• 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MARTHA'S VINEY ARDIDUKES ) 

COUNTY FISHERMEN'S ) 

ASSOCIATION ) 

) 

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

) 

MICHAEL S. FLAHERTY, ) 

) 

Plaintiffs, ) 

) 

~ ) 

) 

GARY LOCKE, in his official capacity ) 

as Secretary of the Department of ) 

Commerce, et af. ) 

) 

Defendants. ) 

) 

MEMORANDJtoPINION 

(September , ~ , 2011) [#26] 

Plaintiffs Martha's Vineyard/Dukes 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 

the State defendants violated the Atlantic Coastal Fisheries Cooperative Management Act 

("Atlantic Coastal Fisheries Act"), the ASMFC Compact and Charter, and the 

Administrative Procedure Act ("AP A") by failing to adopt adequate measures to protect 

river herring and shad. The State defendants have moved to dismiss plaintiffs' 

complaint. After due consideration of the law and pleadings, the State defendants' 

Motion to Dismiss is GRANTED. 

BACKGROUND 

1. Statutory Background 

A. The ASMFC Compact 

In 1942, Congress approved the ASMFC Compact, an agreement among the 

fifteen Atlantic coastal states, which formed the ASMFC. Pub. L. No. 77-539, 56 Stat. 

267 (1942), amended by Pub. L. No. 81-721,64 Stat. 467 (1950); see also U.S. CONST. 

art. I, § 10, cl. 3. The purpose of the Compact is "to promote the better utilization of the 

fisheries, marine, shell and anadromous, of the Atlantic seaboard by the development of a 

joint program for the promotion and protection of such fisheries, and by the prevention of 

the physical waste of the fisheries from any cause." ASMFC Compact, art. 1. The 

Compact provides that it shall not "be construed to limit the power of any signatory state 

or to repeal or prevent the enactment of any legislation or the enforcement of any 

requirement by any signatory state imposing additional conditions and restrictions to 

conserve its fisheries." Id. art. IX. 

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Each of the Commission's fifteen member States appoints three representativesthe Commissioners-to the ASMFC: (l) the State's marine fisheries director; (2) a State 

legislator; and (3) a public member with fisheries experience who is appointed by the 

State's Governor. ASMFC Compact, art. III. The Commission has the "power to 

recommend the coordination of the exercise of the police powers of the several states 

within their respective jurisdictions to promote the preservation" of fisheries, and to draft 

and recommend legislation to member States. Id. art. IV. The Commission promulgates 

fishery management plans C'FMP") for inter-jurisdictional fisheries, which plans are then 

implemented by the respective member States. See Medeiros v. Vincent, 431 F.3d 25,27-

28 (lst Cir. 2005). The ASMFC has promulgated FMPs for river herring and shad, the 

fish species at issue in this case. See Amended Complaint ("CompI.") ~ 15. 

B. The Atlantic Coastal Fisheries Act 

In 1993, Congress adopted the Atlantic Coastal Fisheries Act, 16 U.S.C. §§ 5101-

08 (2006), "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) (2006). Congress sought to promote the conservation of 

"[ c ]oastal fishery resources that migrate, or are widely distributed, across the 

jurisdictional boundaries of two or more of the Atlantic States and of the Federal 

Government." Id. § 5101(a)(l). 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. 

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§ 5101(a)(3). Indeed, Congress adopted the Act "to give the ASMFC some 'teeth.'" 

New York v. Atlantic States Marine Fisheries Comm 'n, 609 F.3d 524, 529 (2d Cir. 2010). 

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) (2006). "It is 

the responsibility of the Federal Government to support such cooperative interstate 

management of coastal fishery resources." Id. The ASMFC works jointly with regional 

Fishery Management Councils established under the Magnuson-Stevens Fishery 

Conservation and Management Act ("Magnuson-Stevens Act"), Pub. L. No. 94-265, 90 

Stat. 331 (1976), amended by, 16 U.S.C. §§ 1801-91 (2006), 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. § 

5104(a)(I). 

C. The Magnuson-Stevens Act: Federal Fisheries Management 

The Magnuson-Stevens Act was enacted in 1976 "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)(1), (3) (2006). The Act created eight 

federal independent regional Fishery Management 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 

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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 FMP for each fishery in 

federal waters that requires conservation and management. 16 U.S.C. §§ 1851-54 (2006). 

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. ld. 

II. 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." Compl. ~ 10. River herring and shad are anadromous species of herring that 

are born in fresh water and then migrate to the ocean before returning to the fresh water 

where they were born in the spring and early summer to spawn.! ld. ~~ 10, 20. The 

Association alleges that it has observed a "drastic decline" in the number of river herring 

that return to Dukes County. ld. ~ 10. River herring and shad often swim in mixed-stock 

schools of fish, including Atlantic herring or mackerel. ld. ~~ 10, 32. Industrial midwater 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 

I "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. ~ 17. Similarly, "shad" is the collective term 

for two species of fish-the American shad and the hickory shad. CompI. ~ 19. 

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discarded dead at sea. Id. ~ 33. Plaintiffs contend the decline correlates to the increase of 

mid-water trawling for herring and mackerel. Id. ~ 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. ~ 11. He has 

been a recreational fisherman for over thirty-five years, and presently fishes for striped 

bass. 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 in the State, Flaherty is no longer able to fish for 

river herring. 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 State defendants 

filed a motion to dismiss count three of plaintiffs' amended complaint. For the following 

reasons, the State defendants' Motion to Dismiss 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)( 1) 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. Dist. a/Columbia, 587 F.3d 1136, 1140 (D.C. 

6 
Cir. 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. St. 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, 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 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 plaintiffIJ 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). 

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LEGAL ANALYSIS 

I The AP A is Inapplicable 

A plaintiff must have a right to pursue relief against a defendant to state a claim 

upon which relief may be granted. See Alexander v. Sandoval, 532 U.S. 275, 288 (2001); 

FDICv. Meyer, 510 U.S. 471, 484 (1994). "The determination of who can seek a remedy 

has significant consequences for the reach of federal power"; the "decision to extend the 

cause of action is for Congress, not for [ courts]." Stoneridge Inv. Partners, LLC v. 

Scientific-Atlanta Inc., 552 U.S. 148, 165 (2008). The State defendants contend that 

plaintiffs do not have a private right of action against the ASMFC or the ASMFC 

Commissioners. See State Defs.' Mot. for Summ. 1. at 13 ("Defs.' Mot."), Jan. 14,2011. 

I agree. 

Plaintiffs rely in their Complaint on the AP A's judicial review provisions as the 

source of their right of action against the ASMFC. Compi. ~~ 6, 8, 139-40. Examination 

of the terms of the APA, however, reveals that the ASMFC does not fall within the scope 

of the statute. By its own terms, judicial review is limited to actions taken by agencies, as 

defined by the statute. See 5 U.S.C. § 702 (2006) ("A person suffering legal wrong 

because of agency action, or adversely affected or aggrieved by agency action ... is 

entitled to judicial review."). Under the APA, the term "agency" is defined as an 

"authority of the Government of the United States." 5 U.S.C. § 701(b)(1) (2006); see 

also Old Town Trolley Tours o/Wash., Inc. v. Wash. Metro. Area Transit Comm 'n, 129 

F.3d 201,204 (D.C. Cir. 1997). The ASMFC-a collection of states-does not fit within 

this definition. 

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The ASMFC is not an authority of the United States-it is an entity created by and 

composed of States. The Commission's membership includes State fishery officials, 

State legislators, and public representatives appointed by State governors. ASMFC 

Compact, art. III. The powers and duties of the Commission are set forth in the interstate 

compact itself. See id. The Commission's authority is not federal in nature; it is simply a 

state cooperative agreement in which the member States have agreed to work in 

coordination to "promote the better utilization of the fisheries." Id., art. 1. There is 

absolutely no indication that the contracting member States agreed to create a federal 

agency. The ASMFC, therefore, is separate from the Federal Government. Indeed, the 

Atlantic Coastal Fisheries Act plainly delineates coastal fishery management 

responsibility between the States and the Federal Government, with each entity playing a 

separate role. The language makes clear that primary responsibility of managing coastal 

fisheries rests with the States, and that the Federal Government's role is simply 

supporting. See 16 U.S.C. § 5 101 (a)(4) (2006); see also ASMFC, 609 F.3d at 533. 

In a recent Second Circuit opinion, the court addressed this very issue and held 

that the ASMFC is not an "agency" within the meaning of the APA and, therefore, not 

subject to judicial review. ASMFC, 609 F.3d at 527, 531. As the Second Circuit 

explained, "[a]lthough the Commission acts in parallel with the federal government in 

managing the [stock], it exists outside the federal administrative framework ... [a]nd, it 

would upset the federal-state balance to subject its actions to accountability measures 

devised to restrain the actions of federal authorities." Id. at 532 (internal citation and 

quotation marks omitted). Fish-such as the river herring and shad-travel between state 

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and federal waters; thus, coordination between the coastal member States and Federal 

Government is essential. "[T]he fact that federal and state entities act toward a common 

goal does not convert the state-or interstate-body into a federal one." ASMFC, 609 F.3d 

at 533. 

Further, despite the Plaintiffs' contentions, the ASMFC is not a quasi-federal 

agency. The "quasi-federal agency" doctrine itself is quite uncertain in our Circuit; 

indeed, very few cases support its existence.2 See Elcon Enters. v. Wash. Metro. Area 

Transit Auth., 977 F.2d 1472, 1480 (D.C. Cir. 1992) (assuming that WMATA is a federal 

agency, and neither upholding nor rejecting a quasi-federal doctrine); The Bootery, Inc. v 

Wash. Metro. Area Transit Auth., 326 F. Supp. 794 (D.D.C. 1971); Otis Elevator Co., v. 

Wash. Metro. Area Transit Auth., 432 F. Supp. 1089, 1093-94 (D.D.C. 1976). Further, 

the doctrine is incompatible with the modern doctrine that causes of action are created by 

Congress, not federal courts, "no matter how desirable that might be as a policy matter, or 

how compatible with the statute." Sandoval, 532 U.S. at 286; Stoneridge, 552 U.S. at 

164-65. 

Finally, even assuming arguendo the legitimacy of the quasi-federal agency 

doctrine, the ASMFC does not fall within the doctrine. Plaintiffs cite to a district court 

case in the Eastern District of New York, which, relying on dicta from cases in the Third 

2 The existing cases each involved an atypical interstate compact entity-the Washington 

Metropolitan Area Transit Authority ("WMA TA"). In The Bootery, Inc. v Wash. Metro. 

Area Transit Auth., 326 F. Supp. 794, 798-99 (D.D.C. 1971), the case which first 

addressed the "quasi-federal agency" concept, the court specifically noted in its holding 

that the United States, which at the time had direct authority over the District of 

Columbia, was a party to the Compact at issue. 

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and Eighth Circuits, identifies three factors to determine whether a compact authority 

warrants a quasi-federal agency classification: "( 1) whether the originating compact is 

governed, either explicitly or implicitly, by federal procurement regulations; (2) whether 

a private right of action is available under the compact; and (3) the level of federal 

participation." New York v. Gutierrez, 623 F. Supp. 301,308-09 (E.D.N.Y. 2009), rev'd 

on other grounds (internal citation and quotation marks omitted). However, plaintiffs 

concede, as they must, that the originating compact is not governed by federal 

procurement regulations and that a private right of action is not available under the 

compact, and that, therefore, the analysis depends on the level of federal participation. 

PIs.' Opp'n to Defs.' Mot. for Summ. J. ("PIs.' Opp'n") at 60, Feb. 16,2011. As 

discussed above, the Federal Government's participation in the Compact is minimal-its 

role is simply to support the member States. The Compact itself exists between the 

contracting States. See ASMFC, 609 F.3d at 535 ("A finding that the ASMFC is a 'quasifederal' agency would be in tension with its government Compact, which serves as a 

contractual agreement between the member states."). The Commission is an entity 

created by and composed of States, and its authority is not federal in nature. See id. 

("The structure and composition of the ASMFC weigh against characterizing it as a 

'quasi-federal' agency."). Thus, the ASMFC is neither a quasi-federal agency nor a 

federal agency.3 Not surprisingly, the Second Circuit reached the same conclusion when 

it held that the ASMFC is not a quasi-federal agency. See id. at 531. 

3 Additionally, neither the Compact nor any other relevant statute, such as the Atlantic 

Coastal Fisheries Act, creates a private right of judicial review of ASMFC decisions. 

11 
; 

Therefore, the State Defendants' Motion to Dismiss Count III as to the ASMFC is 

GRANTED. 

II. No Private Right of Action Against the ASMFC Commissioner Defendants 

In addition to the ASMFC, Plaintiffs have named as defendants thirty of the 

Commission's forty-five Commissioners. For the same reasons that the claims against 

the Commission must be dismissed, the claims against the Commissioners must also be 

dismissed; plaintiffs have no private right of action. Just as the Commission itself is not a 

federal agency, neither are the Commissioners. The Commissioners are State actors, 

specifically, State fishery officials, State legislators, and public representatives appointed 

by State governors. Further, the Commissioners are members of a non-federal entity, as 

discussed above. Therefore, the States defendants' Motion to Dismiss Count III as to the 

Commissioners must also be GRANTED. 

"Like substantive federal law itself, private rights of action to enforce federal law must be 

created by Congress." Sandoval, 532 U.S. at 286. To create a private cause of action, a 

statute "must be phrased in terms of the persons benefited." Gonzaga Univ. v. Doe, 536 

U.S. 273, 284 (2002) (internal citation omitted). Further, a plaintiff suing under an 

implied right of action "must show that the statute manifests an intent 'to create not just a 

private right but also a private remedy. '" Id. at 285 (quoting Sandoval, 532 U.S. at 286). 

As plaintiffs have conceded, no language in the ASMFC Compact provides or even 

implies a private right of action. Pis.' Opp'n at 60. Nor is there any evidence that 

Congress intended to confer rights on private parties. Likewise, there is no evidence that 

Congress intended to create a private right of action against the ASMFC in the Atlantic 

Coastal Fisheries Act. Indeed, there is no language at all that provides for judicial review 

of ASMFC decisions. Should a member State fail to implement a FMP developed by the 

Commission, the Secretary of Commerce-not the federal judiciary-is charged with 

resolving disputes over the non-implementation of a plan. See 16 U.S.C. § 5106 (2006) 

(authorizing the Secretary, at his discretion, to impose and enforce a federal moratorium 

based on his independent findings of noncompliance). Although Congress could have, it 

chose not to authorize the federal judiciary to review the ASMFC's decisions. Further, 

for the same reasons, neither the Compact nor the Atlantic Coastal Fisheries Act confers 

a private right of action against the individual Commissioner-defendants. 

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: 

CONCLUSION 

For the foregoing reasons, the State defendants' Motion to Dismiss, ECF No. 26, 

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

United States' . rict Judge 

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