UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL s. FLAHERTY, et al.,
Civil Action No. ll-660(GK}
Plaintiffs,
v.
PENNY PRITZKER, et al.,
Defendants
And
SUSTAINABLE FISHERIES
COALITION,
Defendant-Intervenor:
MEMORANDUM OPINION
Plaintiffs Michael S. Flaherty, Captain Alan A. Hastbacka,
and the Ocean River Institute ("Plaintiffs"), bring this action
against Commerce Secretary Penny Pritzker who has now been
succeeded by Wilbur Ross, the National Oceanic and Atmospheric
Administration ("NOAA"), and the National Marine Fisheries
Service ( "NMFS") (collectively "Defendants"), as well as
Defendant-Intervenor Sustainable Fisheries Coalition ("SFC").
This matter is now before the Court on Plaintiffs' Motion for
Leave to File Third Amended and Supplemental Complaint ( "Pls.'
Mot.") [Dkt. No. 152]. In the Motion, Plaintiffs seek, among
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other things, to add the New England Fishery Management Council
and its Executive Director, Mr. Thomas Nies, as Defendants in
this matter.
Upon consideration of the Motion, Oppositions, Reply, the
entire record herein, and for the reasons discussed below,
Plaintiffs' Motion is granted.
I . BACKGROUND
A. Factual Background
On March 2, 2011, the National Marine Fisheries Service
( "NMFS") published its Final Rule implementing Amendment 4 to
the Atlantic Herring Fishery Management Plan ("FMP"). Final
Rule, 76 Fed. Reg. 8,786 (Feb. 2, 2011). The NMFS and the New
England Fishery Management Council (the "Council") jointly
developed Amendment 4 in order to bring the FMP into compliance
with the annual catch limits and accountability measures of the
Magnuson-Stevens Act ("MSA"), 16 U.S.C. § 1801, by the 2011
statutory deadline. On March 8, 2012, this Court found that
Amendment 4 violated certain provisions of the MSA, the
Administrative Procedure Act ("APA") I and the National
Environmental Policy Act ("NEPA"), and issued an Order remanding
the action to Defendants which contained specific guidance, as
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well as a time line, for actions Defendants were to take and
complete within one year ("Remedial Order") [Dkt. No. 41] .
In that Order, the Court ordered NMFS to send a letter to
the Council "recommending that the Council consider, in an
amendment to the Atlantic Herring FMP, whether 'river herring'
[including shad] should be designated as a stock in the
fishery[.]" Remedial Order at 11. Although NMFS sent two letters
to the Council making this recommendation, the Council
ultimately adopted recommendations that failed to add river
herring and shad as stocks in the Atlantic herring fishery. On
February 13, 2014, NMFS published its Final Rule implementing
Amendment 5, which similarly failed to include river herring and
shad as stocks in the fishery. Final Rule, 7 9 Fed. Reg. 87 86
(Feb. 13, 2014).
B. Procedural History
On March 31, 2014, this Court granted Plaintiffs' request
to file a Supplemental Complaint challenging Amendment 5. See
Order [Dkt. No. 92]. At the Parties' request, the Court stayed
the case through November 28, 2016 in light of anticipated
actions by NMFS that could have alleviated Plaintiffs' concerns.
On November 29, 2016, the Court held a status conference and
ordered the parties to submit a proposed briefing schedule. On
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January 6, 2017, Plaintiffs filed the present Motion for Leave
to File Third Amended and Supplemental Complaint '[Dkt. No. 152].
Defendants and Defendant-Intervenor filed Oppositions to
Plaintiffs' Motion on January 19, 2017 [Dkt. Nos. 153 and 154].
On January 27, 2017, Plaintiffs' filed their Reply [Dkt. No.
155] .
II. STANDARD OF REVIEW
The amendment of pleadings in civil matters is governed by
Rule 15 of the Federal Rules of Civil Procedure, which states
that the "court should freely give leave [to amend] when justice
so requires." Fed. R. Civ. P. 15 (a) (2). The decision to grant or
deny leave to amend rests in the sound discretion of the trial
court; however, it is an abuse of discretion to deny leave
without a sufficient justification for doing so. Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). Sufficient justifications
include "undue delay, bad faith or dilatory motive ... repeated
failure to cure deficiencies by [previous] amendments [or]
futility of amendment." Id. (quoting Foman, 371 U.S. at 182).
In assessing a motion for leave to amend, the Court is
required to assume the truth of the allegations in the amended
complaint and construe them in the light most favorable to the
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movant. Caribbean Broadcasting Sys. v. Cable & Wireless PLC, 148
F.3d 1080, 1086 (D.C. Cir. 1998). The party opposing the
amendment bears the burden to show why leave should not be
granted. Dove v. Washington Metro. Area Trans. Auth., 221 F.R.D.
246, 247 (D.D.C. 2004) (citing Gudavich v. Dist. of Columbia, 22
F. App'x 17, 18 (D.C. Cir. 2001)).
III. DISCUSSION
Plaintiffs seek to amend their Second Supplemental
Complaint to add the New England Fishery Management Council and
its Executive Director, Mr. Thomas Nies, as Defendants.
Plaintiffs also set forth events, and a related claim, that have
occurred since Plaintiffs filed the Second Supplemental
Complaint.1
Plaintiffs argue that the proposed amendments are necessary
to end the loop that continues to preclude the relief they seek:
(1) the Council has a duty to add fish stocks requiring
conservation and management; (2) river herring and shad need
conservation and management; (3) NMFS, which has a duty to
ensure that the Mangnuson-Stevens Act is fulfilled, lacks the
authority to force the Council to take action; and (4) the
1
Plaintiffs also move to withdraw their prior Count II which concerned
accountability in the fishery. Since Defendants and Intervenor-
Defendant do not object to this request, See Defs.' Mot. at 6 and
Inter.-Def.'s Mot. at 2, the Court need not consider it at this time.
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Council has not passed, on its own, the necessary amendment to
add river herring and shad to the Atlantic herring FMP. See
Pls.'s Mot. at 3.
According to Plaintiffs, only a court order specifically
directing the Council to take action to remedy what they
consider to be legal violations of the MSA can provide them the
relief they seek. Id.
A. The Proposed Amendments Do Not Improperly Expand the
Scope of the Original Complaint.
A key issue to decide in any Motion to Amend is whether
Plaintiffs have improperly expanded the scope of the original
Complaint. Wright v. Corr. Corp. of America, 2016 WL 264907, at
*2 (D.D.C. Jan. 21, 2016). A comparison of the proposed Amended
Complaint with the original Complaint in this case clearly
reveals that Plaintiffs have not sought to significantly expand
the scope of the case. The core facts and allegations remain
substantially unchanged between the two documents. While
Plaintiffs have added the Council and Mr. Nies as Defendants,
they have done so in an attempt to hold the relevant entities
accountable for the alleged harms since this Court has recently
determined that the original Defendants -- i.e., NMFS et. al. --
lack the authority to force the Council to take action. See
Anglers Conservation Network v. Pritzker, 13 9 F. Supp. 3d 102
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(D.D.C. 2015), Civ. No. 14-509, Dkt. No. 58. The core facts and
legal issues remain the same: river herring and shad have not
been added to the Atlantic herring FMP thereby violating,
according to Plaintiffs, the MSA, NEPA and APA.
B. Amendment Would Not Cause Undue Delay.
Another factor weighing strongly in favor of adding the
amendments is that granting Plaintiffs' request would not cause
undue delay or otherwise impede the efficient adjudication of
this case. As mentioned above, the proposed amendments do not
radically alter the original Complaint and, as a result, likely
will not require NMSF and the other original Defendants to
expend a substantial amount of time and resources to respond to
the amended allegations. Further, Plaintiffs have requested to
amend their Complaint early in their challenge of Amendment 5 to
the Atlantic herring FMP. The Parties have not yet briefed the
merits of this dispute and there are no appeals or decisions
pending. Defendants, basing their entire argument against
amendment on the futility exception to the liberal amendment
standard, do not attempt to argue that the proposed amendments
would cause undue delay. See Opp. at 7 n. 1 (" [B] ecause the
proposed amendment would be futile, the Court need not reach
those issues [of undue delay or prejudice] and Federal
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Defendants do not address them here[.]"). Simply put, permitting
Plaintiffs to amend their Complaint would not cause undue delay
in the adjudication of this matter.
C. The Proposed Amendments Are Not Unduly Prejudicial to
Defendants.
For similar reasons, the Court also finds that the proposed
amendments will not unduly prejudice Defendants. Because the
proposed additions to the Complaint primarily concern the
Council, the original Defendants will not be surprised by any
substantially new allegations made against them. With regard to
the new Defendants, the Council and its Executive Director have
been intimately involved in the events described in the original
Complaint, namely the discussions and ultimate decision not_ to
introduce river herring and shad to the Atlantic herring FMP.
Notably, Defendants and Intervenor-Defendant do not contend that
the proposed amendments would prejudice them in any way. See
generally Opp. and Inter.-Def. Opp. Accordingly, the Court
concludes that this factor also favors permitting Plaintiffs to
amend their Complaint.
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D. The Futility of the Proposed Amendments
Defendants argue that Plaintiffs' Motion should be denied
because the proposed amendments are futile. Specifically,
Defendants claim that the Council is not an "agency" within the
purview of the APA and, in the alternative, even if the Council
were an agency, it did not engage in final agency action. See
Opp. at 7; Inter. -Def. Opp. at 2-3. Plaintiffs claim that the
issue of whether the Council is an agency is "effectively a
question of first impression. Never before has a Council been
sued, the jurisdictional questions briefed, and a decision
issued that squarely addresses whether or not the Council is an
agency under the APA." Pls.' Reply at 12.
The Court agrees with Plaintiffs' assessment of the
pertinent legal issues. 2 The parties raise a number of novel
legal questions that would benefit from more targeted briefing
directly addressing the merits of the dispute. The Court
believes that the motion to dismiss or summary judgment stage
would provide a more appropriate forum and enable all parties,
2
Defendant-Intervenor argues that Anglers Conservation Network v.
Pritzker, 809 F.3d 664 (D.C. Cir. 2016) resolved the issue and
determined that regional fishery management councils are not agencies.
See Inter.-Def. Opp. at 2. Anglers, however, is not precisely on
point. In that case, the regional council was not a defendant and the
Court of Appeals specifically noted that the plaintiffs "d[id] not
contend that the Council is itself a federal agency within the meaning
of the APA." Anglers, 809 F.3d at 670.
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including the Council and its Executive Director, to fully
develop the issue of whether or not the Council is an agency for
purposes of the APA and whether it engaged in final agency
action when it declined to include river herring and shad in the
Atlantic herring FMP. 3 As another court has noted, the issue of
whether entities like the Council qualify as agencies is a
"close one." See J. H. Miles & Co., Inc. v. Brown, 910 F. Supp.
1138, 1157 (E.D. Va. 1995) . 4
Accordingly, the Court, in its discretion, finds that
permitting the proposed amendments at this stage will further
the efficient adjudication of the merits of the case.
3
The Court recognizes that courts have, in cases where a regional
fishery management council was not a party, occasionally opined on
whether or not a regional council could qualify as an agency for
purposes of the APA. See, e.g., Anglers Conservation Network v.
Pritzker, 70 F. Supp. 3d 427, 437 (D.D.C. 2014); J. H. Miles & Co.,
Inc. v. Brown, 910 F. Supp. 1138, 1159 (E.D. Va. 1995). In each of
those cases however, the issue was not squarely presented to the
court.
4Moreover, this Court has already ruled that "[a]lthough amendments to
fishery management plans originate with the regional fisheries
management councils, 16 U.S. § 1852(h) (1), ultimate responsibility for
the details of any amendment - including the decision to add certain
stocks to a fishery - rests with NMFS." Anglers, 139 F. Supp. 3d at
112 (citing Flaherty v. Bryson, 850 F. Supp. 2d 38, 54 (D.D.C. 2012)).
To this Court's knowledge, the Court of Appeals has not dealt with
this particularly difficult issue that still remains regarding the
interpretation of the MSA.
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IV. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for Leave to
File Third Amended and Supplemental Complaint shall be granted.
An Order shall accompany this Memorandum Opinion.
August 21, 2017
United States District Judge
Copies to: attorneys on record via ECF
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