Flaherty v. Ross

          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, ...