ANGLERS CONSERVATION NETWORK et al v. PRITZKER et al, No. 1:2013cv01761 - Document 36 (D.D.C. 2014)

Court Description: MEMORANDUM OPINION to the Order granting Defendants' Motion to Dismiss. Signed by Judge Gladys Kessler on 9/30/14. (CL, )

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ANGLERS CONSERVATION NETWORK et al v. PRITZKER et al Doc. 36 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, Club, Inc., Anglers Paul "Plaintiffs"), Conservation Eidman, bring this Department of Commerce and Philip case against ("the ( "NMFS") Gateway Lofgren the Secretary") , and Atmospheric Administration Fisheries Service Network, ("NOAA"), (collectively, Secretary the Striper National of the Oceanic and the National Marine (collectively, "Defendants") pursuant to the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), Policy 16 U.S.C. Act §§ 1801 et seq.; ("NEPA"), 42 U.S.C. §§ the National Environmental 4321 et seq.; and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. This matter Dismiss [Dkt. Opposition is before No. [Dkt. 17]. No. entire record herein, 28], the Court Upon and on Defendants' consideration Reply {Dkt. of No. Motion to the 29], Motion, and the including the arguments presented at the Dockets.Justia.com 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 the coasts The Act of the United United States [.]" establishes conservation and States" a in order stocks," long-term protection of to the u.s.c. "for overfishing," fish and of the the "rebuild "facilitate 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 developed and management councils NMFS, a u.s.c. §§ 1 1801(b) (1). resources conservation," essential § found off framework fishery "prevent "[e]nsure of 16 federal-regional management overfished § fishery resources prepared by independent and approved, division within the ("FMPs") that are regional fishery implemented and enforced by Department of Commerce. 1 See 16 1853-1854. 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. <JI<JI 13-14; see also Oceana, Inc. v. Locke, 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." -2- The MSA divides the United States into eight regions, of which council. is represented See id. § by an independent 1852 (a) (1). fishery each management 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 state. Jr., Id. 931 submitted 1852 (b) (1), § F.2d 1556, by the (2); 1557-58 governor see also C (D.C. Cir. of & each constituent W Fish Co. 1991). The v. Fox, 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. U.S.C. § 1852 (b) (1) (A), Each council Secretary (acting is (B). required through to NMFS) a prepare and submit fishery management any necessary amendments to such plan, to the plan and "for each fishery under its authority that requires conservation and management[.]" § 1852 (h) (1). or more 16 Id. The term "fishery" is defined in the Act as "one stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis recreational, for geographical, scientific, and economic characteristics; such stocks." must describe of the Id. § species 1802 (13). of fish -3- and technical, any fishing A fishery management plan involved in the fishery and specify the "conservation and management measures" that are "necessary and appropriate" to "prevent overfishing and rebuild overfished long-term stocks, and health 1853(a)(l)(A), and to protect, stability of restore, the and promote the Id. fishery[.]" § (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 1854 (a) must Federal Register After a (1). "approve, amendment [,]" interested persons. into Id. notice and comment. Id. 60-day notice and comment period, disapprove, taking for § or partially account the approve views and a NMFS plan or comments of 1854 (a) (2), (3). If NMFS approves a plan or amendment, or does not expressly disapprove it 1854 (a) (3). 30 days, it becomes effective. Id. § If NMFS disapproves or partially approves the plan or amendment, applicable within NMFS must thereafter notify the council of "the law inconsistent"; with the which "nature the of plan such or amendment inconsistencies"; is 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 -4- "may" thereafter "submit a 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: of time," the (1) appropriate where, council "after a reasonable period has failed to make any recommendation regarding an FMP or necessary amendment; and where further the revised) council has failed to submit a revised (or (2) plan after the Secretary has disapproved or partially approved an FMP 1854 (c) (1) (A), (B). a promulgate plan, amendment, or revision. Id. § In these circumstances, the Secretary "may" plan or amendment herself after inviting consideration and comment from the council and other interested parties § and 1854(c)(1), B. a (3), 60-day notice and comment period. Id. (4). 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, ｾＧ＠ 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") . -5- the Town of Weymouth, Complaint pertains Butterfish fishery managed by the Atlantic represents to the ("MSB" the or "mackerel" states of New The York, Council is ("MidCouncil Delaware, Jersey, 16 Pennsylvania, Maryland, Virginia, and North Carolina. § and which Mid-Atlantic New Their Squid fishery), Fishery Management "Council"). 8-11. CJ[Cj[ Mackerel, Atlantic or Mid-Atlantic Council" Compl. Massachusetts. u.s.c. 1852(a)(1)(B). 1. The midwater nets The MSB Fishery MSB fishery trawl is vessels," "a directed which behind their vessels." catch Compl. fishery fish by 57. en: dominated "dragging These nets by large snare large numbers of other fish and marine wildlife at the same time as they catch their target fish. Plaintiffs are four species of fish, Of particular concern to 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, 3 blue fish, blue fish 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. - ¬- tuna, marlin, sharks, ospreys, loons, egrets, whales, and river otters. Compl. The FMP for the mackerel fishery, 1983, recommends conservation Atlantic mackerel, Compl. ｾ＠ long fin It 56. does herons, bald eagles, 47. ｾ＠ which was promulgated in and management measures squid, not, Ill ex squid, however, for the and butterfish. currently include any protections for the river herring and the shad because they are not designated as "stocks" in the MSB fishery. Plaintiffs herring and allege shad by significantly" to the Id. ｾ＠ that trawls total the in 4 incidental the MSB catch fishery of river "contributes known mortality of these species. They allege that "river herring and shad populations 59. have declined to historic lows in recent decades as a result of overfishing, habitat They for claim, loss, example, and that other 23 out factors." of 24 Compl. stocks of ｾ＠ 48. river herring are "depleted" and that stocks of shad are "at all-time lows and levels." [do] Id. 2. ｾ＠ not appear to be recovering to sustainable 49. 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. 4 In 2D10, it began 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). -7- development of Amendment 14 to the [the river herring and shad] stock [.]" Compl. 70. c:IT with one [measures] stated purposes being to "consider MSB plan, that would bring into the . of the plan as a managed 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." In response, the herring and shad to Council the instead "to develop a MSB FMP, these that would interjurisdictional stocks, decided c:IT 72. not to add FMP by way of Amendment separate fully under stocks Id. issues amendment, analyze the the 14 necessity to river and opted Amendment 15 of to managing the of these management as well as the required and discretionary FMP provisions that would apply to these stocks if added to the fishery." c:IT 73 the Act, Magnuson-Stevens related the Id. (citing Amendment 14 FEIS, at 111). 5 3. Amendment 15 to the MSB Plan In the fall of 2012, Document intent to and Action prepare an Plan the Council released a Draft Scoping for announced Amendment environmental 5 15 impact and statement its regarding 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. several technical Id. The Council also formed 75, 76. ｾ＠ committees and a fishery management action team ("FMAT") to consider direct management of the river herring and shad in the MSB fishery. In June of 2013, Mid-Atlantic Region, Id. 76. ｾ＠ the NMFS's Regional Administrator for the John Bullard, who is also a voting member of the Mid-Atlantic Council, sent a Guidance Memorandum to the Executive Director Council, "outlining how to of the make the Dr. determination Christopher whether or Moore, not to include river herring and shad as stocks to be managed in the MSB fishery [.]" Id. ｾ＠ 77; see also Ex. 3 to Pls.' ("Bullard's Guidance Memorandum") (Mem. dated June 6, from Regional Administrator Bullard to Dr. Moore, 2013) Opp'n [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 "statutory the 'conservation and management.'" Compl. ｾ＠ definition of 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. see also Ex. Mackerel, 5 to Pls.' Squid, Opp' n (Mem. and Butterfish September 30, 2013) (MSB) ("White Paper") -9- Compl. ｾ＠ 7"8-79; from Jason Didden to the Committee/Council, [Dkt. No. 28-6]. dated Plaintiffs 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) contend "unlawfully introduce [d] the decision [.]" ·Compl. On October 8, 15. Id. <J[ 81. 2013, <J[ guidelines," a which 'cost-benefit' analysis into 7 9. the Council met to consider Amendment Although "37,000 comments were received in favor of adding river herring and shad to the MSB FMP, (1) Plaintiffs and only one comment opposed it[,]" the Council voted, in a 9 to 10 vote, against a motion to move forward with the continued development of Amendment 15. Regional Id. <J[<J[ Administrator 81, 83. 6 Plaintiffs allege that "NMFS Bullard cast the deciding vote to terminate Amendment 15," and "advocated strongly against adding river herring and.shad to the MSB FMP[.]" After Amendment river 6 declining 15, herring to proceed with the Council decided to and shad in three Id. <J[<J[ immediate revisit years and, 82, 84. development the in of issue of the the interim, Some confusion was raised at the Motion Hearing as to whether the Council's vote formally terminated further consideration of Amendment 15, as Plaintiffs argued, or simply postponed it, as the Government argued. Because this is a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b) (6), the Court accepts Plaintiffs' characterization of the October 8, 2013, vote as true. -10- approved the creation of an "ad hoc interagency working group" to study the issue. C. ｾ＠ Id. 85, 86. Procedural Background On November 7, October 8, 2013, 2013, one month after the Council's vote of Plaintiffs they referred to as "NMFS' s and river filed to not include mackerel fishery [.]" On January 24, Dismiss, arguing this case challenging what decision to terminate Amendment 15 herring Compl. ｾ＠ and shad as stocks in the 101. 2014, Defendants filed the instant Motion to that the Complaint fails to state a claim because the decision not to proceed with Amendment 15 was taken by the Mid-Atlantic federal the Council, which is "not government for purposes of the APA, Department of Commerce [.]" Defs.' an agency [or] Mot. a to of the division of Dismiss at 1 [Dkt. No. 17] . Plaintiffs did based Amendment on 14 Defendants' the to 2014). their The Complaint same in this to Defendants' 2014, they filed a new publication of plan. Pritzker, day, respond on March 26, MSB Conservation Network v. 26, immediately Instead, Motion to Dismiss. case not they case to -11- See No. filed add 14-509 a a final rule generally (GK) Motion Ariglers (D.D.C. to all-egations for Mar. Supplement related to 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." Order of April 28, however, 2014, grant Plaintiffs' at 4 [Dkt. No. 27] . 7 Mem. The Court did, request for an extension of time to file their Opposition to the instant Motion. Thereafter, 28, in accordance with the Court's Order of April 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] plausible." claims across Bell Atlantic Corp. the v. line from Twombly, conceivable 550 U.S. 544, to 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). -12- In applying this allegations fact)" in and the give standard, complaint the 2008) (internal court quotation not, however, inferences that are Cir. Comm. 2014) "tenders marks will (2009) (even benefit as in U.S., not facts 17 (D.C. conclusions 758 F.3d 296, a of Ashcroft or Ralls 315 (D.C. complaint which factual 'further v. Cir. The alleged." Furthermore, suffice. reasonable omitted). "legal devoid in Aktieselskabet AF citations true doubtful all 525 F.3d 8, unsupported by the assertion[s]' if of alleged." and accept (citation omitted). enhancement'" 662, 678 "the facts on Foreign Inv. 'naked true Fame Jeans Inc., does Corp. v. are plaintiff inferences derived from the 21. November 2001 v. the court "must assume all the Iqbal, 556 U.S. (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 courts. councils, and her decision is appealable to the 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 been published not formally approved or for notice disapproved -13- and comment, by the and was Secretary. never Because 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 the APA, 1, what Plaintiffs they refer challenge, to as under both the "NMFS' s decision to MSA and terminate Amendment 15 and to not include river herring and shad as stocks in the mackerel fishery[.]" Compl. There Is no Basis for Judicial Review under the MSA 1. Plaintiffs first contend that directly reviewable under the MSA, review of 101. <JI "actions that are regulations which implement a their claim in which provides taken by the Count for 1 is judicial Secretary under fishery management plan" so long as the "petition for such review is filed within 30 days after . the u.s.c. § The action is published in the Federal Register [.]" 16 in the 1855(f) (1)-(2) . 8 lengthy Complaint make and detailed abundantly any further development of clear factual that ï½ ï½­ï½¥ï½®ï½¤ï½²ï½©ï¼®ï½¾ï½´ï¼  the allegations decision to postpone 15 was not an "action . taken by the Secretary" within the meaning of Section 1855 {f), 8 judicial review of "[r]egulations The MSA also permits promulgated by the Secretary under this chapter," 16 U.S .C. § 1885(f)(1), but Plaintiffs do not claim to challenge any such regulations. See ï½ ï½¬ï½³ï½¾ï¼§ï¼  Opp'n at 24. -14- but a non-final decision of the independent Mid-Atlantic Council. Plaintiffs do not purport to challenge the Council's decision, and concede they purposefully did not name defendant in this case. acknowledge that itself has legally binding rules or obligations. The Secretary, binding action Section and 1855(f), who does whose never have sole had a In fact, Plaintiffs Pls.' Opp'n at 26. "the Council it as no power" to create Id. at 27. the power actions occasion to take are act to reviewable on legally under Amendment 15 because it was never approved "by majority vote of the voting members" [her]." of the Council 16 U.S.C. §§ or "transmit [ted] by the Council to 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 constituted in the October 8, 2013, taken "actions vote by either the themselves 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 information-sharing between the councils and NMFS and (including by requiring a NMFS Regional Administrator, such as Bullard, to sit -15- .. on each council) . (e) (4), (D) ' See 16 U.S.C. (f) (2)' Nevertheless, clearly for councils and authorizes judicial review Secretary." the mere 16 U.S.C. fact that establishes the § 1852 (b) (1) (B), Secretary over 1855 (f) Bullard separate and, decisionmaking taken only by the Therefore, (emphasis added). his h ( 4) ¢ importantly, "actions fulfilled (c) (1) (A)- (h) (2), (g) (1) (C), (f) (5)' it roles §§ 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 1855(f) conclusion is reinforced by the fact that directly authorizes judicial review of only secretarial "actions" that are "published in the Federal Register" added). Section 16 u.s.c. § 1855 (f) (1). Amendment 15 (emphasis 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. -1u- Finally, to the challenge NMFS' s extent independent Plaintiffs failure rely on the MSA to 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" provide any authority for judicial review of such 11 1 fails to inaction. 1 11 Gulf Restoration Network, Inc. v. Nat 1 l Marine Fisheries, Serv., 730 F. Supp. 2d 172 157' (D. D.C. Consequently, 2010). 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 Plaintiffs also seek judicial rBview under th ¬ APA. recognized that the APA provides 10 an alternative the MSA, Courts have basis for 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 *1617. 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. -17- judicial review addition to 1274076, of the Section at *16-17 Secretary's 1855(f). actions See, e.g., that however, for court [.]" 5 marks consummation which there u.s.c. 704. § legal consequences." Hous. & (D.C. no of 2009) Urban Dev., 76 01- ( s arne) . other adequate remedy in a "A final agency action is one that the agency's decisionmaking process and obligations or creates binding Nat' 1 Res. Cir. No. judicial review to "final agency is and that establishes rights 564 WL Nat'l Marine Fisheries Serv., limits action [s] 561, 2014 Guindon, 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) the in (applying the APA to claims under the MSA); Hawaii Longline Ass'n v. The APA, exists Def. Council v. EPA, (citing DRG Funding Corp. F.3d 1212, 1214 (D.C. Cir. 559 F. 3d v. Sec'y of 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, to concede, is "not Pls.' Opp' n at 26-27, itself an 'agency'" Category Scallop Fishermen v. F. 3d 106, 112 n.15 Sec'y, U.S. Dep't of Commerce, (citation omitted); of the F. [APA] -18- Supp. Gen. 1138, 1159 635 see also {holding that the Mid-Atlantic Council is not an "agency meaning 910 review. 1995) the Brown, judicial Miles within v. fishery management council subject to 2011) Plaintiffs appear (J.H. & Co. (3d Cir. a a-s because (E.D. it has Va. no 'authority' 730 F. final to do anything"); Supp. agency 2d at 172-74 action Gulf Restoration Network, (council's passage of because FMP had no legal Inc., FMP was effect not until promulgation of Secretary's implementing regulations) . 11 Plaintiffs advance surrounding the constitute "final several development agency theories of action" as to how the events nevertheless Amendment 15 reviewable under the APA. None, however, are persuasive. a. First, Federal Involvement in the Development of Amendment 15 Plaintiffs Regional Administrator the development of again argue that Bullard and other Amendment 15 the involvement federal transformed employees the of in 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. -19- 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, legal merely sets framework Amendment 15. for See forth his deciding Ex. 3 to opinion whether Pls.' as to to move Opp' n the required forward with (Bullard's Guidance Memorandum) at 1-3 [Dkt. No. 28-4]. That guidance, influential as did it may have been, certainly 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" 520 U.S. at 178 recommendations flowed. See Bennett, (noting that "tentative recommendation [s]" and that are "purely advisory" do not constitute "final" actions for purposes of the APA); Sprint Nextel Corp. v. F.C.C., 508 statements F.3d of Commission Commission's 1129, 1132 individual actions" views"). (D.C. Cir. commissioners because Thus, they are "do Regional 2007) not not (holding that "institutional represent Administrator the Bullard's Guidance Memorandum in June 2013 was not a final agency action. -20- Plaintiffs also appear to rely on NMFS' s guidance to the Council regarding Amendment 14 and the fact that NMFS and NOAA employees for served on the Amendment 15. See fishery management action team Pls.' guidance provided by Bullard, Opp' n at however, As 16-20. ( FMAT) with the 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 contrary, Section establish committees employees, State final action 1852 (g) and of expressly the requires advisory panels employees, To the councils to Secretary. composed of academicians, or "Federal independent experts," but states that any "[d] ecisions and recommendations made by [such] committees and panels . to be advisory in nature." 16 U.S.C. shall be considered § 1852(g) (5) (emphasis added) . Therefor ¬, collaboration Council action neither and Bullard's feedback between in developing Amendments of the guidancB Secretary subject APA. -21- memorandum nor the employees and the federal 14 and 15 constitute "final" to judicial review under the b. Next, Bullard's Participation in the October 8, 2013 Vote Plaintiffs suggest the Council's October 8, 2013, action of the Secretary, a final action of the Complaint is clear, that Bullard's vote was participation either itself a in final or transformed the Council's vote into Secretary. however, P1 s . ' Opp' n The at 2 9- 3 0 . 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. CJI 84; see also 16 U.S.C. (b) (1) (B) § See Compl. (voting members of each Council shall include "[t] he regional director of the National Marine Fisheries Moreover, Service for the Amendment 15. Council, Corp., area concerned") . Bullard's vote was simply one of nineteen equally weighted Council member votes therefore, geographic regarding further development of Tak-en by itself, it had no conclusive Bffect and, cannot much even be characterized as less one of 508 F. 3d at 1131-32 the Secretary. an "action" of the See Sprint Nextel (holding that "votes were actions of the individual Commissioners, not the Commission" and citing the "'almost universally 'majority body'") of a accepted coll-ective common-law body (citations omitted). -22- is rule' empower-ed to that act only for a the Plaintiffs make much of the fact that, 2013, email NOAA to official in an October 28, characterized his vote at the October 8 meeting as the vote" on Amendment 15. They do not, however, See Pls.' Opp'n at 30, 31, allege that Bullard Morris, Daniel there was ｾ､･｣ｩｮｧ＠ 34, anything 36, 38. special about his vote as a Regional Administrator of NMFS that set it apart from the development of question other nine Amendment Bullard's votes 15. authority to cast against Furthermore, be present at the continued although the they October 8 meeting because it occurred during a Government furlough, they fail that to cite any authority to support their suggestion 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. -23- c. Third, NMFS's Failure to Add the River Herring and Shad to the MSB F.MP 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 thereby giving rise to what they assert failed is a to fulfill, cognizable claim under 5 U.S.C. § 706(1). See, e.g., Pls.' Opp'n at 25-28. It should entirely on considering be the noted that Council's Amendments Plaintiffs' activities 14 and 15, Complaint in and focuses developing the and 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 stocks have length of time the river herring and shad 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. § -24- 70-6(1), Plaintiffs still have not identified any such inaction that would qualify for judicial review. Section 706 (1) unlawfully authorizes a court to "compel agency action withheld or unreasonably delayed." u.s.c. 5 § 706 (1). The Supreme Court has clearly warned, however, that an agency's failures to act are only "sometimes [Section 706(1)], but not always." Alliance, 542 claim cognizable is agency failed U.S. to 55, 61 required to take." Norton v. S. Utah Wilderness (2004). "only where take a remediable under More a specifically, plaintiff discrete agency such a asserts action that an it is that 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 & only part of that provision relevant to this case, Section 1854 (c) (1) (A), develop a which her. council 16 that "necessary amendment" to an action by the Council if, the states fails U.S.C. the The however, Secretary is "may" FMP without waiting for "after a reasonable period of time," to develop and submit § n. 25. 1854(c) (1) (A); see such an amendment to 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 -25- not mandate that Section 1852(h) management she "shall" or "must" do By so. contrast, states that each council "shall" prepare fishery plans and any necessary amendments, and Section 1854(a) provides that the Secretary "shall" review such plans or amendments, "shall" them. "shall" thereafter them approve, our both 'may' used in Court and its of Appeals 'shall,' usual other mandatory.'" Cir. 2011) the s-ense for notice disapprove, 16 U. S . C. § 18 54 (a) ( 1) , As (D.C. publish has held, normal partially the "when and approve one act being Jackson, a statute is inference (citations omitted); (2001) or comment, ( 3) . Sierra Club v. 531 U.S. 230, 241 and that 'uses each permissive, 648 F.3d 848, see also Lopez v. is the 856 Davis, ("Congress' use of the permissive 'may' . contrasts with the legislators' use of a mandatory 'shall' . to impose discretionless obligations[.]"). Therefore, require the Section Secretary to absence of action by a Inc. v. word 'may' there is Locke, (emphasis 1854(c) (1) (A) 568 develop council. F.3d 757, 767 a permits in legally required original); See, e.g., (9th Cir. action Martha's nDt in the Sea Hawk Seafoods, 2009) ("Because the implies discr-etion, imposed on Vineyard/Dukes Fishermen's Ass'n v. Locke, 811 F. Supp. 2d 302, -26- does necessary amendment [in the American Fisheries Act] no but 308 n.7 [NMFS] II) Cnty. (D.D.C. 2011) (noting that plaintiffs' NMFS is "in no way required to promulgate requested regulations" under several sections of the (emphasis in original) . 13 MSA, including 16 U.S.C. § 1854 (c) (1)) Plaintiffs also argue that this Court and others have held that the MSA "plainly gives ensuring Standards, that any and FMP is NMFS the consistent final with 'the overall objectives' "Section 1852 (h)'s responsibility the MSA' s for National of the Act," including requirement that the Council prepare an FMP or amendment for any stock of fish that and management[.]'" 'requires conservation 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, squarely within the provisions of 5 U.S.C. for judicial Flaherty, FMP review 850 F. amendment Supp. of affirmative 2d at 51 promulgated by they fell 706(2), providing § agency actions. See (considering challenge to final NMFS 13 and published in Federal 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. -27- 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. (D.D.C. Mar. amendment 10, by Plaintiffs, action of the No. 11-1896, 2014 WL 912364, (considering 2014) promulgated Register) . final Pritzker, challenge and NMFS by contrast, Mid-Atlantic to published at *3-4 final FMP Federal in seek to challenge a nonCouncil, 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 with their also duty suggest under overfished populations. 16 that Defendants U.S.C. Under § Section failed 1854(e), 1854 (e), to comply to identify the Secretary must "report annually to the Congress and the Councils on the status of fisheries within authority and identify those each Council's fisheri-es that geographic of are overfished or are approaching a condition of bring overfished." 1854(e) (1). area 16 u.s.c. § 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 16 u.s.c. § 1802 (34). -28- continuing basis." 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. agency's sound 1802(34) and to determine whether See Norton, overfished. discretion 542 U.S. compelled by law to act apply The Act leaves it to the the any definition in fisheries are at 65 Section being (" [W] hen an agency is . 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 U.S. 497, 527-28 a rule constitutes a cite Massachusetts by 'denial' denying [under] Pls.' a 5 petition U.S.C. Opp' n at 33. correct that an agency's final denial of a the APA, EPA, 549 for the proposition that "[t]he refusal to ＨｾＬ＠ subject to review." under 5 U.S.C. v. (2007) and Am. Elec. Power Co. v. Conn., 131 S. Ct. 2527, 2539 (2011) issue also § 553(e) § for rulemaking) 551(13), and is While Plaintiffs are rulemaking petition is final agency action reviewable under they have not alleged anywhere in their Complaint that -29- 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. failed to Consequently, that claim shall be dismissed. B. In Count 2: Violation of NEPA Count 2, Plaintiffs allege that Defendants 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. that this failure violated NEPA, requires federal agencies ｾ＠ 42 U.S.C. implementing 103-110. § "major They claim 4332 (2) (C), Federal which actions significantly affecting the quality of the human environment" to examine the environmental effects of such action by preparing an environmental impact statement ("EIS"). 14 42 U.S.C. § 4332(2) (C). 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. -30- As our Court of Appeals has held, "because NEPA creates no private right of action, the statute requires must 'final be Inc. v. E.P.A., omitted) . also be a brought agency adequate remedy in a challenges to agency compliance with pursuant action for to which the there Karst Envtl. court [.] '" 475 F.3d 1291, 1295 [APA], which is other no Educ. (D.C. Cir. 2007) & Prot., (citations "[T]he 'final agency action' r.equired by the APA must 'major federal action' under NEPA." Id. (citation omitted). Agency decisions that "maintain[] the substantive status quo" do not constitute "major federal actions" under NEPA. Fund for Animals, 1997) 992, Inc. v. Thomas, 127 F.3d 80, 83-84 See (D.C. Cir. (citing Comm. for Auto Responsibility v. Solomon, 603 F. 2d 1002-03 (D.C. Cir. 1979) ("The normally is triggered when there status quo.")). Furthermore, Federal actions," even where, is a NEPA duty to an EIS proposal to change the applies as here, prepare only to "major 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, affirmative even action, where an EIS an agency is does not required contemplate until the taking agency "reaches the critical stage of a decision which will result in -31- 'irreversible and irretrievable commitments of resources' actLon that Council v. will U.S. affect the Forest Serv., Wyoming environment." 165 F.3d 43, 49 (D.C. to an Outdoor Cir. 1999) (citation omitted). As discussed identified any Ramsey v. at final length agency Kantor, 96 above, action F.3d under the (9th 434 have Plaintiffs They cite APA. Cir. not 1996) for the proposition that NMFS's inaction can support a claim under NEPA. Pls.' Opp'n at 41-42. that NMFS' s council law. But the inaction at issue in Ramsey was failure to disapprove plans prepared by a resulted in the plans See Ramsey, 96 F.3d at regional issue attaining ·the 445. See NMFS' s failure at also force U.S.C. 16 of § 1854 (a) (3). In this case, result in any proposals Consequently, Int'l Ctr. 9 (D.D.C. an EIS or plans under 2006) an to attaining NEPA is for Tech. Assessment v. decision not rather, by contrast, not to act did not the force 421 F. law. See, e.g. , Supp. 2d 1, required. Thompson, of (finding NEPA inapplicable because "{t]he FDA's regulate GloFish is not an agency action, agency inaction" to which "no resources are but being committed"). In sum, Plaintiffs have failed to state a claim under NEPA because Defendants have not taken any final -32- agency action that alters the substantive status quo constitutes or "irreversible and irretrievable commitment of resources' action that will affect the environment." Wyoming an to an Outdoor Council, 165 F.3d at 49. IV. CONCLUSION For shall be the foregoing granted. An reasons, Order Defendants' shall Motion accompany this to Dismiss Memorandum Opinion. ï½ ï½¾ï¼  September 30, 2014 Gladys Kess er United States District Judge Copies to: attorneys on record via ECF -33-

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