UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARTHA'S VINEYARDIDUKES ) COUNTY FISHERMEN'S ) ASSOCIATION ) ) and ) Civil Case No. 10-1580 (RJL) ) MICHAEL S. FLAHERTY, ) ) Plaintiffs, ) ) v. ) ) GARY LOCKE, in his official capacity ) as Secretary of the Department of ) Commerce, et al. ) ) Defendants. )

MEMORANDU OPINION (September ,2011) [#25]

Plaintiffs Martha's VineyardlDukes County Fishermen's Association ("the

Association") and Michael S. Flaherty (collectively "plaintiffs") brought an action

challenging the management of river herring and shad along the East Coast of the United

States against two sets of defendants: (1) United States Secretary of Commerce Gary

Locke, the National Oceanic and Atmospheric Administration ("NOAA"), and the

National Marine Fisheries Service ("NMFS" or "Fisheries Service") (collectively,

"Federal defendants"); and (2) the Atlantic States Marine Fisheries Commission

("ASMFC"), along with individual citizens acting in their official capacity as

Commissioners of the ASMFC (collectively, "State defendants"). Plaintiffs allege that

1 the Federal defendants' actions and failures to act, which they contend have caused the

populations of river herring and shad to decline, violated the Magnuson-Stevens Fishery

Conservation and Management Act ("Magnuson-Stevens Act"), the Administration

Procedure Act ("AP A"), and the Atlantic Coastal Fisheries Cooperative Management Act

("Atlantic Coastal Fisheries Act"). The Federal defendants have moved to dismiss

plaintiffs' complaint. After due consideration of the law and pleadings, the Federal

defendants' Motion to Dismiss is GRANTED.

BACKGROUND

1. Statutory Background

A. The Magnuson-Stevens Act

The Magnuson-Stevens Act was enacted in 1976,

Stat. 331, as

amended,

, "to take immediate action to conserve and manage

the fishery resources found off the coasts of the United States" and "to promote domestic

commercial and recreational fishing under sound conservation and management

principles."

(b)(l), (3). The Act created eight independent regional

Fishery Management Councils ("Councils") "to exercise sound judgment in the

stewardship of fishery resources."

§ 1801 (b )(5), 1852(a). "Each Council is granted

authority over a specific geographic region and is composed of members who represent

the interests of the states included in that region." C&W Fish Co. v. Fox,

(D.C. Cir. 1991) (citing

).

Under the statute, the Councils are required to prepare a fishery management plan

("FMP") for each fishery that requires conservation and management.

2 1851-1854. NMFS, a federal agency and a division of NOAA and the Department of

Commerce, reviews and approves the proposed FMPs to ensure they are consistent with 1 the ten national standards set forth in the Magnuson-Stevens Act.

If the appropriate

Council fails to develop a FMP with respect to any fishery, the Secretary of Commerce

may prepare a FMP ("Secretarial FMP") with respect to such fishery.

§ 1854(c).

Further, if the Secretary "finds that an emergency exists or that interim measures are

needed to reduce overfishing for any fishery, he may promulgate emergency regulations

or interim measures necessary to address the emergency or overfishing, without regard to

whether a fishery management plan exists for such fishery." Id. § 1855(c)(1).

B. The Atlantic Coastal Fisheries Act

In 1993, Congress adopted the Atlantic Coastal Fisheries Act,

-

5108, "to support and encourage the development, implementation, and enforcement of

effective interstate conservation and management of the Atlantic coastal fishery

resources."

(b). Congress enacted this statute in response to concerns

regarding "disparate, inconsistent, and intermittent State and Federal regulation that has

been detrimental to the conservation and sustainable use" of coastal fishery resources.

§ 510l(a)(3). Congress sought to promote the conservation of "[c]oastal fishery

1 NOAA is an agency of the Department of Commerce, which delegated to NOAA supervisory responsibility for NMFS. CompI. ~ 13. NOAA, in tum, delegated to NMFS the responsibility to review FMPs. Id. ~ 14. Plaintiffs raise claims related to three of the ten national standards-Standards One, Two, and Nine. The three relevant national standards provide that conservation and management measures shall "prevent overfishing while achieving, on a continuing basis, optimum yield" (Standard One); "be based on the best scientific information available" (Standard Two); and "to the extent practicable, (a) minimize bycatch and (b) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch" (Standard Nine).

(1), (2), (9). 3 resources that migrate, or are widely distributed, across the jurisdictional boundaries of

two or more of the Atlantic States and of the Federal Government." ld. § 5101(a)(l).

The Atlantic Coastal Fisheries Act clearly defines the responsibilities of the States

and Federal government. Under the Act, the "responsibility for managing Atlantic

coastal fisheries rests with the States, which carry out a cooperative program of fishery

oversight and management through the [ASMFC]."

(a)(4). "It is the

responsibility of the Federal Government to support such cooperative interstate

management of coastal fishery resources." ld. The ASMFC works jointly with the

Councils established under the Magnuson-Stevens Act to create coastal fishery

management plans (also called an "interstate FMP" or "IFMP") complementary to those

prepared by the Councils regulating the same species in federal waters. See

§

51 04(a)(l). In the absence of a FMP created by the Councils, and after consultation with

the Councils, "the Secretary may implement regulations to govern fishing in the

exclusive economic zone [of the United States]" that are compatible with an IFMP and

consistent with the national standards set forth in the Magnuson-Stevens Act. ld. §

5103(b).

ll. Factual Background

Plaintiff Martha's Vineyard/Dukes County Fishermen's Association is comprised

of fishermen and "other active participants in local, state, regional and federal fisheries

management, with direct interests in maintaining abundant populations of river herring

and shad." Amended Complaint ("Compl.") ~ 10. River herring and shad are

anadromous species of herring that are born in fresh water and then migrate to the ocean

4 before returning to the fresh water where they were born in the spring and early summer

to spawn. 2 Id.,-r,-r 10,20. The Association has observed a "drastic decline" in the number

of river herring that return to Dukes County. Id.,-r 10. River herring and shad often swim

in mixed-stock schools of fish, including Atlantic herring or mackerel. Id.,-r,-r 10, 32.

Industrial mid-water trawlers who use small mesh nets to target other species, such as the

Atlantic herring or mackerel, regularly catch as bycatch river herring and shad, which are

discarded dead at sea. Id.,-r 33. Plaintiffs contend the decline correlates to the increase of

mid-water trawling for herring and mackerel. Id.,-r 10. The Association and its members

rely upon the river herring and shad as part of their economic base. Id.

Michael Flaherty is a recreational fisherman from Massachusetts, and is a former

Vice President of the Massachusetts Striped Bass Association. CompI.,-r 11. He has

been a recreational fisherman for over thirty-five years. Id. Striped bass is a species that

thrives when it consumes river herring. Id. In the past, Flaherty has fished for river

herring to use as bait or consume as food. Id. Previously, he was able to fish at his local

river herring run and was allowed to catch up to forty-eight fish per week. Id. Because

the Commonwealth of Massachusetts has banned the harvesting of river herring,

Flaherty's fishing days for them are over. Id.

Plaintiffs first filed this lawsuit on September 20, 2010, and they then filed an

amended complaint on December 13,2010. On January 14,2010, the Federal defendants

2 "River herring" is the collective term for two species of fish-the alewife and the blueback herring-because the two species are difficult to distinguish from each other and are managed as a single stock. CompI.,-r 17. Similarly, "shad" is the collective term for two species of fish-the American shad and the hickory shad. CompI.,-r 19. 5 filed a motion to dismiss Counts One and Two of plaintiffs' amended complaint. For the

following reasons, the Federal defendants' motion is GRANTED.

STANDARD OF REVIEW

A court may dismiss a complaint, or any portion of it, that does not fall within the

court's subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Where a motion to dismiss

under Rule 12(b)(I) makes a facial attack on the complaint, the reviewing court "must

accept as true all material allegations on the complaint, and must construe the complaint

in favor of the complaining party." Ord v. District of Columbia,

(D.C. Circuit 2009) (internal citation and quotation marks omitted). "Under Rule

12(b)( 1), the plaintiff bears the burden of establishing that the court has jurisdiction."

Grand Lodge of Fraternal Order ofPolice v. Ashcroft,

(D.D.C.

2001).

A court may also dismiss a complaint, or any portion of it, for failure to state a

claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In considering a

motion to dismiss, however, the court may only consider "the facts alleged in the

complaint, any documents either attached to or incorporated in the complaint and matters

of which [the court] may take judicial notice." E.E.o.c. v. Sf. Francis Xavier Parochial

Sch.,

(D.C. Cir. 1997). To survive a motion to dismiss, a complainant

must "plead [ ] factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ---U.S.---,

(2009). In evaluating a Rule 12(b)(6) motion, the court construes the

complaint "in favor of the plaintiff, who must be granted the benefit of all inferences that

6 can be derived from the facts alleged." Schuler v. United States, 617 F .2d 605, 608 (D.C.

Cir. 1979) (internal quotation marks omitted). However, factual allegations, even though

assumed to be true, must still "be enough to raise a right to relief above the speculative

level." Bell Atl. Corp. v. Twombly,

(2007). Moreover, the court "need

not accept inferences drawn by plaintiffI] if such inferences are unsupported by the facts

set out in the complaint. Nor must the court accept legal conclusions cast in the form of

factual allegations." Kowal v. MC] Commc 'ns Corp.,

(D.C. Cir.

1994 ).

LEGAL ANALYSIS

Plaintiffs make several allegations against the Federal defendants. In their first

claim, plaintiffs allege that: (1) the NMFS violated the Magnuson-Stevens Act by failing

to prepare or implement a FMP for river herring and shad that contains measures that

prevent overfishing and minimize or avoid bycatch, as well as by failing to monitor the

fisheries that kill river herring, see CompI. ~ 108; and (2) the Secretary violated the

Magnuson-Stevens Act by failing to use his emergency authority under

(c) to enact regulations to prevent overfishing, see Compi. ~ 110. In their second

claim, plaintiffs allege that the Federal defendants violated the Atlantic Coastal Fisheries

Act and the APA by failing to: (1) enact regulations in the EEZ for river herring and

shad, see Compl. ~ 116; and (2) support the ASMFC and state coastal fisheries programs

to address bycatch of river herring in federal fisheries, see Compl. ~ 117.

The Federal defendants contend that this court lacks jurisdiction over plaintiffs'

first and second claims for relief because the claims are time-barred under the Magnuson-

7 Stevens Act. Defs.' Mot. to Dismiss ("Defs.' Mot.") at 8, Jan. 14, 2011. Specifically, the

Federal defendants contend that plaintiffs failed to file their lawsuits within thirty-days of 3 the promulgation of the challenged rules, as required under the Magnuson-Stevens Act.

Defs.' Mot. at 8. The Magnuson-Stevens Act provides that regulations promulgated by

the Secretary under the Act shall be subject to judicial review if challenged "within 30

days after the date on which the regulations are promulgated or the action is published in

the Federal Register, as applicable."

(0(1).

Although plaintiffs do not invoke the judicial review provision of the Magnuson-

Stevens Act, it is clear from the face of the Complaint that their allegations, in substance,

are challenges to the existing FMPs for Atlantic herring, squid, mackerel, and butterfish

fisheries, where river herring and shad are caught.4 At the heart of plaintiffs' argument is

their contention that the Federal defendants have failed to address minimizing bycatch

and preventing overfishing of river herring and shad in their implementation of these

FMPs for the Atlantic herring, squid, mackerel, and butterfish fisheries. 5 See Compl. ,-r 4

3 The final rules implementing the most recent amendments to the FMPs for Atlantic herring and squid, mackerel and butterfish were published on: January 28, 2008 (Atlantic herring) and March 11,2010 (squid, mackerel, and butterfish). 4 As other circuits have held, Invocation of the magic words, "the Magnuson Act," is not a predicate to application of § 185 5( 0 if the substance of the challenge is to the regulations themselves. Notably, § 1855(0 does not state that challenges "under the Magnuson Act" must be brought within thirty days, but instead that judicial review of "[rJ egulations promulgated by the Secretary under the [Magnuson Act]" must brought within the stated time limit. Turtle Island Restoration Network v. Us. Dep't o/Commerce,

,944 (9 th Cir. 2006). 5 National Standard One provides that the requirement for Annual Catch Limits ("ACLs") in a FMP applies to all stock in a fishery, including non-target species caught as bycatch. 8 (F ederaI defendants have "failed to manage river herring and shad as stocks in any other

FMPs including Atlantic herring and mackerel (the Atlantic herring FMP and the Squid

Mackerel Butterfish FMP)."); id. ~ lO ("Because river herring often swim in schools

where they mix with Atlantic herring or mackerel, midwater trawl fishing vessels have

the potential to wipe out an entire river's herring run by netting all of the school that

make up a single run in the ocean."); id. ~ 23 (In the ocean, [river herring and shad] are

killed in vast numbers as bycatch in directed fisheries for other fish - including

particularly as bycatch in trawl fisheries for Atlantic herring and mackerel); id. ~ 34

("Bycatch in these fisheries is poorly monitored, reported, and regulated."); id. ~ 36

("Bycatch of river herring in the New England Atlantic herring fishery alone can equal or

exceed all directed fishery landings, contributing 50% or more to the total known fishing

morality."); id. ~ 86 ("There is no federal FMP for shad and river herring, and the

Fisheries Service failed to adopt ACLs and [accountability measures] for river herring

and shad in other FMPs that regulate fisheries where the stocks are caught, landed and

sold (Atlantic herring fishery and Squid, Mackerel and Butterfish fishery)."); id. ~ 88

"Scientists on the [New England Fishery Management Council] Atlantic Herring Plan

Development Team have recognize[ d] that 'bycatch is the one impact on river herring

that is unmanaged and unmitigated. "'); id. ~ 90 (Councils "have adopted no species-

specific measures, such as a catch limit, in any federal FMPs for fisheries where river

herring and shad bycatch is occurring."); id. ~ 108 (The Fisheries Service's "failures

(d)(2-4), 600.310(f)(2). The Magnuson-Stevens Act requires that these ACLs be set at a level such that overfishing does not occur in the fishery. See

(a)(l5). 9 include a failure to monitor the fisheries that kill river herring and shad.");

, 110

("The Secretary also has failed to use his emergency authority under § 185 5(c) to enact

regulations to promulgate emergency regulations or interim measures to address the

emergency or overfishing occurring in the fisheries that kill river herring and shad."); id.

, 117 (The Federal defendants have failed "to address bycatch of river herring in federal

fisheries. "). Unfortunately for the plaintiffs, the regulations implementing the most

recent amendments to these FMPs were published over thirty-days prior to the filing of

this Complaint. The final rules implementing the most recent amendments to the FMPs

for Atlantic herring and squid, mackerel and butterfish were published on: January 28,

2008 (Atlantic herring) and March 11,2010 (squid, mackerel, and butterfish). Plaintiffs

filed their original complaint on September 20,2010. Plaintiffs have thus failed to file

their lawsuit within thirty-days of the publication of these regulations implementing those

FMPs and their most recent amendments.

Although plaintiffs also directly challenge the failure of the Federal defendants to

minimize bycatch and overfishing of the river herring and shad in these other fisheries,

plaintiffs attempt, through artful pleading, to avoid the limitations period of the

Magnuson-Stevens Act by also raising general allegations of "failure to manage" river

herring and shad under the Magnuson-Stevens Act and the Atlantic Coastal Fisheries

Act. 6 Compl." 39, 108. However, as other Circuit Courts have held, parties cannot

avoid this limitations period through careful pleading where, in substance, the parties are

6There is no federal FMP for river herring and shad. These species are managed by the ASMFC's IFMP. Compl., 63. 10 challenging existing regulations. See Turtle Island Restoration Network v. Us. Dep 't of

Commerce,

(9 th Cir. 2006); see also Sea Hawk Seafoods v. Locke,

(9th Cir. 2009). Plaintiffs' general allegations are inextricably intertwined

with grievances with respect to the Federal defendants' management of-specifically, the

FMPs for-the Atlantic herring, squid, mackerel, and butterfish fisheries. These

underlying challenges pertain to the Federal defendants' actions and inactions with

respect to those FMPs. Therefore, the Federal defendants' Motion to Dismiss is

GRANTED because plaintiffs' first and second claims are time-barred under the

Magnuson-Stevens Act. 7

7 Even assuming plaintiffs' general claims that the Federal defendants failed to promulgate regulations pertaining to river herring and shad are separate from claims relating to the FMPs of the other fisheries (such as the claims pertaining to the regulation of bycatch in those fisheries), those claims are dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Plaintiffs contend the that (1) NMFS failed to prepare an FMP for river herring and shad; (2) the Secretary failed to use his emergency authority under

(c) to enact regulations to prevent overfishing; and (3) the Federal defendants failed to enact regulations in the EEZ for river herring and shad. See CompI. ~~ 108, 110, 116. Although authorized to promulgate such regulations, the Federal defendants' power to do so is discretionary. See

(c) ("The Secretary may prepare a fishery management plan, with respect to any fishery ... if ... the appropriate Council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery.") (emphasis added);

(c) ("If the Secretary finds that an emergency exists or that interim measures are needed to reduce overfishing for any fishery, he may promulgate emergency regulations or interim measures necessary to address the emergency or overfishing, without regard to whether a [FMP] exists for such fishery.") (emphasis added);

(b) ("In the absence of an approved and implemented [FMP] under the [Magnuson-Stevens Act], and after consultation with the appropriate Councils, the Secretary may implement regulations to govern fishing in the exclusive economic zone.") (emphasis added). The Federal defendants are in no way required to promulgate plaintiffs' requested regulations. Thus, plaintiffs have failed to identify a discrete agency action that the Federal defendants were 11 CONCLUSION

For the foregoing reasons, the Federal defendants' Motion to Dismiss, ECF No.

25, is GRANTED. An appropriate order will accompany this memorandum opinion.

legally required to take. See Compi. ,-r 6 (alleging that the court has jurisdiction pursuant to the AP A); 5 U .S.C. § 706(1). Therefore, these claims must be dismissed. 12