UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NAT RESRC DEF CNCL

v.

DALEY, WILLIAM M.


99-5308a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: Paralichthys dentatus, or summer  flounder, a
commercially valuable species of flounder, dwell  off the Atlantic
coast and are harvested primarily between  May and October from North
Carolina to Maine. The sum- mer flounder fishery is an "overfished"
fishery, in the process  of recovering from severe depletion prevalent
during the late  1980s and early 1990s. The Secretary of Commerce,
advised  by the National Marine Fisheries Service ("the Service"), the
 principal appellee in this case, annually sets a fishing quota 
limiting each year's summer flounder catch, pursuant to the 
Magnuson-Stevens Fishery Conservation and Management  Act ("the
Fishery Act"), 16 U.S.C. ss 1801-1883 (1994 &  Supp. IV 1998). This
case involves appellants' challenge to  the Service's quota for the


Before the District Court, appellants alleged that the 1999  quota did
not provide sufficient assurance that it would meet  the conservation
goals of the Fishery Act and attendant  regulations. Appellants also
claimed that the Service's con- clusion that the quota had no
significant environmental im- pact was based on an inadequate
environmental assessment,  thereby violating the National
Environmental Policy Act  ("NEPA"). On cross-motions for summary
judgment, the  District Court granted judgment in favor of appellees.


Natural Resources Defense Council, Inc. v. Daley, 62  F. Supp. 2d 102
(D.D.C. 1999).


We reverse the District Court and remand the case to the  Service for
further proceedings consistent with this opinion.  The 1999 quota,
when adopted, had a documented 18% likeli- hood of meeting the
statute's conservation goals. We hold  that, under the Fishery Act,
the disputed quota is insufficient  to meet Congress' mandate to the
Service to prevent overfish- ing and to assure that specific
conservation goals are met.  We also hold that the Service's proposal
to supplement the  quota with other purportedly protective measures
does not  satisfactorily ameliorate the quota's glaring deficiencies.
Be- cause of our disposition on these grounds, we have no need to 
reach appellants' NEPA claims.


I. BACKGROUND


A. Regulatory Background


The Fishery Act was enacted to establish a federal-regional 
partnership to manage fishery resources. Under the statute,  there are
eight Regional Fishery Management Councils "to  exercise sound
judgment in the stewardship of fishery re- sources." 16 U.S.C. ss
1801(b)(5), 1852(a) (Supp. IV 1998).  Management Councils propose and
monitor fishery manage- ment plans "which will achieve and maintain,
on a continuing  basis, the optimum yield from each fishery." Id. s
1801(b)(4)  (1994). Management Councils submit management plans to 
the Secretary of Commerce (functionally the Service), who  may then
adopt them through notice and comment rulemak- ing. See id. s 1854(a)
(Supp. IV 1998). An "optimum yield"  under the statute is defined as
the "maximum sustainable  yield from the fishery." Id. s 1802(28)(B)
(Supp. IV 1998).  If a fishery is "overfished," the management plan
must  "provide[ ] for rebuilding to a level consistent with" the 
maximum sustainable yield. Id. s 1802(28)(C). A fishery is 
"overfished" if the rate of fishing mortality "jeopardizes the 
capacity of a fishery to produce the maximum sustainable  yield on a


The Service defines overfishing and optimum yield accord- ing to the
fishing mortality rate ("F"). F represents that  part of a fish
species' total mortality rate that is attributable  to harvesting by
humans, whether through capture or dis- card. Fish are "discarded" for
many reasons, including, for  example, when they are the wrong
species, undersized, or not  valuable enough. Values for F can range
anywhere from 0 to  over 2, and only indirectly represent the amount
of fish  captured by industry. For instance, an F of 1.4 means that 
about 20% of all summer flounder that are alive at year 1 will  be
alive at year 2. There is a specific F, termed "Fmax," that  is
defined as that fishing mortality rate that will maximize the  harvest
of a single class of fish over its entire life span.  Overfishing is
fishing in excess of Fmax. See Amendment 7 To  The Fishery Management
Plan for The Summer Flounder  Fishery at 9 (May 1995), reprinted in
Joint Appendix ("J.A.")  316. Therefore, the basic goal of a
management plan is to  achieve Fmax, thereby preventing overfishing


B. The Summer Flounder Fishing Quota


From a commercial standpoint, the summer flounder is one  of the most
important species of flounder in the United  States. All parties agree
that the summer flounder fishery is  "overfished" and has been for
some time. The Mid-Atlantic  Fishery Management Council ("MAFMC"),
covering New  York, New Jersey, Delaware, Pennsylvania, Maryland,
Virgi- nia, and North Carolina, developed the original summer 
flounder management plan with the assistance of two other  regional
Management Councils and the Atlantic States Ma- rine Fisheries
Commission ("the Commission"), a consortium  of 15 coastal states and
the District of Columbia. The  Service approved the original
management plan in 1988;  however, the Service has amended the plan
several times. At  the time relevant to the instant case, the plan was
designed to  achieve a fishing mortality rate equal to Fmax by 1998.


Pursuant to the management plan, the Service must set a  quota each
year fixing the total weight of summer flounder  that may be harvested
by commercial and recreational fish-


ers. This quota is referred to as the "total allowable land- ings" for
the year, or "TAL." The Service allocates 60% of  the TAL to
commercial fisheries and 40% of the quota to  recreational fisheries,
and states receive allocations based  upon their share of the summer
flounder fishery. States may  subdivide their allocated commercial
quota between "inciden- tal" and "directed" catch. Directed fisheries
intentionally  harvest summer flounder. Fishers who catch juvenile
flound- er, or who are part of the directed fishery for another
species  and catch summer flounder unintentionally, have harvested 


The TAL must meet several requirements. It must be  consistent with the
10 national standards of fishery conserva- tion and management set out
in the Fishery Act. See 16  U.S.C. s 1851(a)(1)-(10) (1994 & Supp. IV
1998). Most rele- vant to the instant case, the quota must embody
conservation  measures that "shall prevent overfishing while
achieving, on a  continuing basis, the optimum yield from each fishery
for the  United States fishing industry." Id. s 1851(a)(1) (1994). The
 quota must also be "consistent with" the fishery management  plan.
See id. s 1854(b)(1). Finally, under the applicable  regulations, the
Regional Administrator of the Service must  annually adopt a final
rule "implement[ing] the measures  necessary to assure that the
applicable specified F will not be  exceeded." 50 C.F.R. s 648.100(c)
(1999) (emphasis added).  The "applicable specified F" is also
referred to as the "target  F."


There is a relatively direct relationship between the TAL  and the
likelihood of achieving the target F. In general, the  higher the TAL,
the less likely a plan is to achieve the target  F. In other words,
the lower the target F, the lower the  TAL must be to attain the
target F. The basic dispute  between the parties concerns whether the
1999 TAL provides  a sufficient guarantee that the target F for summer
flounder  will be achieved.


For 1999, the summer flounder fishery management plan  mandated a
target F equivalent to Fmax, which was 0.24. The  Summer Flounder
Monitoring Committee, a MAFMC com-


mittee, had recommended a TAL of 14.645 million pounds,  while MAFMC
had recommended a TAL of 20.20 million  pounds. The Service rejected
MAFMC's recommendation as  "unacceptably risk-prone" for several
reasons: (1) it had an  "unacceptably low probability" of 3% of
achieving the target  F; (2) it had a 50% probability of achieving an
F of 0.36,  which was "significantly higher" than the target F; (3)
the  proposal relied on unpredictable data; and (4) MAFMC had  "yet to
specify a harvest level that has achieved the annual  target F."
Fisheries of the Northeastern United States;  Summer Flounder, Scup,
and Black Sea Bass Fisheries, 63  Fed. Reg. 56,135, 56,136 (1998) (to
be codified at 50 C.F.R. pt.  648) (proposed Oct. 21, 1998) ("Proposed
TAL"). The Service  also rejected the Summer Flounder Monitoring
Committee's  recommendation of a 14.645 million pound TAL. Although 
the Committee's recommendation had a 50% chance of achiev- ing the
target F, the Service rejected the proposal without  any meaningful


On October 21, 1998, the Service proposed a TAL of 18.52  million
pounds. See id. All parties agree that, at most, the  Service's
proposal afforded only an 18% likelihood of achiev- ing the target F.
The Service also proposed an incidental  catch restriction "to address
discards in this fishery that  should further reduce the overall
mortality." Id. This mea- sure provided that, within the commercial
fishery, 32.7% of  the allocated quota be committed to incidental
catch. In the  end, then, the Service proposed a TAL of 7.41 million
pounds  for recreational harvest, 7.47 million pounds for directed 
commercial harvesting, and 3.64 million pounds for incidental 
commercial catch, for a total of 18.52 million pounds. See id.  The
Service also considered recent changes in minimum mesh  size. On this
point, the Service noted that, while MAFMC  felt that the "recently
adopted mesh provision requiring 5.5  inch" mesh throughout the net
would "substantially reduce  discard and discard mortality," the
alleged benefits of mesh  had yet to be verified by anyone. Id.


Between the time of proposal of the 1999 TAL and its  adoption, the
Service concluded that it did not have the  authority to impose any
incidental catch restrictions on the 


states. Therefore, the Service merely recommended that the  states
adopt the incidental catch proposal, making the propos- al entirely
voluntary. The Commission, the body represent- ing 15 coastal states
and the District of Columbia, also  declined to command the states to
adopt the proposal. Ac- cording to an advisor to the Service's
Assistant Administrator  for Fisheries, this development "result[ed]
in an unknown but  probably substantial reduction in the likelihood
that  [MAFMC's] rebuilding schedule will be achieved," and he 
therefore recommended that the Service adopt the Summer  Flounder
Monitoring Committee's recommended 14.645 mil- lion pound TAL. See
Memo from Gary Matlock to Rolland  Schmitten (Nov. 25, 1998),


The Service rejected this recommendation and, on Decem- ber 31, 1998,
issued the final TAL, adopting its initial propos- al. The Service
acknowledged that the Summer Flounder  Monitoring Committee's
recommended quota had a 50%  chance of achieving the target F, while
the Service's TAL had  only an 18% chance of achieving the target F.
See Fisheries  of the Northeastern United States; Summer Flounder,
Scup,  and Black Sea Bass Fisheries, 63 Fed. Reg. 72,203, 72,203-04 
(1998) (codified at 50 C.F.R. pt. 648) ("Final TAL"). The  Service
also recognized that the incidental catch provisions  were entirely
voluntary. See id. at 72,204. The Service  simply recommended that
states adopt the additional inciden- tal catch provisions "[t]o
improve the probability of achieving  the target [F]." Id. Nowhere did
the Service analyze the  effect on fishing mortality of shifting from
a mandatory to a  voluntary incidental catch provision.


The Service responded to comments that the TAL did not  sufficiently
assure achievement of the target F by stating  that: (1) the TAL had a
higher probability of meeting the  target F than MAFMC's 20.2 million
pound recommendation;  and (2) the incidental catch recommendations
"would improve  the likelihood that the target fishing mortality rate
would be  attained." Id. at 72,206. In response to other comments, the
 Service suggested that the 5.5 inch minimum mesh provision  might
ameliorate other mortality concerns, but acknowledged 


that the requirement had not been in effect long enough to  determine
its efficacy. See id. at 72,208.


Appellants filed suit in District Court on January 29, 1999,  seeking,
inter alia, (1) a declaratory judgment that defen- dants violated the
Fishery Act, the Administrative Procedure  Act ("APA"), and NEPA, and
(2) remand to the agency to  impose a new summer flounder TAL. See
Complaint at 25- 26, reprinted in J.A. 52-53. The District Court
upheld the  Service's adoption of the 18.52 million pound TAL,
deferring  to the agency under Chevron U.S.A. Inc. v. Natural Re-
sources Defense Council, Inc., 467 U.S. 837 (1984). The  District
Court first determined that ss 1851 (a)(1) and (a)(8)  in the Fishery
Act evinced competing interests between ad- vancing conservation and
minimizing adverse economic effects  and that Congress offered no
insight as to how to balance  these concerns. See Natural Resources
Defense Council, 62  F. Supp. 2d at 106-07. In addition, the trial
court found that  the Fishery Act expressed no clear intent as to the
particular  level of certainty a TAL must guarantee to be consistent
with  16 U.S.C. s 1851(a)(1). See id. at 107. Given these perceived 
ambiguities, the District Court deferred to the Service pursu- ant to
Chevron Step Two. This appeal followed.


II. ANALYSIS


As we recently held in Associated Builders & Contractors,  Inc. v.
Herman, 166 F.3d 1248 (D.C. Cir. 1999),


[i]n a case like the instant one, in which the District  Court reviewed
an agency action under the [APA], we  review the administrative action
directly. See Troy  Corp. v. Browner, 120 F.3d 277, 281 (D.C. Cir.
1997);  Gas Appliance Mfrs. v. Department of Energy, 998 F.2d  1041,
1045 (D.C. Cir. 1993). In other words, we accord  no particular
deference to the judgment of the District  Court. See Gas Appliance
Mfrs., 998 F.2d at 1045.  Rather, on an independent review of the
record, we will  uphold [the agency's] decision unless we find it to
be  "arbitrary, capricious, an abuse of discretion, or other-


wise not in accordance with law." 5 U.S.C. s 706(2)(A)  (1994).


Id. at 1254.


As for the Service's disputed interpretations of the Fishery  Act, we
are guided by the Supreme Court's seminal decision  in


Chevron U.S.A., Inc., [467 U.S. at 837], [which] governs  review of
agency interpretation of a statute which the  agency administers.
Under the first step of Chevron,  the reviewing court "must first
exhaust the 'traditional  tools of statutory construction' to
determine whether  Congress has spoken to the precise question at
issue."  Natural Resources Defense Council, Inc. v. Browner, 57  F.3d
1122, 1125 (D.C. Cir. 1995) (quoting Chevron, 467  U.S. at 843 n.9).
The traditional tools include examina- tion of the statute's text,
legislative history, and struc- ture, see Southern California Edison
Co. v. FERC, 116  F.3d 507, 515 (D.C. Cir. 1997); as well as its
purpose, see  First Nat'l Bank & Trust v. National Credit Union, 90 
F.3d 525, 529-30 (D.C. Cir. 1996). This inquiry using the  traditional
tools of construction may be characterized as  a search for the plain
meaning of the statute. If this  search yields a clear result, then
Congress has expressed  its intention as to the question, and
deference is not  appropriate. See Hammontree v. NLRB, 894 F.2d 438, 
441 (D.C. Cir. 1990). If, however, "the statute is silent  or
ambiguous with respect to the specific issue," Chev- ron, 467 U.S. at
843, Congress has not spoken clearly,  and a permissible agency
interpretation of the statute  merits judicial deference. Id.


Bell Atlantic Tele. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir.  1997).
Although agencies are entitled to deferential review  under Chevron
Step Two, our judicial function is neither rote  nor meaningless:


[W]e will defer to [an agency's] interpretation[ ] if [it is] 
reasonable and consistent with the statutory purpose and  legislative
history. See Troy Corp. v. Browner, 120 F.3d 


277, 285 (D.C. Cir. 1997) (noting that an agency's inter- pretation
must be "reasonable and consistent with the  statutory purpose"); City
of Cleveland v. U.S. Nuclear  Regulatory Comm'n, 68 F.3d 1361, 1367
(D.C. Cir. 1995)  (providing that an agency's interpretation must be
"rea- sonable and consistent with the statutory scheme and 
legislative history"). However, a court will not uphold  [an agency's]
interpretation "that diverges from any real- istic meaning of the
statute." Massachusetts v. Depart- ment of Transp., 93 F.3d 890, 893


GTE Serv. Corp. v. FCC, 205 F.3d 416, 421 (D.C. Cir. 2000).  This case
presents a situation in which the Service's quota for  the 1999 summer
flounder harvest so completely diverges  from any realistic meaning of
the Fishery Act that it cannot  survive scrutiny under Chevron Step
Two.


As an initial matter, we reject the District Court's sugges- tion that
there is a conflict between the Fishery Act's ex- pressed commitments
to conservation and to mitigating ad- verse economic impacts. Compare
16 U.S.C. s 1851(a)(1)  (directing agency to "prevent overfishing" and
ensure "the  optimum yield from each fishery"); with id. s 1851(a)(8) 
(directing agency to "minimize adverse economic impacts" on  fishing
communities). The Government concedes, and we  agree, that, under the
Fishery Act, the Service must give  priority to conservation measures.
It is only when two  different plans achieve similar conservation
measures that the  Service takes into consideration adverse economic
conse- quences. This is confirmed both by the statute's plain lan-
guage and the regulations issued pursuant to the statute.  See id. s
1851(a)(8) (requiring fishery management plans,  "consistent with the
conservation requirements of this chap- ter," to take into account the
effect of management plans on  fishing communities) (emphasis added);
50 C.F.R.  s 600.345(b)(1) (1999) ("[W]here two alternatives achieve
sim- ilar conservation goals, the alternative that ... minimizes the 
adverse impacts on [fishing] communities would be the pre- ferred
alternative.") (emphasis added).


The real issue in this case is whether the 1999 TAL  satisfied the
conservation goals of the Fishery Act, the man- agement plan, and the
Service's regulations. In considering  this question, it is important
to recall that the Service oper- ates under constraints from three
different sources. First,  the statute requires the Service to act
both to "prevent  overfishing" and to attain "optimum yield." 16
U.S.C.  s 1851(a)(1). Overfishing is commonly understood as fishing 
that results in an F in excess of Fmax. Since Fmax for 1999  was
equivalent to 0.24, this constraint required the Service to  issue
regulations to prevent F from exceeding 0.24. Second,  any quota must
be "consistent with" the fishery management  plan adopted by the
Service. See id. s 1854(b)(1). In this  case the fishery management
plan called for an F of 0.24.  Therefore, the quota had be to
"consistent with" achieving  that F. Third, the Service is required to
adopt a quota  "necessary to assure that the applicable specified F
will not  be exceeded." 50 C.F.R. s 648.100(c). The "applicable speci-


All of these constraints, then, collapse into an inquiry as to  whether
the Service's quota was "consistent with" and at the  level "necessary
to assure" the achievement of an F of 0.24,  and whether it reasonably
could be expected to "prevent" an  F greater than 0.24. In other
words, the question is whether  the quota, as approved, sufficiently
ensured that it would  achieve an F of 0.24. Appellants argue that the
quota  violates applicable standards under both Chevron Step One  and
Chevron Step Two. Because we find appellants' Chevron  Step Two
arguments convincing, we have no need to reach  their alternative
argument that the Service violated NEPA by  relying on an inadequate
environmental assessment in pro- mulgating the final rule.


Appellants' Chevron Step One "plain meaning" argument is  virtually
indistinguishable from their Chevron Step Two rea- sonableness
argument. Appellants acknowledge that the  statutory terms "assure,"
"prevent," and "consistent with" do  not mandate a precise quota
figure. However, appellants  contend that a TAL with only an 18%
likelihood of achieving  the target F is so inherently unreasonable


plain meaning of the statute. This is an appealing argument  on the
facts of this case, because, as we explain below, the  Service's
action is largely incomprehensible when one consid- ers the principal
purposes of the Fishery Act. Nonetheless,  we still view this case as
governed by Chevron Step Two.  The statute does not prescribe a
precise quota figure, so  there is no plain meaning on this point.
Rather, we must  look to see whether the agency's disputed action
reflects a  reasonable and permissible construction of the statute. In
 light of what the statute does require, short of a specific quota 
figure, it is clear here that the Service's position fails the test 


The 1999 quota is unreasonable, plain and simple. Govern- ment counsel
conceded at oral argument that, to meet its  statutory and regulatory
mandate, the Service must have a  "fairly high level of confidence
that the quota it recommends  will not result in an F greater than
[the target F]." Fisher- men's Dock Coop., Inc. v. Brown, 75 F.3d 164,
169-70 (4th  Cir. 1996). We agree. We also hold that, at the very
least,  this means that "to assure" the achievement of the target F, 
to "prevent overfishing," and to "be consistent with" the  fishery
management plan, the TAL must have had at least a  50% chance of
attaining an F of 0.24. This is not a surprising  result, because in
related contexts, the Service has articulated  precisely this
standard. See National Marine Fisheries Ser- vice, Final Fishery
Management Plan for Atlantic Tunas,  Swordfish and Sharks, Vol. I, at
288, reprinted in J.A. 382  (April 1999) (concluding that the Service
should choose man- agement measures that have "at least a 50-percent
confi- dence in target reference points," and when choosing between 
two alternatives with a greater than 50% probability, should  choose
the higher "unless there are strong reasons to do  otherwise").


The disputed 1999 TAL had at most an 18% likelihood of  achieving the
target F. Viewed differently, it had at least an  82% chance of
resulting in an F greater than the target F.  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."


Rather than argue that the quota alone provided enough  assurance, the
Service contends instead that two additional  measures were adopted to
increase the likelihood of achieving  the target F. These measures
were: (1) the provision relat- ing to minimum mesh size; and (2) the
recommendation that  states voluntarily allocate a certain portion of
the directed  commercial fishery toward incidental catch. There is
nothing  in this record, however, to indicate that the proposals on 
mesh size and voluntary state action would improve the level  of
confidence so as to assure a reasonable likelihood of  achieving the


The Service's reliance on its provision regarding minimum  mesh size
for fishing nets is rather perplexing. We do not  question the
Service's rational conclusion that it is important  to reduce the
number of undersized flounder being captured,  given recent
observations, in a species with a potential 20  year life span, that
very few adult fish survive past three  years of age. See Projection
for 1998 Summer Flounder  Quota at 2 (Aug. 1998), reprinted in J.A.
93. At the time the  1999 TAL was proposed, however, the Service
acknowledged  that the mesh size provision's "benefits have not yet
been  analyzed." Proposed TAL, 63 Fed. Reg. at 56,136. In fact,  the
Service apparently placed little stock in MAFMC's predic- tion that
the minimum mesh size of 5.5 inches would reduce  the number of
undersized fish caught. See id. In the final  rule, the Service stated
only that the minimum mesh size  provision was "intended to address"
discarding due to under- sized catch; the Service acknowledged,
however, that the  mesh provision had "not been in operation long
enough to  determine if an adjustment to the mesh size is warranted." 
Final TAL, 63 Fed. Reg. at 72,208. In short, there are no  meaningful
data (or even well-founded predictions) to support  the assertion that
a larger mesh size would reduce the  number of undersized fish caught.
And the Service conduct- ed no analysis whatsoever to determine the
likely effect of  this measure on the probability of meeting the
target F.  There is certainly nothing in the record to indicate that


larger mesh size would make it likely that the TAL had at  least a 50%
chance of achieving the target F.


The Service's second recommendation, that states set aside  a certain
percentage of the commercial fishing quota for  incidental catch
instead of directed commercial catch, also  fails to ameliorate the
deficient 18% figure. First, in conclud- ing that the TAL had an 18%
likelihood of achieving the  target F, the Service assumed that at
least 10% of the  commercial fishing quota would be allocated to
incidental  catch. When defending its proposal to allocate 32.7% of
the  commercial quota to incidental catch against a comment that 
instead suggested a 10% figure, the Service observed that "[a] 
10-percent incidental catch allocation in combination with the 
18.52-million [pound] ... TAL would result in a less than 18- percent
probability of achieving the target F." Id. at 72,211  (emphasis
added). Therefore, at least some of the incidental  catch proposal's
assumed positive effects were already ac- counted for in the 18%
starting probability. The agency's  "double-counting" here indicates
that the Service overstated  the positive effects that might come from


The second, and more serious, flaw in the Service's reliance  on its
incidental catch proposal is that the proposal is merely  a
recommendation to the states, not a mandatory require- ment. The
Service initially assumed that the incidental catch  proposal would be
mandatory. When it was revised from a  mandatory to voluntary
proposal, however, the Service never  assessed the impact of the
change. Indeed, the record is  conspicuously silent on this point,
almost as if the change  never occurred. At oral argument before this
court, counsel  for the Government asserted that the Service could
reason- ably conclude that the states would comply with the recom-
mendation on incidental catch. But counsel conceded that  there is
absolutely no demonstrated history in the relations  between the
federal and state agencies to support such an  assumption, and there
are no present assurances from the  states that they will comply with
the Service's recommenda- tion. Indeed, there is evidence in the
record to suggest  resistance from some states to the Service's


proposal. See id. at 72,207, 72,209-10 (reflecting comments  from
Connecticut, Massachusetts, New Jersey, New York,  North Carolina, and
Virginia stating, in sum, that the inciden- tal catch allocation was
too high, unenforceable, and beyond  the Service's power). We are left
only with the Service's  unsupported conclusion that the incidental
catch provision  "increases the probability of meeting the target F."
Approv- al of the Final Rule to Implement the 1999 Specifications for 
the Summer Flounder, Scup, and Black Sea Bass Fisheries- Decision
Memorandum at 3 (Dec. 14, 1998), reprinted in J.A.  277. This is
manifestly insufficient.


As we noted at the outset of this opinion, the Service's  quota for the
1999 summer flounder harvest so completely  "diverges from any
realistic meaning" of the Fishery Act that  it cannot survive scrutiny
under Chevron Step Two. See  GTE Serv. Corp., 205 F.3d at 421. The
Service resists this  result by suggesting that we owe deference to
the agency's  "scientific" judgments. See Br. for Appellees at 33.
While  this may be so, we do not hear cases merely to rubber stamp 
agency actions. To play that role would be "tantamount to  abdicating
the judiciary's responsibility under the Administra- tive Procedure
Act." A.L. Pharma, Inc. v. Shalala, 62 F.3d  1484, 1491 (D.C. Cir.
1995). The Service cannot rely on  "reminders that its scientific
determinations are entitled to  deference" in the absence of reasoned
analysis "to 'cogently  explain' " why its additional recommended
measures satisfied  the Fishery Act's requirements. Id. at 1492
(quoting Motor  Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto.
Ins. Co.,  463 U.S. 29, 48 (1983)). Indeed, we can divine no
scientific  judgment upon which the Service concluded that its


Here, the adopted quota guaranteed only an 18% probabili- ty of
achieving the principal conservation goal of the summer  flounder
fishery management plan. The Service offered nei- ther analysis nor
data to support its claim that the two  additional measures aside from
the quota would increase that  assurance beyond the at-least-50%
likelihood required by  statute and regulation.


III. CONCLUSION


For the reasons articulated herein, we reverse the District  Court's
judgment and remand the case to the Service for  further proceedings
consistent with this opinion.