OCEAN CONSERVATION IN THE COURTS ~~~~~~~~~~~~~~~~~ Steve Roady Scripps CMBC July 23, 2007

“RAPID WORLDWIDE DEPLETION OF PREDATORY FISH COMMUNITIES” By Ransom A. Myers and Boris Worm -A recent study showing that 90 % of all large predatory fish in the world’s oceans are gone YEAR Mean Fish Per 100 Hooks

“HAS THE SEA GIVEN UP ITS BOUNTY?” By William J. Broad and Andrew C. Revkin, New York Times, July 29, 2003 A Century in North America:

BYCATCH “Around the world each year, an estimated 44 billion pounds of fish are wasted- 25% of the entire world catch. Tens of thousands of marine mammals, birds, corals, and other forms of ocean life are also caught and discarded.” – Oceans at Risk: Wasted Catch and the Destruction of Ocean Life- A Report by Oceana (2002)

Judicial Review of Agency Actions: Environmental Litigation for the Oceans

Environmental Litigation Guide Civil cases challenging Agency action Complaint Administrative Record Briefing Summary Judgment - Granted if “there is no genuine issue as to any material fact…and the party is entitled to judgment as a matter of law.” -Federal Rules of Civil Procedure 56(c)

Administrative Procedure Act “A person suffering legal wrong because of an agency action... is entitled to judicial review thereof.” 5 U.S.C. Section 702

Administrative Procedure Act The court shall “hold unlawful and set aside agency action... found to be - (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...” 5 U.S.C. Section 706 (A)

“Arbitrary or Capricious” Relied on factors Congress never intended Failed to consider an important aspect of the problem Offered explanation contrary to the evidence before the agency Failed to articulate an explanation for its action

Agencies Often Receive Deference * Courts defer to agency decisions as long as they are rational. - Motor Vehicle Manufacturers Association v. State Farm Automobile Insurance Company, 436 U.S. 29 (1983) * Agencies must articulate a “rational connection between the facts found and choices made.” -Washington Crab Producers v. Mosbacher, 924 F. 2d 1438, (9 th Cir. 1990)

Heightened Deference to Scientific or Technical Judgments * Agency receives the most deference when an action is based on a scientific determination. - Baltimore Gas and Electric Company v. NRDC, 462 U.S. 87, 103 (1983) * Courts do not always defer to agencies’ science. - Natural Resources Defense Council, et al. v. Daley, 209 F. 3d 747 (D.C. Cir. 2000)

Natural Resources Defense Council v. Daley, 209 F. 3d 747 (D.C. Cir. 2000) Challenged the 1999 quota for the East coast summer flounder harvest. Agency failed to assure rebuilding for the summer flounder stock - Quota had 18% chance of success Agency’s science-based judgment that measures would assure rebuilding was in error and not entitled to deference.

Summer Flounder Decision “Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the Service reasonably conclude that a measure that is at least four times as likely to fail as to succeed offers a ‘fairly high level of confidence.’” - United States Court of Appeals for the District of Columbia Circuit (2000)

Summer Flounder Decision The NMFS suggests “that we owe deference to the agency’s ‘scientific’ judgments. While this may be so, we do not hear cases merely to rubber stamp agency actions.” - United States Court of Appeals for the District of Columbia Circuit (2000)

Courts: To Defer, or Not to Defer Compelling facts make good law. Agencies must spell out rational reasons supporting science-based decisions. Agencies must pose the tough questions and provide reasoned answers.

QUESTIONS ? Loggerhead Sea Turtle