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)

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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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