Renewed Challenge to Dusky Shark Bycatch Regulation Fails

The dusky shark is a migratory predator that inhabits coastal waters from Nova Scotia to Brazil. The shark has an average length of twelve feet and weighs approximately 400 pounds. Commercial and recreational fishermen heavily fished the species at the end of the 20th Century, resulting in the species’ drastic population decline. The National Marine Fisheries Service’s (NMFS) designation of the shark as a “prohibited species” in 2000 made it illegal for fishermen to possess, sell, take, or retain them. Since then, the agency has taken several regulatory measures to facilitate the species’ rebound, but the measures have not been without controversy. Oceana, an environmental group, challenged a 2016 bycatch regulation issued by the agency. In 2019, the U.S. District Court for the District of Columbia ruled for Oceana and remanded the rule to the agency for further analysis. In March, the court reviewed the agency’s supplemental evaluation and upheld the regulation. Oceana, Inc., v. Raimondo, No. 17-CV-829 (CRC), 2021 WL 1198165 (D.D.C. Mar. 30, 2021).

The Magnuson-Stevens Act (MSA) provides for the development of fishery management plans (FMPs) to “achieve and maintain, on a continuing basis, the optimum yield from each fishery.” 16 U.S.C. § 1801(b)(4). Fishery management councils develop FMPs for their respective regions, but NMFS develops FMPs for highly migratory species, such as dusky sharks. The dusky shark is included in NMFS’ Highly Migratory Species FMP. NMFS adopted Amendment 5b to the FMP, which includes several “accountability measures” to decrease dusky shark catches, in an effort to achieve a thirty-five percent reduction in mortality by the year 2107. In crafting Amendment 5b, the agency used observer data to determine that the amount of bycatch of the dusky shark was small and that the 5b accountability measures were adequate.

Oceana’s 2017 suit alleged that the agency failed to use critical data in drafting Amendment 5b. Specifically, the group claimed that the agency should have considered logbook data, which included a much higher number of dusky shark bycatch than the observer data. In 2019, the district court granted summary judgment in favor of Oceana. Oceana, Inc. v. Ross, 363 F. Supp. 3d 67 (D.D.C. 2019). The court agreed that the agency failed to provide a reasonable explanation for excluding the data. The court remanded the regulation to NMFS, ordering it to either include the omitted data into its analysis or better substantiate its decision to exclude the data. NMFS subsequently completed a comprehensive supplemental evaluation supporting its prior decision to rely on observer data. Oceana renewed its claim in federal district court that the agency should have used alternative data and that the bycatch regulation did not do enough to protect the species.

This time, the federal district court found that NMFS rationally justified its use of the data. The court deferred to the agency’s scientific expertise in its decision not to use the logbook data to estimate dusky shark bycatch for commercial fisheries. The court held that NMFS did not act inconsistently in using logbook estimates for recreational data, as the agency did not rely on this data in its management decisions. The court also concluded that NMFS reasonably determined that dusky shark bycatch is small and that the agency provided reasoned justifications for the accountability measures that support its conclusion that the measures will reduce mortality by thirty-five percent. Finally, Oceana argued that NMFS violated the National Environmental Policy Act requirement to consider and evaluate alternatives to achieving the agency’s stated goal. The court rejected these arguments for the same reasons that it rejected the MSA complaints. Ultimately, the court denied Oceana’s motion for summary judgment and granted NMFS’s cross motion for summary judgment.

Conservation groups will likely continue to push for additional protection of the dusky shark. In 2013, two groups petitioned to have the species listed under the Endangered Species Act, but in 2014 NMFS issued a status review finding that listing was not warranted. For now, NMFS’ Accountability Measures for 5b will remain in place in an effort to restore the species over the next century.