FLAHERTY et al v. LOCKE et al
Filing
157
MEMORANDUM OPINION to the Order granting Plaintiffs' Motion for Leave to File Third Amended and Supplemental Complaint. Signed by Judge Gladys Kessler on 8/21/17. (CL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
s.
MICHAEL
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,
and the Ocean River Institute
against
Commerce
Secretary
Captain Alan A.
("Plaintiffs"),
Penny
Pritzker
Hastbacka,
bring this action
who
has
now
been
succeeded by Wilbur Ross,
the National Oceanic and Atmospheric
Administration
and
Service
("NOAA"),
( "NMFS")
the
(collectively
Defendant-Intervenor
Sustainable
National
Marine
"Defendants"),
Fisheries
Fisheries
well
as
Coalition
This matter is now before the Court on Plaintiffs'
("SFC").
Motion for
Leave to File Third Amended and Supplemental Complaint
Mot.")
[Dkt.
No.
152].
In the Motion,
-1-
Plaintiffs
as
seek,
( "Pls.'
among
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,
entire
record
herein,
and
for
the
Oppositions,
reasons
Reply,
discussed
the
below,
Plaintiffs' Motion is granted.
BACKGROUND
I .
A. Factual Background
On March
( "NMFS")
the
Rule,
2011,
published its
Atlantic
76 Fed.
England
2,
Herring
Reg.
Fishery
the
National
Final Rule
Fishery
8,786
2,
Fisheries
Service
implementing Amendment
Management
(Feb.
Management
Marine
Plan
2011).
Council
("FMP").
4 to
Final
The NMFS and the New
(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
statutory
Amendment
Act
deadline.
4
Administrative
("MSA"),
16
8,
On March
violated
U.S.C.
2012,
certain
Procedure
Act
this
provisions
("APA")
1801,
§
I
by
Court
of
and
the
the
the
2011
found
that
MSA,
the
National
Environmental Policy Act ("NEPA"), and issued an Order remanding
the action to Defendants which contained specific guidance,
-2-
as
well
as
a
time line,
for
actions
Defendants
complete within one year ("Remedial Order")
In that Order,
the
Council
that
the
take
and
[Dkt. No. 41] .
Council
amendment to the Atlantic Herring FMP,
shad]
to
the Court ordered NMFS to send a letter to
"recommending
[including
were
should
be
consider,
whether
designated
as
in
an
'river herring'
a
stock
in
the
fishery[.]" Remedial Order at 11. Although NMFS sent two letters
to
the
Council
ultimately
making
adopted
this
recommendations
that
failed
Council
the
recommendation,
to
add
river
herring and shad as stocks in the Atlantic herring fishery.
February 13,
2014,
NMFS published its
Final Rule
On
implementing
Amendment 5, which similarly failed to include river herring and
shad as
stocks
in the fishery.
Final Rule,
7 9 Fed.
Reg.
87 86
(Feb. 13, 2014).
B. Procedural History
On March 31,
to
file
Order
the
a
this Court granted Plaintiffs'
Supplemental Complaint challenging Amendment
[Dkt.
case
2014,
No.
92]. At the Parties'
through
November
28,
2016
request,
in
light
request
5.
See
the Court stayed
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
-3-
January 6,
2017,
Plaintiffs filed the present Motion for Leave
to File Third Amended and Supplemental Complaint '[Dkt. No. 152].
Defendants
and
Defendant-Intervenor
Plaintiffs' Motion on January 19,
On January
27,
2017,
Plaintiffs'
2017
Oppositions
filed
to
[Dkt. Nos. 153 and 154].
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
without a
sufficient
Firestone,
76 F.3d 1205, 1208
Davis,
371
U.S.
of
discretion
justification for doing
178,
182
(D.C. Cir. 1996)
(1962)).
to
so.
deny
leave
Firestone v.
(citing Foman v.
Sufficient
justifications
include "undue delay, bad faith or dilatory motive ... repeated
failure to cure deficiencies by
futility of amendment." Id.
In assessing
a
motion
[previous]
amendments
[or]
(quoting Foman, 371 U.S. at 182).
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
-4-
movant. Caribbean Broadcasting Sys. v. Cable & Wireless PLC, 148
F.3d
1080,
amendment
1086
bears
(D.C.
the
Cir.
burden
The
1998).
to
show
why
party
leave
opposing
should
the
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
Supplemental
Second
Complaint to add the New England Fishery Management Council and
its
Executive
Director,
Mr.
Thomas
Nies,
Defendants.
as
Plaintiffs also set forth events, and a related claim, that have
occurred
since
Plaintiffs
filed
Supplemental
Second
the
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
conservation
and
management;
(2)
river
herring
conservation
and
management;
(3)
NMFS,
which
ensure
that
authority
1
to
the Mangnuson-Stevens Act
force
the
Council
to
is
take
requiring
and
has
shad
a
fulfilled,
action;
and
need
duty
lacks
(4)
to
the
the
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.
-5-
Council has not passed,
add river
herring and
on its own,
shad
to
the necessary amendment to
the Atlantic
herring
FMP.
See
Pls.'s Mot. at 3.
According
directing
to
the
Plaintiffs,
Council
to
only a
take
court order specifically
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
Scope of the Original Complaint.
A key issue to decide
Plaintiffs have
Improperly
(D.D.C. Jan.
improperly expanded the
Complaint
with
21,
the
the
in any Motion to Amend is whether
scope of
Complaint. Wright v. Corr. Corp. of America,
*2
Expand
the original
2016 WL 264907, at
2016). A comparison of the proposed Amended
original
Complaint
in
this
case
clearly
reveals that Plaintiffs have not sought to significantly expand
the
scope of
substantially
the case.
unchanged
The
core
between
facts
the
and allegations
two
Plaintiffs have added the Council and Mr.
documents.
remain
While
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
Anglers Conservation Network v.
Council
Pritzker,
-6-
to
take
13 9 F.
action.
Supp.
See
3d 102
(D.D.C.
2015),
legal
issues
been
added
Civ. No.
14-509, Dkt. No.
remain the
to
the
same:
58. The core facts and
river herring and shad have not
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
amendments is that granting Plaintiffs'
undue
this
delay or otherwise
case.
impede
As mentioned above,
the
favor
not
require
NMSF
and
adding
efficient
adjudication of
the proposed amendments
the
the
request would not cause
radically alter the original Complaint and,
will
of
other
do not
as a result,
original
likely
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.
merits
of
this
dispute
The Parties have not yet briefed the
and
there
appeals
or decisions
Defendants,
amendment
on
standard,
do not attempt to argue that the proposed amendments
would
cause
proposed
those
undue
amendment
issues
[of
futility
delay.
would
undue
their
no
pending.
the
basing
are
exception
See
be
Opp.
futile,
delay
-7-
or
entire
argument
to
liberal
at
the
7
the
n. 1
against
amendment
(" [B] ecause
Court
prejudice]
need
not
and
the
reach
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
Defendants.
Amendments
Are
Not
Unduly
Prejudicial
to
For similar reasons, the Court also finds that the proposed
amendments
proposed
Council,
will
not
additions
unduly
to
the
prejudice
Defendants.
Because
the
primarily
concern
the
Complaint
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
generally
Opp.
and
would prejudice
Inter.-Def.
Opp.
them
in any way.
Accordingly,
the
See
Court
concludes that this factor also favors permitting Plaintiffs to
amend their Complaint.
-8-
D.
The Futility of the Proposed Amendments
Defendants argue that Plaintiffs'
because
the
proposed
amendments
Motion should be denied
are
Specifically,
futile.
Defendants claim that the Council is not an "agency" within the
purview of the APA and,
were an agency,
Opp.
issue
at 7;
of
it did not engage in final agency action.
Inter. -Def.
whether
the
question of first
sued,
the
in the alternative, even if the Council
Opp.
at 2-3.
Council
impression.
jurisdictional
is
Plaintiffs claim that the
an agency
is
"effectively a
Never before has a
questions
See
briefed,
and
Council been
a
decision
issued that squarely addresses whether or not the Council is an
agency under the APA." Pls.' Reply at 12.
The
pertinent
Court
agrees
legal
issues. 2
with
Plaintiffs'
The parties
raise
assessment
a
of
number of
the
novel
legal questions that would benefit from more targeted briefing
directly
addressing
believes that
the
merits
of
the
dispute.
The
Court
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.
-9-
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,
whether
entities
like
the
"close one." See J. H. Miles
Council
&
qualify
as
the issue of
agencies
Co., Inc. v. Brown,
is
a
910 F. Supp.
1138, 1157 (E.D. Va. 1995) . 4
Accordingly,
the
Court,
in
its
permitting the proposed amendments at
discretion,
this
finds
stage will
that
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.
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.
4
-10-
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
-11-
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