United States District Court, District of Columbia
MICHAEL S. FLAHERTY et al., Plaintiffs,
v.
WILBUR ROSS et al., Defendants.
MEMORANDUM OPINION
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
Plaintiffs
Michael Flaherty, Captain Alan Hastbacka, and the Ocean River
Institute filed their initial complaint in 2011. They sued
the Secretary of Commerce, the National Oceanic and
Atmospheric Administration, and the National Marine Fisheries
Service (“the Service”), alleging that Defendants
violated the Magnuson-Stevens Act and the Administrative
Procedure Act in amending a federal fishery management plan
covering the Atlantic herring fishery in the northeastern
United States.
Over
the course of the litigation, including multiple rulings from
this Court, Plaintiffs have several times amended or
supplemented their complaint, updating their challenges to
reflect Defendants' subsequent amendments to the plan.
Perhaps frustrated with what they perceived as an inability
to compel the specific changes to the plan they seek,
Plaintiffs most recently amended their complaint to include
two claims. They assert those claims-Count II and Count
III-directly against the New England Fishery Management
Council (“the Council”), the body that developed
the plan at issue and proposed it to Defendants. But
Plaintiffs face an ultimately fatal obstacle: the Council is
not an “agency” as that term is defined under the
Administrative Procedure Act. And Defendants, along with the
Sustainable Fisheries Coalition
(“Defendant-Intervenor”), which intervened as a
defendant, have filed motions to dismiss Counts II and III on
that basis, among others. Because the Court holds that the
Council is not an “agency” as defined under the
Administrative Procedure Act, the Court lacks jurisdiction
over Plaintiffs' claims against it and Counts II and III
must be dismissed. Accordingly, and for the reasons explained
below, the motions will be granted.
I.
Factual and Procedural Background
A.
The Magnuson-Stevens Act
Congress
enacted the Magnuson-Stevens Fishery Conservation and
Management Act (the “MSA” or “Act”),
16 U.S.C. § 1801 et seq., in 1976 to conserve
and manage the Nation's fishery resources. The Act
establishes a “national program for the conservation
and management of those resources with the aim to
“prevent overfishing, to rebuild overfished stocks, to
insure conservation, to facilitate long-term protection of
essential fish habitats, and to realize the full potential of
the Nation's fishery resources.” Id.
§ 1801(a)(6). Congress nominally placed this program and
its attendant responsibilities under the authority of the
Secretary of Commerce, but in practice the Secretary
delegates that authority to the Service, a sub-agency of the
National Oceanic and Atmospheric Administration. See NRDC
v. Nat'l Marine Fisheries Serv., 71
F.Supp.3d 35, 40 (D.D.C 2014).
A key
feature of the MSA's conservation and management program
are its “fishery management plans” (FMPs), which
are designed to “achieve and maintain, on a continuing
basis, the optimum yield from each fishery.” 16 U.S.C.
§ 1801(b)(4). The Act defines a “fishery” 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,
recreational, and economic characteristics, ” as well
as “any fishing for such stocks.” Id.
§ 1802(13). A “stock of fish” is defined as
“a species, subspecies, geographical grouping, or other
category of fish capable of management as a unit.”
Id. § 1802(42). Each FMP must include the
“conservation and management measures”-e.g.,
catch quotas, restrictions on fishing technique and gear, and
other rules and regulations-“necessary and appropriate
for the conservation and management of the fishery, 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).
To
develop the FMPs, among other tasks, “[t]he Act
established eight regional Fishery Management Councils, each
of which has ‘authority over a specific geographic
region and is composed of members who represent the interests
of the states included in that region.” Anglers
Conservation Network v. Pritzker, 809 F.3d 664, 667
(D.C. Cir. 2016) (quoting C & W Fish Co., Inc. v.
Fox, 931 F.2d 1556, 1557-58 (D.C. Cir. 1991)). The
councils are “comprised of state and federal officials
from the region with ‘marine fishery management
responsibility and expertise,' as well as individuals
appointed by the Secretary of Commerce.” Oceana,
Inc. v. Locke, 831 F.Supp.2d 95, 100 (D.D.C. 2011)
(quoting 16 U.S.C. § 1852(b)). And the MSA provides that
“[e]ach Council shall, . . . for each fishery under its
authority that requires conservation and management, prepare
and submit to the Secretary (A) a fishery management plan,
and (B) amendments to each such plan that are necessary from
time to time.” 16 U.S.C. § 1852(h). As relevant
here, the Council oversees fisheries in the Atlantic Ocean
off the coast of Maine, New Hampshire, Massachusetts, Rhode
Island, and Connecticut. Id. § 1852(a)(1)(A).
The
Fishery Management Councils, however, “ha[ve] no
authority to promulgate federal rules.” Anglers
Conservation Network, 809 F.3d at 667 (citing Gen.
Category Scallop Fishermen v. Sec'y, U.S. Dep't of
Commerce, 635 F.3d 106, 112 n.15 (3d Cir. 2011)). Once a
Fishery Management Council develops a proposed FMP or
amendment to such a plan, it must then submit that proposal,
along with draft regulations it considers necessary to
implement the proposal, to the Secretary-in practice, the
Service-to review for consistency with the MSA's
requirements and other applicable law. See 16 U.S.C.
§§ 1852(h)(1), 1854(a)-(b). The Service must
publish the proposal in the Federal Register and facilitate a
notice-and-comment process, after which it must
“approve, disapprove, or partially approve [the
proposal].” Id. § 1854(a). The MSA
prescribes a similar procedure for the implementing
regulations. See Id. § 1854(b). “If, upon
completing this review, [the Service] approves the FMP or
amendment, a final rule and one or more implementing
regulations are published in the Federal Register.”
Oceana, 831 F.Supp.2d at 101 (citing 16 U.S.C. §
1854(b)(3)). That FMP, as incorporated into a final rule, and
any accompanying regulations, are subject to judicial review
under the APA upon filing of a petition within 30 days of
promulgation. 16 U.S.C. § 1855(f)(1).
B.
The Atlantic Herring Fishery Management Plan
The FMP
at issue here protects and manages Atlantic herring. See
Flaherty v. Bryson, 850 F.Supp.2d 38, 45 (D.D.C. 2012)
(“Flaherty I”).[1] That plan (the “Herring
FMP”) first became effective in 2001, and since then
the Council and the Service have periodically updated the
Herring FMP with amendments, some of which have been
addressed by this Court over the course of this lawsuit.
See Flaherty v. Pritzker, 195 F.Supp.3d 136, 141-43
(D.D.C. 2016) (“Flaherty II”) (discussing the
factual and procedural history of this case). Atlantic
herring are primarily harvested by trawler vessels, which
drag nets behind them to collect the herring and, typically,
ensnare other fish and marine wildlife as well. See
Flaherty I, 850 F.Supp.2d at 45.
Plaintiffs
are particularly concerned with two species of fish-river
herring and shad- that they allege are “inextricably
involved” with the Atlantic herring fishery and are
harvested by vessels and incidentally caught as bycatch by
vessels fishing for Atlantic herring. See ECF No. 158
(“3d Am. Compl.”) ¶¶ 71-77; Flaherty I,
850 F.Supp.2d at 45-47. Neither river herring nor shad have
been designated as a “stock” within the Atlantic
herring fishery such that they would be directly subject to
annual catch limits and other conservation and management
measures under the Herring FMP. Flaherty I, 850 F.Supp.2d at
50-51. Throughout this action, Plaintiffs have insisted that
not including them violates the MSA. Id. at 50-56;
3d Am. Compl. ¶¶ 82, 107-147 (Counts I-III).
C.
Procedural History
Plaintiffs
commenced this action in April 2011, filing a complaint that
challenged the Service's final rule adopting an
amendment-“Amendment 4”-to the Herring FMP. See
ECF No. 1. Among other claims, the complaint alleged that the
Herring FMP did not comply with the requirements of the MSA
and other applicable law because it failed to include river
herring and shad as “stocks” in the fishery.
Id. ¶¶ 70-82. On March 9, 2012, this Court
found that the Service had failed to adequately review the
proposal not to include those stocks and granted summary
judgment to Plaintiffs on that question. Flaherty I, 850
F.Supp.2d at 56. The Court later entered a remedial order
that, among other things, remanded Amendment 4 to the Service
for reconsideration and required the Service to send a letter
to the Council “recommending that the Council consider
. . . whether ‘river herring [and shad]' should be
designated as a stock in the fishery” based on certain
information and materials identified by the Court. See ECF
No. 41 at 10-12.
On
August 31, 2012, the Service filed a supplemental letter to
the Court explaining that, upon reconsideration, the Service
concluded that Amendment 4 complied with applicable law. See
ECF No. 42-1. On November 22, 2013, Plaintiffs moved to
enforce the remedial order, arguing that the Service, in
reconsidering Amendment 4, violated the Court's
instructions. ECF No. 62. While that motion was pending,
Defendant-Intervenor filed an unopposed motion to intervene,
which the Court granted. See ECF Nos. 76, 85. On February 19,
2014, after briefing and a hearing, the Court denied
Plaintiffs' motion to enforce. See Flaherty v.
Pritzker, 17 F.Supp.3d 52, 54 (D.D.C 2014)
(“Flaherty III”).
While
those matters were proceeding, the Council developed
Amendment 5 to the Herring FMP, in which it again did not
designate river herring or shad as “stocks” in
the fishery. The Service approved the proposal and published
a final rule implementing Amendment 5 on February 13, 2014.
See Fisheries of the Northeastern United States; Atlantic
Herring Fishery; Amendment 5, 79 Fed. Reg. 8786, 8796 (Feb.
13, 2014). Plaintiffs, with the Court's leave, filed a
supplemental complaint challenging the implementation of
Amendment 5, see ECF No. 94, which Defendants answered, ECF
No. 108. Over the course of the next two years, the parties
filed periodic status reports updating the Court on efforts
by the Council and Service that might resolve the
parties' dispute, ...