Anglers Conservation Network v. Pritzker ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANGLERS CONSERVATION NETWORK
et al.,
Plaintiffs,
v. Civil Action No. 14-509 (TJK)
WILBUR L. ROSS, JR., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Several organizations and individuals brought this action challenging an amendment
adopted by the National Marine Fisheries Service to a fishery management plan that regulates
several species of fish in the mid-Atlantic region. The gravamen of their complaint was that the
amendment should have added certain species—species that they assert require federal
management under the applicable laws—to the plan, and that the decision to nevertheless adopt
the amendment without those species was unlawful. The Court granted summary judgment for
Plaintiffs on one of their claims and for Defendants as to the other two, and it then entered a
remedial order requiring Defendants to undertake specific actions. Defendants represent that
they have now complied with the directives in that remedial order. Plaintiffs disagree. They
moved to enforce the order, and afterward the case was reassigned to the undersigned. For the
reasons explained below, Plaintiffs’ motion is DENIED.
Background
A. Summary Judgment Proceedings
Plaintiffs Anglers Conservation Network, Captain Paul Eidman, Gateway Striper Club,
Inc., and Philip Lofgren sued Wilbur L. Ross, Jr.,1 in his official capacity as Secretary of
Commerce, the National Oceanic and Atmospheric Administration, and the National Marine
Fisheries Service (“Service”), challenging a final rule promulgated by Defendants—
“Amendment 14”—that amends the fishery management plan for the mackerel, squid, and
butterfish (“MSB”) fishery off the eastern coast of the United States. They brought claims under
the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. § 1801et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the
Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.
A thorough factual background of the case is set forth in the Court’s Memorandum
Opinion granting in part and denying in part the parties’ cross-motions for summary judgment,
and thus the Court only briefly recounts that background here. See Anglers Conservation
Network v. Pritzker, 139 F. Supp. 3d 102 (D.D.C. 2015). The parties’ central dispute concerns
Defendants’ regulatory decisions about four species of river herring and shad. Plaintiffs insist
that the species require “conservation and management” as that term is defined in the MSA.
Despite consideration of the issue during the development process, however, Amendment 14 did
not include those species as regulated “stocks” 2 under the MSB fishery management plan.
1
Under Federal Rule of Civil Procedure 25(d), Wilbur L. Ross, Jr., who assumed office on
February 28, 2017, is automatically substituted for Penny Pritzker.
2
The term “stock of fish” is defined as “a species, subspecies, geographical grouping, or other
category of fish capable of management as a unit.” 16 U.S.C. § 1802(42). A federally managed
fishery consists of those stocks that “can be treated as a unit for purposes of conservation and
management and which are identified on the basis of geographical, scientific, technical,
2
Plaintiffs brought three separate claims in their complaint, each alleging that
promulgation of Amendment 14 violated applicable law. Count I alleged that Defendants were
required under the MSA to include the four species of river herring and shad as regulated stocks
in the MSB fishery management plan. See Compl. ¶¶ 113–29. Count II alleged that Amendment
14 lacked sufficient accountability measures to ensure that annual catch limits for the fishery are
not exceeded, as required by the MSA. Id. ¶¶ 130–45. And Count III alleged that Defendants
failed to take a “hard look” at Amendment 14’s definition of the MSB fishery in violation of
NEPA. Id. ¶¶ 146–54. The parties cross-moved for summary judgment on all three claims.
The Court granted in part and denied in part the parties’ cross-motions. See ECF No. 46.
On Plaintiffs’ first count, the Court held that, in light of the administrative record, Defendants’
determination that the four species of river herring and shad did not require “conservation and
management”—and therefore that they did not need to include those species as stocks in the
MSB fishery—was not arbitrary and capricious under the MSA or the APA. Anglers, 139
F. Supp. 3d at 115. As for Plaintiffs’ second count, the Court likewise concluded that
Defendants’ decision not to include certain accountability measures in Amendment 14 did not
violate the MSA or the APA. Id. at 118. Accordingly, the Court “dismissed” both those claims.
See ECF No. 46 at 2.
On Count III, however, the Court found that Defendants had violated NEPA’s procedural
requirements. Specifically, the Court explained that the environmental impact statement (EIS)
prepared as part of Amendment 14 did not consider, as one of the alternatives examined, a
proposed action that would immediately add river herring and shad as stocks “with temporary
recreational, and economic characteristics.” Id. § 1802(13)(A). Thus, by designating the river
herring and shad species as stocks in the fishery, those species would be subject to the direct
federal management that Plaintiffs seek.
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conservation and management measures.” Anglers, 139 F. Supp. 3d at 119. In neglecting to do
so, the Court concluded, Defendants failed to “explore and objectively evaluate a reasonable
range of alternatives and the associated impacts on the environment,” as required by NEPA when
an agency undertakes a major policy proposal such as an amendment to a fishery management
plan. Id. (citing 42 U.S.C. § 4332(C)).
B. Remedial Proceedings
Recognizing the complexity of the case and the underlying regulatory scheme, the Court
instructed the parties to file briefs laying out their proposals for an appropriate remedy. See ECF
No. 46 at 3. On January 19, 2016, upon consideration of the parties’ submissions, the Court
entered a remedial order in which it denied Plaintiffs’ request to vacate Amendment 14 in favor
of ordering Defendants to “ensure” that the Mid-Atlantic Fishery Management Council (the
“Council”), which develops amendments to the MSB fishery management plan, take a series of
specific actions. See ECF No. 53 (“Rem. Order”). And it instructed Defendants to file status
reports every 45 days apprising the Court of their progress in complying with those directives.
Id. at 4. Because the parties’ central dispute concerns the meaning of those directives, the Court
will recount them fully here. 3
Directive One and Directive Two simply remand the case to the Service and deny
Plaintiffs’ request to vacate Amendment 14. See id. at 2. And the penultimate directive,
Directive 10, instructs Defendants to file status reports every 45 days, with which Defendants’
compliance is not in dispute. Id. at 4. Those directives are thus not at issue here.
3
The Court refers to each paragraph in the remedial order that begins with the language
“ORDERED” as a separate “Directive,” numbered sequentially such that the first of those
paragraphs is referred to as “Directive 1.”
4
Directive 3 orders that Defendants “shall ensure that the Council addresses the issue of
adding River Herring and Shad as stocks in the fishery and makes a final decision on that issue
no later than December 31, 2016.” Id. at 2 (emphasis removed).
Directive 4 orders that Defendants “shall ensure that the Council reexamines a 2013
‘White Paper’ prepared by the Council’s River Herring and Shad Committee, addressing
conservation of River Herring and Shad before April 21, 2016.” Id. at 3 (emphasis removed).
Directive 5 orders that Defendants “shall ensure that the Council prepares and updates the
White Paper cited above[] to include an environmental analysis of the action that Plaintiffs
prefer, namely, immediately adding River Herring and Shad to the fishery and managing it by
use of proxies before April 30, 2016.” Id. (emphasis removed).
Directive 6 orders that Defendants “shall ensure that the Council prepares a draft decision
document on the issue of stocks in the fishery, including an analysis of the regulatory course
Plaintiffs advocate, and that draft decision document shall be completed and presented to the
Council’s River Herring and Shad Committee for discussion[] and suggested changes no later
than August 1, 2016.” Id. (emphasis removed).
Directive 7 orders that Defendants “shall ensure that the Council, at its October 2016
meeting of the full Council, reviews the revised draft of the previously mentioned draft decision
document, and at that meeting takes a final vote on whether to undertake preparation of a
proposed Amendment and EIS to consider adding River Herring and Shad as stocks in the
fishery,” and further that “the public shall be invited and allowed to participate in these
processes.” Id. (emphasis removed).
Directive 8 orders that “in developing the EIS and the final draft of the . . . Committee[’s]
[decision document], [Defendants] shall ensure that there is full consideration, as Plaintiffs have
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urged, of the earlier decision by the full Council to not add to Amendment 14 River Herring and
Shad.” Id. at 3–4 (emphasis removed).
Directive 9 orders that Defendants “shall ensure that there be full consideration of the
impact of failing to include River Herring and Shad in the fishery, and that there be full
consideration of the direct, indirect, and cumulative impacts of those decisions.” Id. at 4(emphasis removed).4
After the Court issued the order, Defendants moved for reconsideration, seeking either
modification or clarification of several aspects of the Court’s directives. See ECF No. 54. First,
Defendants explained that because the Council is an independent body, Defendants have no
authority to direct the Council to do anything. Id. at 4–7. They further noted that the Council
was not a defendant to this suit and, in their view, was not subject to the APA. Id. at 5–6. For
those reasons, Defendants argued that they could not “ensure,” as the Court ordered, that the
Council undertake specific action. Id. at 6. They requested that the Court modify the order to
direct them to “recommend action by the Council in furtherance” of the enumerated directives.
Id. Second, Defendants asked the Court to clarify what “final decision” it envisioned the
Council reaching by December 31, 2016, as described in Directive 3, given that the Court
instructed the Council to take a “final vote” on whether to begin preparing a proposed
amendment to consider adding the four river herring and shad species as stocks in the fishery at
its October 2016 meeting in Directive 7. Id. at 8. If the Council voted in October to begin
4
Directive 11 states that the Court “expects the Remedial Action to be completed within a period
of 18 months from February 1, 2016.” Rem. Order at 4 (emphasis removed). Defendants
completed the actions they insist satisfied the Court’s orders well within that timeframe, and thus
whether they satisfied this requirement turns entirely on the parties’ disputes as to the other
directives.
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preparation of such an amendment, Defendants explained, it would do so and, upon completion,
submit it to the Service for review. If, on the other hand, the Council voted not to undertake such
an amendment, then that would be the final decision from the Council on the matter. In either
event, Defendants asserted, the December deadline was superfluous. Id.5
The Court granted Defendants’ motion in part. See ECF No. 58. It denied Defendants’
first request, explaining that, while Defendants “have [no] authority to order any of the Councils
to take a specific action,” “once a Council reaches a final decision, it is then [Defendants] which
ha[ve] the ultimate statutory responsibility for ensuring that the requirements of the [MSA] and
any other applicable laws are met.” Id. ¶ 1. As to Defendants’ second request, however, the
Court agreed that “if the Council votes to not undertake preparation of the Amendment and EIS,
then Defendants are correct that there would be no need for a December 31 decision point,”
rendering Directive 3 “superfluous.” Id. ¶ 4. Accordingly, the Court vacated Directive 3. Id.Over the course of the ensuing months, Defendants filed periodic status reports updating
the Court on the actions taken by them and the Council in accordance with the Court’s
instructions. In May 2016, Defendants represented that the Committee had reexamined the
White Paper and devised a plan to update it and prepare a corresponding draft decision document
for review at their meeting in August. See ECF No. 59. At that meeting, which was open to the
public, the Committee decided to make additional changes and prepare finalized versions for the
full Council’s review at its October 2016 meeting. See ECF No. 64; ECF No. 65. On October 4,
5
Defendants also made several requests for minor modifications to specific directives that would
more realistically align those orders with the capabilities and procedures of Defendants and the
Council. Those requests do not bear on the parties’ dispute here and thus the Court need not
recount them.
7
2016, the Committee met once more, reviewed the updated White Paper and draft decision
document, and voted to submit the following recommendation to the full Council:
[T]hat the Council not act to add RH/S as stocks in the MSB FMP and that it shall
be the policy of the [Council] to aggressively protect river herring and shad stocks
by proactively using the tools provided in the recently approved [Ecosystem
Approach to Fisheries Management] Guidance Document and continuing to use
the catch caps to provide strong incentives to harvesters such that they will
change the “when where and how” they fish so as to reduce river herring and shad
bycatch.
ECF No. 67 at 2. The next day, the Council voted 13-6 to adopt that recommendation and to
decline to undertake an amendment that would add the river herring and shad species as stocks in
the fishery. Id. at 4. Accordingly, Defendants represented, they had at that point complied with
all the requirements of the Court’s remedial order. Id. Several weeks later, Plaintiffs filed the
instant motion to enforce. And about a year after Plaintiffs filed their motion, the case was
reassigned to the undersigned.
Legal Standard
“District courts have the authority to enforce the terms of their mandates.” Flaherty v.
Pritzker, 17 F. Supp. 3d 52, 55 (D.D.C. 2014). That authority is grounded in “the interest of the
judicial branch in seeing that an unambiguous mandate is not blatantly disregarded by parties to
a court proceeding.” Int’l Ladies’ Garment Workers’ Union v. Donovan, 733 F.2d 920, 922
(D.C. Cir. 1984). Part and parcel with that authority “is the power to construe and interpret the
language of the judgment.” Heartland Hosp. v. Thompson, 328 F. Supp. 2d 8, 11–12 (D.D.C.
2004), aff’d on other grounds sub nom., Heartland Reg’l Med. Ctr. v. Leavitt, 415 F.3d 24 (D.C.
Cir. 2005). The Court “is generally the authoritative interpreter of its own remand.” AT&T
Wireless Servs., Inc. v. FCC, 365 F.3d 1095, 1099 (D.C. Cir. 2004). And a motion to enforce is
“the usual method for requesting a court to interpret its own judgment” and to compel
compliance if necessary in light of that interpretation. Heartland Hosp., 328 F. Supp. 2d at 11.
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A court “should grant a motion to enforce if a ‘prevailing plaintiff demonstrates that a
defendant has not complied with a judgment entered against it.’” Sierra Club v. McCarthy, 61
F. Supp. 3d 35, 39 (D.D.C. 2014) (quoting Heartland Hosp., 328 F. Supp. 2d at 11). In
determining whether an agency has complied with the terms of a remedial order on remand, the
Court is guided not only by the text of that order but also by its relevant opinions. See City of
Cleveland v. Fed. Power Comm’n, 561 F.2d 344, 346–47 (D.C. Cir. 1977). That said, “[s]uccess
on a motion to enforce a judgment gets a plaintiff only ‘the relief to which [the plaintiff] is
entitled under [its] original action and the judgment entered therein.’” Heartland Reg’l Med.
Ctr., 415 F.3d at 29 (second and third alterations in original) (quoting Watkins v. Washington,
511 F.2d 404, 406 (D.C. Cir. 1975)).
Analysis
Plaintiffs’ claims that Defendants have not complied with the Court’s remedial order can
be grouped into two general challenges. First, Plaintiffs contend that Defendants failed to ensure
that the environmental analysis conducted by the Council conformed to the specific directives of
the Court in its remedial order. See ECF No. 69-1 (“MTE Br.”) at 10. That analysis, they argue,
was inadequate given the Court’s directives and, in any event, was substantively flawed. See id.at 10–13. Second, Plaintiffs argue that Defendants, in responding to the remedial order, “failed
to ensure that requirements of the Magnuson Stevens Act and other applicable laws were met,”
and that the Court should “enforce” the remedial order accordingly. See id. at 21–31. The Court
addresses each category of claims in turn.
A. Compliance with the Remedial Order’s Directives
Plaintiffs raise a wide array of challenges to the environmental analysis conducted in
response to the remedial order. They range from charges that the Council neglected certain
factors in analyzing the environmental impacts of regulating river herring and shad as stocks in
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the fishery, see id. at 13, to claims that the Council’s conclusions about the effect of its decision
to adopt Amendment 14 were faulty, see id. at 16–18, to challenges to the Council’s analysis of
the future impacts of not adding river herring and shad to MSB fishery, see id. at 18–19. Only
briefly, however, do Plaintiffs link these objections to the Court’s specific instructions in the
remedial order. See id. at 13 (citing Directive 5); id. at 18 (citing Directive 8); id. at 19 (citing
Directive 9). Defendants, contending that Plaintiffs are seeking relief far beyond the scope of a
motion to enforce that order, respond that they have fully complied with its “plain text.” See
ECF No. 74 at 6. The Court agrees.
At the outset, the Court notes that its task in ruling on Plaintiffs’ motion is limited.
Plaintiffs specifically seek to enforce the Court’s remedial order, as amended. See ECF No. 69
at 1. And thus to show that they are entitled to that relief, Plaintiffs must show that Defendants
have not complied with that order—not with whatever remedies the Court could have adopted
but elected not to order. See Sierra Club, 61 F. Supp. 3d at 39–41. The Court therefore notes
what its remedial order did not do. See AT&T Wireless, 365 F.3d at 1099 (“The court is
generally the authoritative interpreter of its own remand.”). Before issuing the remedial order,
the Court recognized that the regulatory circumstances were considerably “muddled” and asked
the parties to “[p]resent[] their views as to what action taken by the court would be appropriate
and realistic at this stage of the proceeding.” Rem. Order at 1–2 (second alteration in original)
(quoting ECF No. 46 at 3). After consideration of their respective positions, the Court expressly
rejected the typical course of vacating the amendment and leaving it to the agency whether to
repromulgate it, subject to applicable laws. See id. at 2 & n.1. Rather, it set forth a series of
specific “actions which must be taken in a reasonable time,” in what the Court described as an
“attempt[] to ensure that this time around, Defendants complied with NEPA.” Id. at 2 (emphasis
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added). Those discrete actions, which constitute the directives enumerated above, are therefore
the touchstones of Defendants’ compliance with the remedial order. Whatever the wisdom of
that remedial course may be in hindsight, Plaintiffs have not sought reconsideration of the
Court’s earlier conclusions as to a suitable remedy, and thus those conclusions are simply not
before the Court in ruling on their motion to enforce.
Turning to the text of the order, Plaintiffs ground their first set of arguments in support of
their motion in Directives 5 and 6. See MTE Br. at 8, 13. As noted, Directive 5 instructs
Defendants to “ensure that the Council prepares and updates the White Paper . . . to include an
environmental analysis of the action that Plaintiffs prefer, namely, immediately adding River
Herring and Shad to the fishery and managing it by use of proxies.” Rem. Order at 3. And
Directive 6 similarly instructs Defendants to “ensure that the Council prepares a draft decision
document on the issue of stocks in the fishery, including an analysis of the regulatory course
Plaintiffs advocate,” to be presented to the full Council prior to a vote on whether to proceed
with a new amendment. Id.
The updated White Paper and draft decision document satisfy those directives. The 2016
White Paper, as revised by the Committee following a public meeting, includes a section
specifically examining the environmental impacts of immediately adding river herring and shad
to the fishery and managing it by use of proxies. See ECF No. 69-2 at 64–72. The paper first
outlines the various commercial, environmental, and social benefits that would accrue from
restoring river herring and shad species to their historical levels, see id. at 64–66, recognizing
that the ultimate restoration objective would “likely constitute substantial value to the Nation,”
id. at 66. But the paper reasons that because of ongoing management of the species by parallel
state bodies, the indirect catch caps put in place by Amendment 14 through the mackerel and
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Atlantic herring fisheries, and other collaborative efforts to “engage in [river herring and shad]
conservation” outside direct management—i.e., the “status quo”—the environmental impacts of
immediately adding river herring and shad to the fishery would be “minimal.” See id. at 68–69,
71–72. Indeed, the paper explains that the only significant regulatory difference between the
status quo and the course Plaintiffs prefer would be the immediate implementation of “status
determination criteria” and “acceptable biological catches,” as well as the potential designation
of an essential fish habitat. See id. at 71–72. The paper concludes, however, that those
additional measures would be unlikely to lead to a different outcome. See id. And it provides
several bases for this conclusion, including that it was unclear whether recent catches were
having “substantial impacts” on river herring and shad populations because those catches were
only a “small fraction of historical catches,” that the species were being actively managed by
state agencies, the uncertainties of using a proxy, the existing catch caps, and the limited agency
resources available. See id. The draft decision document presented to the Council largely
repeated this analysis. See ECF No. 69-3 at 15–23.
Though not disputing that the updated White Paper and draft decision document included
an analysis of “immediately adding River Herring and shad to the fishery and managing it by use
of proxies,” Plaintiffs argue that Defendants still failed to comply with those directives because
the analysis “d[id] not constitute a hard look at the problem.” MTE Br. at 13–14. A hard look,
they say, would involve various factors that they contend the Council should have included in
that analysis. Id. Yet they provide no bases grounded in the remedial order itself for their
demands. See id. at 13–15. Plaintiffs appear to assume that the Court ordered Defendants to
conduct a full-scale reanalysis of its prior decision to adopt Amendment 14. See id. at 12–13
(arguing that the analysis “does not meet the terms of the Court’s Orders and cure [Defendants’]
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NEPA violations because it failed to . . . analyz[e] a reasonable range of alternatives (some of
which were court ordered)” (emphasis added)); ECF No. 78 (“Reply”) at 8 (arguing that the
analysis “is [in]consistent with the NEPA analysis ordered by this Court”). But the Court did no
such thing. Rather, the Court laid out a set of steps that, in its view, constituted an appropriate
remedy for the NEPA violation it identified—namely, the decision not to include immediately
adding river herring and shad as an alternative in the EIS. See Anglers, 139 F. Supp. 3d at 119.
Plaintiffs have not shown that Defendants have failed to comply with the two steps outlined in
Directives 5 and 6 to ensure that an analysis of that alternative was included in the updated
White Paper and draft decision document.
Plaintiffs link the remainder of their objections to the Council’s environmental analysis to
Directives 8 and 9. See MTE Br. at 16–20. As noted, Directive 8 ordered that, “in developing
the EIS and the final draft of the Council’s River Herring and Shad Committee[’s] [decision
document],” Defendants must “ensure that there is full consideration, as Plaintiffs have urged, of
the earlier decision by the full Council to not add to Amendment 14 River Herring and Shad.”
Rem. Order at 3–4. And Directive 9 further provides that Defendants must “ensure that there be
full consideration of the impact of failing to include [those species] in the fishery, and that there
be full consideration of the direct, indirect, and cumulative impacts of those decisions.” Id. at 4.
Plaintiffs argue that the analysis included in the Council’s final decision document, ECF No 69-
4, is faulty, they dispute some of the Council’s assumptions and reasoning, and they contend that
the Council failed to undertake a thorough analysis of “cumulative impacts.” See MTE Br. at
16–20; Reply at 13–14.
Once again, however, Plaintiffs misunderstand the framework of the remedial order. As
contemplated by Directive 7, at its October 2016 meeting, the full Council reviewed the updated
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White Paper and final decision document and voted on whether to undertake preparation of a
proposed amendment and an accompanying environmental impact statement. See ECF No. 67.
The Council voted not to proceed. See id. at 4. Accordingly, Directives 8 and 9, which address
the “full consideration” that the Council must give to the decision not to add river herring and
shad to Amendment 14, or a future amendment if the Council determined to undertake a new
amendment and new environmental impact statement, are inapplicable. Rem. Order at 3–4.
In insisting otherwise, Plaintiffs again presume that the Court ordered Defendants to
undertake a complete NEPA analysis as if Defendants were promulgating an amendment
concerning whether to include river herring and shad as stocks in the fishery management plan.
See Reply at 13–14 (relying on case law outlining agencies’ obligations under NEPA to
demonstrate that Defendants failed to comply with the remedial order). But the Court, in
rejecting vacatur in favor of the more incremental response outlined in the remedial order,
specifically declined to require as much. Indeed, this approach was precisely what Defendants
proposed in their remedy brief. See ECF No. 50. They represented that the Council had at that
time already planned to conduct renewed environmental analyses that could address the
regulatory action Plaintiffs preferred and that, given that “NEPA analysis can be expensive and
time-consuming,” the Council’s proposal offered “a more streamlined environmental analysis”
“without [the] need to comply with the entire suite of NEPA procedural requirements.” Id. at 8–
9 (emphasis added). And they further represented that if “the Council vote[d] . . . to undertake an
amendment to consider adding river herring and shad to the fishery,” then Defendants would
work with the Council to ensure that a complete NEPA analysis was undertaken. Id. at 9. The
Court endorsed that approach when it largely mirrored those proposed steps in the remedial
order.
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B. Compliance with the MSA and “Other Applicable Laws”
Besides challenging Defendants’ compliance with the specific directives of the remedial
order, Plaintiffs also argue that the Court should “enforce its order because Defendants failed to
ensure that requirements of the [MSA] and other applicable laws were met.” MTE Br. at 21.
Plaintiffs claim that the record shows that river herring and shad require conservation and
management, and that the Council’s decision in October 2016 not to proceed with a new
amendment including those species as stocks in the fishery was based on erroneous analysis and
incorrect factors under the MSA. See id. at 23, 26.
These arguments are wholly untethered to the dictates of the remedial order. The Court
only granted summary judgment for Plaintiffs on their NEPA claim. See Anglers, 139
F. Supp. 3d at 119–20. It did not grant summary judgment for Plaintiffs on either of their claims
that Defendants violated the MSA. Id. In fact, it dismissed those claims. See ECF No. 46. For
this reason alone, Plaintiffs have no basis to seek, by a motion to enforce a remedial order related
to their NEPA claim, to have the Court determine that Defendants have now violated the MSA
and order relief accordingly.6 Plaintiffs nevertheless point to the Court’s statement in its order
amending the remedial order that the Service “has the ultimate statutory responsibility for
ensuring that the requirements of the [MSA] and any other applicable laws are met.” ECF No.
58 at 1. But Plaintiffs’ reliance on that language is misplaced. The Court was merely justifying
its basis for ordering that Defendants “ensure” that certain analyses were completed by the
6
Plaintiffs also overlook the fundamental problem that the actions which they seek to challenge
pursuant to the MSA and the APA are likely not subject to judicial review. Not only are those
decisions not final, see Anglers Conservation Network v. Pritzker, 809 F.3d 664, 669–70 (D.C.
Cir. 2016), but the Council is not an agency as defined under the APA and therefore not subject
to the Court’s jurisdiction, see Flaherty v. Ross, Civil Action No. 11-660 (TJK), 2019 WL
1102712 (D.D.C. Mar. 9, 2019). Plaintiffs cannot use their motion to enforce a remedial order
on their NEPA claim to circumvent those strict barriers.
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Council. It was not, as Plaintiffs maintain, expanding the scope of the remedial order to subject
any action by the Council to immediate scrutiny under the MSA and APA. Such claims are the
proper subject of a new complaint.
Conclusion & Order
For the foregoing reasons, it is hereby ORDERED that Plaintiffs’ Motion to Enforce,
ECF No. 69, is DENIED.
It is further ORDERED that the parties shall meet, confer, and submit a joint status
report no later than June 28, 2019, discussing how the parties would like to proceed in this
matter. That report shall specifically address:
1) Whether Plaintiffs still seek to file a supplemental complaint and, if so, a proposed
briefing schedule for Plaintiffs’ Motion for Leave to File a Supplement Complaint,
ECF No. 71;
2) Whether this case is related to Civil Case No. 16-2217, currently assigned to Judge
Friedrich, pursuant to LCvR 40.5, and, if so, whether that case should be reassigned
to the undersigned and proceedings in that case consolidated with this case.
To the extent that the parties disagree on any matter addressed in the status report, the
parties shall set forth their respective positions.
It is further ORDERED that proceedings on Plaintiffs’ Motion for Leave to File a
Supplemental Complaint, ECF No. 71, shall remain stayed until further order of the Court.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: May 28, 2019
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