UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GULF RESTORATION NETWORK, :
INC., et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 09-1883 (GK)
:
NATIONAL MARINE FISHERIES, :
SERVICE, et al., :
:
Defendants. :
______________________________:
:
OCEAN CONSERVANCY, :
:
Plaintiff, :
:
v. : Civil Action No. 09-1884 (GK)
:
NATIONAL MARINE FISHERIES :
SERVICE, et al., :
:
Defendants. :
MEMORANDUM OPINION
Plaintiffs Gulf Restoration Network, Inc., Food & Water Watch,
and Ocean Conservancy (collectively, “Plaintiffs”) brought this
action against Defendant National Marine Fisheries Services
(“NMFS”), James W. Balsiger, National Oceanic and Atmospheric
Administration, and Gary Locke, United States Secretary of Commerce
(collectively, “Defendants”), alleging that the Fishery Management
Plan for Regulating Offshore Marine Aquaculture in the Gulf of
Mexico violates provisions of the Magnuson-Stevens Fishery and
Conservation Management Act and the National Environmental Policy
Act.
This matter is before the Court on Defendants’ Motion to
Dismiss [Dkt. No. 8] for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) and failure to state a claim for which
relief can be granted pursuant to Rule 12(b)(6). Upon
consideration of the Motions, Opposition, Reply, and the entire
record herein, and for the reasons stated below, NMFS’ Motion to
Dismiss is granted.
I. BACKGROUND
A. Statutory Background
Plaintiffs allege violations of 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-
4337 et seq., and the Administrative Procedure Act (“APA”) 5 U.S.C.
§ 702 et seq.
The Department of Commerce, through NMFS,1 regulates the
nation’s marine fisheries, pursuant to the MSA. The MSA
establishes eight Regional Fishery Management Councils composed of
federal officials, state officials, and private parties that are
appointed by the Secretary of Commerce. 16 U.S.C. § 1852. These
Councils are responsible for developing fishery management plans
1
NMFS is the agency within the Department of Commerce’s
National Oceanic and Atmospheric Administration (“NOAA”) to which
NOAA has delegated authority and stewardship duties of fisheries
management under the MSA. Compl. ¶¶ 9-10. The Secretary of
Commerce acts through the NMFS to implement fishery management
plans. Defs.’ Mot. at 4; 16 U.S.C. § 1855(d).
-2-
(“FMPs” or “Plans”) for fisheries in federal waters within the
United States Exclusive Economic Zone (“EEZ”), id. at § 1853, which
includes ocean water from three to two hundred miles offshore.
Once a Council has developed a Plan, the MSA requires that the
Secretary of Commerce review it. The Secretary must determine
whether the FMP comports with ten national standards provided for
in the MSA, as well as “any other applicable law.” Id. at §§ 1854,
1851 (setting forth national standards). Additionally, the
Secretary must “immediately publish in the Federal Register a
notice stating that the plan . . . is available and that written
information, views, or comments of interested persons on the plan
or amendment may be submitted to the Secretary during the 60-day
period beginning on the date the notice is published.” Id. at §
1854(a)(1)(B).
The MSA then instructs that the Secretary shall “approve,
disapprove, or partially approve a plan or amendment within 30 days
of the end of the comment period . . . by written notice to the
Council.” Id. at § 1854(a)(3). The Act also contemplates a
scenario where the Secretary does not approve or disapprove the
FMP: “If the Secretary does not notify a Council within 30 days of
the end of the comment period of the approval, disapproval, or
partial approval of a plan or amendment, then such plan or
amendment shall take effect as if approved.” Id. In other words,
-3-
if the Secretary fails to act, the FMP automatically becomes
effective.
At the same time the Council submits its FMP to the Secretary,
it also submits regulations for its implementation to the
Secretary. Id. at § 1853(c). The Secretary then must conduct a
review of the regulations which is similar to that conducted for
the Plan--i.e. determine consistency with national standards,
applicable law, and the FMP. Before the regulations become final,
the MSA requires that the “Secretary shall notify the Council in
writing of [any] inconsistencies and provide recommendations on
revisions that would make the proposed regulations consistent with
the fishery management plan, plan amendment, this chapter, and
other applicable law.” Id. at § 1854(b)(1)(B). Unlike the
procedure governing adoption of the FMP, the MSA contains no
provision that allows the regulations to take effect by operation
of law if the Secretary takes no action. See id. at § 1854(b)
B. Factual Background
One of the eight Councils, the Gulf of Mexico Fishery
Management Council (“Gulf Council”), drafted the FMP at issue in
this case to authorize commercial offshore aquaculture facilities
in the Gulf of Mexico’s EEZ. The Gulf Council approved the FMP on
January 27, 2009. Decl. of Kevin W. McCardle [Dkt. No. 9], Ex. 2
-4-
at 1.2 It sets forth a plan for a regional permitting process for
commercial offshore aquaculture in federal waters. Id. at 1-2.
The Council submitted its proposed regulations to NMFS with its FMP
on February 24, 2009. Id. at Cover. The comment period began the
day the notice was published, which was June 4, 2009, and closed
August 3, 2009.3 Id. NMFS had 30 days, or until September 2,
2009, id., to approve, partially approve, or disapprove the FMP by
written notice to the Council. 16 U.S.C. § 1854(a)(3).
Offshore aquaculture is the farming of aquatic animals in open
ocean areas, most often through the use of floating or submerged
net-pens or cages. McCardle Decl., Ex. 1 at 15. If the Council’s
FMP is implemented, an estimated five to 20 offshore aquaculture
operations would be permitted over the next ten years, with an
estimated annual production of up to 64 million pounds of fish.
Id. at 1. The Council cites an increase in demand for protein and
2
On September 23, 2009, Kevin W. McCardle, Department of
Justice counsel for Defendants, submitted a Declaration attaching
four exhibits. [Dkt. No. 9] Exhibit 1 contains excerpts from the
Aquaculture FMP. Exhibit 2 is a September 3, 2009, letter from
NMFS to the Gulf of Mexico Fishery Management Council. Exhibit 3
is a September 3, 2009, press release issued by Defendants.
Exhibit 4 is a list of “Frequently Asked Questions,” along with
answers to those questions, downloaded from Defendants’ website
(http://sero.nmfs.noaa.gov/sf/pdfs/Aquaculture%20FAQs%
202009-09.pdf). The Court will cite these documents as “McCardle
Decl., Ex. # at #.”
3
Food & Water Watch submitted comments on the FMP on August 3,
2009, and a joint comment with Gulf Restoration Network on July 31,
2009. Ocean Conservancy submitted comments on August 3, 2009.
-5-
seafood as the justification for this proposed change to
aquaculture from “commercial wild-capture fisheries [that] are
being fished at or above sustainable levels and are likely unable
to meet such growing demand.” Id.
The FMP submitted by the Gulf Council incorporated a
Programmatic Environmental Impact Statement (“PEIS”). The lengthy
document presented ten discrete actions that would comprise the
aquaculture plan. See id. at 25-101 (discussing, inter alia,
requirements for permits, applications, durations of the permits,
siting requirements, and recordkeeping and reporting). For each
proposed action, the FMP analyzed three management alternatives
that described how each action could be implemented. Id. at 10-14
(summarizing actions and alternatives). The relevant portions of
the Council’s preferred version of the FMP are summarized as
follows:
1. An aquaculture permit would be required for
conducting offshore marine aquaculture. Such a
permit would authorize the deployment and operation
of an offshore aquaculture facility and the sale of
allowable aquaculture species. Dealer permits are
required in order to receive cultured organisms and
are non-transferable. Aquaculture permits are
transferable (except under limited conditions) and
eligibility is limited to United States citizens
and permanent resident aliens.
2. Application and operational requirements, as well
as permit restrictions would be established. Some
application requirements include submitting an
application, providing general contact information,
descriptions of systems and equipment, site
location coordinates, and an emergency disaster
plan. Operational requirements include a use-it-
-6-
or-lose-it provision, documentation that broodstock
are marked or tagged at the hatchery, certification
that animals are pathogen free, and various
monitoring requirements. The use of drugs,
biologics, and pesticides must be in compliance
with federal agency regulations.
3. An aquaculture permit would be effective for ten
years and may be renewed in five-year increments.
4. The aquaculture of all species native to the Gulf
and those listed in the aquaculture fishery
management unit would be allowed, with the
exception of shrimp and corals.
McArdle Decl., Ex. 1 at 10-13.
Before a permit application is approved, a Regional
Administrator (“RA”) must review it and make a preliminary
determination as to whether it merits further consideration. See
id. at viii, 2. If so, notice of the application is published in
the Federal Register, along with notice of NOAA’s intent to grant
the permit. There is then a comment period of 15-45 days, during
which members of the public may testify at a Council meeting. The
applicant also has an opportunity to appear at a Council meeting.
When the public comment period ends, the RA notifies the applicant
of the decision to grant or deny the permit, provides reasons for
that decision, and publishes notice of approval or disapproval in
the Federal Register. Id. at 2.
Additionally, the EPA and Army Corps of Engineers (“Corps”)
have some responsibility over permitting offshore aquaculture. Id.
at 246, 251-52. In order to proceed with an aquaculture operation,
an applicant must obtain a permit for the construction of offshore
-7-
aquaculture facilities from the Corps, pursuant to the Rivers and
Harbor Act. See 33 U.S.C. § 403; id. at 246. Under the Clean
Water Act, 33 U.S.C. § 1328, the EPA has the authority to grant or
deny discharge permits for aquaculture operations. Both permitting
processes include a public notice and comment period. See McCardle
Decl., Ex. 1 at 251-52.
On September 3, 2009, the Fishery Management Plan for
Regulating Offshore Marine Aquaculture in the Gulf of Mexico [“the
FMP” or “the Aquaculture FMP”] took effect by operation of law.
Pursuant to § 1854(a) of the MSA, the Gulf Council submitted its
completed FMP and proposed regulations to NMFS for Secretarial
review. 16 U.S.C. § 1854(a). Upon receipt of the FMP, NMFS
immediately commenced review of the plan to determine if it was
consistent with the ten national standards for fishery conservation
and management, other provisions of the MSA, and any other
applicable law. Id. at § 1854(a)(1)(A).
As noted earlier, if NMFS decides to partially approve or
disapprove an FMP, it must follow the procedure outlined in §§
1854(a)(3)(A-C). In this case, NMFS took the “unprecedented
approach” of not following this process. McCardle Decl., Ex. 2 at
1. Instead it took no action, thereby invoking the MSA provision
that states:
If the Secretary [i.e. NMFS] does not notify a
Council within 30 days of the end of the
comment period of the approval, disapproval,
or partial approval of a plan or amendment,
-8-
then such plan or amendment shall take effect
as if approved.
16 U.S.C. § 1854(a)(3). Thus, the FMP took effect by operation of
law on September 3, 2009, as a result of the Secretary’s inaction.
On September 3, 2009, NMFS wrote a letter to the Council
explaining why it had not acted on the FMP within the 30-day
statutory period. NMFS explained that the scope of the FMP went
far beyond any aquaculture measures previously submitted and that
it raised “important issues of national policy regarding the manner
in which offshore aquaculture is regulated in the EEZ.” See
McCardle Decl., Ex. 2 at 1-2. Given the broad scope of the FMP,
NMFS advised the Council that “it was not prudent to take action on
the FMP in the absence of a comprehensive national policy” that
could foster the development of environmentally sound offshore
aquaculture operations. See id. NMFS explained:
As we develop a national policy, we will also
examine the Plan in the context of that
policy. If we determine the Plan is
inconsistent with that policy, we will
consider appropriate action, which could
include seeking amendment or withdrawal of the
[P]lan through the Magnuson-Stevens Act.Id.
That same day NMFS issued a press release publicly announcing
its intent to develop such a national policy and stated that
although the FMP had taken effect, regulations must be published
before permits could be issued. McCardle Decl., Ex. 3 at 1.B.
-9-
B. Procedural History
On October 2, 2009, Plaintiffs filed two similar lawsuits
alleging violations of the MSA, NEPA, and the APA. The Court
consolidated the two lawsuits on November 10, 2009. Order (Nov. 10,
2009)[Dkt. No. 6].
The Complaints allege four claims against NMFS. Claim One
alleges that NMFS’ failure to approve, disapprove, or partially
approve the Aquaculture FMP within 30 days, as provided for by 16
U.S.C. § 1854(a)(3), constitutes unlawfully withheld agency action
under the MSA and APA. Compl. ¶¶ 72-77. Claim Two alleges that
NMFS’ decision to allow the Aquaculture FMP to take effect under 16
U.S.C. § 1854(a)(3) was ultra vires under the MSA and APA. Id. ¶¶
78-82. Claims Three and Four allege that NMFS’ decision to allow
the Aquaculture FMP to take effect was unlawful because the FMP
violates substantive provisions of the MSA and procedural
requirements of NEPA.4 Id. ¶¶ 83-88; 89-96. Plaintiffs seek
declaratory and injunctive relief.
On November 23, 2009, Defendants filed a Motion to Dismiss
Plaintiffs’ Complaints for lack of subject matter jurisdiction
4
NEPA requires federal agencies to fully consider and disclose
the environmental consequences of an agency action. 42 U.S.C. §
4332(2)(c). NEPA requires that an agency prepare an environmental
impact statement (“EIS”) for major federal actions that
significantly affect the quality of the human environment. Id.
“Other statutes may impose substantive environmental obligations on
federal agencies, . . . but NEPA merely prohibits uninformed--
rather than unwise--agency action.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 351 (1989).
-10-
pursuant to Rule 12(b)(1), and, in addition or in the alternative,
for failure to state a claim for which relief can be granted
pursuant to Rule 12(b)(6). Defs.’ Mot. at 1. Defendants argue
that Plaintiffs’ Complaints should be dismissed because (1)
Plaintiffs lack Article III standing; (2) Plaintiffs’ claims are
unripe; and (3) Plaintiffs lack a statutory cause of action through
which Congress has waived sovereign immunity. Id. at 1.
Plaintiffs filed an Opposition to Defendants’ Motion on
December 11, 2009, claiming that (1) Plaintiffs have Article III
standing; (2) Plaintiffs’ claims are ripe; and (3) Plaintiffs have
statutory causes of action in which Congress has waived sovereign
immunity. Pls.’ Opp’n to Defs.’ Mot. (“Pls.’ Opp’n”) at 1 [Dkt.
No. 11]. Defendants filed their Reply in Support of their Motion
to Dismiss on December 18, 2009. Defs.’ Reply Memorandum in
Support of Defs.’ Mot. (“Defs.’ Reply”) [Dkt. No. 14].
II. STANDARD OF REVIEW
Defendants ask the Court to dismiss the Plaintiffs’ claims
under Rules 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), the
plaintiff bears the burden of proving by a preponderance of the
evidence that the Court has subject matter jurisdiction to hear the
case. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir.
2008). In reviewing a motion to dismiss for lack of subject matter
jurisdiction, the Court must accept as true all of the factual
allegations set forth in the Complaint; however, such allegations
-11-
warrant closer scrutiny when resolving a 12(b)(1) motion than when
resolving a 12(b)(6) motion. See Macharia v. United States, 334
F.3d 61, 64 (D.C. Cir. 2003). The Court may consider matters
outside the pleadings. See Herbert v. Nat’l Acad. of Sciences, 974
F.2d. 192, 197 (D.C. Cir. 1992). The Court may rest its decision
on the Court’s own resolution of disputed facts. Id.
To survive a motion to dismiss under Rule 12(b)(6), a
plaintiff need only plead “enough facts to state a claim to relief
that is plausible on its face” and to “nudge [] [his or her] claims
across the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “[O]nce a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Id. at 563.
Under the Twombly standard, a “court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiff’s success . . . the court must assume all the allegations
in the complaint are true (even if doubtful in fact) . . . [and]
must give the plaintiff the benefit of all reasonable inferences
derived from the facts alleged.”5 Aktieselskabet AF 21. November
5
As noted, supra at n. 2, Defendants included a Declaration
from counsel with four exhibits. Plaintiffs submitted additional
material as part of counsel Stephen E. Roady’s Declaration [Dkt.
No. 12]. The exhibits to the Roady Declaration included
declarations from four members of Plaintiff-organizations, a
complete copy of the Aquaculture FMP, and copies of Plaintiffs’
comment letters filed in response to the Aquaculture FMP. Roady
Decl. at 2. All of the documents in Defendants’ Declaration were
(continued...)
-12-
2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal
quotation marks and citations omitted).
Pursuant to the APA, an agency decision must be set aside if
it is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 702(2)(A). “The arbitrary
and capricious standard [of the APA] is a narrow standard of
review.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 416 (1971). It is well established in our Circuit that
“[t]his court’s review is . . . highly deferential” and “we are
‘not to substitute [our] judgment for that of the agency’ but must
‘consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment.’” Bloch v. Powell, 348 F.3d 1060, 1070 (D.C. Cir. 2003)
(citations and internal quotation marks omitted); see also United
States v. Paddack, 825 F.2d 504, 514 (D.C. Cir. 1987).
If the “agency’s reasons and policy choices . . . conform to
‘certain minimal standards of rationality’ . . . the [agency
(...continued)
referred to in the Complaint. The same is true for the final three
exhibits to Plaintiffs’ Declaration (the four individual
declarations are relevant only to the jurisdictional inquiry).
Therefore, the Motion to Dismiss under Rule 12(b)(6) need not be
evaluated under a summary judgment standard. See EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir.
1997); Marshall v. Honeywell Tech. Solutions Inc., 536 F. Supp. 2d
59, 65 (D.D.C. 2008) (stating that “where a document is referred to
in the complaint and is central to the plaintiff’s claim, such a
document attached to the motion papers may be considered without
converting the motion to one for summary judgment”).
-13-
decision] is reasonable and must be upheld.” Small Refiner Lead
Phase-Down Task Force v. EPA, 705 F.2d 506, 521 (D.C. Cir. 1983)
(citation omitted); see Kisser v. Cisneros, 14 F.3d 615, 619 (D.C.
Cir. 1994).
III. ANALYSIS
In their Motion to Dismiss, Defendants argue that the Court
lacks subject matter jurisdiction and Plaintiffs fail to state a
claim upon which relief can be granted. They advance three primary
reasons for their position. First, Defendants claim that
Plaintiffs lack Article III standing because they suffered no
actual or imminent injury attributable to the Aquaculture FMP.
Defs.’ Mot. at 14. Second, Defendants argue that Plaintiffs’
claims are unripe because NMFS’ agency action is not final and no
aquaculture has been permitted or taken place; therefore, no injury
has occurred and the matter is unfit for judicial review. Id. at
21-22. Third, Defendants argue that Plaintiffs cannot rely on the
MSA or the APA, as neither waives sovereign immunity to provide
Plaintiffs with a cause of action in the instant case. Id. at 26-
30.
A. Plaintiffs Do Not Have Standing to Challenge Defendants’
FMP.
Article III of the Constitution “confines the federal courts
to adjudicating actual ‘cases’ and ‘controversies.’” Allen v.
Wright, 468 U.S. 737, 750 (1984). Because standing is an element
of the case or controversy requirement, a court does not have
-14-
subject matter jurisdiction if a plaintiff lacks standing. See In
re Navy Chaplaincy, 534 F.3d 756, 759 (D.C. Cir. 2008). (“One of
the controlling elements in the definition of a case or controversy
under Article III is standing.”) (quoting Hein v. Freedom From
Religion Found., Inc., 551 U.S. 587, 598 (2007)); see Boston &
Maine Corp. v. Surface Transp. Bd., 364 F.3d 318, 319 (D.C. Cir.
2004) (when a plaintiff lacks standing, the court lacks subject
matter jurisdiction).
“[A]n association has standing to bring suit on behalf of its
members when: (a) its members would otherwise have standing to sue
in their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Hunt v. Wash. State Apple
Advertising Comm’n, 432 U.S. 333, 343 (1977). Plaintiffs invoke
federal jurisdiction, and therefore bear the burden of showing that
they have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992). To do so, Plaintiffs may establish either substantive
or procedural standing. See Nat’l Parks Conservation Ass’n v.
Manson, 414 F.3d 1, 4-5 (D.C. Cir. 2005). “[W]hen,” as here, “the
[party] is not [herself or himself] the object of the government
action or inaction he challenges, standing is not precluded, but it
is ordinarily ‘substantially more difficult’ to establish.” Lujan,
504 U.S. at 562.
-15-
1. Substantive Standing
In Lujan, 504 U.S. 555, 560-61 (1992), the Supreme Court
established that the following three elements are required for
substantive standing:
First, the plaintiff must have suffered an
“injury in fact”--an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) “actual or imminent,
not ‘conjectural’ or ‘hypothetical.’” Second,
there must be a causal connection between the
injury and the conduct complained of--the
injury has to be “fairly . . . trace[able] to
the challenged action of the defendant, and
not . . . th[e] result [of] the independent
action of some third party not before the
court.” Third, it must be “likely,” as
opposed to merely “speculative,” that the
injury will be “redressed by a favorable
decision.”
504 U.S. at 560-61 (internal citations omitted). Defendants
challenge only the first element, namely that there is no injury in
fact. Defs.’ Mot. at 3.
Plaintiffs assert that they will suffer imminent injury
because the FMP has “become operational” by default. Pls.’ Opp’n
at 14-15. Plaintiffs’ affidavits enumerate the types of harm they
as individuals expect to incur. For example, Louis Skrmetta, a
member and director of Gulf Restoration Network, claims that,
“[i]ndividually and combined, aquaculture facilities in the Gulf of
Mexico will hurt [his] personal interest in the well-being of the
Gulf, as well as [his] business by damaging the ecosystem and
harming wild fish populations.” Skrmetta Decl. at ¶ 2. Defendants
-16-
maintain that Plaintiffs’ hypothetical injuries amount to mere
contingencies and, accordingly, fail to establish standing. Id.
Aquaculture has not taken place in the Gulf of Mexico pursuant
to the FMP. The FMP neither forbids nor requires any action on the
part of parties. Most importantly, several steps must be taken
before any concrete harm to Plaintiffs could possibly result from
the FMP. Such steps include: approval of regulations by NMFS,
adoption of regulations, approval of permits by the various
government bodies on a case-by-case basis, and regulation of the
location of aquaculture sites by NMFS, the Army Corps of Engineers,
and the EPA. See supra at I.B. The FMPs alone do not have any
regulatory effect because implementing regulations must be approved
in order to effectuate them. 16 U.S.C. § 1854(b)(1); see N.C.
Fisheries Ass’n v. Gutierrez, 550 F.3d 16, 17 (D.C. Cir. 2008)
(“[Fishery management p]lans . . . do not themselves have any
regulatory effect--implementing regulations must also be enacted in
order to effectuate them.”); Hall v. Evans, 165 F. Supp. 2d 114,
143 (D.R.I. 2001) (“It is the Secretary of Commerce, and not the
Councils, who is authorized to promulgate a regulation.”). In the
instant case, therefore, the fact that the Aquaculture FMP took
effect by operation of law does not mean that aquaculture is
ongoing in the Gulf of Mexico.
Plaintiffs’ own declarations and arguments demonstrate that no
harm is particularized or imminent. Cf. Lujan, 504 U.S. at 560-61
-17-
(Court examined declarations submitted by plaintiffs to determine
whether standing existed). For instance, in describing the
potential threat presented by acquaculture, Skrmetta states that
because the FMP, if implemented, “will authorize aquaculture
facilities and operations to exercise exclusive use of certain
areas of the Gulf of Mexico,” he and others will be barred from
“even traveling through those areas.” Skrmetta Decl. at ¶10.
Similarly, Tracy Redding, a member of Ocean Conservancy, claims
that the FMP would injure her interests. However, her concerns,
like Skrmetta’s, are not imminent and particularized, but are
dependent upon a chain of events that might occur “if aquaculture
goes forward,” since the FMP “facilitates development of open ocean
aquaculture which is expected” to lead to injurious impacts.
Redding Decl. at ¶¶ 5-6. Additionally, Plaintiffs in their
Opposition state that “[m]embers ‘suffer[] a cognizable injury from
environmental damage,’ to these waters that aquaculture is likely
to create.” Pls.’ Opp’n at 14 (citations omitted)(emphasis added).
They claim that the FMP is a “first step” for “commercial
aquaculture operations to commence,” and their declarations focus
on injuries that they “expect to suffer.” Id. at 4-6. Even
Plaintiffs’ description of the injury they “expect to suffer”
suggests that the harm is conjectural, rather than imminent.
Our Court of Appeals has concluded that an injury is not
“actual, imminent, or ‘certainly impending’” for standing purposes
-18-
where a party “can only aver that any significant adverse effects
. . . ‘may’ occur at some point in the future.” Ctr. for
Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 478
(D.C. Cir. 2009) (hereinafter “CBD”). The injury in this case is
just as conjectural as that described in CBD. In that case, an oil
and gas leasing program was in the first step of a multi-stage
statutory process. Id. at 479. The Court found that petitioners
failed to establish standing because their alleged injury from
climate change was too general. Id. at 478. The Court held that
petitioners relied on too tenuous a causal link between their
allegations of climate change and the first stage of the leasing
program.6 Id. Plaintiffs’ claims in the instant case are equally
general and attenuated since they describe possible future harms
instead of concrete present injury.
Plaintiffs maintain that Defendants have “invent[ed]
additional hurdles to review” in describing the permitting process
undertaken by the EPA and Corps. Pls.’ Opp’n at 16. Because the
6
The CBD Court distinguished a recent Supreme Court case, on
which Plaintiffs rely, that dealt with standing in environmental
lawsuits. In Massachusetts v. EPA, 549 U.S. 497 (2007), the Court
held that the State of Massachusetts had standing to challenge the
EPA’s denial of a rule-making petition where the alleged injury was
an increase in greenhouse gas emissions. 549 U.S. at 526. Our
Court of Appeals noted that the Supreme Court relied heavily on the
fact that a State, and not a private individual, was bringing the
claim. CBD, 563 F.3d at 476. Additionally, the State itself,
which owned a great deal of the land to be affected, had already
been directly injured by the EPA’s inaction in Massachusetts. Id.
Neither of these two important factors are present in this case,
and therefore Massachusetts does not further Plaintiffs’ case.
-19-
FMP governs the siting and size of the aquaculture facility,
Plaintiffs argue that approval by EPA and the Corps does not make
the harm to Plaintiffs any less imminent. Id. This objection is
without merit. The FMP requires that both agencies issue permits
before aquaculture actually takes place. See supra at I.B. As
such, the potential injury is more attenuated, because other
agencies must act before any facilities can be constructed or begin
operation. See Atl. States Legal Found. Inc., v. EPA, 325 F.3d
281, 285 (D.C. Cir. 2003) As the Court said in CBD, “[t]he more
indirect the chain of causation between the government’s conduct
and the plaintiff’s injury, the less likely the plaintiff will be
able to establish . . . standing.” CBD, 563 F.3d at 478.
Plaintiffs rely on American Oceans Campaign v. Daley, 183 F.
Supp. 2d 1 (D.D.C. 2000), to support their position. In Daley,
this Court found that plaintiffs had standing where essential fish
habitat (“EFH”) Amendments to regional FMPs failed to “adopt[]
measures that would restrict fishing gear in order to minimize
adverse effects of fishing related activities on EFH.” Id. at 5.
The Court found that NMFS’ acts and omissions with respect to the
EFH Amendments had caused Plaintiffs actual harm, thereby giving
them standing to bring suit. Id. at 10.
Daley does not purport to say that the passing of any FMP or
amendment thereto gives standing to those potentially in harm’s
way, regardless of how conclusory the allegations of that harm may
-20-
be. Id. Rather, Daley held that where an agency activity has
caused “particularized injuries,” those harmed will have standing.
Id. Whereas the EFH Amendments at issue in Daley regulated ongoing
commercial fishing activity, the Aquaculture FMP merely constructs
a framework within which Defendants may permit an entirely new
activity that has yet to occur. This fact makes mere approval of
the Aquaculture FMP too far removed from harmful conduct to
establish injury.
Article III simply does not grant power to courts to preempt
potential harm that is neither actual nor imminent, and Plaintiffs
therefore lack substantive standing to bring suit against
Defendants.
2. Procedural Standing
Gulf Restoration argues that Plaintiffs also have procedural
standing to bring their challenges under NEPA and the MSA. Pls.’
Opp’n at 20. They allege that by allowing the Aquaculture FMP to
take effect by operation of law NMFS violated procedures set forth
in each statute. Id. at 21.
Plaintiffs have procedural standing “if [they] can show that
an agency failed to abide by a procedural requirement that was
‘designed to protect some threatened concrete interest of the
plaintiff.’” See CBD 563 F.3d at 479. Such procedural omissions
do not alone give standing to sue, but rather “a procedural-rights
plaintiff must show not only that the defendant’s acts omitted some
-21-
procedural requirement, but also that it is substantially probable
that the procedural breach will cause the essential injury to the
plaintiff’s own interest.” See id. The Supreme Court has noted
that when determining procedural standing, “the requirement of
injury in fact is a hard floor of Article III jurisdiction that
cannot be removed by statute.” Summers v. Earth Island Institute,
129 S. Ct. 1142, 1151 (2009); see WebCel Commc’n, Inc. v. FCC, 1999
WL 325450, at *1 (D.C. Cir. Apr. 28, 1999) (“To have standing to
challenge an alleged procedural violation, a party must demonstrate
that it has suffered an injury caused by the substantive action
taken by the agency.”).
Based on Summers, a procedural right without some attached
concrete interest that is affected by a deprivation--what is called
a procedural right “in vacuo”--is insufficient to establish Article
III standing. Summers, 129 S. Ct. at 1151. Standing is
appropriate when there is a “live dispute over a concrete
application of those regulations.” See id. at 1147. As discussed,
the instant case does not present such a “live dispute.”
Plaintiffs have not yet suffered--and may never suffer--injury as
a result of Defendants’ action or inaction. Therefore Plaintiffs’
claims do not, under Summers, provide grounds for procedural
standing. See City of Orrville, Ohio v. FERC, 147 F.3d 979, 986
(D.C. Cir. 1998) (“Since plaintiffs lack standing to challenge [the
agency’s] substantive actions, they indeed lack standing to
-22-
challenge procedural defects in the process that produced those
actions.”) (quoting Wilderness Soc’y v. Griles, 824 F.2d 4, 19
(D.C. Cir. 1987)).
Plaintiffs seek to invoke CBD to show that procedural standing
would apply in the instant case. However, procedural standing
existed in CBD because the plaintiffs showed a threatened
particularized interest and submitted affidavits detailing
definitive dates as to when they would be deprived of the
opportunity to observe potentially harmed species. 563 F.3d at
479. This supplemental detail was integral to the Court’s ultimate
determination because it helped outline how a procedural remedy
would redress their harm. See id.
In the instant case, the Plaintiffs are not able to provide
such detailed dates of injury, but rather put forth declarations of
conjectural, potential future injuries. See Pls.’ Opp’n at 4. For
example, Michael Tad Burke, a member of Food & Water Watch, claims
to have “serious expectation[s] that some customers will choose to
go elsewhere” if the FMP takes effect. Decl. of Michael Tad Burke
at ¶ 24. Obviously, this is pure conjecture; it does not supply
any specific information; it does not describe any injury which is
imminent; it does not describe any injury which actually exists.
See Lujan, 504 U.S. at 560-61. Tim Adams, a member of Ocean
Conservancy, discusses the impacts that he “expects” will occur if
aquaculture takes place, including harms to aquatic life. Decl. of
-23-
Tim Adams at ¶ 4. In contrast, the affidavits in CBD identified
their injuries, and included specific dates and species. For these
reasons, because Plaintiffs cannot show injury in fact, they lack
procedural standing to bring suit against Defendants.
B. Plaintiffs’ Claims Are Not Ripe for Adjudication.
The primary rationale behind the ripeness requirement is “to
prevent the courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements.” Abbott
Laboratories v. Gardner, 387 U.S. 136, 148 (1967). Accordingly,
the “ripeness doctrine is drawn both from [Constitutional]
limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction.” Reno v. Catholic Soc. Serv.,
Inc., 509 U.S. 43, 57 n. 18 (1993). A claim must be both
Constitutionally and prudentially ripe to be adjudicated. Wyo.
Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir.
1999).
Plaintiffs have alleged that their claims are both
Constitutionally and prudentially ripe. Apart from alleging injury
is imminent, Plaintiffs maintain that because “the Gulf FMP is now
final, [it] will govern and predetermine virtually all of the
content of the final regulations and permitting framework.” Pls.’
Opp’n at 24. To Plaintiffs, the FMP represents the outer limits of
any future implementing regulations, and as such, is effectively a
regulation itself. In short, the Aquaculture FMP as a form of
-24-
agency action is, in their view, sufficiently final to satisfy all
ripeness requirements. Pls.’ Opp’n at 24-25. Defendants respond
that NMFS’ agency action is not final in part because the FMP and
the regulations are distinct. Plaintiffs therefore could not have
been injured, nor is it certain that they will be in the future.
Defs.’ Mot. at 22. Defendants view the non-finality issue as
dispositive with respect to the ripeness of Plaintiffs’ claims.
Id. at 23.
1. Constitutional Ripeness
“Article III does not allow a litigant to pursue a cause of
action to recover for an injury that is not ‘certainly impending.’”
Wyo. Outdoor Council, 165 F.3d at 48 (quoting Nat’l Treasury
Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir.
1996)). Like the Article III case and controversy requirements for
standing, a plaintiff must also suffer present or imminent injury
in fact to establish Constitutional ripeness. See Wyo. Outdoor
Council, 165 F.3d at 48 (“Just as the [C]onstitutional standing
requirement for Article III jurisdiction bars disputes not
involving injury-in-fact, the ripeness requirement excludes cases
not involving present injury.”). As discussed above, Plaintiffs
have demonstrated neither actual injury in fact, nor that harm is
imminent. See supra at III.A.1. Plaintiffs’ claims therefore are
not Constitutionally ripe.
-25-
2. Prudential Ripeness
Courts apply a two-prong test to determine whether a case is
ripe for adjudication. See Abbott Laboratories, 267 U.S. at 149.
First, a court must evaluate the “fitness of the issue for judicial
decision” and second, “the hardship to the parties of withholding
court consideration.” Id. Courts balance these two factors when
deciding whether a case is ripe for adjudication. Id.
When considering fitness, courts must ask if the issue “is
purely legal, whether consideration of the issue would benefit from
a more concrete setting, and whether the agency’s action is
sufficiently final.” Atl. States Legal Found. Inc., v. EPA, 325
F.3d 281, 284 (D.C. Cir. 2003) (hereinafter “Atlantic States”)
(quoting Clean Air Implementation Project v. EPA, 150 F.3d 1200,
1204 (D.C. Cir. 1998)).
Plaintiffs make the following claims in their Complaint: (1)
that NMFS has “unlawfully withheld action required by the Magnuson
Act”; (2) that NMFS has “no statutory authority to authorize
commercial aquaculture or issue commercial aquaculture permits in
federal waters”; (3) that the Gulf FMP is “arbitrary and
capricious” because it is inconsistent with the MSA; and (4) that
“the Gulf FMP and accompanying PEIS violate NEPA, the APA and
various procedural and data analysis requirements of NEPA and its
implementing regulations.” Pls.’ Compl. ¶¶ 72-96. “Claims that an
agency’s action is arbitrary and capricious or contrary to law
-26-
present purely legal questions.” Atlantic States, 325 F.3d at 284.
Each of Plaintiffs’ arguments represent a purely legal claim.
However, “even purely legal issues may be unfit for review.”
Atlantic States, 325 F.3d at 284. The other factors of the fitness
requirement must also be taken into account. The second of these
factors requires that the setting at the time suit is brought be
sufficiently concrete to resolve the issue. Id. Our Court of
Appeals has held that judicial “[r]eview is inappropriate when the
challenged policy is not sufficiently fleshed out to allow the
court to see the concrete effects and implications of its decision
or when deferring consideration might eliminate the need for review
altogether.” Chamber of Commerce of the U.S. v. Reich, 57 F.3d
1099, 1100 (D.C. Cir. 1995) (citations and internal quotations
omitted).
In the current case, the process prescribed by the MSA with
respect to FMP implementation has not been satisfactorily “fleshed
out.” NMFS has yet to promulgate regulations or actually allow any
aquaculture to proceed. Not only is the process incomplete, but
also, as previously discussed, several of the remaining steps could
result in drastically different outcomes including the denial of
any and all aquaculture permits. McArdle Decl., Ex. 1 at 10-13
(explaining proposed alternative procedures for the permitting
process). Plaintiffs’ exposure to harm relates directly to these
-27-
results. If aquaculture is denied altogether in the Gulf, injury
to Plaintiffs will not even be a possibility.
In support of their claims, Plaintiffs allege that “the Gulf
FMP threatens a broad range of Plaintiffs’ members’ particularized
interests causing injury in fact.” Pls.’ Opp’n at 10 (emphasis
added). Indeed, Plaintiffs frequently use the word “likely” to
describe the harm in question, recognizing the tenuous nature of
their claims. For example, they argue that “the harm to the Gulf
of Mexico ecosystem that is likely to attend open ocean aquaculture
operations would adversely affect Plaintiffs’ members.” Id. at 4
(emphasis added).
In addition, Plaintiffs submitted declarations attempting to
enumerate the types of harm they as individuals expect to incur.
See supra at III.A.1. The present setting, however, is not
sufficiently concrete because not only has injury not yet occurred,
but future injury is not imminent. Michael Tad Burke claims that
his job as a professional fishing guide gives him an economic
interest in the well-being of the aquatic life in the Gulf. While
he is firm about the effects that acquaculture “will” have, Decl.
of Michael Tad Burke at ¶¶ 13-16, the list of injuries does not
describe impacts particular to him, but asserts the effects that
aquaculture in general may have. Tracy Redding, a member of Ocean
Conservancy, speculates that the FMP could mean that she “would not
enjoy consuming fish produced by aquaculture to the same degree”
-28-
and that she “would lack information to determine if [she] were
eating farmed fish or wild-caught fish if aquaculture goes
forward.” Decl. of Tracy Redding at ¶ 5. These injuries are far
from concrete. Not only do they rely on the operation of
aquaculture that is not yet even permitted by regulation, but we do
not know what such future regulations might require regarding
information to consumers.
As in Atlantic States, these claims are not sufficiently
fleshed out to demonstrate ripeness. In that case, the EPA adopted
regulations permitting New York State utility companies to
accumulate hazardous waste without first obtaining a permit. 325
F.3d at 282. Before these regulations took effect, New York had to
adopt EPA’s regulations subject to public notice and comment.
Additionally, the utility companies were not required to
participate in the regulatory scheme. Our Court of Appeals found
sua sponte that the questions presented were not ripe. Id. at 284.
The Court reasoned that “[e]ven if New York does adopt the
regulations en masse, we still would not know which utilities will
opt into the program or where they will locate their central
collection facilities.” Id. Similarly, the affidavits in this case
do not clearly define when or how Plaintiffs would be affected. As
the Atlantic States Court observed, a “claim is not ripe for
adjudication if it rests upon contingent future events that may not
-29-
occur as anticipated, or indeed may not occur at all.” Id.
(quoting Texas v. United States, 523 U.S. 296, 300 (1998)).
Lastly, as to the finality requirement, our Court of Appeals
has previously held that agency action is not final where “it does
not itself adversely affect [the plaintiffs] but only affects
[their] rights adversely on the contingency of future
administrative action.” DRG Funding Corp. v. Sec’y of Hous. &
Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996) (hereinafter “DRG
Funding”).
Plaintiffs argue that the Aquaculture FMP is final because it
became law by default. Pls.’ Opp’n at 24. They rely on the
rationale that because the “Gulf FMP will govern and predetermine
virtually all of the content of the final regulations and
permitting framework,” it is effectively final. Id. This
reasoning fails to meet the standard established in DRG Funding.
Despite the statute’s requirement that the regulations be
“consistent with the [FMP],” there is simply no way to predict
exactly how the end product--the FMP and its implementing
regulation--will ultimately operate. 16 U.S.C. § 1854(b)(1).
Several variables will significantly affect how, and whether,
the Aquaculture FMP impacts the Gulf: the NMFS determination of
whether the Plan is consistent with the national policy it intends
to develop; the text of the future regulations; approval or
disapproval of permits by the various government bodies on a case-
-30-
by-case basis; and the as-yet unknown locations of future
aquaculture sites. Accordingly, Plaintiffs’ characterization of
the FMP as “final,” when compared to the standard for finality
established in DRG Funding, is not accurate. DRG Funding, 76 F.3d
at 1214.
The end result of this analysis is that Plaintiffs’ claims,
although they do present legal questions, are still not fit for
judicial review for two reasons: first, because Plaintiffs’ claims
would “benefit from a more concrete setting” where injury has
actually taken place; and second, because they currently relate to
agency action that is not final. Atlantic States, 325 F.3d at 284.
In the absence of fitness for judicial decision, courts must
look to a balancing of the hardships to make a final assessment of
ripeness. Nat’l Ass’n of Home Builders v. U.S. Army Corps of
Eng’rs, 440 F.3d 459, 465 (D.C. Cir. 2003). Plaintiffs state that
because “they are subject to regulation under the Gulf FMP and must
change their own behavior to avoid aquaculture sites,” the hardship
scale is tipped in their favor. Pls.’ Opp’n at 30. However,
Plaintiffs cannot establish that delaying suit would be
sufficiently disadvantageous to their case because as of yet, they
are “not required to engage in, or to refrain from, any conduct.”
Atlantic States, 325 F.3d at 285. As noted, the FMP itself does
not require or forbid any action. In Ohio Forestry Association,
Inc. v. Sierra Club, 523 U.S. 726, 733 (1998), the Supreme Court
-31-
concluded that hardship would not result from withholding
consideration of a matter where the terms of an agency plan “do not
command anyone to do anything or to refrain from doing anything;
they do not grant, withhold, or modify any formal legal license,
power, or authority; they do not subject anyone to any civil or
criminal liability; they create no legal rights or obligations.”
As in Ohio Forestry, Plaintiffs can bring their suit at a
later time, after “harm is more imminent and more certain.” Id.
Deferring consideration of the dispute until that point serves
important interests both in avoiding “interfer[ence] with the
system that Congress specified for the agency to reach [marine
fishery] decisions,” and in judicial economy. Id. at 1671.
Contrary to Plaintiffs’ position, if their claims are
dismissed, they will not be barred from bringing suit at a later
time by the MSA’s “30-day statute of limitations.” 16 U.S.C. §
1855(f)(1); accord Defs.’ Reply at 14 (“Because the Secretary has
not yet promulgated regulations or taken action under the
regulations, the Magnuson Act’s statute of limitations has not yet
been triggered.”); Defs.’ Reply at 2. A reading of the statute
that suggests otherwise rests on the mistaken premise that the
Aquaculture FMP is itself a regulation. See infra at III.C.1.
Plaintiffs do not provide compelling hardship arguments to
outweigh the absence of injury and fitness. Plaintiffs “may
protect all of their rights and claims by returning to court when
-32-
the controversy ripens.” Atlantic States, 325 F.3d at 285. In
short, Plaintiffs’ claims are not ripe for judicial review.
C. Plaintiffs Have No Statutory Cause of Action Under Either
the MSA or the APA.
1. The MSA Does Not Provide for Review of the
Aquaculture FMP.
Section 1855(f)(1)-(2) of the MSA provides for judicial review
of “regulations promulgated by the Secretary,” as well as other
“actions taken by the Secretary under regulations which implement
a[n FMP].” 16 U.S.C. §§ 1855(f)(1)-(2). The statute, however, does
not specifically provide for judicial review of FMPs. Section
1855(f)(1), which discusses the 30-day time frame in which a suit
brought under the MSA must be filed, unambiguously refers to the
promulgation of the regulations, and not the FMPs, as the event
which marks the beginning of that time frame. The statute clearly
distinguishes between FMPs and regulations throughout. See 16
U.S.C. §§ 1854(a)-(b) (separating the procedures for FMPs and
regulations into different sub-sections). The Court therefore
finds no merit in Plaintiffs’ assertion that “the MSA explicitly
provides for pre-implementation judicial review of FMPs and actions
under them.” Pls.’ Opp’n at 25.
Additionally, as Defendants rightly argue, NMFS’ inaction--
i.e. allowing the FMP to take effect by operation of law--cannot
constitute the promulgation of a regulation because: (1) NMFS has
not characterized the FMP as a regulation; (2) the FMP was not
-33-
published in the Federal Register or Code of Federal Regulations
after notice and comment; and (3) the FMP has no binding effect on
private parties or on the agency. Id. at 26-27; see also Molycorp,
Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999) (noting three
criteria for determining when an agency action can constitute the
promulgation of a regulation).
Plaintiffs nonetheless contend that “[t]his Court has already
held that an FMP is a ‘regulation’ within the meaning of Section
1855(f) such that a plaintiff may challenge it under this provision
even where the FMP does not ‘result[] in the promulgation of a
formal regulation.’” Pls.’ Opp’n at 33 (quoting Daley, 183 F.
Supp. 2d at 10). However, Plaintiffs’ assertion oversimplifies the
holding in Daley and ignores the clear text of the MSA. Daley does
not support the proposition that all FMPs constitute “regulations”
under the meaning of § 1855(f)(1)-(2), and therefore are ripe for
adjudication under the MSA. Rather, Daley holds that where
amendments to FMPs are “applied generally to many fisheries, have
future effect, [and] are designed to interpret and prescribe law
and policy,” the Secretary’s decision to approve those amendments
qualifies as a reviewable action. 183 F. Supp. 2d at 11.
Additionally, the federal defendants in Daley, which are the same
entities as Defendants in this case, agreed that passage of the EFH
Amendments were reviewable agency action. Id. at 10 n.4.
-34-
The EFH Amendments to the FMPs at issue in Daley were
substantively different from the Aquaculture FMP here, because,
unlike the EFH Amendments, the FMP does not have future effect, nor
does it prescribe law and policy. It is merely a detailed
blueprint, the full implementation of which depends on the passage
of regulations and issuance of permits. See Daley, 183 F. Supp. 2d
at 11. Further, in this case, unlike Daley, NMFS did not make the
active decision to approve the Council’s Plan. Daley is therefore
distinguishable from the instant case, as the EFH Amendments at
issue in Daley are very different from the Aquaculture FMP at issue
here.
Without any formal regulations implementing the FMP,
Plaintiffs lack a statutory cause of action under § 1855(f) of the
MSA.
2. Plaintiffs Have No Cause of Action under the APA
because Defendants’ Actions Are Not Final.
In the alternative, Plaintiffs argue that their claims are
cognizable under §§ 706(1)-(2) of the APA. Plaintiffs allege that
NMFS’ failure to approve, partially approve, or disapprove the FMP
within the 30-day window constituted a “failure to act” resulting
in unlawfully withheld agency action, or alternatively, that NMFS’
affirmative decision to allow the FMP to take effect by operation
of law constituted agency action, both of which are reviewable
under the APA. Compl. ¶¶ 73-88.
-35-
However, § 704 of the APA limits judicial review to “[a]gency
action made reviewable by statute and final agency action for which
there is no other adequate remedy in a court . . . ” 5 U.S.C. §
704 (emphasis added). If the agency action is not final, a court
cannot adjudicate the dispute. See DRG Funding, 76 F.3d at 1215-16
(holding that action by the Secretary of the Department of Housing
and Urban Development was not final agency action which a court
could review under the APA). According to our Court of Appeals,
“[a] final agency action is one that marks the consummation of the
agency’s decisionmaking process and that establishes rights and
obligations or creates binding legal consequences.” Nat’l Res.
Def. Council v. EPA, 559 F.3d 561, 564 (D.C. Cir. 2009); see also
DRG Funding, 76 F.3d at 1214 (quoting several formulations of
finality test).
As discussed above, the FMP does not constitute final
agency action without promulgation of the corresponding
regulations: neither approval of the FMP nor failure to act on it
marks the end of the decisionmaking process; nor does the FMP
establish any rights or obligations or create any binding legal
consequences. Adoption of implementing regulations is mandatory;
after that point, aquaculture may begin if permits are applied for
and approved.
Furthermore, § 704 specifically states that “a preliminary,
procedural, or intermediate agency action” is only subject to
-36-
review upon “review of the final agency action.” 5 U.S.C. § 704.
Plaintiffs therefore are incorrect that their inability to
challenge the Aquaculture FMP at this time renders any future
challenges to it “off-limits.” See Pls.’ Opp’n at 38.
In this case, regardless of whether allowing the FMP to take
effect by operation of law constitutes “unlawfully withheld agency
action” or actual “agency action,” NMFS has not taken any final
agency action which would be subject to judicial review. Here, the
FMP does not “adversely affect [Plaintiffs] but only affects
[their] rights adversely on the contingency of future
administrative action.” DRG Funding, 76 F.3d at 1214.
Consequently, Plaintiffs do not have a statutory cause of action
under the APA, and their claims are dismissed for failure to state
a claim upon which relief can be granted. See Oryszak v. Sullivan,
576 F.3d 522, 525 n.2 (D.C. Cir. 2009) (“Recently we clarified that
the provision of the APA limiting judicial review to ‘final agency
action,’ 5 U.S.C. § 704, goes not to whether the court has
jurisdiction but to whether the plaintiff has a cause of action,
though some prior opinions had ‘loosely referred to the final
agency action requirement as jurisdictional.’”) (citation and
internal quotations omitted).
-37-
IV. CONCLUSION
For the reasons set forth above, the Defendants’ Motion to
Dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) is granted. An order will accompany this Memorandum
Opinion.
/s/
August 12, 2010 Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
-38-