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,

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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
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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
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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.
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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.

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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

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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

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