993), similarly, the court found no record basis at
all for the Secretary of Commerce's increase in a"salmon escapement
floor." In Chemical Mfrs. Ass'n v. Environmental Protection Agency,
28 F.3d 1259, 1265 (D.C. Cir. 1994), the court rejected the EPA's use
of a model when the agency failed to respond meaningfully to a chal-
lenger's "specific detailed evidence of a poor fit between the agency's
model and that party's reality"; but, of course, the Coalition in this
appeal does not even challenge the Council's model. Finally, in Motor
Vehicle Mfrs. Ass'n of the United States v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983), the Supreme Court said that usually "an
agency rule would be arbitrary and capricious if the agency has relied
on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be ascribed to a dif-
ference in view or the product of agency expertise." The Court then
went on to invalidate the agency's action on the basis of its utter fail-
ure to consider obvious alternative actions. State Farm, 463 U.S. at
46-51, 54-57. And it reminded those who would challenge agency
action that often "the available data do not settle a regulatory issue,
and the agency must then exercise its judgment in moving from the
facts and probabilities on the record to a policy conclusion." State
Farm, 463 U.S. at 52. Far from supporting the Coalition's position,
State Farm offers a description of legitimate exercise of agency dis-
cretion that neatly suggests the Council's actions in this case. In sum,
these cases actually require an agency to do what the Council did here
--that is, reason its way to a decision without pretending that that
16
decision reflected some degree of rational perfection beyond what the
inherent uncertainties of the available data permitted. See Leather
Industries of America v. Environmental Protection Agency, 40 F.3d
392, 409 (D.C. Cir. 1994) ("Where the agency's line-drawing does
not appear irrational and the [challenger] has not shown that the con-
sequences of the line-drawing are in any respect dire . . . we will leave
that line-drawing to the agency's discretion."); see also 1 Kenneth C.
Davis and Richard J. Pierce, Jr., Administrative Law Treatise, § 7.5,
at 326-332 3d ed. (1994) (citing cases and arguing the futility of
courts' expecting agencies to reduce every exercise of discretion to
precise argument).
IV
Our independent review of the record satisfies us that the agency's
process of setting the 1994 quota was conducted in good faith, pur-
sued with a proper understanding of the law, based on the best scien-
tific information available, and adequately justified by the agency. If
there was an inevitable element of arbitrariness in the decision, there
was not the least caprice. The district court could not properly hold
that the quota was not based on the best scientific information avail-
able where, as we hold, 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. Accord-
ingly, we will reverse the district court's judgment, uphold the
17
Department's 1994 commercial catch quota, and dismiss the Coali-
tion's action.2
REVERSED
_________________________________________________________________
2 We recognize, but need not further address, the practical problem of
adjusting the ongoing annual quota-setting process to accommodate our
decision upholding the Department's 1994 quota. The cyclical adminis-
trative process of course has had to continue while this litigation pro-
ceeded. The problem of adjusting it to successive decisions made in
judicial review originated with the district court's decision which, in late
1994, effectively increased the agency's 1994 quota by 3 million pounds.
About six weeks later, responding to a show cause order as to why the
court's order had not been implemented, the Department agreed to a con-
sent order to control the matters at issue pending this appeal. Under that
order, the Department was required to apply to 1995 the 3-million pound
quota increase originally ordered for 1994. In its brief to this court, the
Department indicated that were it to prevail, it would accommodate our
decision in its favor by rescinding the 3-million pound increase of the
1995 quota. With 1995 now past, that particular accommodation of
course is no longer possible. We need not attempt to direct just how our
invalidation of the judicially-ordered increase should now be worked into
the process. It suffices to reject, as we do, the Coalition's argument that
because the consent order was not appealed by the Secretary, the 3-
million pound increase it ordered cannot be rescinded. That argument is
without merit; the consent order specifically recited that it was entered
without prejudice to the Department's "pursuing an appeal from the
court's prior orders." Fishermen's Dock Cooperative, et al. v. Brown,
No. 2:94cv338 (E.D.Va. Dec. 19, 1994) (consent order). With that
decided, we may leave to the Department's properly exercised discretion
the matter of how the invalidated increase is to be accommodated in the
ongoing quota-setting process.
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