UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAELS. FLAHERTY, et al.,
Plaintiffs,
v.
PENNY PRITZKER, in her Civil Action No. 11-660 (GK)
official capacity as Secretary:
of the Department of Commerce,:
et al.,
Defendants.
MEMORANDUM OPINION
In 2011, Plaintiffs Michael S. Flaherty, Captain Alan A.
Hastbacka, and the Ocean River Institute brought this suit
1
against Defendants Commerce Secretary Gary Locke, the National
Oceanic and Atmospheric Administration ("NOAA") , and the
National Marine Fisheries Services ( "NMFS") (collectively
"Defendants"). Plaintiffs alleged that Amendment 4 to the
Atlantic Herring Fishery Management Plan violated the Magnuson-
Stevens Fishery Conservation and Management Act ("MSA"), 16
U.S.C. §§ 1801-1884, the Administrative Procedure Act ("APA"), 5
U.S.C. §§ 701-706, and the National Environmental Policy Act
("NEPA"), 42 U.S.C. §§ 4321-4370.
1
Secretary Pritzker is substituted for Gary Locke pursuant to
Federal Rule of Civil Procedure 25(d).
This matter is presently before the Court on Plaintiffs'
Motion to Enforce August 2, 2012 Remedial Order Regarding
Amendment 4 to the Atlantic Herring Fishery Management Plan
[ Dkt. No. 62] . Upon consideration of the Motion, Opposition,
Reply, Motion Hearing held February 12, 2014, the entire record
herein, and for the reasons stated below, Plaintiffs' Motion to
Enforce is denied.
I . BACKGROUND 2
On April 1, 2011, Plaintiffs filed a Complaint challenging
Amendment 4 to the Atlantic Herring Fishery Management Plan
("FMP"), developed by the New England Fishery Management Council
(the "Council"). Flaherty v. Bryson, 850 F. Supp. 2d 38, 45
(D.D.C. 2012) ("Mem. Op.").
Plaintiffs' principal concern was for four species often
caught incidentally with Atlantic herring but not, as of the
filing of their Complaint, actively managed by the Atlantic
Herring FMP. These four species are collectively referred to as
"river herring": ( 1) blueback herring (Alosa aesti val is) , (2)
alewive (Alosa pseudoharengus), {3) American shad (Alosa
sapidissima), and (4) hickory shad (Alosa mediocris). Id. Like
Atlantic herring, river herring provide essential forage for
2
A complete statutory, factual, and procedural background may be
found at Flaherty v. Bryson, 850 F. Supp. 2d 38, 43-47 (D.D.C.
2012) .
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large fish and marrnnals, including cod, striped bass, bluefin
tuna, sharks, marine marrnnals, and seabirds. Id. The Atlantic
Herring FMP, as updated by Amendment 4, provides Annual Catch
Limits ("ACLs") and accountability measures ("AMs") for Atlantic
herring but not for river herring. Id. at 44-45.
On March 8, 2012, the Court issued a Memorandum Opinion
[Dkt. No. 31] granting in part and denying in part Plaintiffs'
Motion for Surrunary Judgment and granting in part and denying in
part Defendants' Motion for Surrunary Judgment. On August 2, 2012,
the Court issued a detailed Memorandum Order remanding the
action to Defendants and containing specific guidance, as well
as a timeline, for actions Defendants were to take, and
complete, within one year ("Remedial Order") [ Dkt. No. 41] . On
November 8, 2013, Defendants filed its Final Report on Remedial
Actions [Dkt. No. 60].
On November 22, 2013, Plaintiffs filed a Motion to Enforce
August 2, 2012 Remedial Order Regarding Amendment 4 to the
Atlantic Herring Fishery Management Plan [#62]. Defendants'
Opposition was filed Dec. 23, 2013 [#65], Plaintiffs' Reply was
filed January 10, 2014 [#70], and the Motion to Enforce is now
ripe.
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I I . STANDARD OF REVIEW
District courts have the authority to enforce the terms of
their mandates. See The Fund for Animals v. Norton, 390 F. Supp.
2d 12, 15 (D.D.C. 2005) ("At the outset, the Court notes that
district courts clearly have the authority to enforce the terms
of their mandates."). The exercise of this authority is
"particularly appropriate" when a case returns to a court on a
motion to enforce the terms of its mandate to an administrative
agency. See Int'l Ladies' Garment Workers' Union v. Donovan, 733
F.2d 920, 922 (D.C. Cir. 1984).
A motion to enforce should be granted if a "prevailing
plaintiff demonstrates that a defendant has not complied with a
judgment entered against it." Heartland Hosp. v. Thompson, 32 8
F. Supp. 2d 8, 11 (D.D.C. 2004). However, if a plaintiff "has
received all relief required by that prior judgment, the motion
to enforce is denied." Id.; see also Heartland Reg'l Med. Ctr.
v. Leavitt, 415 F.3d 24, 29 (D.C. Cir. 2005) ("Success on a
motion to enforc-e a judgment gets a plaintiff only 'the relief
to which [the plaintiff] is entitled under [its] original action
and the judgment entered therein.'") (quoting Watkins v.
Washington, 511 F.2d 404, 406 (D.C. Cir. 1975)).
In a case where a court has remanded an administrative
action to the agency for further explanation of a challenged
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rule, "the court will deny a motion to enforce judgment against
the agency if the agency adequately explains its reasons for
adopting the rule." Thompson, 328 F. Supp. 2d at 11.
III. ANALYSIS
In its Memorandum Opinion, the Court held that Defendants
violated (1) the MSA and APA by failing to "reasonably and
rationally consider [] whether Amendment 4' s definition of the
fishery complied with the [MSA' s] National Standards and with
the MSA' s directive that FMPs be generated for any fisheries
requiring conservation and management"; (2) the MSA and APA by
approving Amendment 4 "without addressing the minimization of
bycatch to the extent practicable"; and (3) NEPA by failing to
consider the environmental impacts of reasonable alternatives in
its Environmental Assessment. Mem. Op. at 56, 59, 71-73.
In its Remedial Order, the Court ordered Defendants to take
several specific steps to remedy these procedural failures.
Plaintiffs argue that Defendants have failed to comply with the
Court's Remedial Order in three ways. The Court disagrees and
·finds that Defendants have complied with each of the
requirements set forth in the Remedial Order.
First, Plaintiffs argue that Defendants failed to
meaningfully consider whether river herring should be added as a
stock to the Atlantic Herring FMP. The Remedial Order required
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Defendants to consider whether Amendment 4' s definition of the
fishery complied with the MSA and file a supplemental
explanation describing its considerations in detail. Remedial
Order at 10-11. Defendants filed an explanation on August 31,
2012, in which they concluded that the Council's determination
was reasonable and complied with the MSA [Dkt. No. 42-1].
In addition, the Remedial Order required Defendants to send
a letter to the Council "explaining the abplicable law and
National Standard 1 Guidelines relating to determining the
stocks to be included in a fishery . and recommending that
the Council consider, in an amendment to the Atlantic Herring
FMP, whether 'river herring' should be designated as a stock in
the fishery." Remedial Order at 11. Defendants sent such a
letter to the Council on August 31, 2012, recommending that the
Council consider whether river herring should be designated as a
"stock in the fishery." Letter from John K. Bullard, Northeast
Regional Administrator of the National Marine Fisheries Service
to C. M. "Rip" Cunningham, Chairman of the New England Fishery
Management Council at 1-3 ("Letter to Council") [Dkt. No. 42-2]. 3
3
The Court notes that, on August 29, 2013, Defendants sent an
additional letter to the Council reiterating its recommendations
and "strongly urg [ing]" the Council to develop an amendment to
consider river herring and shad as stocks in the herring
fishery, among other things. Letter from John K. Bullard,
Northeast Regional Administrator of the National Marine
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Second, Plaintiffs argue that Defendants failed to consider
a reasonable range of alternatives to the interim Atlantic
Herring Acceptable Biological Catch ("ABC") control rule,
including at least one based on the best available science.
Defendants were ordered to recommend that the Council address
reasonable alternatives to a variety of issues, including the
ABC control rules, when it completed its NEPA analysis for the
Final Rule entitled Fisheries of the Northeastern United States;
Atlantic Herring Fishery; Framework Adjustment 2 and
Specifications. 78 Fed. Reg. 61828-61838 (Oct. 4, 2013) ("2013-
2015 Specifications"). Remedial Order at 12. Defendants were
also ordered to file a completed NEPA analysis for the 2013-2015
Specifications as part of their Final Remedial Report. Remedial
Order at 13.
In its letter to the Council, Defendants recommended that
the Council consider alternative ABC control rules in the NEPA
analysis for the 2013-2015 Specifications. Letter to Council at
3-4. The Council considered two alternatives to the ABC Control
Rule in the Environmental Assessment it prepared for the 2013-
2 015 Specifications, and Defendants attached that analysis to
its Final Remedial Report as required. Environmental Assessment
Fisheries Service to Ernest F. Stockwell, I II, Acting Chairman
of the New England Fishery Management Council at 1-2 [Dkt. No.
60-9].
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for Framework Adjustment 2 to the Atlantic Herring Fishery
Management Plan and Proposed Atlantic Herring Fishery
Specifications for the 2013-2015 Fishing Years at 15-21, 30-33,
35-46 (Sept. 24, 2013) [Dkt. No. 60-3].
Third, Plaintiffs argue that Defendants failed to take
measures necessary to minimize bycatch of river herring to the
extent practicable. The Remedial Order required Defendants to
"consider whether the Atlantic herring FMP minimizes bycatch to
the extent practicable under National Standard 9" and file a
supplemental explanation setting forth its considerations in
detail. Remedial Order at 12. Defendants filed a lengthy
memorandum with the Court on November 8, 2013, concluding that
the Atlantic Herring FMP minimizes bycatch and bycatch mortality
to the extent practicable consistent with the MSA' s National
Standard 9 Requirement [Dkt. No. 60-8] . 4
Plaintiffs do not deny that Defendants have completed the
various actions they were ordered to perform. See Tr. of Mot.
Hearing, Feb. 12, 2 014, at 15, 16. Rather, Plaintiffs insist
4
The memorandum addressed the FMP as amended by Amendment 5,
which will be effective March 17, 2014. Fisheries of the
Northeastern United States; Atlantic Herring Fishery; Amendment
~' 79 Fed. Reg. 8786-01 (Feb. 13, 2014) (to be codified at 50
C.F.R. pt. 648). Moreover, the Council has approved the river
herring and shad catch cap sought by Plaintiffs, and counsel for
Defendants represented that NMFS is acting with all due
diligence to review that measure. Tr. of Mot. Hearing, Feb. 12,
2014, at 36-37.
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that "Defendants still have not addressed these violations in
any substantive way." Pls.' Reply at 3-4; see also Tr. of Mot.
Hearing, Feb. 12, 2014, at 17 (arguing that "the agency has
failed to remedy their substantive violations with the law, even
though they hit all the procedural requirements"). This argument
fails to recognize the limits on this Court's authority as well
as the respective roles of the executive and judicial branches
of our government.
Our Court of Appeals has made clear that "[w]hen a district
court reverses agency action and determines that the agency
acted unlawfully, the appropriate course is simply to
identify a legal error and then remand to the agency, because
the role of the district court in such situations is to act as
an appellate tribunal." N. Air Cargo v. Postal Serv., 67 4 F. 3d
852, 861 (D.C. Cir. 2012) (citing PPG Indus., Inc. v. United
States, 52 F.3d 363, 365 (D.C. Cir. 1995). Indeed, to order the
agency to take specific actions is reversible error. See Cty. of
Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999) (noting
that district court erred when it devised a "specific remedy for
the Secretary to follow" instead of remanding to the agency for
examination of the evidence and proper fact-finding) . Thus,
because the violations that the Court found were procedural, the
remedies the Court granted were also procedural. See id.
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(concluding that appropriate remedy in APA case was remand); ~
Carolina Fisheries Ass'n, Inc. v. Gutierrez, 518 F. Supp. 2d 62,
103 (D.D.C. 2007) (observing that MSA incorporates APA); Sierra
Club v. Army Corps of Engineers, 701 F.2d 1011, 1029 (2d Cir.
1983) (noting that the "judicially reviewable duties that are
imposed on the agencies [by NEPA] are essentially procedural")
(internal quotation marks and citation omitted).
For these reasons, the Court rejected Plaintiffs' original
request for injunctive relief and remanded Amendment 4 to the
agency for "reconsideration and action consistent with" the
Memorandum Opinion and Order. Remedial Order at 10; see also id.
at 7 - 9 ( r 9 :i-@c-t.i-ng P-~a-i-H-t-i-f-:&s-'- - Fe~Hes-t- ~G±' -iH-j-Hnct.i-GH -and- -nGt i-ng--
that "the typical relief for a successful challenge to agency
decisionmaking is a remand rather than an injunction") . Thus,
this Court has already found that Plaintiffs are not entitled to
the specific remedial relief they now seek.
Plaintiffs insist that this Court did order Defendants to
take specific steps when it ordered Defendants to take
"reconsideration and action consistent with" the Court's Opinion
and Order. Pls. Reply at 2 (quoting Remedial Order at 10)
(emphasis in original); Tr. of Mot. Hearing, Feb. 12, 2014, at
15. This argument reads too much into the word "action." In a
similar case, the district court remanded a rule to the
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Department of Health and Human Services ("HHS") for "action
consistent with the foregoing opinion" after finding that the
Secretary had failed to consider reasonable alternatives to the
rule. Thompson, 328 F. Supp. 2d at 10. The plaintiff filed a
motion to enforce the judgment, arguing that the "action"
language indicated that the court intended to grant Plaintiff a
particular substantive result. Id.
The district court rejected that interpretation. Noting
that the rule had been'remanded because the Secretary had failed
to consider certain alternatives, it held that all that was
required on remand was that it reconsider those alternatives.
Id. at 13. Since HHS had done so, the court den~ed plaintiff's
motion to enforce. Id. at 15; see also Leavitt, 415 F.3d at 28
("The only obligation [the court] expressly imposed on the
agency was to consider the two alternatives suggested during the
comment period. That is precisely what the agency did.").
Similarly here, the Court identified various procedural
violations committed by Defendants. Mem. Op. at 56, 59, 71-73
(finding that Defendants failed to consider whether the
definition of the fishery complied with the MSA, failed to
consider the environmental impacts of reasonable alternatives in
its Environmental Assessment, and failed to address whether the
FMP minimized bycatch to the extent practicable) . Defendants
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have now considered and addressed each of those issues. Thus,
Plaintiffs have obtained all of the relief to which they are
entitled and the motion to enforce is denied. 5 See Thompson, 238
F. Supp. 2d at 9 ("If the plaintiff has received all relief
required by that prior judgment, the motion to enforce is
denied") .
This does not mean, however, that the agency's recent
actions are invulnerable from review. As our Court of Appeals
has repeatedly observed, Plaintiffs are free to "attack on a
ground other than the agency's failure to consider reasonable
alternatives for example, on the ground that the agency
arbitrarily rejected those alternatives." See Leavitt, 415 F. 3d
at 28; see also Bennett v. Donovan, 703 F.3d 582, 589 (D.C. Cir.
5
Given that Defendants have fully complied with the Court's
Remedial Order, the Court concludes that Amendment 4 is not
vacated. In considering whether to vacate a flawed agency
action, the law of this circuit requires a district court to
consider two factors: 1) the seriousness of the deficiencies,
measured by how likely it is the agency can justify its decision
on remand; and 2) the "disruptive consequences" of vacatur. See
Allied-Signal, Inc. v. Nuclear Regulatory Comm'n, 988 F.2d 146,
150-51 (D.C. Cir. 1993). When this Court originally considered
these factors, it concluded that vacatur should be suspended for
one year, "providing Defendants a window of time within which to
remedy their violations without interrupting the operation of
Amendment 4." Remedial Order at 5-6. Defendants have now
remedied those violations, and thus there is no longer any need
for vacatur. Thus, Amendment 4 remains intact, and Defendants'
Motion for Clarification or, In the Alternative, to Reinstate
the Stay of Vacatur of Amendment 4 Pending Resolution of
Plaintiffs' Motion to Enforce [Dkt. No. 82] is denied as moot.
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2013) (noting that plaintiff dissatisfied with an agency remedy
"would always have the option to seek review on the ground that
[the agency's] actions were 'arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law'") (quoting
5 U.S.C. § 706(2) (A)). Indeed, Plaintiffs have raised such
claims in their Supplemental Complaint [Dkt. No. 67], and those
claims will be addressed in the coming months. See Order of Jan.
27, 2014 [Dkt. No. 78] (setting briefing schedule).
IV. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion to Enforce
August 2, 2012 Remedial Order Regarding Amendment 4 to the
Atlantic Herring Fishery Management Plan [Dkt. No. 62] is denied
and Defendants' Motion for Clarification or, In the Alternative,
to Reinstate the Stay of Vacatur of Amendment 4 Pending
Resolution of Plaintiffs' Motion to Enforce [Dkt. No. 82] is
denied as moot.
An Order shall accompany this Memorandum Opinion.
February 19, 2014 Gladys Kes er
United States District Judge
Copies to: attorneys on record via ECF
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