Dettling et al v. National Oceanic and Atmospheric Administration et al
Filing
68
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS 40 . Signed by JUDGE ALAN C KAY on 05/31/2013. (eps) -- The Court DISMISSES Plaintiffs' Complaint in its entirety. Plaintiffs must file any further amended complaint within thirty days, or else judgment will be entered against them and this action will be closed. Any further amended complaint must correct all the deficiencies noted in this Order. CERTIFICATE OF SERVICEParti cipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOE DETTLING and ROBERT CABOS,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
NATIONAL OCEANIC & ATMOSPHERIC
ADMINISTRATION, U.S. DEPARTMENT
OF COMMERCE, and DOE DEFENDANTS
1-10,
Defendants.
) Civ. No. 11-00374 ACK-KSC
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
For the following reasons, the Court hereby DISMISSES
Plaintiffs’ Complaint in its entirety with partial leave to
amend, as set out in detail below.
PROCEDURAL BACKGROUND
Plaintiffs Joe Dettling and Robert Cabos filed their
original complaint in this action on June 14, 2011. (Doc. No. 1.)
On August 9, 2012, they filed the First Amended Complaint, the
operative complaint (“Compl.”). (Doc. No. 35.) The Complaint
names as defendants the United States and the U.S. Department of
Commerce, acting through co-defendant the National Oceanic
Atmospheric Administration (together, “NOAA”). (See id.)
NOAA filed a Motion To Dismiss the First Amended
Complaint on September 21, 2012, arguing that the Court lacked
subject-matter jurisdiction over Plaintiffs’ claims and that
Plaintiffs had failed to state their claims. (Doc. No. 40
(“Mot.”).) On April 25, 2013, Plaintiffs filed an Opposition.
(Doc. No. 60.) NOAA filed a reply on May 2, 2013. (Doc. No. 61.)
After reviewing the parties briefs, the Court directed the
parties to file supplemental briefs discussing whether the Court
had subject-matter jurisdiction over Plaintiffs’ claims. (Doc.
No. 63.) The parties filed their supplemental briefs on May 24,
2013. (Doc. Nos. 65 (“NOAA Supp. Bf.”) & 66 (“Pl. Supp. Bf.”).) A
hearing on the Motion was held on May 30, 2013.1/
FACTUAL BACKGROUND & STATUTORY SCHEME2/
This case concerns fishing rights in two marine
national monuments located near Hawaii. Dettling fished in the
monument areas in 1999, and for many years beforehand, on a
state-issued fishing permit. (Compl. ¶¶ 15, 50.) Cabos also
fished in the monument areas, during an unspecified period. (See
Id. ¶ 84.)
I.
Executive Orders 13178 & 13196
On December 4, 2000, President William J. Clinton
issued Executive Order 13178, establishing the Northwestern
Hawaiian Islands Coral Reef Ecosystem Reserve (the “Reserve”).
See Exec. Order No. 13,178, 65 Fed. Reg. 76,903 (Dec. 7, 2000)
(Mot. Ex. A). The Reserve included all submerged lands and waters
1/
A February 2013 hearing date was continued by three
months pursuant to a joint motion by the parties. (See Doc.
No. 57.)
2/
The facts as recited in this order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
2
of the Northwestern Hawaiian Islands, extending “50 [nautical
miles] from the approximate center geographical positions of [the
islands].” Id. at 76,906-07.
A few weeks later, President Clinton modified Executive
Order 13178 via Executive Order 13196, which was issued, in part,
to “to address concerns raised, particularly regarding commercial
and recreational fishing within the Reserve.” 66 Fed. Reg. 7395
(Jan. 18, 2001) (Mot. Ex. B). Together, the Executive Orders
state:
(a)(1) Commercial Fishing. All currently
existing commercial Federal fishing permits
and current levels of fishing effort and
take, as determined by the Secretary and
pursuant to regulations in effect on the date
of this order, shall be capped as follows:
...
(C)(2) All other commercial fishing
[other than bottomfishing] - the annual
aggregate level shall be the permittee’s
individual take in the year preceding
December 4, 2000, as determined by the
Secretary [of Commerce].
...
(F) Trolling for pelagic species shall
be capped based on reported landings for
the year preceding December 4, 2000.
Id. at 7396; 65 Fed. Reg. at 76,907. Each Executive Order also
states:
Judicial Review. This order does not create
any right or benefit, substantive or
procedural, enforceable in law or equity by a
party against the United States, its
agencies, its officers, or any person.
65 Fed. Reg. at 76,910; 66 Fed. Reg. at 7397.
3
At a 2002 meeting in Honolulu, Dettling provided NOAA
with his 1999 fishing log and stated his claim that he had
trolled for pelagic species in the waters now designated as the
Reserve in the year preceding December 4, 2000. (See Compl.
¶¶ 22-24.) He argued that under the Executive Orders he was
entitled to fish in the Reserve up to the amount he had caught in
2000. (Id.) On April 20, 2006, at another meeting, Dettling again
provided proof of his claim. (See id. at 28-29.) NOAA never
issued any permits for pelagic trolling in the Reserve. (Id.
¶ 37.)
II.
Proclamation 8031
On June 15, 2006, President George H.W. Bush issued
Proclamation 8031, which established the waters previously
designated as the Reserve as the new Northwestern Hawaiian
Islands National Monument3/ (the “NWHI Monument”). See 71 Fed.
Reg. 36,443, 36,453-54 (June 26, 2006) (Mot. Ex. C). Proclamation
8031 prohibited virtually all commercial and recreational fishing
within the bounds of the NWHI Monument, except for five
additional years - until 2011 - of certain types of fishing. Id.
at 36,447. Specifically, Proclamation 8031 stated:
Commercial fishing for bottomfish and
associated pelagic species may continue
within the monument for not longer than
5 years from the date of this proclamation
provided that:
3/
The Monument’s name was later changed to the
Papahanaumokuakea Marine National Monument. Proclamation
No. 8112, 72 Fed. Reg. 10,031 (March 6, 2007). Since both parties
refer to the Monument by its former name, however, for clarity’s
sake the Court will do the same.
4
(i) The fishing is conducted in accordance
with a valid commercial bottomfish permit
issued by NOAA; and
(ii) Such permit is in effect on the date of
this proclamation and is subsequently renewed
pursuant to NOAA regulations . . . as
necessary.
Id. Unlike the two Executive Orders discussed above and
Proclamation 8336 (discussed below), Proclamation 8031 does not
contain a provision barring judicial review.
On July 19, 2006, Dettling asked NOAA to clarify
whether he was allowed to continue pelagic trolling in the newlyestablished NWHI Monument. (Compl. ¶ 11, 49.) On August 3, 2006,
NOAA responded that Dettling was not allowed to fish in the NWHI
Monument on his state fishing permit, and that he would be
arrested if he tried to do so. (Id. ¶¶ 11, 50-51.) On September
17, 2006, Dettling filed a claim for compensation premised on
NOAA’s closure of his traditional fishing grounds. (Id. ¶¶ 11,
54.) On April 4, 2007, NOAA apparently changed course and
informed Dettling that he could continue commercial fishing in
the NWHI Monument and that his claim was therefore unwarranted.
(Id. ¶¶ 11, 55-57.) When Dettling later gave notice of a planned
fishing trip, however, NOAA threatened to have him arrested if he
went through with the fishing trip. (Id. ¶¶ 11, 58-59.)
Dettling continued to follow up with NOAA periodically
regarding a federal permit to fish. (Id. ¶ 41.) NOAA assured
Dettling that it was working on getting him a federal permit to
fish in the NWHI Monument. (Id. ¶ 42.)
5
III. Proclamation 8336
On January 6, 2009, President Bush issued Proclamation
8336, which established the Pacific Remote Islands Marine
National Monument (the “PRIA Monument”). See 74 Fed. Reg. 1565
(Jan. 12, 2009) (Mot. Ex. E). The boundaries of the PRIA Monument
are “the waters and submerged and emergent lands of the Pacific
Remote Islands . . . which lie approximately 50 nautical miles
from the mean low water lines of [the Pacific Remote Islands].”
Id. at 1567. The PRIA Monument thus is near to but does not
overlap with the NWHI Monument.4/
Proclamation 8336 prohibits all commercial fishing
within the boundaries of the PRIA Monument. Id. at 1568.
Proclamation 8336, like the two Executive Orders, contains a
provision barring judicial review, which states: “This
proclamation is not intended to, and does not, create any right
or benefit, substantive or procedural, enforceable at law or in
equity, by any party against the United States, its agencies,
instrumentalities, or entities, its officers, employees, agents,
or any other person.” Id. at 1570.
IV.
Disbursement of Funds
According to Plaintiffs, in 2008, Congress had
designated six million dollars to compensate displaced fishermen,
and Plaintiffs were eligible to receive compensation. (Compl.
¶¶ 65, 78-79.) NOAA disbursed the funds in May 2010. (Id. ¶¶ 78,
4/
See, e.g., NOAA Marine National Monument Program Map,
www.fpir.noaa.gov/Library/MNM/eez_monument_4_6_2011.pdf (last
visited May 24, 2013).
6
81.) Federally-permitted lobster fishermen displaced by
Proclamations 8031 and 8336 received money, but Dettling and
Cabos did not. (Id. ¶¶ 78-79.)
V.
Permits
NOAA issued Dettling a federal permit for pelagic
fishing in the PRIA and NWHI Monument waters in 2010, 2011, and
2012 through May 2013. (Id. ¶ 71.) Nonetheless, whenever Dettling
gave notice that he intended to fish there, NOAA threatened to
have him arrested. (Id. ¶ 72.)
VI.
Administrative Claim
On January 7, 2011, Dettling and Cabos filed claims for
damages with NOAA. (Id. ¶ 12; see Mot. Exs. H & I.) On February
14, 2011, Dettling filed another separate claim. (Compl. ¶ 12;
see Mot. Ex. J.) On February 24, 2011, Dettling and Cabos
received a letter from the Department of Commerce denying their
claim. (Compl. ¶ 12; see Mot. Ex. K.)
STANDARD
I.
Motion To Dismiss Under Rule 12(b)(1)
A court’s subject matter jurisdiction may be challenged
under Federal Rule of Civil Procedure (“Rule”) 12(b)(1). Such
challenges may be either “facial” or “factual.” Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
In a facial attack, “the challenger asserts that the
allegations contained in a complaint are insufficient on their
face to invoke federal jurisdiction.” Id. (quoting Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). When
7
opposing a facial attack on subject matter jurisdiction, the
nonmoving party is not required to provide evidence outside the
pleadings. Wolfe, 392 F.3d at 362; see Doe v. Holy See, 557 F.3d
1066, 1073 (9th Cir. 2009) (treating defendant’s challenge to
subject matter jurisdiction as facial because defendant
“introduced no evidence contesting any of the allegations” of the
complaint). In deciding a facial Rule 12(b)(6) motion, the court
must assume the plaintiff’s allegations in the complaint to be
true and draw all reasonable inferences in his favor. Wolfe, 392
F.3d at 362 (citations omitted).
By contrast, in a factual attack, “the challenger
disputes the truth of the allegations that, by themselves, would
otherwise invoke federal jurisdiction.” Id. at 362 (quoting Safe
Air, 373 F.3d at 1039). The moving party may bring a factual
challenge to the court’s subject matter jurisdiction by
submitting affidavits or any other evidence properly before the
court. The nonmoving party must then “present affidavits or any
other evidence necessary to satisfy its burden of establishing
that the court, in fact, possesses subject matter jurisdiction.”
Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1121
(9th Cir. 2009) (citation omitted). In these circumstances, the
court may look beyond the complaint without having to convert the
motion into one for summary judgment. U.S. ex rel. Meyer v.
Horizon Health Corp., 565 F.3d 1195, 1200 n.2 (9th Cir. 2009).
When deciding a factual challenge to the court’s subject matter
8
jurisdiction, the court “need not presume the truthfulness of the
plaintiffs’ allegations.” Id.
In this case, NOAA brings a factual challenge to the
Court’s subject-matter jurisdiction, and presents declarations
from three NOAA and Department of Commerce officials, along with
various exhibits. (See Doc. No. 40.)
II.
Motion To Dismiss Under Rule 12(b)(6)
Rule 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be
granted.” The Court may dismiss a complaint either because it
lacks a cognizable legal theory or because it lacks sufficient
factual allegations to support a cognizable legal theory.
Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.
2011).
On a Rule 12(b)(6) motion to dismiss, the Court accepts
all well-pleaded factual allegations as true and construes them
in the light most favorable to the nonmoving party. Sateriale v.
R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th Cir. 2012)
(citation omitted). The Court may not dismiss a “complaint
containing allegations that, if proven, present a winning
case . . . no matter how unlikely such winning outcome may appear
to the district court.” Balderas v. Countrywide Bank, N.A., 664
F.3d 787, 791 (9th Cir. 2011).
Nonetheless, “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011)
9
(citations omitted). “[O]nly pleaded facts, as opposed to legal
conclusions, are entitled to assumption of the truth.” United
States v. Corinthian Colls., 655 F.3d 984, 991 (9th Cir. 2011)
(citation omitted). A “formulaic recitation of the elements of a
cause of action” will not defeat a motion to dismiss. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
and quotations omitted). The complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). “The plausibility
standard . . . asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it
‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556-57). Moreover, the Court need not accept as true
allegations that contradict the complaint’s exhibits, documents
incorporated by reference, or matters properly subject to
judicial notice. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 550, 588
(9th Cir. 2008); Sprewell v. Golden State Warriors, 255 F.3d 979,
988 (9th Cir. 2001).
The Court should grant leave to amend “even if no
request to amend the pleading was made, unless it determines that
the pleading could not be cured by the allegation of other
facts.” OSU Student Alliance v. Ray, 699 F.3d 1053, 1079 (9th
Cir. 2012). Leave to amend “is properly denied, however, if
10
amendment would be futile.” Carrico v. City & County of S.F., 656
F.3d 1002, 1008 (9th Cir. 2011).
DISCUSSION
Dettling and Cabos bring three claims under the Federal
Tort Claims Act: (1) negligence based on federal employees’
failure to follow regulations concerning governmental
compensation for displaced fisherman; (2) negligence based on
NOAA’s negligent performance of “an operational tasks [sic]”; and
(3) intentional infliction of emotional distress, based on the
threats to arrest Dettling. (Compl. ¶¶ 6-8.) Dettling and Cabos
also bring two claims under the Administrative Procedure Act:
(1) arbitrary and capricious abuse of administrative discretion
under Executive Order 13196, Proclamation 8031, and Proclamation
8336; and (2) procedural violations in the adoption of NOAA’s
regulations or other actions. (Id. ¶¶ 9-10.)
I.
Motion To Strike
At the hearing on NOAA’s Motion To Dismiss, Plaintiffs
moved to strike the portions of NOAA’s supplemental brief that
did not address the language in the Executive Orders and
Proclamation 8336 barring judicial review. Plaintiffs pointed to,
for example, NOAA’s lengthy arguments regarding the
“discretionary function” exception to the FTCA. (See NOAA Supp.
Bf. at 5-9.) The Court agrees with Plaintiffs that NOAA’s
supplemental brief strayed well beyond the Court’s instructions
(see Doc. No. 63); although the Court notes that NOAA had already
raised the discretionary function analysis in its earlier briefs
11
(see Mot. at 26-27; Reply at 10-12). The Court denies Plaintiffs’
Motion To Strike but will not rely on the extraneous arguments
contained in NOAA’s supplemental brief. Counsel for NOAA is
cautioned to obey the Court’s explicit instructions going
forward.
The Court now turns to NOAA’s Motion To Dismiss.
II.
Claims by Plaintiff Cabos
As a preliminary matter, the vast majority of the
lengthy Complaint deals with Dettling. The few allegations
concerning Cabos – which are mostly conclusory - state as
follows:
The area NOAA claims regulatory authority over under
Proclamations 8031 and 8336 is Cabos’s traditional fishing
grounds, in which, “during the relevant periods,” he conducted
commercial mid-water fishing, pelagic trolling, and lobster
fishing. (Compl. ¶¶ 82, 84, 90.) Cabos was “severely harmed” by
NOAA’s interpretation and application of Proclamations 8031 and
8336. (Id. 85.) Cabos was “eligible” to receive funds designated
by Congress in 2008 to reimburse displaced fishermen, but did not
receive any. (Id. ¶ 78-79.) At some point, NOAA told Cabos that
he had been accidentally excluded from the disbursement and that
it would seek additional funds to compensate him. (Id. ¶¶ 92-93.)
NOAA’s failure to compensate Cabos was based on NOAA’s “blatant
dislike” of Cabos. (Id. ¶ 76.) Cabos filed a claim with NOAA on
January 7, 2011, asserting that he had been wrongly excluded from
the reimbursement for displaced fishermen. (Id. ¶ 12, 86.) He
12
received a final denial of his claim on February 24, 2011. (Id.
¶ 95-96.)
As the above account shows, the Complaint presents no
facts relating to Cabos that would support any claim from Cabos
other than those based on NOAA’s failure to give him rightfullydue compensation. If Cabos participates in any future amended
complaint, that complaint must contain factual allegations - not
mere legal conclusions - that show why Cabos is entitled to
relief on each claim which he brings.
III. Claims Under the Federal Tort Claims Act
Plaintiffs’ tort claims are brought under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. § 2674. The FTCA provides
liability only in “circumstances where the United States, if a
private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred. 28
U.S.C. § 1346(b). Thus, to bring an FTCA claim, a plaintiff must
show the same elements that state law requires for the tort cause
of action. See Wright v. United States, 719 F.2d 1032, 1034 (9th
Cir. 1983), abrogated on other grounds as stated in Gasho v.
United States, 39 F.3d 1420, 1435 (9th Cir. 1994).
A.
Negligence Based on Failure To Disburse Governmental
Compensation
The elements of a negligence claim under Hawaii law
are: (1) duty; (2) breach of duty; (3) causation; and
(4) damages. Cho v. State, 168 P.3d 17, 23 n.11 (Haw. 2007).
Plaintiffs’ first negligence claim concerns
governmental compensation allegedly given to lobster fishermen
13
but not given to Plaintiffs, even though they were eligible for
it. (See Compl. ¶¶ 12, 65, 74-76, 78-81, 86-95.) These
allegations appear to refer to approximately $6.7 million in
appropriated funds which was designated by Congress in a 2008
appropriations act “to provide compensation to fishery
participants who will be displaced by the 2011 fishery closure
resulting from the creation” of the NWHI Monument. Consolidated
Appropriations Act of 2008, Pub. L. No. 110-161, 121 Stat. 1844
(2007) (Mot. Ex. D).
The compensation statute defines eligible participants
as “those individuals holding commercial Federal fishing permits
for either lobster or bottomfish in the designated waters within”
the NWHI Monument. See id. Plaintiffs conclusorily assert that
they were eligible for federal compensation. (E.g., Compl. ¶ 79.)
Nevertheless, the Court is not required to credit legal
conclusions in a complaint that are not supported by the
complaint’s factual allegations. Iqbal, 556 U.S. at 678
(discussing Twombly, 550 U.S. at 555). Plaintiffs plead that
their State fishing logs prove their eligibility (id. ¶ 91), but
the compensation statute says nothing about fishing logs.
Plaintiffs do not plead that they held federal fishing permits on
the date the compensation statute was enacted; indeed, they plead
that NOAA had not issued federal fishing permits at that time.
(Compl. ¶ 37.) In other words, the facts that they plead appear
to show that they were not eligible for compensation under the
statute.
14
If Plaintiffs were referring to some compensation
scheme for displaced fishermen other than the one described
above, they have offered no factual allegations that would
support such a claim. Again, the Court is not required to accept
Plaintiffs’ legal conclusion that they were “eligible” for some
unspecified compensation. Iqbal, 556 U.S. at 678. The federal
pleading standards require more.
Since Plaintiffs have not pled
facts showing that they were entitled to compensation, they have
failed to plead a claim that they were wrongfully denied that
compensation.
B.
Negligence Based on Performance of an “Operational
Task”
Plaintiffs fail to specify exactly what “operational
tasks” they base this claim upon. The Court will therefore
examine the various categories of operational task described in
the Complaint.
1.
Subject Matter Jurisdiction Under Executive Orders
and Proclamation 8336
Plaintiffs seem to aim to state a negligence claim at
least in part on NOAA’s actions under Executive Orders 13178,
13196, and Proclamation 8336. These authorities all contain
provisions, however, explicitly stating that they do not “create
any right or benefit, substantive or procedural, enforceable in
law or equity” against the United States, its agencies, its
officers, or any other person. 65 Fed. Reg. at 76,910; 66 Fed.
Reg. at 7397; 74 Fed. Reg. at 1570.
15
The above language clearly demonstrates that Plaintiffs
do not have standing to pursue their claims under Executive
Orders 13178 and 13196. The first element of federal standing is
that “the plaintiff must have suffered an ‘injury in fact’ - an
invasion of a legally protected interest.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (emphasis added). Here,
Plaintiffs cannot show a legally protected interest. Plaintiffs’
claims under the Executive Orders appear to be premised on the
theory that the Executive Orders gave Plaintiffs a right to fish
in the Reserve based on their reported landings for the calendar
year before the creation of the Reserve, and that NOAA wrongfully
failed to issue them the fishing permits they were therefore
entitled to. (See Compl. ¶¶ 22-24, 28-29.) The Executive Orders
that created this cap system, however, explicitly state that they
create no legally enforceable right or benefit. 65 Fed. Reg. at
76,910; 66 Fed. Reg. at 7397. Thus, Plaintiffs had no legal right
to fish in the Reserve or to receive permits, and therefore
suffered no injury in fact when NOAA prevented them from fishing
in the Reserve and failed to issue them permits.
Moreover, the language in Executive Orders 13178 and
13196 and Proclamation 8336 appears to explicitly deny Plaintiffs
a private right of action. No federal court has analyzed whether
the above language in these specific executive orders and
proclamation denies potential plaintiffs a private right of
action. Similar or identical language is used fairly frequently
in executive-branch orders and regulations, however, and has
16
therefore been analyzed by many federal courts. Thus, the Ninth
Circuit has found it had “no authority to review” a claim that
the USDA was “arbitrary and capricious in failing to follow a
departmental regulation, where the departmental regulation
contained almost identical language to that at issue here. See
Cal-Almond, Inc. v. Dep’t of Agriculture, 14 F.3d 429, 445 (9th
Cir. 1993) (citing Mich. v. Thomas, 805 F.2d 176, 187 (6th Cir.
1986)).5/ The Ninth Circuit’s holding applies equally where the
language is found in an executive order or presidential
proclamation rather than an agency regulation. Indeed, the Ninth
Circuit cited and quoted a Sixth Circuit opinion which dealt with
an executive order that contained a provision identical to those
in the executive orders at issue here. See id.6/ The Sixth
Circuit found that this language showed “clear and unequivocal
intent that agency compliance with [the executive order] not be
subject to judicial review.” Thomas, 805 F.2d at 187.
The Court originally ordered supplemental briefing on
this issue because it was concerned that if Plaintiffs did not
have a private right of action under Executive Orders 13178 and
5/
Cal-Almond was implicitly overruled on one issue - not
relevant here - via a complex procedural history. See R.J.
Reynolds Tobacco Co. v. Bonta, 272 F. Supp. 2d 1085 n.16 (E.D.
Cal. 2003). Its holdings on administrative law issues retain
precedential value, however. See, e.g., NRDC v. Evans, 316 F.3d
904, 906, 911-12 (9th Cir. 2003) (relying on Cal-Almond for an
administrative law issue).
6/
For this reason, Plaintiffs’ argument that dicta in much
older Ninth Circuit opinions demonstrates that “only Congress has
the authority to preclude judicial review” (Pls. Supp. at 4) is
unconvincing.
17
13196 and Proclamation 8336, the Court might not have subjectmatter jurisdiction over Plaintiffs’ claims under those
authorities. (See Doc. No. 63.) In a decision issued less than a
month before the Court’s minute order, however, the Ninth Circuit
clarified its earlier “seemingly inconsistent decisions” and
seemed to suggest that the existence of a private right of action
determines whether a party may state a claim, not whether the
court has subject-matter jurisdiction over that claim. See Parra
v. PacifiCare of Ariz., Inc., __ F.3d. __, 2013 WL 1693713, at *2
& n.1 (9th Cir. Apr. 19, 2013). The Parra decision would seem to
imply that the language in the Executive Orders and Proclamation
8336 barring judicial review does not deprive the Court of
subject-matter jurisdiction but rather merely prevents Plaintiffs
from stating a claim.
In sum, because the Executive Orders and Proclamation
8336 explicitly create no private right of action against the
United States or its agencies or employees, the Court finds that
Plaintiffs cannot state a claim against NOAA for failure to
follow or properly implement Executive Orders 13178 and 13196 or
Proclamation 8336. Moreover, the Court finds that Plaintiffs do
not have standing to pursue their claims under Executive Orders
13178 and 13196.
2.
Failure To State A Claim Under Proclamation 8031
Next, Plaintiffs have failed to state a claim for
negligence related to “operational tasks” performed pursuant to
Proclamation 8031, the proclamation which created the NWHI
18
Monument. Plaintiffs allege that NOAA repeatedly changed its mind
as to whether Dettling was allowed to fish in NWHI Monument
waters after Proclamation 8031 was issued, repeatedly threatened
to have Dettling arrested if he fished in the NWHI Monument
without a federal permit, and ultimately failed to issue him a
permit to fish there. (Compl. ¶¶ 11, 41, 42, 49, 54-59.)
Proclamation 8031 clearly states that bottomfish and
pelagic fishing may continue in NWHI Monument waters “provided
that . . . [t]he fishing is conducted in accordance with a valid
commercial bottomfish permit issued by NOAA [that] is in effect
on the date of this proclamation.” 71 Fed. Reg. at 36,447.
Plaintiffs, by contrast, plead that they did not have federal
fishing permits issued by NOAA on the date that Proclamation 8031
was issued - indeed, they plead that no one did. (Compl. ¶ 37.)
Since Plaintiffs have failed to plead facts showing that they
were entitled to fish in NWHI Monument waters, they have failed
to show that they were damaged by NOAA’s refusal to allow them to
fish there.
If Plaintiffs are attempting to base their claim on
NOAA’s misrepresentations that Dettling was allowed to fish in
the NWHI Monument after Proclamation 8031 was issued, as NOAA
correctly notes (Mot. at 22), the FTCA does not apply to “any
claim arising out of . . . misrepresentation.” 28 U.S.C.
§ 2680(h).
19
3.
Boundaries of the PRIA Monument
Plaintiffs also claim that NOAA is asserting authority
over a larger marine area than it is entitled to under the
relevant statutes. Plaintiffs state that Proclamation 8336
specifies that “NOAA shall manage the portion of the [PRIA
Monument] out to 12 nautical miles with respect to fisheryrelated activities,” but that “NOAA somehow interpreted
Proclamation 8336 to grant NOAA the unlimited authority to manage
as large an area as it wished.” (Compl. ¶¶ 69-70.) They state
that NOAA “threatens to have Dettling arrested if he attempts to
fish within 50 nautical miles of any of the islands designated in
Proclamation 8336.” (Id. ¶ 73.) They seek an injunction
restricting NOAA’s regulation to within “the 12 nautical miles
designated in Proclamation 8336.” (Id. at 19.)
These allegations fail to plead a claim because they
misstate the law. Plaintiffs have misread the plain text of
Proclamation 8336, which states: “The monument includes the
waters and submerged and emergent lands of the Pacific Remote
Islands to the lines of latitude and longitude depicted on the
accompanying maps, which lie approximately 50 nautical miles from
the mean low water lines of [the Pacific Remote Islands].” 74
Fed. Reg. at 1567 (emphasis added). The Proclamation goes on to
state that the Secretary of the Interior shall have primary
responsibility for waters within twelve nautical miles of the
islands, and that the Secretary of Commerce, acting through NOAA,
shall have primary responsibility for waters seaward of the
20
twelve-nautical-mile boundary, with respect to fishery-related
activities. (Id. at 1568.) The Proclamation then repeats that the
Secretaries of Commerce and Interior “shall prohibit commercial
fishing within boundaries of the monument.” (Id.) It is therefore
crystal-clear that NOAA, acting on behalf of the Secretary of
Commerce, was required to prevent all commercial fishing within
fifty nautical miles of the mean low water lines of the Pacific
Remote Islands.
4.
Conclusion as to FTCA Negligence Claims
In sum, the Court has addressed every possible basis
for Plaintiffs’ negligence claim under the FTCA that the Court
can locate in the Complaint. To the extent that Plaintiffs’
negligence claim is based on the negligent performance of some
operational task other than those discussed above, the Complaint
is not sufficient to put NOAA on notice of such a claim. Given
the above analysis, Plaintiffs’ negligence claims under the FTCA
are DISMISSED WITHOUT PREJUDICE, except for (1) any claim based
on the theory that NOAA does not have the authority to regulate
fishing within fifty nautical miles of the Pacific Remote
Islands, and (2) any claim based on NOAA’s alleged failure to
properly implement Executive Orders 13178 and 13196, both of
which are DISMISSED WITH PREJUDICE.
C.
Intentional Infliction of Emotional Distress
NOAA argues that this Court does not have subject-
matter jurisdiction over Plaintiffs’ intentional infliction of
emotional distress claim because Plaintiffs have not exhausted
21
their administrative remedies as to this claim. (Mot. at 19-20.)
NOAA submits as evidence three administrative claims submitted by
Plaintiffs, all of which complain only of “economic damages.”
(Mot. Exs. H, I, & J.) Plaintiffs do not address this argument in
their Opposition or present any opposing evidence.
Failure to exhaust administrative remedies is properly
considered under a 12(b)(1) motion to dismiss where exhaustion is
required by statute. Puga v. Chertoff, 488 F.3d 812, 815 (9th
Cir. 2007). The FTCA requires plaintiffs to exhaust their
administrative remedies before filing suit. See 28 U.S.C.
§§ 2401(b), 2675(a). The FTCA’s exhaustion requirement is
jurisdictional and must be strictly construed in favor of the
United States. Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250
(9th Cir. 2006) (citation omitted). As noted above, NOAA’s
affidavits and documentary evidence are properly before this
Court because NOAA has brought a “factual” challenge to the
Court’s subject-matter jurisdiction. See Meyer, 565 F.3d at 1200
n.2 (where movants bring a factual challenge to court’s subjectmatter jurisdiction, court need not presume truthfulness of
plaintiff’s allegations and may look beyond the complaint without
having to convert the motion into one for summary judgment).
Plaintiffs’ administrative claim forms contain no
mention of emotional distress and seek no damages for emotional
harm. (See Mot. Exs. H, I, & J.) Nor do they mention the threats
of arrest which apparently form the basis for Plaintiffs’
22
emotional distress claim. (See id.) Plaintiffs thus have not
exhausted their administrative remedies as to this claim.
Plaintiffs’ claim for intentional infliction of
emotional distress is therefore DISMISSED WITHOUT PREJUDICE
because Plaintiffs have not yet exhausted their administrative
remedies.7/
IV.
Claims Under the Administrative Procedure Act
Under the Administrative Procedures Act (“APA”),
5 U.S.C. §§ 701 et seq., a court may (1) “compel agency action
unlawfully withheld or unreasonably delayed” and (2) “hold
unlawful and set aside agency action[s] . . . found to be,” inter
alia, “arbitrary, capricious, and abuse of discretion,” “in
excess of statutory jurisdiction,” or “without observance of
procedure required by law.” Id. § 706.
A.
Arbitrary & Capricious Abuse of Administrative
Discretion under the Executive Orders and Proclamations
Plaintiffs’ first APA claim is premised upon “NOAA’s
arbitrary and capricious abuse of administrative discretion
pursuant to Executive Order 13196, Proclamation 8031, and/or
Proclamation 8336.” (Compl. ¶ 9.)8/
7/
The Court notes that an administrative claim under the
FTCA must be filed within two years after its accrual. See 28
U.S.C. § 2401. It is not clear from the Complaint, however,
whether any of the alleged threats of arrest occurred within the
last two years. Moreover, NOAA waived its statute of limitations
arguments in its Reply brief (see Reply at 2), so the Court will
not address this issue at this time.
8/
Both of Plaintiffs’ APA claims explicitly refer to NOAA’s
alleged actions or inactions. (See Compl. ¶¶ 9, 10.) The Court
(continued...)
23
As discussed above, Plaintiffs were given no
enforceable benefit or right by, and have no private right of
action under, Executive Order 13196 or Proclamation 8336.
Plaintiffs may not use the APA to perform an end run around an
explicit prohibition against judicial review. See Air Transp.
Ass’n of Am. v. Fed. Aviation Admin., 169 F.3d 1, 8-9 (D.C. Cir.
1999) (executive order that explicitly stated it did not create
any right enforceable against the United States was not subject
to judicial review; plaintiff’s attempt to use it as evidence
that agency had acted arbitrarily and capriciously was “nothing
more than an indirect - and impermissible - attempt to enforce
private rights under the order”).
As also discussed above, Proclamation 8031 allowed
fishing to continue within the NWHI Monument only by those who
held a federal fishing permit on the date Proclamation 8031 was
issued. Plaintiffs have pled that they did not hold federal
fishing permits on the date Proclamation 8031 was issued. They
have therefore failed to plead facts showing that NOAA’s
preventing Plaintiffs from fishing in NWHI Monument waters was an
abuse of discretion.
(...continued)
notes, however, that to the extent Plaintiffs wish to challenge
the Proclamations and Executive Orders themselves, as NOAA
correctly points out (Mot. at 28), a president’s exercise of his
discretion pursuant to a statute is not subject to judicial
review under the APA because the president is not an “agency.”
Franklin v. Massachusetts, 505 U.S. 788, 796 (1992); see Dalton
v. Specter, 511 U.S. 462, 476 (1994) (“How the President chooses
to exercise the discretion Congress has granted him is not a
matter for our review.”)
24
Moreover, as also discussed above, Plaintiffs have
failed to show that NOAA abused its discretion by regulating
fishing beyond twelve nautical miles, but before fifty nautical
miles, from the low water marks of the Pacific Remote Islands.
Proclamation 8336 explicitly states that NOAA has primary
responsibility for regulating fishing within those boundaries.
In sum, Plaintiffs’ first APA claim is DISMISSED WITH
PREJUDICE to the extent it relies on NOAA’s alleged abuse of
discretion under Executive Order 13196 or Proclamation 8336, or
on the allegation that NOAA did not have authority to regulate
fishing within fifty nautical miles of the Pacific Remote
Islands, and is otherwise DISMISSED WITHOUT PREJUDICE.
B.
APA Claim for “Procedural Violations”
Plaintiffs’ second APA claim is “premised upon NOAA’s
procedural violations in the adoption of its regulations or other
agency action.” (Compl. ¶ 10.) The rest of the Complaint,
however, contains no factual allegations relating to NOAA’s
adoption of regulations and no facts that would explain what
procedural rules NOAA allegedly violated, or when or how NOAA
violated those rules. This claim is therefore DISMISSED WITHOUT
PREJUDICE.
Tucker Act Issues
C.
NOAA argues that the APA claims should be dismissed
because they are Tucker Act claims for more than $10,000 and
therefore this Court does not have jurisdiction over them. (Mot.
at 23-24.)
25
The Tucker Act gives the Court of Federal Claims
exclusive jurisdiction for claims over $10,000 “founded either
upon the Constitution, or any Act of Congress or any regulation
of an executive department, or upon any express of implied
contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.” 28 U.S.C.
§ 1491. The district courts have concurrent jurisdiction with the
Court of Federal Claims over Tucker Act claims seeking less than
$10,000. 28 U.S.C. § 1346(a)(2). If a Tucker Act claim is brought
in district court for an amount over $10,000, the court may
dismiss the claim for lack of subject matter jurisdiction or
transfer the claim to the Court of Federal Claims; if the
plaintiff wishes to remain in district court, he must waive his
damages in excess of $10,000. See, e.g., Waters v. Rumsfeld, 320
F.3d 265, 271 (D.C. Cir. 2003).
The Tucker Act “does not create any substantive right
enforceable against the United States for money damages.” United
States v. Mitchell, 463 U.S. 206, 216 (1983). A substantive right
must be found in some other source of law, such as “the
Constitution, or any Act of Congress, or any regulation of an
executive department.” Id. (quoting 28 U.S.C. § 1491). The
claimant must “demonstrate that the source of substantive law he
relies upon ‘can fairly be interpreted as mandating compensation
by the Federal Government for the damages sustained.’” Mitchell,
463 U.S. at 216-17 (quoting United States v. Testan, 424 U.S. at
400). For jurisdictional purposes, “[i]t is enough . . . that a
26
statute creating a Tucker Act right be reasonably amenable to the
reading that it mandates a right of recovery in damages.” United
States v. White Mountain Apache Tribe, 537 U.S. 465, 473 (2003).
The merits of the claim are not pertinent to the jurisdictional
inquiry. Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299,
1307 (Fed. Cir. 2008).
In this case, Plaintiffs’ claim for compensation under
the Consolidated Appropriations Act of 2008 (if that is the basis
for Plaintiffs’ compensation claim) appears to fall under the
Tucker Act.
Appropriations Act provisions like the one at issue
here have been found to be money-mandating, so as to create a
Tucker Act claim. See, e.g., Wolfchild v. United States, 96 Fed.
Cl. 302, 338 (Fed. Cl. 2010); cf. Samish Indian Nation v. United
States, 419 F.3d 1355, 1366 (Fed. Cir. 2005) (Act governing
appropriations not money-mandating where it did not require
expenditure of general appropriations on specific programs for
particular classes of beneficiaries). The Federal Circuit has
“repeatedly recognized that the use of the word ‘shall’ generally
makes a statute money-mandating.” Greenlee Cnty. v. United
States, 487 F.3d 871, 877 (Fed. Cir. 2007). Here, the 2008
Appropriations Act provision reads “The Secretary [of Commerce]
shall promulgate regulations [that] provide[] a mechanism to
compensate eligible participants for no more than the economic
value of their permits.” (See Mot. Ex. D (emphasis added).) This
certainly appears to be a money-mandating statute under the
meaning of the Tucker Act jurisdictional analysis.
27
As noted above, however, the Complaint does not plead
the legal basis for Plaintiffs’ compensation claim. It would
therefore be premature to rule that this Court does not have
jurisdiction over Plaintiffs’ compensation claim. Plaintiffs
should note the above analysis in drafting any future amended
complaint, however; if Plaintiffs wish to bring a claim in this
Court under the Consolidated Appropriations Act of 2008, they
must expressly waive damages exceeding $10,000.
CONCLUSION
For the foregoing reasons, the Court DISMISSES
Plaintiffs’ Complaint in its entirety.
First, the Court DISMISSES WITH PREJUDICE Plaintiffs’
claims based on NOAA’s failure to follow or correctly implement
the two Executive Orders or Proclamation 8336. All three of these
authorities explicitly state that they do not confer any legal
right or benefit and do not create a private right of action
against the United States or its agencies.
Second, the Court DISMISSES WITH PREJUDICE Plaintiffs’
claims based on the theory that NOAA does not have authority to
regulate fishing beyond twelve nautical miles from the Pacific
Remote Islands. Proclamation 8336 explicitly states that NOAA has
primary responsibility for regulating fishing beyond twelve
nautical miles, but within fifty nautical miles, of the Pacific
Remote Islands.
Third, the Court DISMISSES WITHOUT PREJUDICE
Plaintiffs’ claims based on NOAA’s alleged wrongful denial of
28
compensation. Plaintiffs have failed to present factual
allegations sufficient to show that they were entitled to
compensation. Indeed, Plaintiffs’ factual allegations appear to
show that Plaintiffs were not eligible for compensation. The
Court notes that this claim appears to arise under the Tucker Act
and that the Court therefore can only assert subject-matter
jurisdiction over it if the claim seeks less than $10,000 in
damages.
Fourth, the Court DISMISSES WITHOUT PREJUDICE
Plaintiffs’ claims based on NOAA’s alleged failure to follow or
correctly implement Proclamation 8031. Plaintiffs have failed to
present factual allegations sufficient to show that Plaintiffs
were entitled to fish in the Northwestern Hawaiian Islands
Monument area under the terms of Proclamation 8031.
Fifth, the Court DISMISSES WITHOUT PREJUDICE
Plaintiffs’ claim of intentional infliction of emotional
distress. Plaintiffs have failed to exhaust their administrative
remedies as to this claim.
Plaintiffs must file any further amended complaint
within thirty days, or else judgment will be entered against them
and this action will be closed. Any further amended complaint
must correct all the deficiencies noted in this Order.
29
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 31, 2013
________________________________
Alan C. Kay
Sr. United States District Judge
Dettling v. United States, Civ. No. 11-00374 ACK KSC, Order Granting
Defendants’ Motion To Dismiss
30
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