UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARTHA'S VINEYARDIDUKES )
COUNTY FISHERMEN'S )
ASSOCIATION )
)
and ) Civil Case No. 10-1580 (RJL)
)
MICHAEL S. FLAHERTY, )
)
Plaintiffs, )
)
v. )
)
GARY LOCKE, in his official capacity )
as Secretary of the Department of )
Commerce, et al. )
)
Defendants. )
MEMORANDU OPINION
(September ,2011) [#25]
Plaintiffs Martha's VineyardlDukes County Fishermen's Association ("the
Association") and Michael S. Flaherty (collectively "plaintiffs") brought an action
challenging the management of river herring and shad along the East Coast of the United
States against two sets of defendants: (1) United States Secretary of Commerce Gary
Locke, the National Oceanic and Atmospheric Administration ("NOAA"), and the
National Marine Fisheries Service ("NMFS" or "Fisheries Service") (collectively,
"Federal defendants"); and (2) the Atlantic States Marine Fisheries Commission
("ASMFC"), along with individual citizens acting in their official capacity as
Commissioners of the ASMFC (collectively, "State defendants"). Plaintiffs allege that
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the Federal defendants' actions and failures to act, which they contend have caused the
populations of river herring and shad to decline, violated the Magnuson-Stevens Fishery
Conservation and Management Act ("Magnuson-Stevens Act"), the Administration
Procedure Act ("AP A"), and the Atlantic Coastal Fisheries Cooperative Management Act
("Atlantic Coastal Fisheries Act"). The Federal defendants have moved to dismiss
plaintiffs' complaint. After due consideration of the law and pleadings, the Federal
defendants' Motion to Dismiss is GRANTED.
BACKGROUND
1. Statutory Background
A. The Magnuson-Stevens Act
The Magnuson-Stevens Act was enacted in 1976, Pub. L. 94-265, 90 Stat. 331, as
amended, 16 U.S.C. §§ 1801-1883, "to take immediate action to conserve and manage
the fishery resources found off the coasts of the United States" and "to promote domestic
commercial and recreational fishing under sound conservation and management
principles." 16 U.S.C. §§ 1801(b)(l), (3). The Act created eight independent regional
Fishery Management Councils ("Councils") "to exercise sound judgment in the
stewardship of fishery resources." Id. § 1801 (b )(5), 1852(a). "Each Council is granted
authority over a specific geographic region and is composed of members who represent
the interests of the states included in that region." C&W Fish Co. v. Fox, 931 F.2d 1556,
1557-58 (D.C. Cir. 1991) (citing 16 U.S.C. § 1852).
Under the statute, the Councils are required to prepare a fishery management plan
("FMP") for each fishery that requires conservation and management. 16 U.S.C. §§
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1851-1854. NMFS, a federal agency and a division of NOAA and the Department of
Commerce, reviews and approves the proposed FMPs to ensure they are consistent with
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the ten national standards set forth in the Magnuson-Stevens Act. Id. If the appropriate
Council fails to develop a FMP with respect to any fishery, the Secretary of Commerce
may prepare a FMP ("Secretarial FMP") with respect to such fishery. Id. § 1854(c).
Further, if the Secretary "finds that an emergency exists or that interim measures are
needed to reduce overfishing for any fishery, he may promulgate emergency regulations
or interim measures necessary to address the emergency or overfishing, without regard to
whether a fishery management plan exists for such fishery." Id. § 1855(c)(1).
B. The Atlantic Coastal Fisheries Act
In 1993, Congress adopted the Atlantic Coastal Fisheries Act, 16 U.S.C. §§ 5101-
5108, "to support and encourage the development, implementation, and enforcement of
effective interstate conservation and management of the Atlantic coastal fishery
resources." 16 U.S.C. § 5101(b). Congress enacted this statute in response to concerns
regarding "disparate, inconsistent, and intermittent State and Federal regulation that has
been detrimental to the conservation and sustainable use" of coastal fishery resources. Id.
§ 510l(a)(3). Congress sought to promote the conservation of "[c]oastal fishery
1 NOAA is an agency of the Department of Commerce, which delegated to NOAA
supervisory responsibility for NMFS. CompI. ~ 13. NOAA, in tum, delegated to NMFS
the responsibility to review FMPs. Id. ~ 14. Plaintiffs raise claims related to three of the
ten national standards-Standards One, Two, and Nine. The three relevant national
standards provide that conservation and management measures shall "prevent overfishing
while achieving, on a continuing basis, optimum yield" (Standard One); "be based on the
best scientific information available" (Standard Two); and "to the extent practicable, (a)
minimize bycatch and (b) to the extent bycatch cannot be avoided, minimize the mortality
of such bycatch" (Standard Nine). 16 U.S.C. §§ 1851(1), (2), (9).
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resources that migrate, or are widely distributed, across the jurisdictional boundaries of
two or more of the Atlantic States and of the Federal Government." ld. § 5101(a)(l).
The Atlantic Coastal Fisheries Act clearly defines the responsibilities of the States
and Federal government. Under the Act, the "responsibility for managing Atlantic
coastal fisheries rests with the States, which carry out a cooperative program of fishery
oversight and management through the [ASMFC]." 16 U.S.C. § 5101(a)(4). "It is the
responsibility of the Federal Government to support such cooperative interstate
management of coastal fishery resources." ld. The ASMFC works jointly with the
Councils established under the Magnuson-Stevens Act to create coastal fishery
management plans (also called an "interstate FMP" or "IFMP") complementary to those
prepared by the Councils regulating the same species in federal waters. See id. §
51 04(a)(l). In the absence of a FMP created by the Councils, and after consultation with
the Councils, "the Secretary may implement regulations to govern fishing in the
exclusive economic zone [of the United States]" that are compatible with an IFMP and
consistent with the national standards set forth in the Magnuson-Stevens Act. ld. §
5103(b).
ll. Factual Background
Plaintiff Martha's Vineyard/Dukes County Fishermen's Association is comprised
of fishermen and "other active participants in local, state, regional and federal fisheries
management, with direct interests in maintaining abundant populations of river herring
and shad." Amended Complaint ("Compl.") ~ 10. River herring and shad are
anadromous species of herring that are born in fresh water and then migrate to the ocean
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before returning to the fresh water where they were born in the spring and early summer
to spawn. 2 Id.,-r,-r 10,20. The Association has observed a "drastic decline" in the number
of river herring that return to Dukes County. Id.,-r 10. River herring and shad often swim
in mixed-stock schools of fish, including Atlantic herring or mackerel. Id.,-r,-r 10, 32.
Industrial mid-water trawlers who use small mesh nets to target other species, such as the
Atlantic herring or mackerel, regularly catch as bycatch river herring and shad, which are
discarded dead at sea. Id.,-r 33. Plaintiffs contend the decline correlates to the increase of
mid-water trawling for herring and mackerel. Id.,-r 10. The Association and its members
rely upon the river herring and shad as part of their economic base. Id.
Michael Flaherty is a recreational fisherman from Massachusetts, and is a former
Vice President of the Massachusetts Striped Bass Association. CompI.,-r 11. He has
been a recreational fisherman for over thirty-five years. Id. Striped bass is a species that
thrives when it consumes river herring. Id. In the past, Flaherty has fished for river
herring to use as bait or consume as food. Id. Previously, he was able to fish at his local
river herring run and was allowed to catch up to forty-eight fish per week. Id. Because
the Commonwealth of Massachusetts has banned the harvesting of river herring,
Flaherty's fishing days for them are over. Id.
Plaintiffs first filed this lawsuit on September 20, 2010, and they then filed an
amended complaint on December 13,2010. On January 14,2010, the Federal defendants
2 "River herring" is the collective term for two species of fish-the alewife and the
blueback herring-because the two species are difficult to distinguish from each other
and are managed as a single stock. CompI.,-r 17. Similarly, "shad" is the collective term
for two species of fish-the American shad and the hickory shad. CompI.,-r 19.
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filed a motion to dismiss Counts One and Two of plaintiffs' amended complaint. For the
following reasons, the Federal defendants' motion is GRANTED.
STANDARD OF REVIEW
A court may dismiss a complaint, or any portion of it, that does not fall within the
court's subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Where a motion to dismiss
under Rule 12(b)(I) makes a facial attack on the complaint, the reviewing court "must
accept as true all material allegations on the complaint, and must construe the complaint
in favor of the complaining party." Ord v. District of Columbia, 587 F.3d 1136, 1140
(D.C. Circuit 2009) (internal citation and quotation marks omitted). "Under Rule
12(b)( 1), the plaintiff bears the burden of establishing that the court has jurisdiction."
Grand Lodge of Fraternal Order ofPolice v. Ashcroft, 185 F. Supp. 2d 9,13 (D.D.C.
2001).
A court may also dismiss a complaint, or any portion of it, for failure to state a
claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In considering a
motion to dismiss, however, the court may only consider "the facts alleged in the
complaint, any documents either attached to or incorporated in the complaint and matters
of which [the court] may take judicial notice." E.E.o.c. v. Sf. Francis Xavier Parochial
Sch., 117 F.3d 621,624 (D.C. Cir. 1997). To survive a motion to dismiss, a complainant
must "plead [ ] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ---U.S.---, 129 S.
Ct. 1937, 1949 (2009). In evaluating a Rule 12(b)(6) motion, the court construes the
complaint "in favor of the plaintiff, who must be granted the benefit of all inferences that
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can be derived from the facts alleged." Schuler v. United States, 617 F .2d 605, 608 (D.C.
Cir. 1979) (internal quotation marks omitted). However, factual allegations, even though
assumed to be true, must still "be enough to raise a right to relief above the speculative
level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the court "need
not accept inferences drawn by plaintiffI] if such inferences are unsupported by the facts
set out in the complaint. Nor must the court accept legal conclusions cast in the form of
factual allegations." Kowal v. MC] Commc 'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994 ).
LEGAL ANALYSIS
Plaintiffs make several allegations against the Federal defendants. In their first
claim, plaintiffs allege that: (1) the NMFS violated the Magnuson-Stevens Act by failing
to prepare or implement a FMP for river herring and shad that contains measures that
prevent overfishing and minimize or avoid bycatch, as well as by failing to monitor the
fisheries that kill river herring, see CompI. ~ 108; and (2) the Secretary violated the
Magnuson-Stevens Act by failing to use his emergency authority under 16 U.S.C. §
1855(c) to enact regulations to prevent overfishing, see Compi. ~ 110. In their second
claim, plaintiffs allege that the Federal defendants violated the Atlantic Coastal Fisheries
Act and the APA by failing to: (1) enact regulations in the EEZ for river herring and
shad, see Compl. ~ 116; and (2) support the ASMFC and state coastal fisheries programs
to address bycatch of river herring in federal fisheries, see Compl. ~ 117.
The Federal defendants contend that this court lacks jurisdiction over plaintiffs'
first and second claims for relief because the claims are time-barred under the Magnuson-
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Stevens Act. Defs.' Mot. to Dismiss ("Defs.' Mot.") at 8, Jan. 14, 2011. Specifically, the
Federal defendants contend that plaintiffs failed to file their lawsuits within thirty-days of
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the promulgation of the challenged rules, as required under the Magnuson-Stevens Act.
Defs.' Mot. at 8. The Magnuson-Stevens Act provides that regulations promulgated by
the Secretary under the Act shall be subject to judicial review if challenged "within 30
days after the date on which the regulations are promulgated or the action is published in
the Federal Register, as applicable." 16 U.S.C. § 1855(0(1).
Although plaintiffs do not invoke the judicial review provision of the Magnuson-
Stevens Act, it is clear from the face of the Complaint that their allegations, in substance,
are challenges to the existing FMPs for Atlantic herring, squid, mackerel, and butterfish
fisheries, where river herring and shad are caught.4 At the heart of plaintiffs' argument is
their contention that the Federal defendants have failed to address minimizing bycatch
and preventing overfishing of river herring and shad in their implementation of these
FMPs for the Atlantic herring, squid, mackerel, and butterfish fisheries. 5 See Compl. ,-r 4
3 The final rules implementing the most recent amendments to the FMPs for Atlantic
herring and squid, mackerel and butterfish were published on: January 28, 2008 (Atlantic
herring) and March 11,2010 (squid, mackerel, and butterfish).
4 As other circuits have held,
Invocation of the magic words, "the Magnuson Act," is not a predicate to
application of § 185 5( 0 if the substance of the challenge is to the
regulations themselves. Notably, § 1855(0 does not state that challenges
"under the Magnuson Act" must be brought within thirty days, but instead
that judicial review of "[rJ egulations promulgated by the Secretary under
the [Magnuson Act]" must brought within the stated time limit.
Turtle Island Restoration Network v. Us. Dep't o/Commerce, 438 F.3d 937,944 (9 th Cir.
2006).
5 National Standard One provides that the requirement for Annual Catch Limits ("ACLs")
in a FMP applies to all stock in a fishery, including non-target species caught as bycatch.
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(F ederaI defendants have "failed to manage river herring and shad as stocks in any other
FMPs including Atlantic herring and mackerel (the Atlantic herring FMP and the Squid
Mackerel Butterfish FMP)."); id. ~ lO ("Because river herring often swim in schools
where they mix with Atlantic herring or mackerel, midwater trawl fishing vessels have
the potential to wipe out an entire river's herring run by netting all of the school that
make up a single run in the ocean."); id. ~ 23 (In the ocean, [river herring and shad] are
killed in vast numbers as bycatch in directed fisheries for other fish - including
particularly as bycatch in trawl fisheries for Atlantic herring and mackerel); id. ~ 34
("Bycatch in these fisheries is poorly monitored, reported, and regulated."); id. ~ 36
("Bycatch of river herring in the New England Atlantic herring fishery alone can equal or
exceed all directed fishery landings, contributing 50% or more to the total known fishing
morality."); id. ~ 86 ("There is no federal FMP for shad and river herring, and the
Fisheries Service failed to adopt ACLs and [accountability measures] for river herring
and shad in other FMPs that regulate fisheries where the stocks are caught, landed and
sold (Atlantic herring fishery and Squid, Mackerel and Butterfish fishery)."); id. ~ 88
"Scientists on the [New England Fishery Management Council] Atlantic Herring Plan
Development Team have recognize[ d] that 'bycatch is the one impact on river herring
that is unmanaged and unmitigated. "'); id. ~ 90 (Councils "have adopted no species-
specific measures, such as a catch limit, in any federal FMPs for fisheries where river
herring and shad bycatch is occurring."); id. ~ 108 (The Fisheries Service's "failures
50 C.F.R. §§ 600.310(d)(2-4), 600.310(f)(2). The Magnuson-Stevens Act requires that
these ACLs be set at a level such that overfishing does not occur in the fishery. See 16
U.S.C. § 1853(a)(l5).
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include a failure to monitor the fisheries that kill river herring and shad."); id. , 110
("The Secretary also has failed to use his emergency authority under § 185 5(c) to enact
regulations to promulgate emergency regulations or interim measures to address the
emergency or overfishing occurring in the fisheries that kill river herring and shad."); id.
, 117 (The Federal defendants have failed "to address bycatch of river herring in federal
fisheries. "). Unfortunately for the plaintiffs, the regulations implementing the most
recent amendments to these FMPs were published over thirty-days prior to the filing of
this Complaint. The final rules implementing the most recent amendments to the FMPs
for Atlantic herring and squid, mackerel and butterfish were published on: January 28,
2008 (Atlantic herring) and March 11,2010 (squid, mackerel, and butterfish). Plaintiffs
filed their original complaint on September 20,2010. Plaintiffs have thus failed to file
their lawsuit within thirty-days of the publication of these regulations implementing those
FMPs and their most recent amendments.
Although plaintiffs also directly challenge the failure of the Federal defendants to
minimize bycatch and overfishing of the river herring and shad in these other fisheries,
plaintiffs attempt, through artful pleading, to avoid the limitations period of the
Magnuson-Stevens Act by also raising general allegations of "failure to manage" river
herring and shad under the Magnuson-Stevens Act and the Atlantic Coastal Fisheries
Act. 6 Compl." 39, 108. However, as other Circuit Courts have held, parties cannot
avoid this limitations period through careful pleading where, in substance, the parties are
6There is no federal FMP for river herring and shad. These species are managed by the
ASMFC's IFMP. Compl., 63.
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challenging existing regulations. See Turtle Island Restoration Network v. Us. Dep 't of
Commerce, 438 F.3d 937, 945 (9 th Cir. 2006); see also Sea Hawk Seafoods v. Locke, 568
F.3d 757, 765 (9th Cir. 2009). Plaintiffs' general allegations are inextricably intertwined
with grievances with respect to the Federal defendants' management of-specifically, the
FMPs for-the Atlantic herring, squid, mackerel, and butterfish fisheries. These
underlying challenges pertain to the Federal defendants' actions and inactions with
respect to those FMPs. Therefore, the Federal defendants' Motion to Dismiss is
GRANTED because plaintiffs' first and second claims are time-barred under the
Magnuson-Stevens Act. 7
7 Even assuming plaintiffs' general claims that the Federal defendants failed to
promulgate regulations pertaining to river herring and shad are separate from claims
relating to the FMPs of the other fisheries (such as the claims pertaining to the regulation
of bycatch in those fisheries), those claims are dismissed under Rule 12(b)(6) for failure
to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Plaintiffs
contend the that (1) NMFS failed to prepare an FMP for river herring and shad; (2) the
Secretary failed to use his emergency authority under 16 U.S.C. § 1855(c) to enact
regulations to prevent overfishing; and (3) the Federal defendants failed to enact
regulations in the EEZ for river herring and shad. See CompI. ~~ 108, 110, 116.
Although authorized to promulgate such regulations, the Federal defendants' power to do
so is discretionary. See 16 U.S.C. § 1854(c) ("The Secretary may prepare a fishery
management plan, with respect to any fishery ... if ... the appropriate Council fails to
develop and submit to the Secretary, after a reasonable period of time, a fishery
management plan for such fishery.") (emphasis added); 16 U.S.C. § 1855(c) ("If the
Secretary finds that an emergency exists or that interim measures are needed to reduce
overfishing for any fishery, he may promulgate emergency regulations or interim
measures necessary to address the emergency or overfishing, without regard to whether a
[FMP] exists for such fishery.") (emphasis added); 16 U.S.C. § 5103(b) ("In the absence
of an approved and implemented [FMP] under the [Magnuson-Stevens Act], and after
consultation with the appropriate Councils, the Secretary may implement regulations to
govern fishing in the exclusive economic zone.") (emphasis added). The Federal
defendants are in no way required to promulgate plaintiffs' requested regulations. Thus,
plaintiffs have failed to identify a discrete agency action that the Federal defendants were
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CONCLUSION
For the foregoing reasons, the Federal defendants' Motion to Dismiss, ECF No.
25, is GRANTED. An appropriate order will accompany this memorandum opinion.
legally required to take. See Compi. ,-r 6 (alleging that the court has jurisdiction pursuant
to the AP A); 5 U .S.C. § 706(1). Therefore, these claims must be dismissed.
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