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.

<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."

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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. <J[ 7 9.

On October 8, 2013, the Council met to consider Amendment

15. Id. <J[ 81. Although "37,000 comments were received in favor

of adding river herring and shad to the MSB FMP, and only one

(1) 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. Id. <J[<J[ 81, 83. 6 Plaintiffs allege that "NMFS

Regional Administrator Bullard cast the deciding vote to

terminate Amendment 15," and "advocated strongly against adding

river herring and.shad to the MSB FMP[.]" Id. <J[<J[ 82, 84.

After declining to proceed with immediate development of

Amendment 15, the Council decided to revisit the issue of the

river herring and shad in three years and, in the interim,

6

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.

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approved the creation of an "ad hoc interagency working group"

to study the issue. 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. <JI 101.

1. There Is no Basis for Judicial Review under the

MSA

Plaintiffs first contend that their claim in Count 1 is

directly reviewable under the MSA, which provides for judicial

review of "actions that are taken by the Secretary under

regulations which implement a fishery management plan" so long

as the "petition for such review is filed within 30 days after .

the action is published in the Federal Register [.]" 16

u.s.c. § 1855(f) (1)-(2) . 8

The lengthy and detailed factual allegations in the

Complaint make abundantly clear that the decision to postpone

any further development of Amendrri.~nt 15 was not an "action .

taken by the Secretary" within the meaning of Section 1855 {f),

8

The MSA also permits judicial review of "[r]egulations

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 Pls~' Opp'n at 24.

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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 it as a

defendant in this case. Pls.' Opp'n at 26. In fact, Plaintiffs

acknowledge that "the Council itself has no power" to create

legally binding rules or obligations. Id. at 27.

The Secretary, who does have the power to take legally

binding action and whose sole actions are reviewable under

Section 1855(f), never had occasion to act on Amendment 15

because it was never approved "by majority vote of the voting

members" of the Council or "transmit [ted] by the Council to

[her]." 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

-24-

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

-25-

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).

-28-

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

-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.

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.

-30-

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

-31-

'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

-32-

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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