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Anglers Conservation Network v. Pritzker

United States District Court, D. Columbia.

September 30, 2014

ANGLERS CONSERVATION NETWORK, et al. Plaintiffs,
v.
PENNY PRITZKER, et al., Defendants

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[Copyrighted Material Omitted]

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For Anglers Conservation Network, Paul Eidman, Paul Eidman, Gateway Striper Club, Inc., Philip Lofgren, Plaintiffs: Erica A. Fuller, PRO HAC VICE, Ipswich, MA USA; Roger M. Fleming, PRO HAC VICE, EARTHJUSTICE, Hallowell, ME USA; Stephen Elston Roady , EARTHJUSTICE, Washington, DC USA.

For Penny Sue Pritzker, National Oceanic And Atmospheric Administration, National Marine Fisheries Service, Defendants: Travis James Annatoyn, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Environmental & Natural Resources Division, Washington, DC USA; John S. Most, DEPARTMENT OF JUSTICE, Land & Natural Resources Div., Washington, DC USA.

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MEMORANDUM OPINION

Gladys Kessler, United States District Judge.

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 1976 " 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, 341 U.S.App.D.C. 119 (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.

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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, 289 U.S.App.D.C. 323 (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 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)(1)(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 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

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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 Background[2]

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 the Town of Weymouth, Massachusetts. Compl. ¶ ¶ 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. ¶ 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 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, longfin squid, Illex squid, and butterfish. Compl. ¶ 56. It does not, however, currently include any protections for the river herring and the shad because they are not designated as " stocks" in the MSB fishery.[4]

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 2010, it began development of Amendment 14 to the MSB

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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. ¶ 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. ¶ 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. ¶ 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 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. ¶ ¶ 78-79; 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 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. ¶ 79.

On October 8, 2013, the Council met to consider Amendment 15. Id. ΒΆ 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 ...


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