Goethel v. U.S. Department of Commerce

United States Court of Appeals
For the First Circuit

No. 16-2103

DAVID GOETHEL, XIII NORTHEAST FISHERY SECTOR, INC.,

Plaintiffs, Appellants,

v.

U.S. DEPARTMENT OF COMMERCE; WILBUR ROSS, in his official
capacity as Secretary, U.S. Department of Commerce; BENJAMIN
FRIEDMAN, in his official capacity as Acting Administrator,
National Oceanic and Atmospheric Administration; NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION; SAMUEL D. RAUCH III, in
his official capacity as Assistant Administrator for Fisheries
(Acting) for the National Marine Fisheries Service; NATIONAL
MARINE FISHERIES SERVICE,*

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph Laplante, Chief U.S. District Judge]

* Pursuant to Fed. R. App. P. 43(c)(2), the following
substitutions have been made among the appellees: Wilbur Ross,
U.S. Secretary of Commerce, for former Secretary Penny Pritzker;
Benjamin Friedman, Acting Administrator, National Oceanic and
Atmospheric Administration, for former Administrator Kathryn
Sullivan; and Samuel D. Rauch III, Assistant Administrator for
Fisheries (Acting) for the National Marine Fisheries Service, for
former Assistant Administrator Eileen Sobeck.
 Before

Kayatta, Circuit Judge,
Souter, Associate Justice,**
and Stahl, Circuit Judge.

Julie A. Smith, with whom Eric R. Bolinder, Ryan P. Mulvey,
Cause of Action Institute, and James C. Wheat, Pierre A. Chabot,
and Wadleigh, Starr & Peters, P.L.L.C., were on brief for
appellants.
Thekla Hansen-Young, with whom John C. Cruden, Assistant
Attorney General, Andrew C. Mergen, Robert Lundman, Alison C.
Finnegan, Andrea Gelatt, Environment & Natural Resources Division,
U.S. Department of Justice, and Mitch MacDonald, Gene Martin,
National Oceanic and Atmospheric Administration, Office of General
Counsel, Northeast Section, were on brief for appellees.

April 14, 2017

** Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 STAHL, Circuit Judge. This case arrives on the court's

deck from regulations promulgated by the National Marine Fisheries

Service (NMFS), which require that on certain commercial fishing

trips, fishermen must be accompanied on their vessels by at-sea

monitors to ensure compliance with catch quotas, and that the

industry must foot the bill for these unwelcome guests. David

Goethel, a New Hampshire fisherman joined in these proceedings by

a group of commercial fishermen subject to this "industry funding"

requirement, brought suit in federal district court in New

Hampshire, claiming that the industry funding requirement violates

several pertinent statutes and is also unconstitutional.

The district court granted summary judgment in favor of

the government, reasoning that Goethel's suit was not filed within

the applicable statute of limitations and that Goethel's statutory

and constitutional challenges would have failed even if timely.

On appeal, Goethel renews the bulk of his constitutional and

statutory arguments, and urges this court to find that his suit

was not time-barred. Because we agree with the district court

that Goethel's suit was not timely, we AFFIRM the grant of summary

judgment in favor of the government, and do not reach the question

of whether the industry funding requirement contravenes the edicts

of the relevant statutes or the Constitution.

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 I. Facts & Background

A. The Regulations

The Magnuson-Stevens Fishery Conservation and Management

Act (MSA), 16 U.S.C. §§ 1801-1884, was passed by Congress in 1976

in "[r]espon[se] to depletion of the nation's fish stocks due to

overfishing." Associated Fisheries of Me., Inc. v. Daley, 127

F.3d 104, 107 (1st Cir. 1997). The stated goals of the MSA were,

inter alia, 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)(1),(3). The MSA

tasked the Department of Commerce1 with regulating commercial

fishing throughout the Exclusive Economic Zone of the United

States, which extends 200 nautical miles from the seaward boundary

of each coastal state. Id. § 1802(11); see also Pres. Proc. No.

5030, Exclusive Economic Zone of the United States, 48 Fed. Reg.

10,605 (Mar. 10, 1983) (defining the geographic scope of the

1 The Department of Commerce in turn delegated this role to
the National Oceanic and Atmospheric Administration ("NOAA"),
which regulates the fisheries through its sub-agency, the National
Marine Fisheries Service ("NMFS"). For simplicity's sake, these
entities (all of which are named as defendants-appellees along
with their respective chiefs in their official capacities) are
referred to throughout this opinion as the "government."

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Exclusive Economic Zone of the United States and the sovereign

rights exercised therein under international law).

Pursuant to the MSA, eight regional Fishery Management

Councils (FMCs) were established and charged with preparing, and,

if circumstances warranted, amending, regional Fishery Management

Plans (FMPs), which set certain standards for the fishing industry

within the given FMC's regional purview. The MSA was amended in

2007 to include a requirement that each FMP include "measures to

ensure accountability" with respect to catch limits. See 16 U.S.C.

§ 1853(a)(15). In an effort to effectuate this requirement, the

regional FMP at issue in this case, the Northeast Multispecies

FMP, was amended by the New England Council (the relevant FMC) to

include a requirement that commercial fishermen within the purview

of the Northeast Multispecies FMP must, on occasion, be accompanied

by at-sea monitors (ASMs) who would collect certain data related

to the particular fishing trip and the vessel's catch. See

generally Northeast (NE) Multispecies Fishery, Amendment 16, 75

Fed. Reg. 18,262 (Apr. 9, 2010). The amendment that added this

monitoring requirement was known as "Amendment 16," and was

published on April 9, 2010, following a period of public comment.

Goethel was a council member at the time of the enactment of

Amendment 16 and voted against the proposal.

The at-sea monitors are human employees of private,

third-party contractors who accompany the fishermen on board their

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vessels during certain fishing trips, observe their activities to

ensure compliance with fishing limits, and file reports upon their

return to port. While catch quotas had previously been imposed,

and overall catch hauls recorded upon a fisherman's return to port,

at-sea monitors were intended to verify the specific geographic

areas in which a boat fished, and also to monitor fish discards at

sea. See 75 Fed. Reg. at 18,342. While not every fishing journey

is monitored, costs for the monitors when a particular fishing

trip is selected for such monitoring are estimated at $700-$800

per trip. See Goethel v. Pritzker, No. 15-CV-497-JL, 2016 WL

4076831, at *1 (D.N.H. July 29, 2016). Application of the at-sea

monitoring program depends on whether a particular fishmerman is

a member of a "sector," an association of "vessels that have

voluntarily signed a contract and agree[d] to certain fishing

restrictions," most notably catch restrictions and management

requirements compiled in a sector operations plan. See Lovgren v.

Locke, 701 F.3d 5, 15-16 (1st Cir. 2012) (citing Northeast (NE)

Multispecies Fishery, Amendment 13, 69 Fed. Reg. 22,906, 22,945

(Apr. 27, 2004)). The sector program is voluntary and those

vessels that choose not to join a sector are still able to fish

from the "common pool" allocation of fish under a separate program

that tracks number of days spent at sea, rather than using catch

limits, and that does not require at-sea monitoring. See generally

50 C.F.R. § 648.82 (discussing days-at-sea restrictions for

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members of the common pool). The relevant sectors in this case

are comprised of those fishing for groundfish.2

As is the case with many government regulations,

Amendment 16 requires compliance without offering to pay or

reimburse the regulated entity for the cost of compliance. To the

contrary, Amendment 16 itself requires that the sector fishermen

bear the costs of the at-sea monitors. See Northeast (NE)

Multispecies Fisheries, Amendment 16, 75 Fed. Reg. 18,262, 18,342

(April 9, 2010) ("Beginning in fishing year 2010, a sector must

develop, implement, and pay for, to the extent not funded by NMFS,

an independent third-party dockside/roving and at-sea/electronic

monitoring program that is satisfactory to, and approved by, NMFS

. . . ."). Notwithstanding this clear requirement, the government

paid the ASM costs throughout the first several years of the

program's existence. See, e.g., Standardized Bycatch Reporting

Methodology Omnibus Amendment, 80 Fed. Reg. 37,182, 37,185 (June

30, 2015) ("To date, we have been able to provide sufficient

funding for the groundfish sector at-sea monitoring program such

that industry did not have to pay for at-sea monitoring.").

However, a 2011 ruling by the D.C. Circuit required NMFS

to fund a separate reporting program, see Oceana v. Locke, 670

2
"Groundfish" is a generic term for various bottom-dwelling
fish species including, most notably, cod, haddock, halibut, and
flounder. Goethel, 2016 WL 4076831, at *2 n.4.

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F.3d 1238 (D.C. Cir. 2011), which in turn depleted the funds that

the agency had available for the at-sea monitoring program in the

Northeast. Beginning in 2015, responding to funding shortfalls

caused by the requirements of the D.C. Circuit ruling, NMFS took

a series of steps to inform the sectors that it could no longer

fund the at-sea monitoring costs, and the sectors themselves and

their constituent fishermen would soon be on the hook for these

costs, as envisioned by Amendment 16. Because of the importance

of the various dates in 2015 for purposes of the statute of

limitations, we explain the relevant communications between the

agency and the regulated sectors below.

• March 9, 2015: NMFS published a Proposed Rule to
approve seventeen sector operations plans for fishing
years 2015 and 2016. While noting that the agency
had been able to pay the costs of ASM coverage during
the years 2012 to 2014, the agency explained that this
would change: "Due to funding changes . . . we expect
that sector vessels will be responsible for paying
at-sea costs associated with the ASM program before
the end of the 2015 fishing year." Proposed Rule,
2015 and 2016 Sector Operations Plans for Northeast
Multispecies Fishery, 80 Fed. Reg. 12,380, 12,385
(Mar. 9, 2015).

• May 1, 2015: NMFS published a final rule that
reiterated the same language from the March 9th
proposed rule, namely, that the agency "expect[ed]
that sector vessels will be responsible for paying
the at-sea portion of costs associated with the sector
ASM program before the end of the 2015 fishing year."
Final Rule, 2015 and 2016 Sector Operations Plans for
Northeast Multispecies Fishery, 80 Fed. Reg. 25,143,
25,148 (May 1, 2015). The notice also added that
"funding for our portion of ASM costs is expected to
expire before the end of the 2015 fishing year" but
"we have begun working on an implementation plan to

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 help ensure a seamless transition when the industry
assumes responsibility for at-sea costs in 2015." Id.
at 25,149.

• November 10, 2015: NOAA Northeast Fisheries Science
Center announced that "federal funds in the major at-
sea monitoring contracts for northeast groundfish
sectors will be expended by December 31, 2015," and
that "[t]ransition of monitor sea-day costs to
industry will therefore be effective January 1, 2016."
This announcement was sent to the relevant sectors in
an email, but was not published in the Federal
Register. The email, titled "Update: Federal Funding
for At-Sea Monitoring Ends December 31, 2015,” stated,
in pertinent part:

Based on the data we have on actual fishing
effort, we have determined that federal
funds in the major at-sea monitoring
contracts for northeast groundfish sectors
will be expended by December 31, 2015.
Transition of monitor sea-day costs to
industry will therefore be effective
January 1, 2016.

Although the November 10th email notification purported

to establish a date certain when industry funding would kick in

(January 1, 2016), the government was ultimately able to continue

paying ASM costs through mid-February 2016. Additionally, on June

23, 2016, a NOAA email notification informed the Northeast Sector

that the agency would fully fund the shore-based monitoring program

and would "use remaining funds to offset some of industry's costs

of the groundfish at-sea monitoring program."

B. The Parties

Plaintiff-appellant David Goethel is a New Hampshire-

based commercial fishermen and sector member who is subject to the

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various provisions of the Northeast Multispecies FMP, including

the industry funding requirement for the at-sea monitoring

program. Plaintiff-appellant XIII Northeast Fishery Sector, Inc.

("Sector 13"), one of the approved groundfish sectors, is a

corporation organized under Section 501(c)(5) of the U.S. Internal

Revenue Code, and consists of thirty-two fishermen and twenty

active boats. The members of Sector 13 are also subject to the

Northeast Multispecies FMP, including the at-sea monitoring

program. Goethel and Sector 13 presented evidence that the

industry funding requirement for the at-sea monitoring program

would impose draconian costs on the Sector and its members,

including citing a NOAA report which concluded that "nearly 60% of

the fleet could see negative returns to owner when full 2015 ASM

costs are factored in." Plaintiffs-appellants are concerned that

the industry funding requirement will essentially render the

groundfish industry no longer viable from a commercial standpoint.

The defendants-appellees are the U.S. Department of

Commerce, the NOAA, and the NMFS, as well as their respective

directors in their official capacities.

C. The Lawsuit

Goethel filed his suit on December 9, 2015. As discussed

in greater detail below, Goethel argues that because his complaint

was filed within thirty days of the November 10th email

notification, it was therefore timely under the MSA's thirty-day

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statute of limitations. In his complaint and subsequent briefing

to the district court, Goethel advanced a multitude of alleged

statutory and constitutional violations, falling into one of three

categories: an allegation that the industry funding requirement

is unlawful, a challenge to the at-sea monitoring requirement in

general, and a facial attack on the entire Magnuson-Stevens

framework. We briefly describe these claims below.

First, Goethel alleged that the industry funding

requirement was unlawful because the agency acted in excess of its

statutory authority under the MSA and failed to follow proper

procedures, resulting in agency action that was arbitrary,

capricious, and an abuse of discretion, in violation of the

requirements of the Administrative Procedure Act (APA), 5 U.S.C.

§ 706(2)(A).3 In addition to alleging a violation of the APA,

Goethel cast his net even further, alleging that the industry

funding requirement was an improper tax in violation of the

Appropriations Clause, U.S. Const. art. I, § 9, cl. 7, the Anti-

Deficiency Act (ADA)4, 31 U.S.C. § 1341, and the Miscellaneous

3 With some exceptions not relevant to the present case, the
MSA generally incorporates the APA's judicial review provisions.
See 16 U.S.C. § 1855(f)(1)(B).
4 In relevant part, the ADA prohibits federal officers from
"mak[ing] or authoriz[ing] an expenditure or obligation exceeding
an amount available in an appropriation or fund for the expenditure
or obligation" and from "involv[ing] [the United States] in a
contract or obligation for the payment of money before an
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Receipts Act (MRS)5, 31 U.S.C. § 3302, and also constituted the

imposition of improper user fees in violation of the Independent

Offices Appropriations Act (IOAA)6, 31 U.S.C. § 9701. He also

alleged that the industry funding requirement violated the

interstate commerce clause, U.S. Const. art. I, § 8, cl. 3, by

requiring that the fishermen enter the market for at-sea monitors

and purchase those services. Finally, he alleged two procedural

violations: that the agency failed to prepare a Regulatory

Flexibility Analysis, as required by the Regulatory Flexibility

Act (RFA), 5 U.S.C. §§ 601-612, and that it failed to assess the

impact of its regulatory actions on the environment, as required

by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–

4370e. All of these arguments are preserved on appeal, with the

exception of the alleged NEPA violation, which is not raised in

Goethel's opening brief.

Second, Goethel challenged the at-sea monitoring program

itself (as distinct from the requirement that the sectors pay for

appropriation is made unless authorized by law." 31 U.S.C.
§ 1341(a)(1)(A)-(B).
5 This statute provides that "an official or agent of the
Government receiving money for the Government from any source shall
deposit the money in the Treasury as soon as practicable without
deduction for any charge or claim." 31 U.S.C. § 3302(b).
6 The IOAA permits an agency to "prescribe regulations
establishing the charge for a service or thing of value provided
by the agency," 31 U.S.C. § 9701(b), in effect recouping fees from
those who receive services provided by the agency.

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it) on constitutional grounds. The sheer volume of constitutional

claims that Goethel made initially suggests that he was, in a

manner of speaking, on a fishing expedition. Specifically, he

alleged that the at-sea monitoring requirement violates the First

Amendment by "compelling fishermen to join sectors"7; violates the

Port Preference Clause8 by discriminating between the various

States, leading fishing vessels to prefer one state's port over

another; and violates the Fourth Amendment's prohibition on

unreasonable searches and seizures. Not content to leave any part

of the kitchen sink unused, Goethel also alleged that the at-sea

monitoring program violates the Third Amendment's prohibition on

the quartering of soldiers during peacetime because fishermen were

compelled to accommodate federally-mandated monitors on multi-day

fishing voyages.9 Of these arguments, only the Fourth Amendment

claim is preserved in this appeal.

7 This argument was abandoned by the plaintiffs during an
early phase of the proceedings below, was not addressed by the
district court in its opinion, and is not raised on appeal.
8 See U.S. Const. art. I, § 9, cl. 6 ("No Preference shall be
given by any Regulation of Commerce or Revenue to the Ports of one
State over those of another; nor shall Vessels bound to, or from,
one State, be obliged to enter, clear, or pay Duties in another.").
Goethel likewise abandoned this argument prior to summary
judgment, and does not raise it on appeal.
9 See U.S. Const. Amend. III ("No Soldier shall, in time of
peace be quartered in any house, without the consent of the Owner,
nor in time of war, but in a manner to be prescribed by law.").
The Third Amendment was a response to the Quartering Acts of 1765
and 1774, in which Parliament authorized British military
commanders to requisition private homes as barracks, see Engblom
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 Third, Goethel alleged that the entire MSA regulatory

framework was unconstitutional. First, he alleged that the

regional FMCs are improperly constituted, in violation of the

Appointments Clause, U.S. Const. art. II, § 2, cl. 2, because

members of the councils are "inferior officers" whose appointments

could thus only be vested "in the President alone, in the Courts

of Law, or in the Heads of Departments." Goethel argues that

because the governors of the various coastal states are involved

in nominating individuals to the councils, and because state

executive officials are not among the permissible entities in which

Congress can vest the appointment power for inferior officers, the

councils are constitutionally infirm and actions taken by those

councils, including the Northeast Multispecies FMP, are void.

Second, Goethel argues that the MSA conscripts state officers by

requiring that they participate in the councils, in turn violating

the Tenth Amendment anti-commandeering doctrine. See Printz v.

United States, 521 U.S. 898, 935 (1997) ("The Federal Government

v. Carey, 677 F.2d 957, 967 (2d Cir. 1982) (Kaufman, J., concurring
in part and dissenting in part), and its application to private
contractors engaged in on-board monitoring of the fishing industry
is a dubious proposition to say the least. However, as with the
Port Preference Clause and First Amendment claims, the plaintiffs
conceded their Third Amendment argument before summary judgment,
thus depriving this court of the rare opportunity to opine on the
scope and application of the Third Amendment. See Goethel, 2016
WL 4076831, at *9 n.13 ("Earlier in this litigation, plaintiffs
also argued that industry funding of ASM also violated the Third
Amendment's prohibition against quartering of soldiers. They no
longer advance that claim.").

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may neither issue directives requiring the States to address

particular problems, nor command the States' officers, or those of

their political subdivisions, to administer or enforce a federal

regulatory program."). The alleged violations of the Appointments

Clause and the Tenth Amendment are preserved in this appeal.

D. The District Court Ruling

After the parties cross-moved for summary judgment, the

district court, in an order dated July 29, 2016, rejected Goethel's

various challenges and granted summary judgment in favor of the

government. First, the court found that the claims were not timely

because "the plaintiffs [sic] 30–day window to challenge the

industry funding component of ASM closed, at the latest, in June

2015, well before this suit was filed." Goethel, 2016 WL 4076831,

at *4. The district court rejected Goethel's argument that the

November 10th email notification was a separately reviewable

"action" under the MSA, but also declined the government's

invitation to find that the statute of limitations began to run in

2012 when the regulations implementing Amendment 16 took effect,

which would have meant Goethel's claims were time-barred by a

matter of years. See id. at *3-4.

Second, the court, after concluding that Goethel's suit

was time-barred, proceeded to analyze Goethel's statutory and

constitutional claims, and found that they would have failed on

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the merits even if his suit had been filed within the MSA's thirty-

day statute of limitations.

This timely appeal followed.

II. Analysis

The district court determined that Goethel's complaint

was barred by the MSA's statute of limitations, a finding that we

review de novo. See Santana-Castro v. Toledo-Dávila, 579 F.3d

109, 113 (1st Cir. 2009). The MSA includes provisions that govern

judicial review. Specifically, parties may challenge "regulations

promulgated by" NMFS, 16 U.S.C. § 1855(f)(1), and they may also

seek review of "actions that are taken by the Secretary under

regulations which implement a fishery management plan, including

but not limited to actions that establish the date of closure of

a fishery to commercial or recreational fishing," id.

§ 1855(f)(2). Furthermore, as relevant (and ultimately

dispositive) to this case, judicial review is only available if a

complaint "is filed within 30 days after the date on which the

regulations are promulgated or the action is published in the

Federal Register, as applicable." Id. § 1855(f)(1).

As an initial matter, we address an argument that Goethel

spends much time advancing in both his opening and reply briefs:

that he is entitled to pre-enforcement review under the APA, in

lieu of violating the statute and then bringing his statutory and

constitutional arguments as a defense to an enforcement action.

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The thirty-day statute of limitations embodied in the MSA, Goethel

argues, does not apply to pre-enforcement review. Not so. Of

course pre-enforcement review is available as a general matter

under the MSA, but, as the district court noted below, "plaintiffs

cite no authority which permits the court to waive the statute of

limitations applicable to pre-enforcement review" of agency action

under the MSA. Goethel, 2016 WL 4076831, at *4 n.4.

On appeal, Goethel renews this same argument, but fails

to cite any authority for the proposition that the thirty-day

statute of limitations in the MSA can be deep-sixed simply by the

fact that the party seeking judicial review is making a pre-

enforcement challenge to the statute in question. Indeed, the

courts that have encountered this question appear to have uniformly

concluded that the thirty-day statute of limitations cannot be

sidestepped when a party is challenging a regulation promulgated

pursuant to NMFS authority under the MSA. See, e.g., Turtle Island

Restoration Network v. U.S. Dep't of Commerce, 438 F.3d 937, 939

(9th Cir. 2006) (concluding that although the appellant's claims

were "framed . . . in terms of violations of the APA [and

environmental statutes]," they were "in actuality . . .

challenge[s] to the reopening of the [swordfish] Fishery" and thus

subject to the MSA's thirty-day statute of limitations); N.C.

Fisheries Ass'n, Inc. v. Evans, 172 F. Supp. 2d 792, 798–99 (E.D.

Va. 2001) (holding that challenges to regulations arising from an

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FMP amendment must be filed within the thirty-day statute of

limitations period from the promulgation of the amendment itself);

F/V Robert Michael, Inc. v. Kantor, 961 F. Supp. 11, 15 (D. Me.

1997) (concluding that lobstermens' challenge to the Department of

Commerce's denial of permits, on the grounds that such a denial

violated the MSA, was time-barred because "[p]laintiffs' quarrel

lies with the regulation itself" and that regulation had been

promulgated long before the plaintiffs sought review); Stinson

Canning Co. v. Mosbacher, 731 F. Supp. 32, 34–35 (D. Me. 1990)

("Plainly, Congress intended pre-enforcement review since it

provided that a petition for such review must be filed thirty

days from promulgation."). We agree with these cases and hold

that Goethel's pre-enforcement challenge only can proceed if it

was filed within thirty days of the "action" in question as

required by § 1855(f)(1).

Goethel's case, therefore, hinges on whether the

November 10th email is a separately reviewable "action" for

purposes of the thirty-day statute of limitations, since any of

the other pertinent dates -- the 2010 promulgation of Amendment 16

which included by its own terms a requirement of industry funding,

and the March 9th and May 1st, 2015, proposed and final rules

announcing the expected exhaustion of government contributions to

the at-sea monitoring program -- would fall well outside the

thirty-day window. Goethel argues that it was on November 10th,

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for the first time, that the government established a "date

certain" when industry funding would finally take effect, and

therefore this date should be treated as the relevant "action."

In support of this argument, he cites to Bennett v.

Spear, 520 U.S. 154 (1997), where the Supreme Court explained that

agency actions are reviewable under Section 704 of the APA when

they (1) "mark the 'consummation' of the agency's decision-making

process" and (2) are events "by which 'rights or obligations have

been determined,' or from which 'legal consequences will flow.'"

Id. at 177-78. Here, Goethel argues, the November 10th date was

both the "consummation of the agency's decision-making process" by

setting a date on which money would no longer be expended by the

agency, and also when "obligations" had been "determined," namely

who would pay the monitoring costs. Goethel also argued to the

district court, and argues again on appeal, that prior to having

a date certain on which industry funding actually would kick in,

a potential suit would have been dismissed as unripe. See Goethel,

2016 WL 4076831, at *4 n.6 (rejecting Goethel's ripeness argument

as "necessarily speculative," but also observing that it was

"inconceivable that a suit filed within 30 days of the Rule's

publication in May 2016 [sic] would have been found unripe").

We are not convinced by Goethel's argument. First, the

language of § 1855(f) itself requires that for judicial review to

be available, a complaint must be "filed within 30 days after the

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date on which the regulations are promulgated or the action is

published in the Federal Register, as applicable." 16 U.S.C.

§ 1855(f)(1) (emphasis added). Goethel does not argue that the

November 10th email is a stand-alone "regulation," which, although

not defined in the MSA, generally "refers to legally binding

obligations placed upon a council and/or the agency which have the

force and effect of law and, as such, are analogous to substantive

rules issued by an administrative agency which are subject to APA

review." Tutein v. Daley, 43 F. Supp. 2d 113, 121 (D. Mass. 1999)

(citing Chrysler Corp. v. Brown, 441 U.S. 281, 301–302 (1979)).

Nor was the November 10th email published in the Federal Register.

Second, to the extent that the language of the statute

allowing for review within thirty days of the time when "the action

is published in the Federal Register, as applicable," envisions a

category of "actions" for which publication is not applicable,10

10 In briefing and at oral argument, Goethel emphasized that
insulating all non-published agency actions from review might
create incentives for agencies to announce changes in particular
regulatory programs that do shift certain legal obligations for
regulated parties, and avoid legal challenges by refraining from
publishing such decisions. While documents "having general
applicability and legal effect" are generally "required to be filed
for public inspection with the Office of the Federal Register and
published in the Federal Register," 1 C.F.R. § 5.2(c), we do share
Goethel's concern that a bright-line rule requiring publication in
order for judicial review to be available under the MSA might
preclude judicial review in cases where an unpublished action taken
by an agency does, in fact, lead to a change in the legal position
of regulated parties. Because we find that NOAA's November 10th
email had no such effect, we save for a later day whether, under
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we disagree that the November 10th email would qualify. Agency

"action" for purposes of administrative law generally "includes

the whole or a part of an agency rule, order, license, sanction,

relief, or the equivalent or denial thereof, or failure to act."

5 U.S.C. § 551(13). Goethel's argument, that the email

notification was the equivalent of an agency "order," clearly

fails, as the APA defines an order as resulting from agency

adjudication, see id. § 551(7), and there is no suggestion that

the November 10th email was the product of an agency adjudication.

Rather, the email was one of several updates sent to regulated

parties throughout 2015, a routine effort to keep the sectors

abreast of developments pursuant to a final rule which had been

published in May of 2015.11 In short, the November 10th

notification does not have the significance that Goethel seeks to

certain circumstances, unpublished agency actions could still be
subject to judicial review under the MSA.
11While we need not reach this issue given that the November
10th email does not meet the basic requirements for reviewable
agency "action," we think, as a factual matter, that the sectors'
obligation to pay was certainly consummated, at the latest, with
publication of the May 2015 final rule. Therefore, Bennett v.
Spear, which observed that for agency action to be "final," it
must "mark the 'consummation' of the agency's decision-making
process," 520 U.S. at 178 (internal citation omitted), is of no
help to Goethel in this case because the November 10th email had
no such effect.

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assign to it, and we conclude that it is not a separately

reviewable agency "action" for purposes of § 1855(f)(1).12

We agree with the district court that the most recent

"action" that could have plausibly been challenged was the May

2015 final rule, and for that reason we agree with the district

court that the "plaintiffs [sic] 30–day window to challenge the

industry funding component of ASM closed, at the latest, in June

2015, well before this suit was filed." Goethel, 2016 WL 4076831,

at *4. Therefore, the suit is time-barred.

III. Conclusion

Because we find that Goethel's suit was not filed within

the MSA's thirty-day statute of limitations, we need go no further,

and we take no position on the district court's statutory and

constitutional rulings. However, given NOAA's own study which

indicated that the groundfish sector could face serious

difficulties as a result of the industry funding requirement, we

note that this may be a situation where further clarification from

Congress would be helpful for the regulated fisheries and the

12 Goethel and Sector 13 were subject to the applicable
regulations at the time NMFS promulgated Amendment 16, and at the
time that the government announced, in the May 2015 final rule,
that the industry funding requirement would kick in at the
beginning of the 2016 calendar year. Therefore, we need not
consider what other rights, if any, a party who became subject to
the regulations for the first time more than thirty days after the
May 2015 final rule would have, nor do we take any position on how
the MSA's thirty-day statute of limitations would apply to a claim
by such a party.

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agency itself as it balances the competing goals of conservation

and the economic vitality of the fishery.

While the concurring opinion suggests that this is

inappropriate, we note that it is not uncommon in this and other

circuits to include language in opinions that flags potential

issues for Congress to consider, should it choose to do so.13 See,

e.g., Sony BMG Music Entm't v. Tenenbaum, 660 F.3d 487, 490 (1st

Cir. 2011) (commenting, in the context of a copyright infringement

suit, that the case "raises concerns about application of the

Copyright Act which Congress may wish to examine"); Slayton v. Am.

Express Co., 604 F.3d 758, 772 (2d Cir. 2010) (noting, while not

deciding the issue, that "Congress may wish to give further

direction on how to resolve [a] tension" in the Private Securities

Litigation Reform Act); Holender v. Mut. Indus. N. Inc., 527 F.3d

352, 357 (3d Cir. 2008) (observing, in a dispute over the scope of

the Age Discrimination in Employment Act, that "Congress may wish

to revisit this regulatory regime if it proves unworkable");

Elsenety v. Health Care Fin. Admin., 85 F. App'x 405, 410 (6th

Cir. 2003) (acknowledging that the statutory framework in question

13 Indeed, beginning in 1995 with the Long Range Plan for the
Federal Courts, the Judicial Conference and Congress have
collaborated on the Project to Provide Congress with Appellate
Opinions Bearing on Technical Matters of Statutory Construction,
and we have occasionally sent opinions to Congress that we believe
may warrant additional clarification via legislation, precisely
because, as the concurring opinion suggests, the judiciary lacks
expertise on the policy trade-offs faced by Congress.

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created a "harsh rule" and that "[a]t some point in the future,

Congress may wish to reexamine" the statute); Cefalu v. Vill. of

Elk Grove, 211 F.3d 416, 428 (7th Cir. 2000) (suggesting that

certain in-trial evidence presentations are likely reimbursable

under statute governing fees for exemplification, but noting that

"[g]iven the costs associated with some of these" practices, "this

is an area that Congress may wish to revisit and supply further

guidance"); see also United States v. Godin, 534 F.3d 51, 65 (1st

Cir. 2008) (Lynch, J., concurring) (noting that "Congress may wish

to clarify in new legislation the scope of the enhanced penalties"

under an aggravated identity theft statute); Schafer v. Am.

Cyanamid Co., 20 F.3d 1, 7 (1st Cir. 1994) (Stahl, J., concurring)

(agreeing with the majority's interpretation of the National

Childhood Vaccine Injury Act, but "respectfully suggest[ing] that

this is an issue which Congress may wish to revisit."); Olson v.

Gen. Dynamics Corp., 960 F.2d 1418, 1425 (9th Cir. 1991)

(Reinhardt, J., concurring) ("The proliferation of ERISA [Employee

Retirement Income Security Act] preemption cases, in my view,

raises a question as to whether ERISA is having an effect that is

substantially contrary to that intended by those who favored its

adoption. This is a matter which Congress may wish to examine

carefully."); United States v. Collins, CR No. 03-51 S, 2016 WL

6477031, at *3 n.1 (D.R.I. Nov. 2, 2016) (suggesting that "Congress

may wish to consider amending the enumerated offenses clause of

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[the Armed Career Criminal Act] to include those crimes, such as

murder, which previously were understood to fall squarely within

the residual clause.").

Because Goethel's claim is untimely, however, we AFFIRM

the grant of summary judgment in favor of the government.

-Concurring Opinion Follows-

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 KAYATTA, Circuit Judge, concurring. I join in the

panel's opinion with the exception of its call on Congress to

provide further clarification. The nicely reasoned conclusion

that the petition is untimely means that we lack jurisdiction to

consider the merits of the appeal. See Norbird Fisheries, Inc. v.

Nat'l Marine Fisheries Serv., 112 F.3d 414, 416 (9th Cir. 1997).

My colleagues nevertheless call on Congress to provide "further

clarification" not concerning the matter of our jurisdiction, but

rather concerning "the industry funding requirement" in light of

the "competing goals" at stake. To the extent my colleagues imply

that the statute is unclear, or that the "competing goals" at stake

trigger some sort of express statement preference in these

circumstances, I respectfully disagree. The default norm,

manifest without express statement in literally hundreds of

regulations, is that the government does not reimburse regulated

entities for the cost of complying with properly enacted

regulations, at least short of a taking. If this statute needs

clarification on this point, then so too do hundreds of others.

Additionally, given that we have no jurisdiction to hear the merits

of this appeal, nor any expertise on the policy trade-offs made by

Congress in deciding how best to protect our fisheries from

overfishing, and who should pay for that protection, I think it

prudent to be more parsimonious with our advice. See Stephen

Breyer, Active Liberty: Interpreting Our Democratic

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Constitution 5 (2005) ("The judge, compared to the legislator,

lacks relevant expertise.").

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