UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MICHAEL s. FLAHERTY, et al., 

Civil Action No. ll-660(GK} 

Plaintiffs, 

v. 

PENNY PRITZKER, et al., 

Defendants 

And 

SUSTAINABLE FISHERIES 

COALITION, 

Defendant-Intervenor: 

MEMORANDUM OPINION 

Plaintiffs Michael S. Flaherty, Captain Alan A. Hastbacka, 

and the Ocean River Institute ("Plaintiffs"), bring this action 

against Commerce Secretary Penny Pritzker who has now been 

succeeded by Wilbur Ross, the National Oceanic and Atmospheric 

Administration ("NOAA"), and the National Marine Fisheries 

Service ( "NMFS") (collectively "Defendants"), as well as 

Defendant-Intervenor Sustainable Fisheries Coalition ("SFC"). 

This matter is now before the Court on Plaintiffs' Motion for 

Leave to File Third Amended and Supplemental Complaint ( "Pls.' 

Mot.") [Dkt. No. 152]. In the Motion, Plaintiffs seek, among 

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other things, to add the New England Fishery Management Council 

and its Executive Director, Mr. Thomas Nies, as Defendants in 

this matter. 

Upon consideration of the Motion, Oppositions, Reply, the 

entire record herein, and for the reasons discussed below, 

Plaintiffs' Motion is granted. 

I . BACKGROUND 

A. Factual Background 

On March 2, 2011, the National Marine Fisheries Service 

( "NMFS") published its Final Rule implementing Amendment 4 to 

the Atlantic Herring Fishery Management Plan ("FMP"). Final 

Rule, 76 Fed. Reg. 8,786 (Feb. 2, 2011). The NMFS and the New 

England Fishery Management Council (the "Council") jointly 

developed Amendment 4 in order to bring the FMP into compliance 

with the annual catch limits and accountability measures of the 

Magnuson-Stevens Act ("MSA"), 16 U.S.C. § 1801, by the 2011 

statutory deadline. On March 8, 2012, this Court found that 

Amendment 4 violated certain provisions of the MSA, the 

Administrative Procedure Act ("APA") I and the National 

Environmental Policy Act ("NEPA"), and issued an Order remanding 

the action to Defendants which contained specific guidance, as 

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well as a time line, for actions Defendants were to take and 

complete within one year ("Remedial Order") [Dkt. No. 41] . 

In that Order, the Court ordered NMFS to send a letter to 

the Council "recommending that the Council consider, in an 

amendment to the Atlantic Herring FMP, whether 'river herring' 

[including shad] should be designated as a stock in the 

fishery[.]" Remedial Order at 11. Although NMFS sent two letters 

to the Council making this recommendation, the Council 

ultimately adopted recommendations that failed to add river 

herring and shad as stocks in the Atlantic herring fishery. On 

February 13, 2014, NMFS published its Final Rule implementing 

Amendment 5, which similarly failed to include river herring and 

shad as stocks in the fishery. Final Rule, 7 9 Fed. Reg. 8 7 8 6 

(Feb. 13, 2014). 

B. Procedural History 

On March 31, 2014, this Court granted Plaintiffs' request 

to file a Supplemental Complaint challenging Amendment 5. See 

Order [Dkt. No. 92]. At the Parties' request, the Court stayed 

the case through November 28, 2016 in light of anticipated 

actions by NMFS that could have alleviated Plaintiffs' concerns. 

On November 29, 2016, the Court held a status conference and 

ordered the parties to submit a proposed briefing schedule. On 

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January 6, 2017, Plaintiffs filed the present Motion for Leave 

to File Third Amended and Supplemental Complaint '[Dkt. No. 152]. 

Defendants and Defendant-Intervenor filed Oppositions to 

Plaintiffs' Motion on January 19, 2017 [Dkt. Nos. 153 and 154]. 

On January 27, 2017, Plaintiffs' filed their Reply [Dkt. No. 

155] . 

II. STANDARD OF REVIEW 

The amendment of pleadings in civil matters is governed by 

Rule 15 of the Federal Rules of Civil Procedure, which states 

that the "court should freely give leave [to amend] when justice 

so requires." Fed. R. Civ. P. 15 (a) (2). The decision to grant or 

deny leave to amend rests in the sound discretion of the trial 

court; however, it is an abuse of discretion to deny leave 

without a sufficient justification for doing so. Firestone v. 

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (citing Foman v. 

Davis, 371 U.S. 178, 182 (1962)). Sufficient justifications 

include "undue delay, bad faith or dilatory motive ... repeated 

failure to cure deficiencies by [previous] amendments [or] 

futility of amendment." Id. (quoting Foman, 371 U.S. at 182). 

In assessing a motion for leave to amend, the Court is 

required to assume the truth of the allegations in the amended 

complaint and construe them in the light most favorable to the 

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movant. Caribbean Broadcasting Sys. v. Cable & Wireless PLC, 148 

F.3d 1080, 1086 (D.C. Cir. 1998). The party opposing the 

amendment bears the burden to show why leave should not be 

granted. Dove v. Washington Metro. Area Trans. Auth., 221 F.R.D. 

246, 247 (D.D.C. 2004) (citing Gudavich v. Dist. of Columbia, 22 

F. App'x 17, 18 (D.C. Cir. 2001)). 

III. DISCUSSION 

Plaintiffs seek to amend their Second Supplemental 

Complaint to add the New England Fishery Management Council and 

its Executive Director, Mr. Thomas Nies, as Defendants. 

Plaintiffs also set forth events, and a related claim, that have 

occurred since Plaintiffs filed the Second Supplemental 

Complaint.1 

Plaintiffs argue that the proposed amendments are necessary 

to end the loop that continues to preclude the relief they seek: 

(1) the Council has a duty to add fish stocks requiring 

conservation and management; (2) river herring and shad need 

conservation and management; (3) NMFS, which has a duty to 

ensure that the Mangnuson-Stevens Act is fulfilled, lacks the 

authority to force the Council to take action; and (4) the 

1 Plaintiffs also move to withdraw their prior Count II which concerned 

accountability in the fishery. Since Defendants and IntervenorDefendant do not object to this request, See Defs.' Mot. at 6 and 

Inter.-Def.'s Mot. at 2, the Court need not consider it at this time. 

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Council has not passed, on its own, the necessary amendment to 

add river herring and shad to the Atlantic herring FMP. See 

Pls.'s Mot. at 3. 

According to Plaintiffs, only a court order specifically 

directing the Council to take action to remedy what they 

consider to be legal violations of the MSA can provide them the 

relief they seek. Id. 

A. The Proposed Amendments Do Not Improperly Expand the 

Scope of the Original Complaint. 

A key issue to decide in any Motion to Amend is whether 

Plaintiffs have improperly expanded the scope of the original 

Complaint. Wright v. Corr. Corp. of America, 2016 WL 264907, at 

*2 (D.D.C. Jan. 21, 2016). A comparison of the proposed Amended 

Complaint with the original Complaint in this case clearly 

reveals that Plaintiffs have not sought to significantly expand 

the scope of the case. The core facts and allegations remain 

substantially unchanged between the two documents. While 

Plaintiffs have added the Council and Mr. Nies as Defendants, 

they have done so in an attempt to hold the relevant entities 

accountable for the alleged harms since this Court has recently 

determined that the original Defendants -- i.e., NMFS et. al. --

lack the authority to force the Council to take action. See 

Anglers Conservation Network v. Pritzker, 13 9 F. Supp. 3d 102 

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(D.D.C. 2015), Civ. No. 14-509, Dkt. No. 58. The core facts and 

legal issues remain the same: river herring and shad have not 

been added to the Atlantic herring FMP thereby violating, 

according to Plaintiffs, the MSA, NEPA and APA. 

B. Amendment Would Not Cause Undue Delay. 

Another factor weighing strongly in favor of adding the 

amendments is that granting Plaintiffs' request would not cause 

undue delay or otherwise impede the efficient adjudication of 

this case. As mentioned above, the proposed amendments do not 

radically alter the original Complaint and, as a result, likely 

will not require NMSF and the other original Defendants to 

expend a substantial amount of time and resources to respond to 

the amended allegations. Further, Plaintiffs have requested to 

amend their Complaint early in their challenge of Amendment 5 to 

the Atlantic herring FMP. The Parties have not yet briefed the 

merits of this dispute and there are no appeals or decisions 

pending. Defendants, basing their entire argument against 

amendment on the futility exception to the liberal amendment 

standard, do not attempt to argue that the proposed amendments 

would cause undue delay. See Opp. at 7 n. 1 (" [B] ecause the 

proposed amendment would be futile, the Court need not reach 

those issues [of undue delay or prejudice] 

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and Federal 
Defendants do not address them here[.]"). Simply put, permitting 

Plaintiffs to amend their Complaint would not cause undue delay 

in the adjudication of this matter. 

C. The Proposed Amendments Are Not Unduly Prejudicial to 

Defendants. 

For similar reasons, the Court also finds that the proposed 

amendments will not unduly prejudice Defendants. Because the 

proposed additions to the Complaint primarily concern the 

Council, the original Defendants will not be surprised by any 

substantially new allegations made against them. With regard to 

the new Defendants, the Council and its Executive Director have 

been intimately involved in the events described in the original 

Complaint, namely the discussions and ultimate decision not_ to 

introduce river herring and shad to the Atlantic herring FMP. 

Notably, Defendants and Intervenor-Defendant do not contend that 

the proposed amendments would prejudice them in any way. See 

generally Opp. and Inter.-Def. Opp. Accordingly, the Court 

concludes that this factor also favors permitting Plaintiffs to 

amend their Complaint. 

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D. The Futility of the Proposed Amendments 

Defendants argue that Plaintiffs' Motion should be denied 

because the proposed amendments are futile. Specifically, 

Defendants claim that the Council is not an "agency" within the 

purview of the APA and, in the alternative, even if the Council 

were an agency, it did not engage in final agency action. See 

Opp. at 7; Inter. -Def. Opp. at 2-3. Plaintiffs claim that the 

issue of whether the Council is an agency is "effectively a 

question of first impression. Never before has a Council been 

sued, the jurisdictional questions briefed, and a decision 

issued that squarely addresses whether or not the Council is an 

agency under the APA." Pls.' Reply at 12. 

The Court agrees with Plaintiffs' assessment of the 

pertinent legal issues. 2 The parties raise a number of novel 

legal questions that would benefit from more targeted briefing 

directly addressing the merits of the dispute. The Court 

believes that the motion to dismiss or summary judgment stage 

would provide a more appropriate forum and enable all parties, 

2 Defendant-Intervenor argues that Anglers Conservation Network v. 

Pritzker, 809 F.3d 664 (D.C. Cir. 2016) resolved the issue and 

determined that regional fishery management councils are not agencies. 

See Inter.-Def. Opp. at 2. Anglers, however, is not precisely on 

point. In that case, the regional council was not a defendant and the 

Court of Appeals specifically noted that the plaintiffs "d[id] not 

contend that the Council is itself a federal agency within the meaning 

of the APA." Anglers, 809 F.3d at 670. 

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including the Council and its Executive Director, to fully 

develop the issue of whether or not the Council is an agency for 

purposes of the APA and whether it engaged in final agency 

action when it declined to include river herring and shad in the 

Atlantic herring FMP. 3 As another court has noted, the issue of 

whether entities like the Council qualify as agencies is a 

"close one." See J. H. Miles & Co., Inc. v. Brown, 910 F. Supp. 

1138, 1157 (E.D. Va. 1995) . 4 

Accordingly, the Court, in its discretion, finds that 

permitting the proposed amendments at this stage will further 

the efficient adjudication of the merits of the case. 

3 The Court recognizes that courts have, in cases where a regional 

fishery management council was not a party, occasionally opined on 

whether or not a regional council could qualify as an agency for 

purposes of the APA. See, e.g., Anglers Conservation Network v. 

Pritzker, 70 F. Supp. 3d 427, 437 (D.D.C. 2014); J. H. Miles & Co., 

Inc. v. Brown, 910 F. Supp. 1138, 1159 (E.D. Va. 1995). In each of 

those cases however, the issue was not squarely presented to the 

court. 

4 Moreover, this Court has already ruled that "[a]lthough amendments to 

fishery management plans originate with the regional fisheries 

management councils, 16 U.S. § 1852(h) (1), ultimate responsibility for 

the details of any amendment - including the decision to add certain 

stocks to a fishery - rests with NMFS." Anglers, 139 F. Supp. 3d at 

112 (citing Flaherty v. Bryson, 850 F. Supp. 2d 38, 54 (D.D.C. 2012)). 

To this Court's knowledge, the Court of Appeals has not dealt with 

this particularly difficult issue that still remains regarding the 

interpretation of the MSA. 

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IV. CONCLUSION 

For the foregoing reasons, Plaintiffs' Motion for Leave to 

File Third Amended and Supplemental Complaint shall be granted. 

An Order shall accompany this Memorandum Opinion. 

August 21, 2017 

United States District Judge 

Copies to: attorneys on record via ECF 

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