### UNITED STATES DISTRICT COURT FORTHE DISTRICT OFCOLUMBIA MARTHA'S VINEYARDIDUKES COUNTY FISHERMEN'S ASSOCIATION and MICHAEL S. FLAHERTY, Plaintiffs,



### v. GARY LOCKE, in his official capacity as Secretary ofthe Department of Commerce, etal. 

### Defendants. ) ) ) ) 

### ) Civil Case No. 10-1580 (RJL) ) ) ) ) ) ) ) ) ) ) ) )



### 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 ofriver herring and shad along the East Coast ofthe United States against two sets ofdefendants: (1) United States Secretary ofCommerce 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 ofthe ASMFC (collectively, "State defendants"). Plaintiffs allege that 1the Federal defendants' actions and failures to act, which they contendhave causedthe populations ofriver herring and shadto decline, violated the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), the Administration Procedure Act ("APA"), and the Atlantic Coastal Fisheries Cooperative ManagementAct ("Atlantic Coastal Fisheries Act"). The Federal defendants have moved to dismiss plaintiffs' complaint. After due consideration ofthe law and pleadings, the Federal defendants' Motion to Dismiss is GRANTED. 

### BACKGROUND 1. 

### Statutory Background A. The Magnuson-StevensAct The Magnuson-Stevens Actwas enacted in 1976, Pub. L. 94-265, 90 Stat. 331, 

### as amended, 16 U.S.C. §§ 1801-1883, "totake immediate action to conserve and manage the fishery resources found offthe coasts ofthe United States" and "topromote domestic commercial and recreational fishing under sound conservation and management principles." 16 U.S.C. §§ 1801(b)(l), (3). The Act created eight independentregional Fishery Management Councils ("Councils") "toexercise soundjudgmentin the stewardship offishery resources." 

### Id. § 1801(b)(5), 1852(a). "Each Council is granted authority over a specific geographic region and is composed ofmembers who represent the interests ofthe states included in that region." 

### C&WFish Co. v. 

### Fox, 931 F.2d 1556, 1557-58 (D.C. Cir. 1991) (citing 16 U.S.C. § 1852). Underthe statute, the Councils are required to prepare a fishery managementplan ("FMP") for each fishery that requires conservation and management. 16 U.S.C. §§ 21851-1854. NMFS, a federal agency and a division ofNOAA and the Department of Commerce, reviews and approves the proposed FMPs to ensure they are consistentwith the ten national standards set forth in the Magnuson-Stevens Act. 1 Id. Ifthe appropriate Council fails to develop a FMP with respect to any fishery, the Secretary ofCommerce may prepare a FMP ("Secretarial FMP") with respect to such fishery. Id. 

### § 1854(c). Further, ifthe Secretary "finds that an emergency exists orthat 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 managementplan exists for such fishery." Id. § 1855(c)(1). 

### B. The Atlantic CoastalFisheriesAct 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 ofthe 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" ofcoastal fishery resources. Id. § 510l(a)(3). Congress soughtto promote the conservation of"[c]oastal fishery

1NOAA is an agency ofthe Department ofCommerce, 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 relatedto three ofthe ten national standards-Standards One, Two, andNine. Thethree relevant national standards provide that conservation and management measures shall "prevent overfishing while achieving, on a continuing basis, optimum yield" (Standard One); "bebased on the best scientific information available" (Standard Two); and "tothe extentpracticable, (a) minimize bycatch and (b) to the extentbycatch cannotbe avoided, minimize the mortality ofsuch bycatch" (Standard Nine). 16 U.S.C. §§ 1851(1), (2), (9). 3resources that migrate, or are widely distributed, across thejurisdictional boundaries of two or more ofthe Atlantic States and ofthe Federal Government." ld. § 5101(a)(l). The Atlantic Coastal Fisheries Act clearly defines the responsibilities ofthe States and Federal government. Underthe Act, the "responsibility for managingAtlantic coastal fisheries rests withthe States, which carry out a cooperative program offishery oversight and managementthrough the [ASMFC]." 16 U.S.C. § 5101(a)(4). "Itis the responsibility ofthe Federal Governmentto support such cooperative interstate management ofcoastal fishery resources." ld. The ASMFC worksjointlywith the Councils established under the Magnuson-Stevens Act to create coastal fishery managementplans (also called an "interstate FMP" or "IFMP") complementary to those prepared by the Councils regulating the same species in federal waters. See id. 

### § 5104(a)(l). In the absence ofa FMP created by the Councils, and after consultation with the Councils, "the Secretary may implement regulations to govern fishing in the exclusive economic zone [ofthe United States]" that are compatible with an IFMP and consistentwith the national standards set forth in the Magnuson-Stevens Act. ld. 

### § 5103(b). ll. FactualBackground PlaintiffMartha's Vineyard/Dukes County Fishermen's Association is comprised offishermen and "other active participants in local, state, regional and federal fisheries management, with direct interests in maintaining abundant populations ofriverherring and shad." Amended Complaint ("Compl.")**~** 10. River herring and shad are anadromous species ofherring that are born in fresh water and then migrate to the ocean 4

### before returning to the fresh waterwhere 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 ofriver herring that return to Dukes County. 

### Id.,-r 10. Riverherring and shad often swim in mixed-stock schools offish, including Atlantic herring ormackerel. 

### Id.,-r,-r 10, 32. Industrial mid-watertrawlers 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 contendthe decline correlates to the increase of mid-watertrawling for herring and mackerel. 

### Id.,-r 10. The Association and its members rely upon the river herring and shad as part oftheir economic base. 

### Id. Michael Flaherty is arecreational fisherman from Massachusetts, and is a former Vice President ofthe 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 perweek. 

### Id. Because the Commonwealth ofMassachusetts has banned the harvesting ofriver 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 

### "Riverherring" is the collective term for two species offish-the alewife and the blueback herring-becausethe two species are difficult to distinguish from each other and are managed as a single stock. CompI.,-r 17. Similarly, "shad" is the collectiveterm for two species offish-the American shad and the hickory shad. CompI.,-r 19. 5

### filed a motion to dismiss Counts One and Two ofplaintiffs' amended complaint. Forthe following reasons, the Federal defendants' motion is GRANTED. STANDARD OF REVIEW 

### A court may dismiss a complaint, or any portion ofit, that does not fall within the court's subject-matterjurisdiction. Fed. R. Civ. P. 12(b)(1). Where a motionto 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 ofthe complaining party." Ord

### v. District of Columbia, 

### 587 F.3d 1136, 1140 (D.C. Circuit 2009) (internal citation and quotation marks omitted). "UnderRule 12(b)(1), the plaintiffbears the burden ofestablishing that the court hasjurisdiction." GrandLodge 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 ofit, for failure to state a claim upon which reliefmay 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 ofwhich [the court] may takejudicial notice." 

### E.E.o.c. v. Sf. FrancisXavier 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 courtto draw the reasonable inferencethat 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 ofthe plaintiff, who must be granted the benefit ofall inferences that 6can be derived from the facts alleged." Schuler v. UnitedStates, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks omitted). However, factual allegations, eventhough assumed to be true, must still "be enough to raise a right to reliefabove the speculative level." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the court "need

not accept inferences drawn byplaintiffI] ifsuch inferences are unsupported by the facts

set out in the complaint. Normust 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 riverherring and shad that contains measures that prevent overfishing and minimize or avoid bycatch, as well as by failing to monitorthe fisheries that kill river herring, see CompI.**~** 108; and (2) the Secretary violatedthe Magnuson-Stevens Act by failing to use his emergency authority under 16 U.S.C. § 1855(c) to enactregulations to prevent overfishing, see Compi.**~** 110. Intheir second claim, plaintiffs allege thatthe Federal defendants violated the Atlantic Coastal Fisheries Act and the APAby failing to: (1) enactregulations in the EEZ for riverherring and shad, see Compl.**~** 116; and (2) supportthe ASMFC and state coastal fisheries programs to address bycatch ofriverherring in federal fisheries, see Compl.**~** 117. The Federal defendants contendthatthis court lacksjurisdiction overplaintiffs' first and second claims for reliefbecause the claims are time-barred underthe Magnuson7Stevens Act. Defs.' Mot. to Dismiss ("Defs.' Mot.") at 8, Jan. 14, 2011. Specifically, the Federal defendants contendthatplaintiffs failed to file their lawsuits within thirty-days of the promulgation ofthe challengedrules, as required underthe Magnuson-Stevens Act.3 Defs.' Mot. at 8. The Magnuson-Stevens Actprovides that regulations promulgatedby the Secretary underthe Act shall be subjecttojudicialreview ifchallenged "within 30 days after the date on which the regulations are promulgated orthe action is published in the Federal Register, as applicable." 16 U.S.C. § 1855(0(1). Although plaintiffs do not invoke thejudicial reviewprovision ofthe MagnusonStevens Act, it is clear from the face ofthe Complaintthattheir allegations, in substance,

are challenges to the existing FMPs for Atlantic herring, squid, mackerel, and butterfish fisheries, where riverherring and shad are caught.4 Atthe heart ofplaintiffs' argument is their contention thatthe Federal defendants have failed to address minimizing bycatch and preventing overfishing ofriver herring and shad in their implementation ofthese FMPs for the Atlantic herring, squid, mackerel, and butterfish fisheries. 5 

### See Compl. 

### ,-r 4

3 The final rules implementingthe mostrecent amendments to the FMPs for Atlantic herring and squid, mackerel and butterfish werepublished on: January 28, 2008 (Atlantic herring) and March 11,2010 (squid, mackerel, and butterfish). 4As other circuits have held, Invocation ofthe magic words, "the MagnusonAct," is not apredicate to application of§1855(0 ifthe substance ofthe challenge is to the regulations themselves. Notably, § 1855(0 does not state that challenges "underthe Magnuson Act" must bebrought within thirty days, but instead thatjudicial review of

### "[rJegulationspromulgatedby the Secretary under the [Magnuson Act]" mustbrought within the statedtime limit. 

### Turtle IslandRestorationNetworkv. 

### Us. Dep'to/Commerce, 438 F.3d 937,944 (9th Cir. 2006). 5National Standard Oneprovides thatthe requirement for Annual CatchLimits ("ACLs") in a FMP applies to all stock in a fishery, including non-target species caught as bycatch. 8(FederaI defendants have "failed to manage riverherring 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 ormackerel, midwatertrawl fishing vessels have the potential to wipe out an entire river's herring run by netting all ofthe school that make up a single run in the ocean."); id.**~** 23 (In the ocean, [riverherring 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 ofriver herring in the NewEngland 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 riverherring, andthe Fisheries Service failed to adopt ACLs and [accountability measures] for riverherring and shad in other FMPs thatregulate 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 riverherring 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 Actrequires 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). 9include a failure to monitorthe fisheries that kill river herring and shad."); 

### id. , 110 ("The Secretary also has failed to use his emergency authority under 

### § 1855(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 ofriver herring in federal fisheries."). Unfortunately for the plaintiffs, the regulations implementing the most recent amendments to these FMPs were published overthirty-days priorto the filing of this Complaint. The final rules implementing the most recent amendments to the FMPs for Atlantic herring and squid, mackerel and butterfish werepublished 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 ofthe publication ofthese regulations implementing those FMPs and their most recent amendments. Although plaintiffs also directly challenge the failure ofthe Federal defendants to minimize bycatch and overfishing ofthe river herring and shad in these other fisheries, plaintiffs attempt, through artful pleading, to avoid the limitations period ofthe Magnuson-Stevens Act by also raising general allegations of"failureto manage" river herring and shad underthe 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. 10challenging existing regulations. See Turtle IslandRestorationNetwork v. Us. Dep 't of Commerce, 438 F.3d 937, 945 (9th Cir. 2006); see also Sea HawkSeafoods 

### v. Locke, 568 F.3d 757, 765 (9th Cir. 2009). Plaintiffs' general allegations are inextricably intertwined with grievances with respectto 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 underthe 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 ofthe other fisheries (such as the claims pertaining to the regulation ofbycatch in those fisheries), those claims are dismissed under Rule 12(b)(6) for failure to state a claim upon which reliefcan 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' powerto do so is discretionary. See 16 U.S.C. § 1854(c) ("The Secretary mayprepare a fishery managementplan, with respect to any fishery

... if

...the appropriate Council fails to develop and submit to the Secretary, after a reasonable period oftime, a fishery managementplan for such fishery.") (emphasis added); 16 U.S.C. § 1855(c) ("Ifthe Secretary finds that an emergency exists orthat interim measures are neededto reduce overfishing for any fishery, he maypromulgate 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) ("Inthe absence ofan 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 thatthe Federal defendants were 11CONCLUSION Forthe foregoing reasons, the Federal defendants' Motion to Dismiss, ECF No. 25, is GRANTED. An appropriate order will accompany this memorandum opinion.

legally requiredto take. See Compi. 

### ,-r 6 (alleging that the courthasjurisdictionpursuant to the APA); 5 U.S.C. § 706(1). Therefore, these claims must be dismissed. 12