UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MARTHA'S VINEYARDIDUKES 

COUNTY FISHERMEN'S 

ASSOCIATION 

and 

MICHAEL S. FLAHERTY, 

Plaintiffs, 

v. 

GARY LOCKE, in his official capacity 

as Secretary of the Department of 

Commerce, et al. 

Defendants. 

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) Civil Case No. 10-1580 (RJL) 

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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 

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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, Pub. L. 94-265, 90 Stat. 331, as 

amended, 16 U.S.C. §§ 1801-1883, "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." 16 U.S.C. §§ 1801(b)(l), (3). The Act created eight independent regional 

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

stewardship of fishery resources." Id. § 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, 931 F.2d 1556, 

1557-58 (D.C. Cir. 1991) (citing 16 U.S.C. § 1852). 

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

("FMP") for each fishery that requires conservation and management. 16 U.S.C. §§ 

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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 

the ten national standards set forth in the Magnuson-Stevens Act. 1 Id. 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. Id. § 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, 16 U.S.C. §§ 5101-

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

effective interstate conservation and management of the Atlantic coastal fishery 

resources." 16 U.S.C. § 5101(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. Id. 

§ 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). 16 U.S.C. §§ 1851(1), (2), (9). 

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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]." 16 U.S.C. § 5101(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 id. § 

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 

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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. 

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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, 587 F.3d 1136, 1140 

(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 of Police v. Ashcroft, 185 F. Supp. 2d 9,13 (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., 117 F.3d 621,624 (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.---, 129 S. 

Ct. 1937, 1949 (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 

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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, 550 U.S. 544, 555 (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., 16 F.3d 1271, 1276 (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 16 U.S.C. § 

1855( 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 Magnuson7 
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 

the promulgation of the challenged rules, as required under the Magnuson-Stevens Act. 3 

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." 16 U.S.C. § 1855(0(1). 

Although plaintiffs do not invoke the judicial review provision of the MagnusonStevens 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, 438 F.3d 937,944 (9th 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. 

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(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 speciesspecific 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 

50 C.F.R. §§ 600.310(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 16 

U.S.C. § 1853(a)(l5). 

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include a failure to monitor the fisheries that kill river herring and shad."); id. , 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 

6 There is no federal FMP for river herring and shad. These species are managed by the 

ASMFC's IFMP. Compl., 63. 

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challenging existing regulations. See Turtle Island Restoration Network v. Us. Dep 't of 

Commerce, 438 F.3d 937, 945 (9th Cir. 2006); see also Sea Hawk Seafoods v. Locke, 568 

F.3d 757, 765 (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 16 U.S.C. § 1855(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 16 U.S.C. § 1854(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); 16 U.S.C. § 1855(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); 16 U.S.C. § 5103(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 

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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. 

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