Anglers Conservation Network, et al v. Penny Pritzker, et al

Filing

OPINION [1591775] filed (Pages: 13) for the Court by Judge Randolph [14-5304]

USCA Case #14-5304

Document #1591775

Filed: 01/05/2016

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2015

Decided January 5, 2016

No. 14-5304
ANGLERS CONSERVATION NETWORK, ET AL.,
APPELLANTS
v.
PENNY SUE PRITZKER, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01761)

Roger M. Fleming argued the cause for appellants. With
him on the briefs were Erica A. Fuller and Stephen E. Roady.
Robert J. Lundman, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the briefs
were John C. Cruden, Assistant Attorney General, and Brian C.
Toth, Attorney. Thekla Hansen-Young, Attorney, entered an
appearance.
Before: BROWN, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

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RANDOLPH, Senior Circuit Judge:
Plaintiffs brought this lawsuit claiming that federal
agencies unlawfully neglected to manage stocks of river herring
(alewives and blueback herring), and shad (American shad and
their smaller relatives, hickory shad) in the Atlantic Ocean from
New York to North Carolina.
These are schooling ocean fish. In early spring, as waters
warm, river herring and shad begin their annual spawning runs
into the mid-Atlantic coastal rivers and tributaries.1 Shad,
especially American shad, and more specifically the larger female
American shad, are prized game fish. They are like small tarpon,
some say, and are caught on shad darts (tiny lures) in the rivers
even though shad feed on plankton at sea and feed not at all on
their spawning runs. While migrating upstream, shad and river
herring2 are prey for bald eagles and ospreys and other birds, such
as cormorants and gulls, and for striped bass making their annual
spawning run from the ocean about the same time into many of
the same rivers, and for other fish when they are at sea.
Plaintiffs are two membership organizations. One is
dedicated to conserving wild marine fish, the other to promoting
1

Historians believe that the 1778 early spring spawning run
of shad in the Schuylkill River at Valley Forge saved George
Washington’s army from starvation. See JOHN MCPHEE, THE
FOUNDING FISH 150-52 (2002). At Mt. Vernon, Washington had seen
enormous numbers of spawning shad moving up the Potomac River
toward Great Falls. Mr. McPhee plausibly surmises that, in
anticipation of a similar spring run and in the hope of preserving his
army, Washington decided to encamp that winter at Valley Forge on
the edge of the Schuylkill River. Id. 151-52.
2

The term “river” herring distinguishes these fish from the
Atlantic herring, which does not spawn in freshwater.

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surf fishing for striped bass and other saltwater fish. Two
individuals are also plaintiffs, one a fishing boat captain on the
New Jersey shore, the other a town “herring warden”
responsible for ensuring fish passage during spawning runs.
They sued the Secretary of the Department of Commerce, the
National Oceanic and Atmospheric Administration, and the
National Marine Fisheries Service (an agency within the
Commerce Department), claiming that a decision of the MidAtlantic Fishery Management Council – of which more hereafter
– failed to manage and protect river herring and shad, thus
reducing their availability as food for other species such as
striped bass. The district court granted the government’s motion
to dismiss the complaint on the ground that there was no basis
for judicial review of the Fishery Council’s decision.
In support of their complaint, plaintiffs invoked the
Fishery Conservation and Management Act of 1976, Pub. L. No.
94-265, 90 Stat. 331, as amended, and the judicial review
provision of the Administrative Procedure Act, 5 U.S.C. § 706.
The 1976 Fishery Conservation Act, commonly known as the
Magnuson-Stevens Act, seeks to “promote domestic commercial
and recreational fishing under sound conservation and
management principles,” 16 U.S.C § 1801(b)(3), in the
“exclusive economic zone” of the United States, an area
extending 200 nautical miles seaward from each state’s
coastline. (Within the territorial sea, which extends three
geographic miles from the coastline, the state has jurisdiction to
regulate fishing, see United States v. Maine, 469 U.S. 504, 513
(1985).)
The Act established eight regional Fishery
Management Councils, each of which has “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., Inc. v. Fox, 931 F.2d 1556, 1557-58 (D.C. Cir.
1991) (citing 16 U.S.C. § 1852). The voting members of these
Councils are officials responsible for fishery management in

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each coastal state in the region, individuals nominated by state
Governors and others appointed by the Commerce Secretary,
and the regional administrator of the Commerce Department’s
Fisheries Service. 16 U.S.C. § 1852(b). The Mid-Atlantic
Council now has twenty-one voting members – seven state
officials, thirteen private individuals, and the Fisheries Service
regional administrator. 16 U.S.C. § 1852(a)(1)(B). The Council
adopts proposals by a majority vote of those present and voting.
16 U.S.C. § 1852(e)(1).
The Mid-Atlantic Council, like all regional Councils, has
no authority to promulgate federal rules. See Gen. Category
Scallop Fishermen v. Sec’y, U.S. Dep’t of Commerce, 635 F.3d
106, 112 n.15 (3d Cir. 2011). Under its long-time Executive
Director, Daniel T. Furlong, the Mid-Atlantic Council has
assisted federal authorities in seeking to accomplish the goals of
the Act. The Mid-Atlantic Council has held numerous open
hearings, conducted extensive research, and forwarded proposals
to the National Marine Fisheries Service, to whom the Secretary
delegated authority.
Under the Magnuson-Stevens Act, the Council “shall”
propose fishery management plans and implementing
regulations “for each fishery under its authority that requires
conservation and management . . ..” 16 U.S.C. § 1852(h)(1).
The Council “shall” also propose amendments to these plans
when “necessary from time to time,” id., and suggest regulations
to implement these proposed amendments, 16 U.S.C. § 1853(c).
After receiving a proposal from the Mid-Atlantic Council, the
Fisheries Service must initiate a comment period and must then
decide to accept, reject, or partially accept the proposed plan or
amendment. 16 U.S.C. § 1854(a)(3). If the Fisheries Service
takes no action within thirty days after the close of the comment
period, the Council’s proposal goes into effect “as if approved.”
Id. The Act also provides that the Commerce Secretary “may

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prepare a fishery management plan” for fisheries in need of
conservation if “the appropriate Council fails to develop and
submit [a plan] after a reasonable period of time . . ..” 16 U.S.C.
§ 1854(c)(1).
The controversy here deals with a proposed amendment
to an existing management plan that the Fisheries Service first
adopted in 1983. The plan covers mackerel, squid, and
butterfish, which are managed together because they are
commercially fished in the same manner, using bottom or midwater trawls. The initial management plan, amended many
times since its adoption, established yearly quotas for each of
these species and limited the gear used to catch them. The
management plan also acknowledged that foreign and domestic
ships trawling for mackerel, squid, and butterfish inadvertently
catch other fish in their nets. Among the “bycatch” in the
mackerel fishery are river herring and shad. In an effort to
protect river herring and shad in the exclusive economic zone,
plaintiffs and others encouraged the Mid-Atlantic Council to
propose amendments to add these species to the mackerel, squid,
and butterfish plan and subject them to “science-based annual
catch limits . . . and accountability measures . . ..” Appellants’
Br. 2.
The Mid-Atlantic Council has not yet taken that step. In
2012, the Council began developing Amendment 15 to the
Mackerel, Squid, and Butterfish Fishery Management Plan,
which would have proposed adding river herring and shad to the
Plan. Notice of Initiation of Scoping Process, 77 Fed. Reg.
65,867 (Oct. 31, 2012). After considering the Amendment, the
Council — in a ten-to-nine vote — decided in an October 2013
meeting that rather than approving the Amendment and
proposing it to the Fisheries Service, the Council would set up

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a working group to study river herring and shad in more detail
and revisit the issue in three years.3
This decision, plaintiffs claim, violated the MagnusonStevens Act and is subject to judicial review under § 1855(f) of
that statute and the judicial review provision of the
Administrative Procedure Act, 5 U.S.C. § 706. The MagnusonStevens Act provides for judicial review of “[r]egulations
promulgated by the Secretary under this chapter and . . . actions
that are taken by the Secretary under regulations which
implement a fishery management plan . . ..” 16 U.S.C. §
1855(f)(1)-(2). The Act incorporates, but only in part, the
judicial review section of the APA: “the appropriate court shall
only set aside any such regulation or action on a ground
specified in section 706(2)(A), (B), (C), or (D) of” the APA. 16
U.S.C. § 1855(f)(1)(B).4 The Magnuson-Stevens Act thus does
not incorporate § 706(1) of the APA, which authorizes courts to
“compel agency action unlawfully withheld or unreasonably
delayed.”
According to plaintiffs, the Council’s decision not to
propose Amendment 15 at this time is within the MagnusonStevens Act’s provision allowing judicial review of “actions that
3

To date, the Fisheries Service has taken no steps to add river
herring and shad to the Mackerel, Squid, and Butterfish Fishery
Management Plan.
4

Section 706(2) of the APA has two additional subsections
not incorporated in the Magnuson-Stevens Act – § 706(2)(E), dealing
with judicial review of adjudications subject to APA §§ 556 and 557,
and § 706(2)(F), dealing with trial de novo in the reviewing court.
The review provision of the Magnuson-Stevens Act also expressly
makes § 705 of the APA “not applicable.” 16 U.S.C. § 1855(f)(1)(A).
This APA provision authorizes reviewing courts to grant relief
pending review. 5 U.S.C. § 705.

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are taken by the Secretary under regulations which implement
a fishery management plan.” 16 U.S.C. § 1855(f)(2). This, they
say, was an “action under the regulations that define all MidAtlantic fisheries” because “the Secretary terminated [the]
rulemaking . . ..” Appellants’ Br. 26. But it was the MidAtlantic Council, not the Secretary or the Fisheries Service, who
tabled Amendment 15 pending further study. Plaintiffs’ efforts
to show otherwise do not survive examination.
In their complaint, plaintiffs alleged that because the
regional administrator of the Fisheries Service spoke against
adopting the Amendment and voted against it in the October
2013 meeting, the Council’s decision could be attributed to the
Fisheries Service. See Anglers Conservation Network v.
Pritzker, 70 F. Supp. 3d 427, 435-36 (D.D.C. 2014). On appeal,
plaintiffs have not repeated this argument. Instead, they assert
that if a Council decides to forgo a necessary management plan
or amendment, the Fisheries Service is “the party responsible for
that action” because it “must fulfill its statutory responsibility as
a backstop” to the Council. Appellants’ Br. 30 (quoting
Guindon v. Pritzker, 31 F. Supp. 3d 169, 197-98 (D.D.C. 2014).
But even if the Fisheries Service had such a broad, mandatory
duty to act as a “backstop” – a subject we discuss later – this
would at most obligate the Fisheries Service to act when the
Council fails to do so. It would not somehow transform the
inactions of the Council into “actions that are taken by the
Secretary” or the Fisheries Service. 16 U.S.C. § 1855(f)(2).
The Fisheries Service took no action subject to judicial review
under the Act.
Plaintiffs cite Flaherty v. Bryson, 850 F. Supp. 2d 38
(D.D.C. 2012), and Oceana, Inc. v. Pritzker, 24 F. Supp. 3d 49
(D.D.C. 2014), but those decisions do not support their position.
The complaints in both cases objected to amendments of fishery
management plans and alleged that it was arbitrary and

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capricious for the Fisheries Service not to consider including
river herring and shad. Flaherty, 850 F. Supp. 2d at 45-46;
Oceana, 24 F. Supp. 3d at 56-57, 60-61. In Flaherty and in
Oceana, the Fisheries Service thus took federal agency action:
it issued regulations amending fishery management plans. As
a result, both cases were squarely within 16 U.S.C. §1855(f)(1),
which makes judicial review available “within 30 days after . .
. regulations are promulgated or the action is published in the
Federal Register . . ..” In this case, plaintiffs are not
complaining about a regulation or any other action taken by the
Fisheries Service. The only “action” they identify is that of the
Mid-Atlantic Council.
Plaintiffs also assert a right to judicial review under §
706(2) of the Administrative Procedure Act, which allows
review of “final agency action.” 5 U.S.C. § 704. But this adds
nothing to their case. The judicial review provision of the
Magnuson-Stevens Act expressly incorporates most of APA §
706(2). For reasons already mentioned, the Mid-Atlantic
Council took the only action here – putting off a final decision
on Amendment 15. That action cannot be attributed either to the
Secretary or to the Fisheries Service. Plaintiffs do not contend
that the Council is itself a federal agency within the meaning of
the APA. Besides, the Council is not a defendant in this suit,
and we would therefore have no jurisdiction to review its
decision. See, e.g., Omni Capital Int'l, Ltd. v. Rudolf Wolff &
Co., Ltd., 484 U.S. 97, 104 (1987); Armstrong v. Bush, 924 F.2d
282, 295 n.11 (D.C. Cir. 1991).
Even if the Mid-Atlantic Council were considered a
division of the federal Fisheries Service, and even if the
Council’s decision were somehow considered “agency action,”
it still would not be “final agency action” as § 704 of the APA
requires. Recommendations of subordinate officials are not
final for purposes of judicial review, regardless whether those

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recommendations might turn out to be influential. In Franklin
v. Massachusetts, 505 U.S. 788, 796 (1992), the Supreme Court
held that the Secretary of Commerce’s census report to the
President was not “final agency action” within the meaning of
§ 704. Although the President often accepted census reports
without change, the President is not bound to do so and can
order the Secretary to “reform the census” before the President
submits it to Congress. Id. at 797-98. Because the Secretary’s
report did not “directly affect the parties” or “complete[] [the
agency’s] decisionmaking process,” the Supreme Court
determined that the report was not then subject to judicial
review. Id. at 797. The Mid-Atlantic Council’s decision
regarding Amendment 15 is indistinguishable. This too was but
an intermediate step toward final agency action.
Plaintiffs come closer to the nub of their grievance,
though no closer to a successful claim, when they describe their
complaint as aimed at agency inaction under § 706(1) of the
Administrative Procedure Act. There is one rather glaring
problem with this argument: the Magnuson-Stevens Act’s
judicial review provision states that a reviewing court “shall
only set aside” regulations and actions “on a ground specified
in” § 706(2)(A)-(D) of the APA. 16 U.S.C. § 1855(f)(1)(B)
(italics added).5 APA § 706(1) is excluded, yet this is the APA
subsection giving courts the authority to “compel agency action
unlawfully withheld.” Norton v. S. Utah Wilderness Alliance,

5

The judicial review provision of the Clean Air Act, which
plaintiffs invoked in Chevron U.S.A. Inc. v. Natural Res. Def. Council,
467 U.S. 837, 841 (1984), contained a comparable modification of the
Administrative Procedure Act: “The provisions of section 553 through
557 and section 706 of Title 5 shall not, except as expressly provided
in this subsection, apply to actions to which this subsection applies.”
42 U.S.C. §7607(d).

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542 U.S. 55, 62 (2004). So how can § 706(1) possibly entitle
plaintiffs to relief? Perhaps they believe that because the
Magnuson-Stevens Act excludes § 706(1), there is – in the
words of APA § 704 – “no other adequate remedy in a court” for
agency inaction and so judicial review pursuant to § 706(1) must
be available. We say “perhaps” because plaintiffs have not
shared with us their rationale. They have not done so because
the government, despite 16 U.S.C. § 1855(f)(1)(B), conceded
that APA § 706(1) may provide a basis for relief in cases under
the Magnuson-Stevens Act. See Anglers, 70 F. Supp. 3d at 436
n.10; Defendants’ Reply in Support of Their Motion to Dismiss,
at 18 n.7, ECF No. 29. The APA is not jurisdictional, see
Califano v. Sanders, 430 U.S. 99, 105-06 (1977), and so we will
assume arguendo that § 706(1) does apply.
Even so, plaintiffs are not entitled to relief. Section
706(1) permits judicial review of agency inaction, but only
within strict limits. 5 U.S.C. § 706(1). Courts can compel an
agency “to take a discrete agency action that it is required to
take.” Norton, 542 U.S. at 64; see also Montanans for Multiple
Use v. Barbouletos, 568 F.3d 225, 227 (D.C. Cir. 2009). This
standard reflects the common law writ of mandamus, which the
APA “carried forward” in § 706(1). Norton, 542 U.S. at 63.
Thus, § 706(1) grants judicial review only if a federal agency
has a “ministerial or non-discretionary” duty amounting to “a
specific, unequivocal command.” Id. at 63-64.
Section 1854(c)(1) of the Magnuson-Stevens Act states
that if “the appropriate Council fails to develop and submit to
the Secretary, after a reasonable period of time, a fishery
management plan for . . . [a] fishery [that] requires conservation
and management,” the Secretary “may prepare” such a plan. 16
U.S.C. § 1854(c) (italics added). This is a “grant of authority,”

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as plaintiffs say, but it is a grant of discretionary, not mandatory,
authority.6
“The traditional, commonly repeated rule is that shall is
mandatory and may is permissive . . ..” ANTONIN SCALIA &
BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 112 (2012). Ordinarily, legislation using “shall”
indicates a mandatory duty while legislation using “may” grants
discretion. See, e.g., Lopez v. Davis, 531 U.S. 230, 241 (2001).
We acknowledge that matters are not always so clear cut. There
are instances when “may” has been taken to mean “must” and
when “shall” has been construed to mean “may.” See, e.g.,
Mason v. Fearson, 50 U.S. 248, 258-59 (1850); Sierra Club v.
Jackson, 648 F.3d 848, 856 (D.C. Cir. 2011). But when a
statutory provision uses both “shall” and “may,” it is a fair
inference that the writers intended the ordinary distinction. See,
e.g., Lopez, 531 U.S. at 241; United States ex rel. Siegel v.
Thoman, 156 U.S. 353, 359-60 (1895). One section of the
Magnuson-Stevens Act, the one at the center of plaintiffs’
complaint, uses the word “shall” nearly fifty times and the word
“may” nearly twenty. For example, if the Fisheries Service
determines that a fishery is overfished, the Service “shall” notify
the appropriate Council and ask it to develop a management
plan. 16 U.S.C. § 1854(e)(2). If the Council does not do so
6

Plaintiffs also rely on an amendment to the Magnuson-Stevens
Act setting a 2011 deadline for the Service to adopt management plans
for all fisheries that have not been designated as overfished. Pub. L.
No. 109–479, § 104(b), 120 Stat. 3575, 3584 (2007); see also
Flaherty, 850 F. Supp. 2d at 51-52. They argue that this deadline
requires the Fisheries Service to add “all stocks in need of
conservation and management,” including river herring and shad, to
a fishery management plan. Appellants’ Br. 44. Plaintiffs never
made this argument in the district court, and we therefore will not
consider it. See, e.g., Flynn v. Comm'r of Internal Revenue Serv., 269
F.3d 1064, 1068-69 (D.C. Cir. 2001).

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within two years, the Fisheries Service “shall prepare a fishery
management plan . . . to stop overfishing . . ..” 16 U.S.C. §
1854(e)(5) (italics added); see also N.C. Fisheries Ass’n, Inc. v.
Gutierrez, 550 F.3d 16, 17 n.2 (D.C. Cir. 2008). The provision
with which we are concerned, on the other hand, states that the
Service “may prepare” its own plan or amendment for a fishery
that “requires conservation and management” if the Council has
not done so “after a reasonable period of time.” 16 U.S.C. §
1854(c) (italics added). If the “may” in § 1854(c) actually
meant “shall” or “must” – if, in other words, § 1854(c) imposed
a mandatory duty – § 1854(e) would be largely redundant. Any
fishery that is overfished will also necessarily require
conservation and management. Why impose a specific duty to
make a plan for overfished fisheries if there is already a general
duty to make a plan for all fisheries requiring conservation and
management, including those that are overfished?
Plaintiffs also suggest that the Fisheries Service was
required to identify river herring and shad as overfished stocks,
and therefore had a mandatory duty under § 1854(e) to develop
a fishery management plan. Appellants’ Br. 49-51. But the
Magnuson-Stevens Act makes clear that this duty arises only
if “the Secretary determines . . . that a fishery is overfished . .
..” 16 U.S.C. § 1854(e)(2) (italics added). Neither the
Fisheries Service nor the Secretary has ever determined that
river herring or shad are overfished, and the Magnuson-Stevens
Act does not impose a discrete ministerial duty on them to do
so.7 Compare Sierra Club, 648 F.3d at 856.

7

The status of river herring and shad populations is unclear.
Some evidence suggests that these species are doing very well. For
example, the Fisheries Service recently found that on the Atlantic
coast, populations of alewives are either stable or significantly
increasing. See Notice of a Listing Determination, 78 Fed. Reg.
48,944, 48,992 (Aug. 12, 2013). Other evidence, however, suggests

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In short, plaintiffs’ claims are not subject to judicial
review under the Magnuson-Stevens Act or the Administrative
Procedure Act. The judgment of the district court is therefore
affirmed.
So ordered.

that most stocks of river herring and shad are seriously depleted. See
MID-ATLANTIC FISHERY MANAGEMENT COUNCIL, AMENDMENT 14 TO
THE ATLANTIC MACKEREL, SQUID, AND BUTTERFISH (MSB) FISHERY
MANAGEMENT PLAN (FMP): FINAL ENVIRONMENTAL IMPACT
STATEMENT 208 (2013). The cause of this decline, if it exists, is
equally uncertain. Plaintiffs argue that fishing at sea is a substantial
factor. Appellants’ Br. 12-14. The Fisheries Service has found that
“[d]ams and hydropower facilities, water quality and water
withdrawals from urbanization and agricultural runoff, [and] dredging
and other wetland alterations” have had a significant impact. 78 Fed.
Reg. 48,953-58. These uncertainties are among the issues the MidAtlantic Council decided to study further when it postponed
consideration of Amendment 15.

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