The Fisheries Service does not have blanket discretion in determining how to carry out its federally-mandated duties. That’s the word out of the DC Circuit Court of Appeals in Oceana v. Locke.

The case involved a Fisheries Act amendment requiring the Fisheries Service to establish a “standardized reporting methodology” to assess the amount and type of bycatch, (fish which are harvested in a fishery, but which are not sold or kept for personal use), in an effort to reduce bycatch in each of the Service’s eight regions.

Oceana sued, claiming the amendment violated the Fisheries Act, the Administrative Procedure Act, and the National Environmental Policy Act, and noting that nothing in the amendment prevented the Service from announcing a “constraint” applied in any, or indeed every, year.

While the court recognized the novelty of the Service’s compliance-when-convenient approach, it ruled that, in order reserve advance discretion to depart from a rule, an agency must adequately develop circumstances that trigger a “case-by-case” analysis. The court opined that “the Service apparently has given itself complete discretion to determine when an “external operational constraint prevents [it] from fully implementing the required coverage levels.”

With budget cuts on the rise nationwide, more government agencies are likely to face financial constraints in carrying out their mandated duties. In order to avoid prolonged litigation like the Fisheries Service faced in this case, agencies should develop clearly-defined criteria to trigger exceptions to the rules they execute.

Related Resources:

  • Officials: 40 fish populations being overfished (Associated Press)
  • One Fish, Two Fish: Feds to Spend $75 Mil on Asian Carp Problem (FindLaw’s Legally Weird)
  • Halibut And Lobsters Stolen From SEA Lab (FindLaw’s Los Angeles Criminal Law Blog)

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Civil Rights

Block on Trump’s Asylum Ban Upheld by Supreme Court

Criminal

Judges Can Release Secret Grand Jury Records

Politicians Can’t Block Voters on Facebook, Court Rules