Anglers Conservation Network v. Pritzker

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANGLERS CONSERVATION
NETWORK, et al .
Plaintiffs,
Civil Action No. 13-1761 (GK)
v.
PENNY PRITZKER, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs, Anglers Conservation Network, Gateway Striper
Club, Inc., Paul Eidman, and Philip Lofgren (collectively,
"Plaintiffs"), bring this case against the Secretary of the
Department of Commerce ("the Secretary") , the National Oceanic
and Atmospheric Administration ("NOAA"), and the National Marine
Fisheries Service ( "NMFS") (collectively, "Defendants") pursuant
to the Magnuson-Stevens Fishery Conservation and Management Act
("MSA"), 16 U.S.C. §§ 1801 et 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.
This matter is before the Court on Defendants' Motion to
Dismiss [Dkt. No. 17]. Upon consideration of the Motion,
Opposition [Dkt. No. 28], and Reply {Dkt. No. 29], and the
entire record herein, including the arguments presented at the
Motion Hearing on September 30, 2014, and for the reasons set
forth below, Defendants' Motion shall be granted.
I . BACKGROUND
A. The Magnuson-Stevens Act
Congress first enacted the MSA in 197 6 "to take immediate
action to conserve and manage the fishery resources found off
the coasts of the United States [.]" 16 u.s.c. § 1801(b) (1).
The Act establishes a federal-regional framework "for the
conservation and management of the fishery resources of the
United States" in order to "prevent overfishing," "rebuild
overfished stocks," "[e]nsure conservation," and "facilitate
long-term protection of essential fish habitats." Id.
§ 1801(a) (6); see also Natural Res. Def. Council, Inc. v. Daley,
209 F.3d 747, 749 (D.C. Cir. 2000). Regulation of fisheries is
accomplished through fishery management plans ("FMPs") that are
developed and prepared by independent regional fishery
management councils and approved, implemented and enforced by
NMFS, a division within the Department of Commerce. 1 See 16
u.s.c. §§ 1853-1854.
1
The Secretary of the Department of Commerce has delegated her
responsibility to ensure compliance with the MSA to NOAA, which,
in turn, has subdelegated that responsibility to NMFS. Compl.
831 F. Supp. 2d 95,
101 (D.D.C. 2011). At times, the Court shall refer to
Defendants collectively as either "NMFS" or "the Secretary."
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The MSA divides the United States into eight regions, each
of which is represented by an independent fishery management
council. See id. § 1852 (a) (1). Councils are composed primarily
of members who represent the interests of the states included in
their region and who are appointed by the Secretary from a list
of individuals submitted by the governor of each constituent
state. Id. § 1852 (b) (1), (2); see also C & W Fish Co. v. Fox,
Jr., 931 F.2d 1556, 1557-58 (D.C. Cir. 1991). The remaining
voting members of each council consist of the principal marine
fishery management officials from each constituent state and the
regional director of NMFS for the related geographic area. 16
U.S.C. § 1852 (b) (1) (A), (B).
Each council is required to prepare and submit to the
Secretary (acting through NMFS) a fishery management plan and
any necessary amendments to such plan, "for each fishery under
its authority that requires conservation and management[.]" Id.§ 1852 (h) (1). The term "fishery" is defined in the Act as "one
or more stocks of fish which can be treated as a unit for
purposes of conservation and management and which are identified
on the basis of geographical, scientific, technical,
recreational, and economic characteristics; and any fishing
for such stocks." Id. § 1802 (13). A fishery management plan
must describe the species of fish involved in the fishery and
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specify the "conservation and management measures" that are
"necessary and appropriate" to "prevent overfishing and rebuild
overfished stocks, and to protect, restore, and promote the
long-term health and stability of the fishery[.]" Id. §
1853(a)(l)(A), (2).
After a council prepares and approves a fishery management
plan or amendment, it is sent to NMFS, which reviews it for
consistency with the MSA and other applicable law and publishes
it in the Federal Register for notice and comment. Id.
§ 1854 (a) (1). After a 60-day notice and comment period, NMFS
must "approve, disapprove, or partially approve a plan or
amendment [,]" taking into account the views and comments of
interested persons. Id. § 1854 (a) (2), (3).
If NMFS approves a plan or amendment, or does not expressly
disapprove it within 30 days, it becomes effective. Id. §
1854 (a) (3). If NMFS disapproves or partially approves the plan
or amendment, NMFS must thereafter notify the council of "the
applicable law with which the plan or amendment is
inconsistent"; the "nature of such inconsistencies"; and
specific "actions that could be taken by the Council to conform
such plan or amendment to the requirements of applicable law."
Id. § 1854 (a) (3). The council "may" thereafter "submit a
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revised plan or amendment to the Secretary for review[.]" Id. §
1854 (a) (4).
With limited exceptions not relevant here, there are only
two situations in which the Secretary is permitted to develop an
FMP or amendment herself: (1) where, "after a reasonable period
of time," the appropriate council has failed to make any
recommendation regarding an FMP or necessary amendment; and (2)
where the council has failed to submit a revised (or further
revised) plan after the Secretary has disapproved or partially
approved an FMP plan, amendment, or revision. Id. §
1854 (c) (1) (A), (B). In these circumstances, the Secretary "may"
promulgate a plan or amendment herself after inviting
consideration and comment from the council and other interested
parties and a 60-day notice and comment period. Id.
§ 1854(c)(1), (3), (4).
B. Factual Background2
Plaintiffs are fishing organizations based in New York and
New Jersey; the owner of an eco-tours and fishing business in
Tinton Falls, New Jersey; and the "assistant herring warden" for
2
The facts are taken from the Complaint ("Compl.") [Dkt. No. 1]
and documents incorporated by reference in the Complaint. See,
~' Wagener v. SBC Pension Benefit Plan-Non Bargained Program,
407 F.3d 395, 397 (D.C. Cir. 2005) (on a motion to dismiss,
facts may be "taken from plaintiffs' complaint, as well as the
exhibits attached to, and the documents incorporated by
reference in, that complaint") .
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the Town of Weymouth, Massachusetts. Compl. CJ[Cj[ 8-11. Their
Complaint pertains to the Atlantic Mackerel, Squid and
Butterfish fishery ("MSB" or "mackerel" fishery), which is
managed by the Mid-Atlantic Fishery Management Council ("Mid-
Atlantic Council" or "Council"). The Mid-Atlantic Council
represents the states of New York, New Jersey, Delaware,
Pennsylvania, Maryland, Virginia, and North Carolina. 16 u.s.c.
§ 1852(a)(1)(B).
1. The MSB Fishery
The MSB fishery is "a directed fishery dominated by
midwater trawl vessels," which catch fish by "dragging large
nets behind their vessels." Compl. en: 57. These nets snare
large numbers of other fish and marine wildlife at the same time
as they catch their target fish. Of particular concern to
Plaintiffs are four species of fish, which shall be referred to
simply as the "river herring" and "shad," which are often caught
incidentally with Atlantic mackerel. 3 River herring and shad
provide essential forage for large fish, marine mammals, and sea
birds, including striped bass, weakfish, blue fish, blue fish
3
The four species at issue are: ( 1) blueback herring (Alosa
aesti val is) , ( 2) alewife (Alosa pseudoharengus) , ( 3) American
shad (Alosa sapidissima), and (4) hickory shad (Alosa
mediocris). Compl. en: 47 & n.1.
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tuna, marlin, sharks, ospreys, loons, herons, bald eagles,
egrets, whales, and river otters. Compl. ~ 47.
The FMP for the mackerel fishery, which was promulgated in
1983, recommends conservation and management measures for the
Atlantic mackerel, long fin squid, Ill ex squid, and butterfish.
Compl. ~ 56. It does not, however, currently include any
protections for the river herring and the shad because they are
4
not designated as "stocks" in the MSB fishery.
Plaintiffs allege that the incidental catch of river
herring and shad by trawls in the MSB fishery "contributes
significantly" to the total known mortality of these species.
Id. ~ 59. They allege that "river herring and shad populations
have declined to historic lows in recent decades as a result of
overfishing, habitat loss, and other factors." Compl. ~ 48.
They claim, for example, that 23 out of 24 stocks of river
herring are "depleted" and that stocks of shad are "at all-time
lows and [do] not appear to be recovering to sustainable
levels." Id. ~ 49.
2. Amendment 14 to the MSB Plan
The Mid-Atlantic Council is aware of the depleted state of
the river herring and shad in federal waters. In 2D10, it began
4
The term "stock of fish" is defined under the MSA as "a
species, subspecies, geographical grouping, or other category of
fish capable of management as a unit." 1-6 U.S.C. § 1802(42).
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development of Amendment 14 to the MSB plan, with one of the
stated purposes being to "consider [measures] that would bring
[the river herring and shad] into the . plan as a managed
stock [.]" Compl. c:IT 70. Plaintiffs allege. that, "at the last
minute," NMFS advised the Council that its analysis of Amendment
14 was insufficient to add river herring and shad to the MSB
fishery as managed stocks and "recommended initiation of a new
amendment to fully analyze the issue." Id. c:IT 72.
In response, the Council decided not to add the river
herring and shad to the FMP by way of Amendment 14 and opted
instead "to develop a separate amendment, Amendment 15 to the
MSB FMP, that would fully analyze the necessity of managing
these stocks under the Magnuson-Stevens Act, the
interjurisdictional issues related to management of these
stocks, as well as the required and discretionary FMP provisions
that would apply to these stocks if added to the fishery." Id.c:IT 73 (citing Amendment 14 FEIS, at 111). 5
3. Amendment 15 to the MSB Plan
In the fall of 2012, the Council released a Draft Scoping
Document and Action Plan for Amendment 15 and announced its
intent to prepare an environmental impact statement regarding
5
On February 24, 2014, NMFS published a final rule for Amendment
14 to the MSB FMP; however, that Amendment is not at issue in
this case.
-8-
the proposed Amendment. Id. `` 75, 76. The Council also formed
several technical committees and a fishery management action
team ("FMAT") to consider direct management of the river herring
and shad in the MSB fishery. Id. ~ 76.
In June of 2013, the NMFS's Regional Administrator for the
Mid-Atlantic Region, John Bullard, who is also a voting member
of the Mid-Atlantic Council, sent a Guidance Memorandum to the
Executive Director of the Council, Dr. Christopher Moore,
"outlining how to make the determination whether or not to
include river herring and shad as stocks to be managed in the
MSB fishery [.]" Id. ~ 77; see also Ex. 3 to Pls.' Opp'n (Mem.
from Regional Administrator Bullard to Dr. Moore, dated June 6,
2013) ("Bullard's Guidance Memorandum") [Dkt. No. 28-4].
Plaintiffs claim that this Memorandum was flawed because it "did
not recommend reliance on the statutory process outlined in the
Magnuson-Stevens Act" or the "statutory definition of
'conservation and management.'" Compl. ~ 77.
In response to Bullard's Guidance Memorandum, the Council
prepared a white paper analyzing whether "additional management"
of the river herring and shad was required. Compl. `` 7"8-79;
see also Ex. 5 to Pls.' Opp' n (Mem. from Jason Didden to the
Mackerel, Squid, and Butterfish (MSB) Committee/Council, dated
September 30, 2013) ("White Paper") [Dkt. No. 28-6]. Plaintiffs
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contend that this White Paper "strongly suggest [ed]" that the
decision whether to add the river herring and shad to the MSB
plan should be based on certain "National Standards" prepared by
NMFS and "their (non-binding) guidelines," which Plaintiffs
contend "unlawfully introduce [d] a 'cost-benefit' analysis into
the decision [.]" ·Compl. Id. Id. Id. Id. `` 85, 86.
C. Procedural Background
On November 7, 2013, one month after the Council's vote of
October 8, 2013, Plaintiffs filed this case challenging what
they referred to as "NMFS' s decision to terminate Amendment 15
and to not include river herring and shad as stocks in the
mackerel fishery [.]" Compl. ~ 101.
On January 24, 2014, Defendants filed the instant Motion to
Dismiss, arguing that the Complaint fails to state a claim
because the decision not to proceed with Amendment 15 was taken
by the Mid-Atlantic Council, which is "not an agency of the
federal government for purposes of the APA, [or] a division of
the Department of Commerce [.]" Defs.' Mot. to Dismiss at 1
[Dkt. No. 17] .
Plaintiffs did not immediately respond to Defendants'
Motion to Dismiss. Instead, on March 26, 2014, they filed a new
case based on Defendants' publication of a final rule for
Amendment 14 to the MSB plan. See generally Ariglers
Conservation Network v. Pritzker, No. 14-509 (GK) (D.D.C. Mar.
26, 2014). The same day, they filed a Motion to Supplement
their Complaint in this case to add all-egations related to
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Amendment 14 and to stay briefing on the instant Motion until
Defendants responded to the proposed supplemental claims.
On April 28, 2014, the Court denied Plaintiffs' Motion to
Supplement, observing that the original and supplemental claims
"challenge two discrete decisions taken by two different
decision-makers and involve two separate administrative records,
each of which must be compiled and evaluated separately." Mem.
Order of April 28, 2014, at 4 [Dkt. No. 27] . 7 The Court did,
however, grant Plaintiffs' request for an extension of time to
file their Opposition to the instant Motion.
Thereafter, in accordance with the Court's Order of April
28, 2014, on June 2, 2014, Plaintiffs filed their Opposition to
the Defendants' Motion to Dismiss [Dkt. No. 28], and on June 16,
2014, Defendants filed their Reply [Dkt. No. 29].
II. LEGAL STANDARD
To survive a motion to dismiss brought under Rule 12(b) (6),
a complaint must contain sufficient factual matter "to state a
claim to relief that is plausible on its face" and to "nudge{
[the plaintiff's] claims across the line from conceivable to
plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 57 0
(2007) .
7
Plaintiffs' lawsuit challenging Amendment 14 is proceeding as a
separate case, also before this Court. See Anglers Conserv.
Network v. Pritzker, No. 14-509 (GK) (D.D.C. Mar. 26, 2014).
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In applying this standard, the court "must assume all the
allegations in the complaint are true (even if doubtful in
fact)" and give the plaintiff "the benefit of all reasonable
inferences derived from the facts alleged." Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.
2008) (internal quotation marks and citations omitted). The
court does not, however, accept as true "legal conclusions or
inferences that are unsupported by the facts alleged." Ralls
Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C.
Cir. 2014) (citation omitted). Furthermore, a complaint which
"tenders 'naked assertion[s]' devoid of 'further factual
enhancement'" will not suffice. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
III. ANALYSIS
As set forth above, the MSA establishes a carefully
calibrated scheme under which the Secretary reviews the work of
the regional councils, and her decision is appealable to the
courts. Plaintiffs seek to circumvent this framework by asking
the Court to review an intermediate decision of the Mid-Atlantic
Council, which was never presented to the Secretary for review,
has not been published for notice and comment, and was never
formally approved or disapproved by the Secretary. Because
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neither the MSA, nor the APA, nor NEPA provide any authority for
this request, the Motion to Dismiss must be granted.
A. Count 1: Violation of the MSA
In Count 1, Plaintiffs challenge, under both the MSA and
the APA, what they refer to as "NMFS' s decision to terminate
Amendment 15 and to not include river herring and shad as stocks
in the mackerel fishery[.]" Compl. 16 U.S.C. §§ 1852(e) (1), 1854(a) (1).
Plaintiffs do not allege otherwise. They suggest, instead,
that Regional Administrator John Bullard's June 2013 provision
of guidance and advice to the Council regarding Amendment 15 and
participation in the October 8, 2013, vote either themselves
constituted "actions taken by the Secretary" or
transformed the decision of the Council into an action of the
Secretary.
This theory is not consistent with the entire structure of
the MSA. The MSA encourages and requires collaborati-on and
information-sharing between the councils and NMFS (including by
requiring a NMFS Regional Administrator, such as Bullard, to sit
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..
on each council) . See 16 U.S.C. §§ 1852 (b) (1) (B), (c) (1) (A)-
(D) ' (e) (4), (f) (2)' (f) (5)' (g) (1) (C), (h) (2), h ( 4) •
Nevertheless, it clearly establishes separate decisionmaking
roles for councils and the Secretary and, importantly, only
authorizes judicial review over "actions taken by the
Secretary." 16 U.S.C. § 1855 (f) (emphasis added). Therefore,
the mere fact that Bullard fulfilled his statutory duty by
participating in the development and consideration of Amendment
15 clearly cannot transform a vote of the independent Council
into one "taken by the Secretary."
This conclusion is reinforced by the fact that Section
1855(f) directly authorizes judicial review of only secretarial
"actions" that are "published in the Federal Register" (emphasis
added). 16 u.s.c. § 1855 (f) (1). Amendment 15 was never
published in the Federal Register, nor could it have been having
never been approved by the Council. 9
9
The Court also notes that although Plaintiffs now argue, in an
apparent attempt to fit their allegations into the limited scope
of Section 1855(f), that Bullard's actions were taken "under" 50
C.F.R. § 648.1, that regulation section is merely an
introductory provision explaining that Chapter VI, Part 648 of
Title 50 "implements the fishery management plans (FMPs) for the
Atlantic mackerel, squid, and butterfish fisheries" and ·other
fisheries in the Northeastern United States. It contains no
substantive content whatsoever and does not purport to authoriz€
or support any specific action of Bullard or the Secretary
pertaining to the MSB plan.
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Finally, to the extent Plaintiffs rely on the MSA to
challenge NMFS' s independent failure to add the river herring
and shad to the MSB plan, see Pls.' Opp'n at 26, this Court has
previously held that "the clear text of the MSA" fails to
provide any authority for judicial review of such 11 1
inaction. 1 11
Gulf Restoration Network, Inc. v. Nat 1 l Marine Fisheries, Serv.,
730 F. Supp. 2d 157' 172 (D. D.C. 2010). Consequently,
Plaintiffs' "inaction" theory also fails to state a claim under
the MSA. 10
For these reasons, Plaintiffs have not stated a claim
directly under the MSA.
2. There is No Basis for Judicial Review under the
APA
Lacking a basis for judicial review under the MSA,
Plaintiffs also seek judicial rBview under th€ APA. Courts have
recognized that the APA provides an alternative basis for
10
Plaintiffs cite Guindon v. Pri tzker, No. 13-988, 2014 WL
1274076 (D.D.C. Mar. 26, 2014) as support for th€ir argument
that the MSA specifically authorizes judicial review of the
Secretary's "unlawful failure to act." Pls.' Opp' n at 31-32.
What the court held in Guindon, however, was that the MSA' s
limited judicial review provision did not preclude it from
considering the Secretary's alleged failure to act under 5
U.S.C. § 706(1) of the APA. Guindon, 2014 WL 1274076, at *16-
17. Defendants agree, as does the Court, that such review is
available under the APA . (even though it is not specifically
available under the MSA) . Plaintiffs' "inaction" theory shall
thBrefore be considered in more detail in the context of their
claim for review under the APA.
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judicial review of the Secretary's actions that exists in
addition to Section 1855(f). See, e.g., Guindon, 2014 WL
1274076, at *16-17 (applying the APA to claims under the MSA);
Hawaii Longline Ass'n v. Nat'l Marine Fisheries Serv., No. 01-
7 6 5, 2 0 0 2 WL 7 3 2 3 6 3, at * 4 (D. D. C . Apr . 2 5, 2 0 0 2) ( s arne) .
The APA, however, limits judicial review to "final agency
action [s] for which there is no other adequate remedy in a
court [.]" 5 u.s.c. § 704. "A final agency action is one that
marks the consummation of the agency's decisionmaking process
and that establishes rights and obligations or creates binding
legal consequences." Nat' 1 Res. Def. Council v. EPA, 559 F. 3d
561, 564 (D.C. Cir. 2009) (citing DRG Funding Corp. v. Sec'y of
Hous. & Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996)); see
also Bennett v. Spear, 520 U.S. 154, 177-78 (1997).
An action by the Mid-Atlantic Council does not qualify as
an "agency action" under the APA because, a-s Plaintiffs appear
to concede, Pls.' Opp' n at 26-27, a fishery management council
is "not itself an 'agency'" subject to judicial review. Gen.
Category Scallop Fishermen v. Sec'y, U.S. Dep't of Commerce, 635
F. 3d 106, 112 n.15 (3d Cir. 2011) (citation omitted); see also
(J.H. Miles & Co. v. Brown, 910 F. Supp. 1138, 1159 (E.D. Va.
1995) {holding that the Mid-Atlantic Council is not an "agency
within the meaning of the [APA] because it has no
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'authority' to do anything"); Gulf Restoration Network, Inc.,
730 F. Supp. 2d at 172-74 (council's passage of FMP was not
final agency action because FMP had no legal effect until
promulgation of Secretary's implementing regulations) . 11
Plaintiffs advance several theories as to how the events
surrounding the development of Amendment 15 nevertheless
constitute "final agency action" reviewable under the APA.
None, however, are persuasive.
a. Federal Involvement in the Development of
Amendment 15
First, Plaintiffs again argue that the involvement of
Regional Administrator Bullard and other federal employees in
the development of Amendment 15 transformed the Council's
consideration of the Amendment into an action by the Secretary.
As discussed earlier, however, the MSA specifically contemplates
and requires the collaboration of federal employees and regional
11
Although Plaintiffs concede that the Council has no power to
pass binding rules or regulations, Pls. Opp'n at 27, they argue
that councils "have been treated as federal agency for certain
purposes." Pls. ' Opp' n at 39. Plaintiffs do not specify which
"purposes" they refer to, and the sole case on which they ·rely
noted only that a regional council was "not a party to this
litigation" and therefore declined to reach the question of
whether it could be considered an "applicant" under the
Endangered Species Act. See Hawaii Longline Ass'n, 281 F. Supp.
2d at 21 n.30. Hawaii Longline Ass'n did not hold or even
imply that regional councils are federal authorities for
purposes of any statute relevant to this case, nor has the Court
found any such case.
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councils in developing conservation and management measures; the
mere fact of such collaboration, therefore, cannot transform the
Council's actions into final "agency action" under the APA.
Moreover, Bullard's Guidance Memorandum to the Council
Staff, which Plaintiffs have incorporated by reference in their
Complaint, merely sets forth his opinion as to the required
legal framework for deciding whether to move forward with
Amendment 15. See Ex. 3 to Pls.' Opp' n (Bullard's Guidance
Memorandum) at 1-3 [Dkt. No. 28-4]. That guidance, influential
as it may have been, certainly did not constitute the
"consummation" of NMFS' s decisionmaking process on Amendment 15
(no such Amendment having yet been approved by the Council or
submitted to NMFS for review).
Nor was it a decision from which "rights or obligations"
were determined or "legal consequences" flowed. See Bennett,
520 U.S. at 178 (noting that "tentative recommendation [s]" and
recommendations that are "purely advisory" do not constitute
"final" actions for purposes of the APA); Sprint Nextel Corp. v.
F.C.C., 508 F.3d 1129, 1132 (D.C. Cir. 2007) (holding that
statements of individual commissioners are not "institutional
Commission actions" because they "do not represent the
Commission's views"). Thus, Regional Administrator Bullard's
Guidance Memorandum in June 2013 was not a final agency action.
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Plaintiffs also appear to rely on NMFS' s guidance to the
Council regarding Amendment 14 and the fact that NMFS and NOAA
employees served on the fishery management action team ( FMAT)
for Amendment 15. See Pls.' Opp' n at 16-20. As with the
guidance provided by Bullard, however, the mere fact that NMFS
and NOAA employees played an advisory role in the development of
Amendments 14 and 15 does not transform the Council's actions on
Amendment 15 into a final action of the Secretary. To the
contrary, Section 1852 (g) expressly requires councils to
establish committees and advisory panels composed of "Federal
employees, State employees, academicians, or independent
experts," but states that any "[d] ecisions and recommendations
made by [such] committees and panels . shall be considered
to be advisory in nature." 16 U.S.C. § 1852(g) (5) (emphasis
added) .
Therefor€, neither Bullard's guidancB memorandum nor the
collaboration and feedback between federal employees and the
Council in developing Amendments 14 and 15 constitute "final"
action of the Secretary subject to judicial review under the
APA.
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b. Bullard's Participation in the October 8,
2013 Vote
Next, Plaintiffs suggest that Bullard's participation in
the Council's October 8, 2013, vote was either itself a final
action of the Secretary, or transformed the Council's vote into
a final action of the Secretary. P1 s . ' Opp' n at 2 9- 3 0 . The
Complaint is clear, however, that Bullard participated in that
vote in accordance with his statutory role as a voting member of
the Council,· not as a final decision-maker of NMFS. See Compl.
CJI 84; see also 16 U.S.C. § (b) (1) (B) (voting members of each
Council shall include "[t] he regional director of the National
Marine Fisheries Service for the geographic area concerned") .
Moreover, Bullard's vote was simply one of nineteen equally
weighted Council member votes regarding further development of
Amendment 15. Tak-en by itself, it had no conclusive Bffect and,
therefore, cannot even be characterized as an "action" of the
Council, much less one of the Secretary. See Sprint Nextel
Corp., 508 F. 3d at 1131-32 (holding that "votes were actions of
the individual Commissioners, not the Commission" and citing the
"'almost universally accepted common-law rule' that only a
'majority of a coll-ective body is empower-ed to act for the
body'") (citations omitted).
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Plaintiffs make much of the fact that, in an October 28,
2013, email to NOAA official Daniel Morris, Bullard
characterized his vote at the October 8 meeting as the ~deciding
vote" on Amendment 15. See Pls.' Opp'n at 30, 31, 34, 36, 38.
They do not, however, allege that there was anything special
about his vote as a Regional Administrator of NMFS that set it
apart from the other nine votes cast against the continued
development of Amendment 15. Furthermore, although they
question Bullard's authority to be present at the October 8
meeting because it occurred during a Government furlough, they
fail to cite any authority to support their suggestion that
Bullard's participation in the Council's vote constituted final
agency action simply because Bullard arguably lacked the
authority to appear at the meeting. 12
In sum, Regional Administrator Bullard's participation in
the October 8, 2013, vote also did not constitute final agency
action under the APA.
12
Any such lack of authority {as to which this Court expresses
no opinion) would, at best, merely call into question the
validity of the final vote; it would not transform the Council's
vote into a final agency action of the Secretary, as Plaintiffs
suggest. See Pls.' Opp'n at 29 and n.19.
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c. NMFS's Failure to Add the River Herring and
Shad to the MSB F.MP
Third, Plaintiffs argue that NMFS had a "mandatory duty"
under the MSA to establish conservation and management measures
for the river herring and shad, which it failed to fulfill,
thereby giving rise to what they assert is a cognizable claim
under 5 U.S.C. § 706(1). See, e.g., Pls.' Opp'n at 25-28.
It should be noted that Plaintiffs' Complaint focuses
entirely on the Council's activities in developing and
considering Amendments 14 and 15, and the affirmative
involvement in those activities of various NMFS officials. It
nowhere alleges any independent failure by NMFS to take action
to protect the river herring and shad. Nor does it include any
factual allegations that would support consideration of such a
theory, such as the length of time the river herring and shad
stocks have be.en declining, the results of scientific studies
suggesting such declines are directly attributable to fishing in
the MSB fishery, and/or any efforts of NMFS and NOAA to addiess
the issue to date and why those efforts are inadequate under the
MSA.
Even if, however, the Complaint could be read to challenge
NMFS's inaction und.er 5 U.S.C. § 70-6(1), Plaintiffs still have
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not identified any such inaction that would qualify for judicial
review.
Section 706 (1) authorizes a court to "compel agency action
unlawfully withheld or unreasonably delayed." 5 u.s.c. §
706 (1). The Supreme Court has clearly warned, however, that an
agency's failures to act are only "sometimes remediable under
[Section 706(1)], but not always." Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 61 (2004). More specifically, such a
claim is cognizable "only where a plaintiff asserts that an
agency failed to take a discrete agency action that it is
required to take." Id. at 64 (emphasis in original).
Plaintiffs rely on 16 U.S.C. § 1854(c) as the source of the
Secretary's purportedly mandatory duty to add the river herring
and shad to the MSB FMP. See Pls.' Opp' n at 34 & n. 25. The
only part of that provision relevant to this case, however, is
Section 1854 (c) (1) (A), which states that the Secretary "may"
develop a "necessary amendment" to an FMP without waiting for
action by the Council if, "after a reasonable period of time,"
the council fails to develop and submit such an amendment to
her. 16 U.S.C. § 1854(c) (1) (A); see also Hawaii Longline
Ass'n., 281 F. Supp. 2d at 3.
While Section 1854 (c) ( 1) (A) clearly provides that th-e
Secretary herself "may" develop a "necessary amendment," it does
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not mandate that she "shall" or "must" do so. By contrast,
Section 1852(h) states that each council "shall" prepare fishery
management plans and any necessary amendments, and Section
1854(a) provides that the Secretary "shall" review such plans or
amendments, "shall" publish them for notice and comment, and
"shall" thereafter approve, disapprove, or partially approve
them. 16 U. S . C. § 18 54 (a) ( 1) , ( 3) .
As our Court of Appeals has held, "when a statute 'uses
both 'may' and 'shall,' the normal inference is that each is
used in its usual s-ense the one act being permissive, the
other mandatory.'" Sierra Club v. Jackson, 648 F.3d 848, 856
(D.C. Cir. 2011) (citations omitted); see also Lopez v. Davis,
531 U.S. 230, 241 (2001) ("Congress' use of the permissive 'may'
. contrasts with the legislators' use of a mandatory 'shall'
. to impose discretionless obligations[.]").
Therefore, Section 1854(c) (1) (A) permits but does nDt
require the Secretary to develop a necessary amendment in the
absence of action by a council. See, e.g., Sea Hawk Seafoods,
Inc. v. Locke, 568 F.3d 757, 767 (9th Cir. 2009) ("Because the
word 'may' [in the American Fisheries Act] implies discr-etion,
there is no legally required action imposed on [NMFS] II)
(emphasis in original); Martha's Vineyard/Dukes Cnty.
Fishermen's Ass'n v. Locke, 811 F. Supp. 2d 302, 308 n.7 (D.D.C.
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2011) (noting that NMFS is "in no way required to promulgate
plaintiffs' requested regulations" under several sections of the
MSA, including 16 U.S.C. § 1854 (c) (1)) (emphasis in original) . 13
Plaintiffs also argue that this Court and others have held
that the MSA "plainly gives NMFS the final responsibility for
ensuring that any FMP is consistent with the MSA' s National
Standards, and 'the overall objectives' of the Act," including
"Section 1852 (h)'s requirement that the Council prepare an FMP
or amendment for any stock of fish that 'requires conservation
and management[.]'" See Pls.' Opp'n at 24-25; see also Flaherty
v. Bryson, 850 F. Supp. 2d 38, 54-66 (D.D.C. 2012).
But each of the cases on which Plaintiffs rely challenged
final actions of the Secretary and therefore did not rely on the
Secretary's inaction under Section 706 ( 1) . Instead, they fell
squarely within the provisions of 5 U.S.C. § 706(2), providing
for judicial review of affirmative agency actions. See
Flaherty, 850 F. Supp. 2d at 51 (considering challenge to final
FMP amendment promulgated by NMFS and published in Federal
13
Despite Section 1854(c)(l)(A)'s clear use of the word "may,"
Plaintiffs argue that it imposes a mandatory obligation and that
"Congress used the word 'may'" simply because "there are both
mandatory and discretionary provisions under the Act [.]"
Plaintiffs do not, however, cite any authority or specific
characteristic of the statutory framework that supports this
argument.
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Register); Guindon, 2014 WL 1274076, at *7-10 (considering
challenge to two final rules and one temporary rule promulgated
by NMFS, each of which were published in the Federal Register);
Oceana, Inc. v. Pritzker, No. 11-1896, 2014 WL 912364, at *3-4
(D.D.C. Mar. 10, 2014) (considering challenge to final FMP
amendment promulgated by NMFS and published in Federal
Register) . Plaintiffs, by contrast, seek to challenge a non-
final action of the Mid-Atlantic Council, which was never
published for notice and comment or approved by the Secretary.
There would, quite simply, be nothing for this Court to review
and "set aside" under Section 706(2) in this case.
Plaintiffs also suggest that Defendants failed to comply
with their duty under 16 U.S.C. § 1854(e), to identify
overfished populations. Under Section 1854 (e), the Secretary
must "report annually to the Congress and the Councils on the
status of fisheries within each Council's geographic area of
authority and identify those fisheri-es that are overfished or
are approaching a condition of bring overfished." 16 u.s.c. §
1854(e) (1). The Act defines "overfished" as a "rate or level of
fishing mortality that jeopardizes the capacity of a fishery to
produce the maximum sustainable yield on a continuing basis."
16 u.s.c. § 1802 (34).
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As in Norton, however, while these provisions collectively
require the Secretary to assess and report whether any fisheries
are being fished at an unsustainable level, there is no specific
statutory requirement that she designate the river herring and
shad in the MSB fishery as overfished. The Act leaves it to the
agency's sound discretion to apply the definition in Section
1802(34) and determine whether any fisheries are being
overfished. See Norton, 542 U.S. at 65 (" [W] hen an agency is
compelled by law to act . but the manner of its action is
left to the agency's discretion, a court ·can compel the agency
to act, but has no power to specify what the action must be.").
In sum, Section 1854(e) does not impose a "discrete"
statutory requirement to identify the river herring and shad as
overfished.
Finally, Plaintiffs also cite Massachusetts v. EPA, 549
U.S. 497, 527-28 (2007) and Am. Elec. Power Co. v. Conn., 131 S.
Ct. 2527, 2539 (2011) for the proposition that "[t]he refusal to
issue a rule (~, by denying a petition for rulemaking)
constitutes a 'denial' [under] 5 U.S.C. § 551(13), and is
subject to review." Pls.' Opp' n at 33. While Plaintiffs are
correct that an agency's final denial of a rulemaking petition
under 5 U.S.C. § 553(e) is final agency action reviewable under
the APA, they have not alleged anywhere in their Complaint that
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they ever petitibned NMFS for a rulemaking pursuant to 5 U.S.C.
§ 553 (e), much less that NMFS issued a final decision denying
such a petition. 14
For all of the foregoing reasons, Plaintiffs have failed to
state a claim under the MSA and the APA in Count 1.
Consequently, that claim shall be dismissed.
B. Count 2: Violation of NEPA
In Count 2, Plaintiffs allege that Defendants failed to
prepare an environmental impact statement and to "take a hard
look at associated environmental impacts" in connection with the
termination of Amendment 15. See Compl. `` 103-110. They claim
that this failure violated NEPA, 42 U.S.C. § 4332 (2) (C), which
requires federal agencies implementing "major Federal actions
significantly affecting the quality of the human environment" to
examine the environmental effects of such action by preparing an
environmental impact statement ("EIS"). 42 U.S.C. § 4332(2) (C).
14
In their Opposition brief, Plaintiffs argue that they did,
indeed, "petition Defendants for rulemaking, consistent with the
unique rulemaking process establish€d in the MSA, through their
participation in the development of Amendments 14 and 15 by NMFS
and the Mid-Atlantic Council." Pls.' Opp' n at 32-34. However,
even in their Opposition brief, Plaintiffs merely suggest that
they participated in the Council's consideration of Amendment
15. They do not refer to any specific petition under 5 U.S.C. §
553 (e) , directed to or acted upon by Def€ndants, as opposed to
the Council, who as noted, is not a defendant in this case.
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As our Court of Appeals has held, "because NEPA creates no
private right of action, challenges to agency compliance with
the statute must be brought pursuant to the [APA], which
requires 'final agency action for which there is no other
adequate remedy in a court [.] '" Karst Envtl. Educ. & Prot.,
Inc. v. E.P.A., 475 F.3d 1291, 1295 (D.C. Cir. 2007) (citations
omitted) . "[T]he 'final agency action' r.equired by the APA must
also be a 'major federal action' under NEPA." Id. (citation
omitted).
Agency decisions that "maintain[] the substantive status
quo" do not constitute "major federal actions" under NEPA. See
Fund for Animals, Inc. v. Thomas, 127 F.3d 80, 83-84 (D.C. Cir.
1997) (citing Comm. for Auto Responsibility v. Solomon, 603 F. 2d
992, 1002-03 (D.C. Cir. 1979) ("The duty to prepare an EIS
normally is triggered when there is a proposal to change the
status quo.")). Furthermore, NEPA applies only to "major
Federal actions," even where, as here, it is alleged that "the
environmental consequences of inaction may be greater than the
consequences of action[.]" Defenders of Wildlife v. Andrus, 627
F.2d 1238, 1243-44 (D.C. Cir. 1980).
Finally, even where an agency does contemplate taking
affirmative action, an EIS is not required until the agency
"reaches the critical stage of a decision which will result in
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'irreversible and irretrievable commitments of resources' to an
actLon that will affect the environment." Wyoming Outdoor
Council v. U.S. Forest Serv., 165 F.3d 43, 49 (D.C. Cir. 1999)
(citation omitted).
As discussed at length above, Plaintiffs have not
identified any final agency action under the APA. They cite
Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996) for the
proposition that NMFS's inaction can support a claim under NEPA.
Pls.' Opp'n at 41-42. But the inaction at issue in Ramsey was
that NMFS' s failure to disapprove plans prepared by a regional
council resulted in the plans at issue attaining ·the force of
law. See Ramsey, 96 F.3d at 445. See also 16 U.S.C. §
1854 (a) (3).
In this case, by contrast, NMFS' s failure to act did not
result in any proposals or plans attaining the force of law.
Consequently, an EIS under NEPA is not required. See, e.g. ,
Int'l Ctr. for Tech. Assessment v. Thompson, 421 F. Supp. 2d 1,
9 (D.D.C. 2006) (finding NEPA inapplicable because "{t]he FDA's
decision not to regulate GloFish is not an agency action, but
rather, an agency inaction" to which "no resources are being
committed").
In sum, Plaintiffs have failed to state a claim under NEPA
because Defendants have not taken any final agency action that
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alters the substantive status quo or constitutes an
"irreversible and irretrievable commitment of resources' to an
action that will affect the environment." Wyoming Outdoor
Council, 165 F.3d at 49.
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss
shall be granted. An Order shall accompany this Memorandum
Opinion.
September 30, 2014 G``
Gladys Kess er
United States District Judge
Copies to: attorneys on record via ECF
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