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”),

et seq.,

the National Environmental Policy Act (“NEPA”),

-

4337 et seq., and the Administrative Procedure Act (“APA”)

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.

. 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;

(d).

-2- (“FMPs” or “Plans”) for fisheries in federal waters within the

United States Exclusive Economic Zone (“EEZ”),

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.

(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.

. 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.”

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

(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.

(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

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.

.

Additionally, the EPA and Army Corps of Engineers (“Corps”)

have some responsibility over permitting offshore aquaculture.

. 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

;

. Under the Clean

Water Act,

, 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.

(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.

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.

(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

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

(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

(a)(3) was ultra vires under the MSA and APA.

. 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

; 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.

(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.

“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,

(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,

(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,

(D.C. Cir. 2003). The Court may consider matters

outside the pleadings. See Herbert v. Nat’l Acad. of Sciences,

(D.C. Cir. 1992). The Court may rest its decision

on the Court’s own resolution of disputed facts.

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,

(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.”

.

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.,

(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.”

(2)(A). “The arbitrary

and capricious standard [of the APA] is a narrow standard of

review.” Citizens to Preserve Overton Park, Inc. v. Volpe,

(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,

(D.C. Cir. 2003)

(citations and internal quotation marks omitted); see also United

States v. Paddack,

(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.,

(D.C. Cir. 1997); Marshall v. Honeywell Tech. Solutions Inc.,

(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,

, 521 (D.C. Cir. 1983)

(citation omitted); see Kisser v. Cisneros,

(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,

(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,

(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.,

(2007)); see Boston &

Maine Corp. v. Surface Transp. Bd.,

(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,

(1977). Plaintiffs invoke

federal jurisdiction, and therefore bear the burden of showing that

they have standing. Lujan v. Defenders of Wildlife,

(1992). To do so, Plaintiffs may establish either substantive

or procedural standing. See Nat’l Parks Conservation Ass’n v.

Manson,

(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,

.

-15- 1. Substantive Standing

In Lujan,

(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.”

(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.

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.

(b)(1); see N.C.

Fisheries Ass’n v. Gutierrez,

(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,

(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,

-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,

(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.

. The Court found that petitioners

failed to establish standing because their alleged injury from

climate change was too general.

. 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

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,

(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.

. 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,

. 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.

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.

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,

, 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,

.

Plaintiffs rely on American Oceans Campaign v. Daley,

(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.”

.

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.

.

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.

Rather, Daley held that where an agency activity has

caused “particularized injuries,” those harmed will have standing.

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.

.

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

. 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

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,

(2009); see WebCel Commc’n, Inc. v. FCC,

, 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,

. Standing is

appropriate when there is a “live dispute over a concrete

application of those regulations.” See

. 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,

(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,

(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.

. This supplemental detail was integral to the Court’s ultimate

determination because it helped outline how a procedural remedy

would redress their harm. See

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,

. 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,

(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.,

, 57 n. 18 (1993). A claim must be both

Constitutionally and prudentially ripe to be adjudicated. Wyo.

Outdoor Council v. U.S. Forest Serv.,

(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,

(quoting Nat’l Treasury

Employees Union v. United States,

(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,

(“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,

, 284 (D.C. Cir. 2003) (hereinafter “Atlantic States”)

(quoting Clean Air Implementation Project v. EPA,

,

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,

(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,

(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.,

(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.

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.

(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,

.

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,

(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,

(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.”

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.”

(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].”

(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

(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.

; see also Molycorp,

Inc. v. EPA,

(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,

). 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.

.

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.

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,

. 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 . . . ”

(emphasis added). If the agency action is not final, a court

cannot adjudicate the dispute. See DRG Funding,

(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,

(D.C. Cir. 2009); see also

DRG Funding,

(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.”

.

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,

.

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,

, 525 n.2 (D.C. Cir. 2009) (“Recently we clarified that

the provision of the APA limiting judicial review to ‘final agency

action,’

, 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-