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### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA MARTHA'SVINEYARDIDUKES ) COUNTY FISHERMEN'S ) ASSOCIATION ) ) 

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

### MICHAEL S. FLAHERTY, ) ) 

### Plaintiffs, ) )**~** 

### ) ) 

### GARY LOCKE, in his official capacity ) as Secretary ofthe Department of ) Commerce, etaf. ) ) 

### 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 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 asCommissioners ofthe ASMFC (collectively, "State defendants"). Plaintiffs allege that the State defendants violated the Atlantic Coastal Fisheries Cooperative ManagementAct ("Atlantic Coastal Fisheries Act"), the ASMFC Compact and Charter, and the Administrative Procedure Act ("APA") by failing to adopt adequate measures to protect riverherring and shad. The State defendants have moved to dismiss plaintiffs' complaint. After due consideration ofthe law andpleadings, 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 amongthe fifteen Atlantic coastal states, which formed the ASMFC. Pub. L. No. 77-539, 56 Stat. 267 (1942), 

### amendedby Pub. L. No. 81-721,64 Stat. 467 (1950); 

### see also U.S. CONST. art. I, § 10, cl. 3. Thepurpose ofthe Compact is "topromotethe better utilization ofthe fisheries, marine, shell and anadromous, ofthe Atlantic seaboardby the development ofa jointprogram for the promotion andprotection ofsuch fisheries, and by the prevention of the physical waste ofthe fisheries from any cause." ASMFC Compact, art. 

### 1. The Compactprovides that it shall not "be construed to limit the powerofany signatory state

orto repeal orpreventthe enactment ofany legislation orthe enforcement ofany requirement by any signatory state imposing additional conditions and restrictions to

conserve its fisheries." 

### Id. art. IX.

2Each ofthe 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 Commissionhas the "powerto recommend the coordination ofthe exercise ofthepolicepowers ofthe several states within theirrespectivejurisdictions to promotethe preservation" offisheries, andto draft and recommend legislation to member States. Id. art. IV. The Commissionpromulgates fishery management plans 

### C'FMP") for inter-jurisdictional fisheries, whichplans are then implementedby the respective member States. See Medeiros v. Vincent, 431 F.3d 25,27- 28 (lst Cir. 2005). TheASMFC has promulgatedFMPs for riverherring and shad, the fish species at issue in this case. See Amended Complaint ("CompI.")**~** 15. B. The Atlantic CoastalFisheriesAct 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 ofeffective interstate conservation and management ofthe Atlantic coastal fishery resources." 16 U.S.C. § 5101(b) (2006). Congress soughtto promotethe conservation of "[c]oastal fishery resources that migrate, or are widely distributed, across the jurisdictionalboundaries oftwo ormore ofthe Atlantic States and ofthe 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" ofcoastal fishery resources. Id.

3§ 5101(a)(3). Indeed, Congress adopted the Act "to give the ASMFC some 'teeth.'" New York v. AtlanticStates Marine Fisheries Comm 'n, 609 F.3d 524, 529 (2d Cir. 2010). The Atlantic Coastal Fisheries Act clearly defines the responsibilities ofthe States andFederal government. Underthe Act, the "responsibility for managing Atlantic coastal fisheries rests with the States, which carry out a cooperativeprogram offishery oversight and managementthrough the [ASMFC]." 16 U.S.C. § 5101(a)(4) (2006). "Itis the responsibility ofthe Federal Government to support such cooperative interstate management ofcoastal fishery resources." Id. The ASMFC worksjointlywith regional Fishery Management Councils established underthe Magnuson-Stevens Fishery Conservation and ManagementAct ("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 managementplans (also called an "interstate FMP" or "IFMP") complementaryto those prepared by the Councils regulating the same species in federal waters. See id. § 5104(a)(I). 

### C. The Magnuson-StevensAct: Federal Fisheries Management The Magnuson-Stevens Actwas enacted in 1976 "to take 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 managementprinciples." 16 U.S.C. §§ 1801(b)(1), (3) (2006). The Act created eight federal independentregional Fishery Management Councils "to exercise soundjudgment in 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 4represent 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 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 ofNOAA and the Department ofCommerce, reviews and approves the proposed FMPs to ensure they are consistentwiththe ten national standards set forth in the Magnuson-Stevens Act. ld. II. 

### FactualBackground PlaintiffMartha's Vineyard/Dukes County Fishermen'sAssociation is comprised offishermen and "other active participants in local, state, regional and federal fisheries management, with direct interests in maintaining abundantpopulations ofriver herring and shad." Compl.**~** 10. Riverherring and shad are anadromous species ofherring 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 ofriver herring that return to Dukes County. ld.**~** 10. River herring and shad often swim in mixed-stock schools offish, including Atlantic herring or mackerel. ld.**~~** 10, 32. Industrial midwatertrawlers 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 "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.**~** 17. Similarly, "shad" is the collective term for two species offish-the American shad and the hickory shad. CompI.**~** 19. 

### 5discarded dead at sea. 

### Id.**~** 33. Plaintiffs contend the decline correlates to the increase of mid-watertrawling for herring and mackerel. 

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

### Id. Michael Flaherty is a recreational fisherman from Massachusetts, and is a former Vice President ofthe Massachusetts Striped Bass Association. Compi.**~** 11. He has been a recreational fisherman for overthirty-five years, andpresently fishes for striped bass. 

### Id. Striped bass is a species thatthrives 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 riverherring run and was allowed to catch up to forty-eight fish perweek. 

### Id. Because the Commonwealth ofMassachusetts has banned the harvesting ofriver herring in the State, Flaherty is no longer able to fish for riverherring. 

### Id. Plaintiffs first filed this lawsuit on September 20, 2010, and they then filed an amended complaint on December 13,2010. OnJanuary 14,2010,the State defendants filed a motion to dismiss count three ofplaintiffs' amended complaint. Forthe following reasons, the State defendants' Motion to Dismiss 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 underRule 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 ofthe complaining party." 

### Ordv. Dist. a/Columbia, 587 F.3d 1136, 1140 (D.C. 6Cir. 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. 

### St. 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 court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 

### Ashcroftv. 

### Iqbal, 129 S. Ct. 1937, 1949 (2009). In evaluating a Rule 12(b)(6) motion, the court construes the complaint "in favor ofthe plaintiff, who mustbe granted the benefit ofall inferences that can 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, even though 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 byplaintiffIJ ifsuch 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).

7

### LEGAL ANALYSIS 

### I The AP A is Inapplicable A plaintiffmust have a right to pursue reliefagainst a defendant to state a claim upon whichreliefmay be granted. 

### SeeAlexander v. 

### Sandoval, 532 U.S. 275, 288 (2001); 

### FDICv. Meyer, 510 U.S. 471, 484 (1994). "The determination ofwho can seek a remedy has significant consequences for the reach offederal power"; the "decisionto extend the

cause ofaction is for Congress, not for [courts]." 

### Stoneridge Inv. Partners, LLCv. 

### Scientific-Atlanta Inc., 552 U.S. 148, 165 (2008). The State defendants contend that plaintiffs do not have a privateright ofaction 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 APA'sjudicialreviewprovisions as the

source oftheir right ofaction against the ASMFC. Compi.**~~** 6, 8, 139-40. Examination ofthe terms ofthe APA, however, reveals that the ASMFC does not fall within the scope ofthe statute. By its own terms,judicialreview 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 ofagency action, or adversely affected or aggrieved by agency action

... is entitled tojudicialreview."). Underthe APA, the term "agency" is defined as an "authority ofthe Government ofthe 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 ofstates-does not fit within this definition. 8The ASMFC is not an authority ofthe United States-itis an entity createdby and composed ofStates. The Commission's membership includes State fishery officials, State legislators, andpublic representatives appointed by State governors. ASMFC Compact, art. III. Thepowers and duties ofthe 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 ofthe fisheries." 

### Id., art. 

### 1. There is absolutely no indication thatthe contracting member States agreed to create a federal agency. TheASMFC, therefore, is separate from the Federal Government. Indeed, the Atlantic Coastal Fisheries Actplainly delineates coastal fishery management responsibility between the States and the Federal Government, with each entity playing a separaterole. The language makes clearthat primaryresponsibility ofmanaging coastal fisheries rests with the States, and that the Federal Government's role is simply supporting. 

### See 16 U.S.C. § 5101(a)(4) (2006); 

### see alsoASMFC, 609 F.3d at 533. In a recent Second Circuit opinion, the court addressed this very issue and held thatthe ASMFC is not an "agency" within the meaning ofthe APA and, therefore, not subject tojudicial review. 

### ASMFC, 609 F.3d at 527, 531. As the Second Circuit explained, "[a]lthoughthe Commission acts in parallel with the federal government in managing the [stock], it exists outside the federal administrative framework

... [a]nd, it would upsetthe federal-state balance to subject its actions to accountability measures devised to restrain the actions offederal authorities." 

### Id. at 532 (internal citation and quotation marks omitted). Fish-such as the river herring and shad-travel between state 9

### 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 convertthe 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 itselfis quite uncertain in our Circuit; indeed, very few cases support its existence.2 

### See Elcon Enters. v. Wash. Metro. Area TransitAuth., 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 TransitAuth., 326 F. Supp. 794 (D.D.C. 1971); Otis Elevator Co., v. 

### Wash. Metro. Area TransitAuth., 432 F. Supp. 1089, 1093-94 (D.D.C. 1976). Further, the doctrine is incompatible with the modern doctrine that causes ofaction are created by Congress, not federal courts, "no matterhow desirable that might be as apolicy 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 ofthe quasi-federal agency doctrine, the ASMFC does not fall within the doctrine. Plaintiffs cite to a district court

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

2 

### The existing cases each involved an atypical interstate compact entity-theWashington Metropolitan Area Transit Authority ("WMATA"). In The Bootery, Inc. v 

### Wash. Metro. Area TransitAuth., 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 overthe District of Columbia, was a party to the Compact at issue. 10and Eighth Circuits, identifies three factors to determine whether a compact authority warrants a quasi-federal agency classification: "(1) whetherthe originating compact is governed, either explicitly or implicitly, by federal procurementregulations; (2) whether

a private right ofaction is available under the compact; and (3) the level offederal participation." 

### New York v. 

### Gutierrez, 623 F. Supp. 301,308-09 (E.D.N.Y. 2009), 

### rev'd

on othergrounds (internal citation and quotation marks omitted). However, plaintiffs concede, as they must, that the originating compact is not governedby federal procurementregulations and that a private right ofaction is not available underthe compact, and that, therefore, the analysis depends on the level offederal participation. PIs.' Opp'nto 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 supportthe member States. The Compact itselfexists 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 ofStates, and its authority is not federal in nature. 

### See id. ("The structure and composition ofthe 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 conclusionwhen it held that the ASMFC is not a quasi-federal agency. 

### See id. at 531.

3Additionally, neither the Compact nor any other relevant statute, such as the Atlantic Coastal Fisheries Act, creates a private right of judicial review ofASMFC decisions. 11; 

### Therefore, the State Defendants' Motion to Dismiss Count III as to the ASMFC is GRANTED. II. 

### No Private Rightof ActionAgainst theASMFC CommissionerDefendants In addition to the ASMFC, Plaintiffs have named as defendants thirty ofthe Commission's forty-five Commissioners. For the same reasons thatthe claims against the Commission must be dismissed, the claims against the Commissioners must also be dismissed; plaintiffs have no private right ofaction. Just as the Commission itselfis 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 ofa 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 ofaction to enforce federal law mustbe created by Congress." 

### Sandoval, 532 U.S. at 286. To create aprivate cause ofaction, a statute "mustbe phrased in terms ofthe persons benefited." 

### Gonzaga Univ. v. 

### Doe, 536 U.S. 273, 284 (2002) (internal citation omitted). Further, aplaintiffsuing under an implied right ofaction "must show that the statute manifests an intent 'to create notjust a private 

### rightbut also a private 

### remedy.'" Id. at 285 (quoting 

### Sandoval, 532 U.S. at 286). As plaintiffs have conceded, no language in the ASMFC Compactprovides or even implies aprivate right ofaction. 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 ofaction against the ASMFC in the Atlantic Coastal Fisheries Act. Indeed, there is no language at all thatprovides forjudicial review ofASMFC decisions. Should a member State fail to implement a FMP developed by the Commission, the Secretary ofCommerce-notthe federaljudiciary-ischarged with resolving disputes over the non-implementation ofa 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 ofnoncompliance). Although Congress could have, it chose not to authorize the federaljudiciaryto review the ASMFC's decisions. Further, for the same reasons, neither the Compact nor the Atlantic Coastal Fisheries Act confers aprivate right ofaction against the individual Commissioner-defendants. 12: CONCLUSION 

### Forthe foregoing reasons, the State defendants' Motion to Dismiss, ECF No. 26, is GRANTED. An appropriate order will 

### accompany this memorandum opinion.

United States'

. rictJudge

13