Dettling et al v. National Oceanic and Atmospheric Administration et al

Filing 89

ORDER granting Defendants' 73 Amended Motion to Dismiss. Signed by JUDGE ALAN C KAY on 11/15/2013. (gab, )CERTIFICATE OF SERVICEParticipants 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

ORDER GRANTING DEFENDANTS’ AMENDED MOTION TO DISMISS
For the following reasons, the Court hereby DISMISSES
Plaintiffs’ Second Amended 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, naming
as defendants the United States and the U.S. Department of
Commerce, acting through co-defendant the National Oceanic
Atmospheric Administration (together, “NOAA”). (Doc. No. 35.)
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.) On
May 31, 2013, this Court granted NOAA’s Motion to Dismiss and
dismissed Plaintiffs’ First Amended Complaint in its entirety,
granting Plaintiffs partial leave to amend. (Doc. No. 68.)
Plaintiffs timely filed a Second Amended Complaint, the
currently operative complaint, on June 30, 2013. (Doc. No. 70
(“SAC”).) NOAA filed the instant Amended Motion to Dismiss the
Second Amended Complaint on August 12, 2013,1/ arguing that
Plaintiffs’ Second Amended Complaint suffers from the same
factual and legal flaws as the previous complaint that this Court
dismissed on May 31, 2013. (Doc. No. 73 (“Mot.”).) On September

1/

NOAA filed a prior Motion to Dismiss the Second Amended
Complaint on August 7, 2013 (Doc. No. 71), but that motion was
terminated upon the filing of NOAA’s Amended Motion to Dismiss on
August 12, 2013.
2

30, 2013, Plaintiffs filed an Opposition.2/ (Doc. No. 75.) NOAA
filed its Reply on October 24, 2013. (Doc. No. 82.)3/
A hearing on the motion was held on November 5, 2013.
At the Court’s request, the parties submitted supplemental
briefing on November 8, 2013 addressing additional evidence that
Plaintiffs introduced during the hearing. (Doc. Nos. 86, 87.)
FACTUAL BACKGROUND
This case concerns NOAA’s alleged improper denial of
Plaintiffs’ fishing rights within the Papahanaumokuakea Marine
National Monument (“PMNM”), located near Hawaii. Plaintiffs

2/

NOAA correctly notes that Plaintiffs’ Opposition recites
a summary of the facts listed in the First Amended Complaint
(which was dismissed by this Court in its entirety on May 31,
2013), rather than the facts in the currently operative Second
Amended Complaint. NOAA therefore requests that Plaintiffs’
factual summary be stricken to the extent it differs from the
facts alleged in the Second Amended Complaint, and that
Plaintiffs be limited to arguing only as to those facts in the
Second Amended Complaint. Specifically, NOAA argues that
Plaintiffs’ claims pursuant to Proclamation 8336 were dismissed
with prejudice by this Court in its May 31, 2013 Order, and that
Plaintiffs’ arguments relying on Proclamation 8336 should
therefore be struck. (Reply at 1 n.1.) The Court agrees that
Plaintiffs inexplicably cite to facts from their First Amended
Complaint that are not included in their Second Amended
Complaint. The Court will therefore disregard the portion of
Plaintiffs’ statement of facts that is derived from their First
Amended Complaint, as well as Plaintiffs’ arguments as to
Proclamation 8336.
3/

On October 9, 2013, in light of the government shutdown,
the Court granted NOAA a stay of their Reply due date and of the
hearing on their motion until such time as Congress appropriated
the funds necessary for the Department of Justice and other
Federal agency attorneys to return to work. (Doc. No. 77.) The
Court set a new hearing date and Reply deadline on October 19,
2013. (Doc. No. 80.)
3

allege that they fished in the PMNM area for many years prior to
its establishment in 2006. (SAC ¶¶ 19, 38.)
I.

Proclamation 8031
On June 15, 2006, President George W. Bush issued

Proclamation 8031, which established the waters previously
designated as the Northwestern Hawaiian Islands Coral Reef
Ecosystem Reserve as the new Northwestern Hawaiian Islands
National Monument. See 71 Fed. Reg. 36,443, 36,453-54 (June 26,
2006). The Monument’s name was later changed to the
Papahanaumokuakea Marine National Monument (“PMNM”). Proclamation
No. 8112, 72 Fed. Reg. 10,031 (March 6, 2007). Proclamation 8031
prohibited virtually all commercial and recreational fishing
within the bounds of the PMNM, except for five additional years until 2011 - of certain types of fishing. 71 Fed. Reg. at 36,447.
Specifically, Proclamation 8031 stated:
1. The Secretaries shall ensure that any
commercial lobster fishing permit shall be
subject to a zero annual harvest limit.
2. Fishing for bottomfish and pelagic
species. The Secretaries shall ensure that:
a. Commercial fishing for bottomfish and
associated pelagic species4/ may continue
within the monument for not longer than
5 years from the date of this proclamation
provided that:
4/

At the hearing, NOAA stated that there were no federal
permits issued for pelagic fishing in the PMNM waters and that,
pursuant to the Consolidated Appropriations Act of 2008, only
bottomfish and lobster federal permit holders were compensated
after the creation of the PMNM.
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.
On August 29, 2006, NOAA and the Fish and Wildlife
Service, Department of the Interior, published joint regulations
to implement Proclamation 8031. See 50 C.F.R. § 404.104. The
regulations adopted language identical to that contained in
Proclamation 8031 (and quoted above) with respect to commercial
fishing in the PMNM. 50 C.F.R. § 404.104(b)(i) and (ii).
II.

The Consolidated Appropriations Act of 2008
In 2008, Congress appropriated approximately $6.7

million in funds “to provide compensation to fishery participants
who will be displaced by the 2011 fishery closure resulting from
the creation” of the PMNM. Consolidated Appropriations Act of
2008, Pub. L. No. 110-161, 121 Stat. 1844 (2007) (“Consolidated
Appropriations Act”).
The Consolidated Appropriations Act provides, in relevant
part, as follows:
(a) The Secretary of Commerce is authorized to
provide compensation to fishery participants who
will be displaced by the 2011 fishery closure
resulting from the creation by Presidential
proclamation of the Papahanaumokuakea Marine
National Monument.

5

(b) The Secretary shall promulgate regulations for
the voluntary capacity reduction program that:
(1) identifies eligible participants as those
individuals holding commercial Federal fishing
permits for either lobster or bottomfish in the
designated waters within the Papahanaumokuakea
Marine National Monument;
(2) provides a mechanism to compensate eligible
participants for no more than the economic value
of their permits;
(3) at the option of each eligible permit holder,
provides an optional mechanism for additional
compensation based on the value of the fishing
vessel and gear of such participants who so elect
to receive these additional funds, provided that
the commercial fishing vessels of such
participants will not be used for fishing.
Id.
Pursuant to the Consolidated Appropriations Act, NOAA
published a Final Rule on September 15, 2009, for the
“Compensation to Federal Commercial Bottomfish and Lobster
Fishermen Due to Fishery Closures in the Papahanaumokuakea Marine
National Monument, Northwestern Hawaiian Islands.” See 74 Fed.
Reg. 47119-47123 (September 15, 2009). The regulations defined
“eligible participants” as “individuals holding commercial
Federal fishing permits for lobster or bottomfish within the
Monument at the time the Monument was established.” Id.
III. Plaintiffs’ Prior Fishing Permits & Communication with NOAA
Dettling alleges that he conducted pelagic trolling on
state permits in the PMNM waters for many years prior to the
Monument’s establishment in 2006. (SAC ¶¶ 19, 38.) Dettling
6

alleges that, prior to the issuance of Proclamation 8031,
commercial fishing and pelagic trolling in the PMNM was never
conducted pursuant to a federal permit, but was rather always
conducted pursuant to a state permit. (Id. ¶¶ 26-27.) At the
hearing on the instant motion, NOAA stated that, prior to the
issuance of Proclamation 8031, federal bottomfish and lobster
permits existed for the PMNM waters. Pelagic trolling could be
conducted pursuant to state permits; at the hearing, NOAA
admitted that both Plaintiffs had general marine permits issued
by the State of Hawaii, allowing all types of fishing within the
PMNM waters prior to 2005.5/
In the Second Amended Complaint, Dettling states that,
on July 19, 2006 he asked NOAA to clarify whether he was allowed
to continue pelagic trolling in the newly established PMNM. (Id.
¶¶ 11, 30.) Dettling states that, on August 3, 2006, NOAA
responded that he was not allowed to fish in the PMNM on his
state fishing permit any longer because he did not have a federal
permit issued by NOAA as of June 15, 2006, and that he would be
arrested if he tried to do so. (Id. ¶¶ 12, 31-32.) Plaintiffs
allege that, on September 17, 2006, Dettling filed a claim for

5/

In 2005, however, the State of Hawaii established a
Northwestern Hawaii Islands Marine Refuge and prohibited all
commercial fishing in state waters (i.e., zero to three nautical
miles from shore). Haw. Admin. R. § 13-60.5-4. NOAA stated during
the hearing that no compensation was provided by the State of
Hawaii for displaced commercial fishermen.
7

compensation premised on NOAA’s closure of his traditional
fishing grounds pursuant to the implementation of Proclamation
8031. (Id. ¶¶ 13, 45.) Dettling’s September 17, 2006 letter
requested “disaster relief” pursuant to the Magnuson-Stevens
Fishery Conservation and Management Act, 16 U.S.C. § 1861a.
(Pltf.’s Ex. 4.) On April 4, 2007, NOAA responded stating that
disaster relief was unavailable pursuant to 16 U.S.C. § 1861a
because NOAA could not make a determination of a commercial
fishery failure due to a fishery resource disaster, as
Proclamation 8031 still allowed for certain fishing to continue
through June 15, 2011. (Pltf.’s Ex. 5.) Dettling appears to have
interpreted NOAA’s letter as indicating that he could continue
commercial fishing in the PMNM. (Id. ¶¶ 46-47.) When Dettling
later gave notice of a planned fishing trip, NOAA told him he
could not fish on his state permit and threatened to have him
arrested if he went through with the fishing trip. (Id. ¶¶ 4950.)
With respect to Cabos, Plaintiffs state that, prior to
the issuance of Proclamation 8031, there was already a zero quota
prohibition on lobster fishing in the waters that were later
designated the PMNM. (Id. ¶ 56.) Plaintiffs also allege that,
prior to 2006, Cabos was allowed to lobster fish in the Pacific

8

Remote Island Areas (“PRIA”)6/ pursuant to a valid federal
permit, and that he had a federal lobster fishing permit “to fish
in the designated waters within the” PMNM. (Id. ¶¶ 59, 66.)
Plaintiffs allege that “NOAA treated the PRIA as designated
waters within the [PMNM] for purposes of restricting Cabos’s
access to the area pursuant to Proclamation 8031 . . . .” (Id.
¶¶ 66-67.) Plaintiffs state that when Proclamation 8031 was
enacted, NOAA refused to honor Cabos’s federal permit to lobster
fish in the PRIA Monument. (Id. ¶ 60.) NOAA has, however,
introduced evidence that a search of the agency’s records
revealed that Cabos was not issued a federal lobster or
bottomfish permit for the area that became the PMNM for the
fishing year 2006, or for any subsequent year. (Declaration of
Michael Tosatto (“Tosatto Decl.”) ¶¶ 4-5.) Cabos was issued two
lobster permits for the PRIA for 2007-08, and 2008-09, but he did
not renew the PRIA lobster permits after 2009. (Id. ¶ 6.) Under a

6/

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). 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 is thus near to but does not
overlap with the PMNM. See, e.g., NOAA Marine National Monument
Program Map,
www.fpir.noaa.gov/Library/MNM/eez_monument_4_6_2011.pdf (last
visited Oct. 22, 2013). Proclamation 8336 prohibits all
commercial fishing within the boundaries of the PRIA Monument.
Id. at 1568.
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PRIA lobster permit, Cabos would not be authorized to harvest
lobsters in the PMNM. (Id.)
IV.

Disbursement of Funds
According to Plaintiffs, in 2008 Congress designated

over six million dollars to compensate displaced fishermen, and
Plaintiffs were eligible to receive compensation. (SAC ¶¶ 63, 7678.) NOAA disbursed the funds in May 2010. (Id. ¶ 82.) Pursuant
to regulations promulgated under the Consolidated Appropriations
Act, the eligible recipients of compensation were those holding
commercial federal fishing permits for lobster or bottomfish
within the PMNM waters at the time the PMNM was established.
Specifically, this included eight holders of valid commercial
federal permits for bottomfish, and fifteen holders of valid
commercial federal permits for lobster. 74 Fed. Reg. 47119, 47120
(Sept. 15, 2009). Plaintiffs nevertheless allege that fishermen
were automatically compensated for their loss of traditional
fishing grounds based on state fishing logs, and that Dettling
and Cabos received no compensation. (SAC ¶¶ 84-85.) Plaintiffs
claim that NOAA employees told them that they were “accidentally
excluded” from the disbursement, and that NOAA would ask Congress
to allocate additional funds to compensate Plaintiffs. (Id. ¶¶
86-87.)
V.

Form 95 Administrative Claims

10

After having received no compensation, on January 7,
2011, Dettling and Cabos each filed a Standard Form 95
administrative claim for damages with NOAA. (Declaration of
Michael N. Bogomolny (“Bogomolny Decl.”) ¶¶ 2-3; Mot. Exs. A &
B.) Both Form 95 claims state that “In January 2009, President
Bush signed an Executive Order closing fishing in certain Pacific
Remote Islands, specifically the islands of Palmyra, Kingman and
Johnston, which were [Plaintiffs’] traditional fishing grounds.”
(Mot. Exs. A & B.) Dettling’s Form 95 states that Dettling
suffered “economic harm in the amount of $300,000.00” as a result
of the 2009 Executive Order, (Ex. A), and Cabos’s Form 95 states
that Cabos suffered “economic harm in the amount of $900,000.00”
as a result of the 2009 Executive Order. (Ex. B.) Neither form
makes mention of Proclamation 8031 (signed in 2006), the
Consolidated Appropriations Act of 2008, or any injury other than
economic harm. (See Mot. Exs. A & B.)
On February 24, 2011, Dettling and Cabos received a
letter from the Department of Commerce denying their claim and
stating that, if Plaintiffs disagree with the determination, they
may file suit in the appropriate U.S. District Court within six
months from the date of the mailing of the letter. (SAC ¶ 12; see
First Mot. to Dismiss (Doc. No. 40), Ex. K.) Plaintiffs filed
their original complaint in this case on June 14, 2011. (Doc. No.
1.)

11

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
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)(1) 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
12

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
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 two NOAA and Department of Commerce officials, along with
various exhibits. (See Doc. No. 73.)
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.

13

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)
(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

14

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
amendment would be futile.” Carrico v. City & County of S.F., 656
F.3d 1002, 1008 (9th Cir. 2011).
DISCUSSION
I.

Claims Under the Federal Tort Claims Act
Dettling and Cabos bring three claims under the Federal

Tort Claims Act (“FTCA”), 28 U.S.C. § 2674: (1) negligence or
wrongful action and/or omission based on NOAA’s alleged failure
to follow regulations specifically prescribing its duties
15

pursuant to Proclamation 8031 and the Consolidated Appropriations
Act; (2) negligent performance of an operational task mandated by
Proclamations 8031 and the Consolidated Appropriations Act; and
(3) intentional infliction of emotional distress. (SAC ¶¶ 6-8.)
A.

FTCA Negligence Claims
1.

Exhaustion

As an initial matter, NOAA argues that this Court lacks
subject matter jurisdiction over Plaintiffs’ FTCA negligence
claims because Plaintiffs have not exhausted their administrative
remedies as to these claims. The FTCA provides that an “action
shall not be instituted upon a claim against the United States
for money damages . . . unless the claimant shall have first
presented the claim to the appropriate Federal agency and his
claim shall have been finally denied by the agency in writing and
sent by certified or registered mail.” 28 U.S.C. § 2675(a). If no
such claim is presented to the appropriate federal agency within
two years after the claim accrues, a tort claim shall be “forever
barred.” 28 U.S.C. § 2401(b).
The Ninth Circuit has made clear that “the exhaustion
requirement is jurisdictional in nature and must be interpreted
strictly.” Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th
Cir. 2006). Failure to exhaust administrative remedies, where
exhaustion is required by statute, is properly considered under a

16

12(b)(1) motion to dismiss. Puga v. Chertoff, 488 F.3d 812, 815
(9th Cir. 2007).
NOAA argues that Plaintiffs have failed to exhaust
their administrative remedies as to their negligence claims
brought under the FTCA. (Mot. at 13-14.) Plaintiffs argue that
they have satisfied the FTCA exhaustion requirement, either
because of Dettling’s September 17, 2006 letter to NOAA, or
because of the Form 95 administrative claims Dettling and Cabos
submitted to NOAA on January 7, 2011.7/

7/

At the hearing on the instant motion, Plaintiffs’ counsel
argued for the first time that a third claim existed to satisfy
the exhaustion requirement. Specifically, Plaintiffs pointed to a
FTCA Form 95 administrative claim filed by Mr. Rory Soares Toomey
on February 14, 2011. (See Doc. No. 21, Ex. C.) As an initial
matter, the Court notes that the Form 95 filed by Toomey (Doc.
No. 21, Ex. C) and NOAA’s response to the Form 95 claims (Doc.
No. 21, Ex. D) were referenced by the parties during the hearing,
and Exhibit D is also referenced in Plaintiffs’ Second Amended
Complaint; however, they were attached as exhibits to NOAA’s
First Motion to Dismiss that was withdrawn. (See Doc. Nos. 21,
37.) As to the exhibits themselves, Plaintiffs argue that Toomey
was their attorney at the time, and that he filed the Form 95 on
their behalf. The form on its face contradicts this claim,
however, as the claimant is listed as “Rory Soares Toomey,” and
there is no indication that the form involves claims by either
Dettling or Cabos. (See id. at Box 2.) Indeed, if Mr. Toomey
intended to file a claim on behalf of Plaintiffs, he clearly knew
how to do so, as the Form 95 claims he filed on January 7, 2011
stated that the claimants were “Robert Cabos c/o Rory Soares
Toomey,” and “Joe Dettling c/o Rory Soares Toomey.” (Mot. Exs. A
& B.) He made no similar designation on the February 14, 2011
form. The Court therefore must conclude that it was filed by
Toomey on behalf of himself, rather than on behalf of Plaintiffs.
Indeed, NOAA’s February 24, 2011 response to the Form 95
indicated that Toomey's claim was filed on behalf of himself, and
did not involve a tort cognizable under the FTCA. (See Doc. No.
21, Ex. D.) Plaintiffs did not, however, file a response to NOAA
indicating that NOAA's interpretation of the February 14, 2011
17

a.

Dettling’s September 17, 2006 Letter

Plaintiffs allege that Dettling submitted a claim to
NOAA for compensation for the loss of his traditional fishing
grounds as a result of the implementation of Proclamation 8031 on
September 17, 2006. (SAC ¶ 13.) Plaintiffs failed to attach any
documentation of such a claim to their opposition. During the
hearing on the instant motion, however, Plaintiffs’ counsel
provided the Court with a copy of the September 16, 2007 letter.
The letter states that it is a “demand for disaster relief”
pursuant to 16 U.S.C. § 1861a, and appears to assert that
Dettling is requesting such disaster relief as a result of the
issuance of Proclamation 8031. (Pltf.’s Ex. 4.)
As an initial matter, the September 17, 2006 letter is
insufficient for purposes of exhausting Plaintiff Cabos’s
remedies, as it was not filed by him or on his behalf, and he is
not mentioned at all in the letter.

claim as being filed on Toomey’s behalf was incorrect. Further,
even assuming the Form 95 claim could be interpreted as having
been filed on behalf of Plaintiffs, it does not address the
substance of the claims in the instant suit, namely, NOAA’s
implementation of Proclamation 8031 and the Consolidated
Appropriations Act. As such, the February 14, 2011 Form 95 claim
is insufficient for purposes of exhaustion. In any event, as set
forth in this Court’s May 31, 2013 Order, Plaintiffs admit that
they did not hold any federal fishing permits for the PMNM waters
prior to the issuance of Proclamation 8031. Furthermore, the
Court concurs with the additional grounds set forth in NOAA’s
supplemental briefing as to why the February 14, 2011 Form 95
claim insufficient for purposes of exhaustion.
18

Further, the September 17, 2006 letter is likewise
insufficient for purposes of Dettling’s FTCA exhaustion
requirement for two reasons. First, the letter specifically
states that Dettling seeks “disaster relief” pursuant to the
Magnuson-Stevens Fishery Conservation and Management Act (“MSA”),
16 U.S.C. § 1861a. The MSA allows the Secretary of Commerce to
declare a federally managed fishery a failure at the Secretary’s
discretion or at the request of the governor of an affected state
or a fishing community. 16 U.S.C. § 1861a(a)(1). Once the
Secretary has determined that a commercial fishery failure has
occurred, the Secretary may make funds available to, inter alia,
provide assistance to affected fishing communities. 16 U.S.C.
§ 1861a(a)(2). On April 4, 2007, NOAA responded to Dettling’s
claim, stating that “there is currently no commercial fishery
failure” because Proclamation 8031 permitted certain fishing to
continue through June 15, 2011. (Doc. No. 85, Ex. 1 at 2.)
Dettling did not thereafter respond to NOAA indicating that
NOAA’s interpretation of his claim as for “disaster relief”
pursuant to the MSA was in some way incorrect. Dettling’s request
pursuant to the MSA’s disaster relief scheme was therefore
entirely different from the claims for negligence he asserts in
the Second Amended Complaint.
In the instant suit, he seeks compensation “for the
loss of his fishing rights” in the PMNM, and “for damages

19

resulting from NOAA’s tortious and/or arbitrary and capricious
refusal to give Dettling a federal permit to fish” in the PMNM.
(SAC at “Prayer for Relief” (n.p.).) He does not challenge NOAA’s
failure to declare a commercial fishery failure, or failure to
compensate him pursuant to 16 U.S.C. § 1861a(a)(2). As such, the
September 17, 2006 deals with an entirely different claim than
the one in the instant suit. Moreover, Dettling sent the
September 2006 letter more than 15 months prior to the enactment
of the Consolidated Appropriations Act of 2008. Thus, the claim
in the September 2006 letter could not have been (and was not)
premised upon Plaintiffs’ theory in the Second Amended Complaint
that NOAA failed to follow regulations that specifically
prescribe its duties pursuant to Proclamation 8031 and the
Consolidated Appropriations Act, and negligently performed an
operational task mandated by Proclamation 8031 and the
Consolidated Appropriations Act.
Second, even if the September 2006 letter was
sufficient to challenge NOAA’s implementation of Proclamation
8031, it was nevertheless untimely under the MSA. The MSA
provides that judicial review of regulations and agency action
taken pursuant to the Act is subject to judicial review under
§ 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 501

20

et seq. 16 U.S.C. § 1855(f)(1).8/ Under the MSA, any such
petition for review must be filed within 30 days after the date
on which the challenged regulations are promulgated or published
in the Federal Register. 16 U.S.C. § 1855(f). If a petition is
not timely filed, the reviewing court lacks jurisdiction to hear
the challenge to the regulations. Norbird Fisheries, Inc. v.
National Marine Fisheries Service, 112 F.3d 414, 416 (9th Cir.
1997). Proclamation 8031 was issued on June 15, 2006; Dettling’s
letter is dated September 17, 2006, more than three months (and
far more than thirty days) after the issuance of the
Proclamation.
As such, Dettling’s September 2006 letter is
insufficient to exhaust Plaintiffs’ administrative remedies as to
their negligence claims under the FTCA.
b.

The January 7, 2011 Form 95 Claims

Both Dettling and Cabos filed Form 95 administrative
claims with NOAA on January 7, 2011. These claims are nearly
identical, and both complain of “economic harm” suffered as a
result of an executive order signed by President Bush in January
of 2009 “closing fishing in certain Pacific Remote Islands,

8/

That section of the APA provides that a reviewing court
shall hold unlawful and set aside agency action found to be,
among other things, “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” or “in
excess of statutory jurisdiction, authority, or limitations, or
short of statutory right.” 5 U.S.C. § 706(2)(A) & (C).
21

specifically the islands of Palmyra, Kingman and Johnston.” (Mot.
Exs. A & B.) Importantly, however, neither of these claims
reference Proclamation 8031 or the Consolidated Appropriations
Act. Indeed, the Executive Order signed by President Bush in
January of 2009 that Plaintiffs are apparently referencing in
their Form 95 claims is Proclamation 8336, which created the PRIA
Monument. See 74 Fed. Reg. 1565 (Jan. 12, 2009).9/ 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 Wake, Baker,
Howland, and Jarvis Islands, Johnston Atoll, Kingman Reef, and
Palmyra Atoll.” Id. at 1567. The PRIA Monument is near to but
does not overlap with the protected area created by Proclamation
8031 (the PMNM). See NOAA Marine National Monument Program Map,
www.fpir.noaa.gov/Library/MNM/eez_monument_4_6_2011.pdf. As such,
Plaintiffs’ Form 95 claims thus appear to be referencing a
different Executive Order, which restricted fishing in a
different area, than the one they base their claims on in the
instant suit.
Further, nowhere on the Form 95 claims do Plaintiffs
mention the Consolidated Appropriations Act specifically, or a

9/

Moreover, Plaintiffs’ Form 95 claims identify the “Date
and Day of Accident” as January 15, 2009, again, suggesting that
the forms do not relate to Proclamation 8031 (issued in 2006),
but, rather, to Proclamation 8336 (signed on January 9, 2009).
(See Mot. Exs. A & B.)
22

government compensation scheme for lost fishing rights generally.
As such, Plaintiffs do not, and cannot, argue that NOAA’s alleged
negligent implementation of the Consolidated Appropriations Act
is somehow encompassed in their Form 95 claims of economic harm
arising out of the creation of the PRIA Monument in 2009.
Plaintiffs appear to argue that, notwithstanding the
fact that the two Form 95 claims do not reference Proclamation
8031 or the Consolidated Appropriations Act, and instead appear
to reference Proclamation 8336, they have still satisfied the
exhaustion requirement because the basis for the Form 95 claims
was Plaintiffs’ loss of their traditional fishing grounds as a
result of executive action. (Opp’n at 20.) In Goodman v. United
States, the Ninth Circuit stated that the notice required for
exhaustion is “minimal, and a plaintiff’s administrative claims
are sufficient even if a separate basis of liability arising out
of the same incident is pled in federal court.” 298 F.3d 1048,
1055 (9th Cir. 2002). Plaintiffs thus argue that their Form 95
claims were sufficient to put NOAA on notice of the “time, place,
cause and general nature of the injury and the amount of
compensation demanded.” Id.
While the Court acknowledges that administrative claims
filed by lay persons generally need not provide the relevant
administrative agency with all the details of a plaintiff’s
federal complaint, see id. at 1056, the Court disagrees that

23

Plaintiffs’ Form 95 claims were sufficient to put NOAA on notice
of their claims in the instant suit. Plaintiffs’ Form 95 claims
specifically state that Cabos and Dettling “suffered economic
harm” as a result of “an Executive Order closing fishing in
certain Pacific Remote Islands, specifically the islands of
Palmyra, Kingman and Johnston,” signed by President Bush in 2009.
(See Mot. Exs. A & B.) These allegations are relatively specific,
and use language mirroring that of Executive Order 8336, which
created the PRIA Monument. See 74 Fed. Reg. at 1567 (defining the
boundaries of the PRIA Monument as “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
Wake, Baker, Howland, and Jarvis Islands, Johnston Atoll, Kingman
Reef, and Palmyra Atoll.”). Indeed, the Form 95 claims seem to
indicate that the “time, place, cause and general nature of the
injury” were a loss of fishing rights in the PRIA Monument in
2009. As such, it was reasonable for NOAA to conclude that
Plaintiffs’ administrative claims were for economic damages
arising as a result of the issuance of Proclamation 8336. The
PRIA Monument (created by Proclamation 8336) and the PMNM
(created by Proclamation 8031) are two distinct areas of
protection established at two different times. The Court
therefore cannot say that notice of a claim arising out of the
restriction of fishing in the PRIA Monument necessarily provided

24

notice to NOAA about claims arising out of the restriction of
fishing in the PMNM.
The torts alleged in the Second Amended Complaint
involve NOAA’s alleged failure to follow regulations prescribed
by Proclamation 8031 and the Consolidated Appropriations Act, and
negligence in performance of an operational task mandated by
Proclamation 8031 and the Consolidated Appropriations Act.
(See SAC ¶¶ 6-7.) Plaintiffs’ Form 95 claims state that
Plaintiffs suffered economic harm as a result of the loss of
their traditional fishing grounds pursuant to a 2009 Executive
Order. The Form 95 claims are, thus, premised on an entirely
different cause of harm than the one complained of in the instant
suit. While the Form 95 claims gave NOAA “sufficient written
notice to commence investigation” as to Plaintiffs’ losses
arising out of Proclamation 8336 (the relevant 2009 Executive
Order), they simply do not give NOAA any notice of Plaintiffs’
claims based upon Proclamation 8031 and the Consolidated
Appropriations Act. See Warren v. U.S. Dep’t of Interior Bureau
of Land Mgmt., 724 F.2d 776, 779-80 (9th Cir. 1984) (stating
that, in order to satisfy the FTCA exhaustion requirement, a
plaintiff must file “a written statement sufficiently describing
the injury to enable the agency to begin its own investigation,
and . . . a sum certain damages claim.”); Avery v. United States,
680 F.2d 608, 610 (9th Cir. 1982) (same).

25

Indeed, NOAA’s response to Plaintiffs’ Form 95 claims
supports this conclusion. On February 24, 2011, NOAA sent a
letter responding to Plaintiffs’ January 7, 2011 claims, stating
that Plaintiffs’ claims “alleging that the issuance of
Proclamation 8336 by President Bush on January 6, 2009 was a
tort, is not cognizable under the FTCA as per 28 U.S.C.
§ 2401(b).” (First Mot. to Dismiss (Doc. No. 40), Ex. K.) This
response makes clear that NOAA interpreted Plaintiffs’ Form 95
claims to be complaining of harm caused by the issuance of
Proclamation 8336. Notwithstanding this response, Plaintiffs
failed to file corrected Form 95 claims indicating that their
claims were actually premised upon Proclamation 8031. Thus, while
Plaintiffs’ Form 95 claims may be sufficient to exhaust a federal
claim premised upon Proclamation 8336,10/ they are simply
insufficient to exhaust the claims Plaintiffs raise in the Second
Amended Complaint. See Goodman, 298 F.3d at 1057 (noting that the
agency’s denial of a claim on the merits was persuasive evidence

10/

The Court notes that, in its May 31, 2013 Order Granting
Defendants’ Motion to Dismiss, the Court found that, because
Proclamation 8336 explicitly created no private right of action
against the United States or its agencies or employees,
Plaintiffs could not state a claim against NOAA for failure to
follow or properly implement Proclamation 8336. (Doc. No. 68 at
18.)
26

that the requirement of minimal notice was satisfied); Warren,
724 F.2d at 779 (same).11/
Plaintiffs’ claims for negligence in failing to follow
regulations that specifically prescribe duties pursuant to
Proclamation 8031 and the Consolidated Appropriations Act, and
negligent performance of an operational task mandated by
Proclamation 8031 and the Consolidated Appropriations Act are
therefore DISMISSED WITHOUT PREJUDICE because Plaintiffs failed
to exhaust their administrative remedies.12/
2.

Subject Matter Jurisdiction Over FTCA Negligence
Claims

Even assuming Plaintiffs properly exhausted their
administrative remedies, NOAA argues that Plaintiffs’ claims must
be dismissed for lack of subject matter jurisdiction because

11/

Plaintiffs argued during the hearing that on February 15,
2013 the parties stipulated to a stay of all discovery until this
Court decided NOAA’s first motion to dismiss (See Doc. No. 59),
and that Plaintiffs were therefore prevented from conducting the
discovery necessary to respond to the instant motion. The Court
notes, however, that the Court granted the first motion to
dismiss on May 31, 2012, (Doc. No. 68,) after which Plaintiffs
could have conducted discovery. Further, Plaintiffs filed this
action on June 14, 2011, and thus had nearly two years to conduct
discovery prior to entering into the stipulation. Finally,
Plaintiffs could have (but did not) submitted their own
declarations to support their opposition to the instant motion.
12/

Because the Court finds that Plaintiffs administrative
claims to NOAA are insufficient for purposes of exhaustion, the
Court need not address the issue of whether those claims were
timely under the FTCA.
27

Plaintiffs’ claims do not fall under the FTCA’s waiver of
sovereign immunity. (Mot. at 17.)
Sovereign immunity is “jurisdictional in nature,” and,
thus, this Court lacks jurisdiction over claims brought against
NOAA that do not fall within the provided-for causes of action in
the FTCA. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 477-78 (1994).
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). As such, Plaintiffs must show that NOAA’s
actions, if committed by a private party, would constitute a tort
in Hawaii.
As NOAA correctly points out, however, the FTCA does
not waive sovereign immunity for causes of action where the
claimed negligence arises out of the failure of the United States
to carry out federal statutory duties or otherwise follow federal
law. See Meyer, 510 U.S. at 478 (stating that the FTCA does not
waive sovereign immunity for constitutional torts because those
claims are based on a violation of federal law, rather than the

28

applicable state law.); Jachetta v. United States, 653 F.3d 898,
904 (9th Cir. 2011) (stating that allegations of violations of
federal law are not actionable under the FTCA); Love v. United
States, 60 F.3d 642, 644 (9th Cir. 1995) (“The breach of a duty
created by federal law is not, by itself, actionable under the
FTCA.”). Rather, jurisdiction under the FTCA may only be found
where there exist analogous circumstances in which state law
would impose a duty of care on a private person. See United
States v. Olson, 546 U.S. 43, 46-47 (2005); Westbay Steel, Inc.
v. United States, 970 F.2d 648 (9th Cir. 1992) (“[T]he FTCA
applies only if there is a ‘persuasive analogy with private
conduct.’” (quoting Woodbridge Plaza v. Bank of Irvine, 815 F.2d
538, 543 (9th Cir. 1987)).
Here, Plaintiffs appear to be claiming that, because
they held general marine fishing permits issued by the State of
Hawaii, and Cabos held a federal lobster fishing permit for the
PRIA Monument waters, and because Proclamation 8031 provided that
“[t]he establishment of [the PMNM] is subject to valid and
existing rights” and “nothing in this proclamation shall diminish
or enlarge the jurisdiction of the State of Hawaii,” NOAA was
negligent in “failing to follow regulations specifically
prescribing its duties” and negligently performed an “operational
task” mandated by Proclamation 8031 when it implemented
regulations restricting pelagic trolling and lobster fishing in

29

PMNM waters. (See SAC ¶¶ 22-24, 33-37; Opp’n at 25-27.)
Importantly, however, the conduct Plaintiffs complain of, NOAA’s
alleged negligent implementation of Proclamation 8031, was
undertaken by NOAA pursuant to federal law. Specifically, NOAA
implemented the requirements of Proclamation 8031 through its
authority under the MSA, 16 U.S.C. § 1801, et seq. As such, even
assuming Proclamation 8031 and the Consolidated Appropriations
Act imposed some duty upon NOAA with respect to its
implementation of the laws, Plaintiffs’ allegations that NOAA
breached such a duty are not actionable under the FTCA. See,
e.g., Jachetta, 653 F.3d at 904 (stating that allegations of
violations of federal law are not actionable under the FTCA).13/
Further, Plaintiffs have failed to identify any
analogous Hawaii state law under which NOAA’s alleged negligence
in implementing Proclamation 8031 and the Consolidated
Appropriations Act would be actionable. Plaintiffs cite to
Figueroa v. State, in which the Hawaii Supreme Court addressed
whether the State of Hawaii breached its duty of care to an
inmate in the Hawaii Youth Correctional Facility. 61 Haw. 369
(1979). The Figueroa court found that the state’s duty to the
plaintiff arose out of “the relationship created between the two

13/

Indeed, as NOAA correctly points out, the proper way for
Plaintiffs to challenge NOAA’s implementation of Proclamation
8031 would have been to file a petition for review within the 30day limitations period established by the MSA. See 16 U.S.C.
§ 1855(f).
30

as a result of [plaintiff’s] commitment” to the facility. Id. at
375-76. Specifically, the court noted that Hawaii law provides
that the director of social services “shall be the guardian of
the person of every child committed to or received at” the
facility. Id. (quoting Haw. Rev. Stat. § 352-9).
Plaintiffs appear to argue that Proclamation 8031 and
the Consolidated Appropriations Act similarly gave rise to a duty
of care on the part of NOAA in its implementation of the fishery
restrictions and compensation scheme. (Opp’n at 27-28.)
Plaintiffs do not, however, identify any specific provision in
either Proclamation 8031 or the Consolidated Appropriations Act
that would give rise to such a duty. Further, the court in
Figueroa did not, as Plaintiffs claim, base its finding of
negligence on Hawaii’s failure to follow its own regulations;
rather, the court found that the state’s negligence, if any,
could only be predicated on the manner in which the state
observed and supervised plaintiff in his isolation cell prior to
his suicide. Id. at 377.14/ This Court therefore fails to see how

14/

The other case Plaintiffs cite, Stryker v. Queen’s
Medical Center, 60 Haw. 214 (1978), is likewise inapposite. The
Stryker court, among other things, found no error in a trial
court’s instruction to a jury that certain precautionary
guidelines regarding the care and treatment of psychiatric
patients were in effect at the time of the plaintiff’s death and
that a failure to follow such guidelines could be considered as
evidence of negligence. Id. at 219.
31

the Figueroa court’s assessment of foreseeability and imposition
of liability is in any way analogous to the case at hand.15/
Finally, even assuming Plaintiffs could identify an
analogous case imposing liability in Hawaii for negligence
arising out of a failure to properly implement a federal law, it
is not at all clear that Plaintiffs can demonstrate that NOAA’s
implementation of Proclamation 8031 did, in fact, negligently
“diminish[] the jurisdiction of the State of Hawaii in
contradiction to the express mandates of Proclamation 8031.” (See
SAC ¶¶ 35-37.) Under the MSA, the United States exercises
“sovereign rights and exclusive fishery management authority over
all fish . . . within the exclusive economic zone.” 16 U.S.C.

15/

The Court notes that, even assuming Plaintiffs could
identify some analogous case imposing liability in Hawaii, as the
Court stated in its May 31, 2013 Order, Plaintiffs have failed to
put forth facts supporting their allegation that NOAA’s
implementation of Proclamation 8031 as it applied to Plaintiffs
was in some way negligent. Proclamation 8031 clearly states that
federal lobster fishing permits “shall be subject to a zero
annual harvest limit,” and that fishing for “bottomfish and
associated pelagic species” may continue in PMNM 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 did not have federal fishing permits for the PMNM
waters issued by NOAA on the date that Proclamation 8031 was
issued. (SAC ¶¶ 19, 26-27, 38; Tosatto Decl. ¶¶ 4-9.) Because
Plaintiffs have failed to plead facts showing that they were
entitled to fish in PMNM waters, they have failed to show that
NOAA’s refusal to allow them to fish there constituted
negligence.
32

§ 1811(a).16/ The Exclusive Economic Zone (“EEZ”) consists of the
waters two hundred nautical miles from the coastal boundary of
each state,17/ 16 U.S.C. § 1811, and thus encompasses the PMNM.
Because the United States has sovereign rights and
exclusive fishery management authority over the EEZ, under the
MSA a state may only regulate the harvest of fishery resources in
the EEZ by its citizens where “[t]he fishing vessel is registered
under the law of the State, and (i) there is no . . . applicable
Federal fishing regulations . . . or (ii) the State’s laws and
regulations are consistent with the fishery management plan and
applicable Federal fishery regulations [for the relevant
waters.]” 16 U.S.C. § 1856(a)(3). Accordingly, after the issuance
of Proclamation 8031 in 2006, the State of Hawaii could not
authorize Plaintiffs to fish in the federal waters within the
PMNM because doing so would be inconsistent with the “applicable
Federal fishing regulations” for the lobster, bottomfish, and
associated pelagic species fisheries. And prior to 2006,

16/

Prior to the enactment of the MSA, states were allowed to
regulate beyond their territorial waters because there were few
Federal fishery regulations on the books. During this period, the
Supreme Court heard several cases that raised the issue of
preemption of state regulations in, or affecting, federal waters.
In Skiriotes v. Florida, the Supreme Court held that in matters
affecting its legitimate interest a state may regulate the
conduct of its citizens on the high seas as long as there was no
conflicting federal provision. 313 U.S. 69, 77 (1941).
17/

The outer boundary of a state’s territorial waters is at
three nautical miles seaward from that state’s coastline.
33

Plaintiffs could no longer conduct pelagic trolling or fish for
lobster in the state waters within the PMNM (the waters from zero
to three miles from the shore) because, in 2005, the State of
Hawaii established a Northwestern Hawaii Islands Marine Refuge
and prohibited all commercial fishing in State waters (i.e., zero
to three nautical miles from shore). Haw. Admin. R. § 13-60.5-4.
Plaintiffs argue that this represented a diminishment
of the State of Hawaii’s jurisdiction. Hawaii’s jurisdiction
extends three nautical miles from the line of ordinary low water
surrounding each of the islands comprising the state. C.A.B. v.
Island Airlines, Inc., 235 F. Supp. 990, 1007 (D. Hawaii 1964),
aff’d Island Airlines, Inc. v. C.A.B., 352 F.2d 735 (9th Cir.
1965). Pursuant to the MSA, the EEZ, the area in which the
federal government exercises exclusive jurisdiction over natural
resources, begins at the State of Hawaii’s coastal boundary
(three miles from shore) and extends out two hundred nautical
miles from that boundary. 16 U.S.C. § 1811. On the other hand,
the PMNM encompasses both state (zero to three miles from shore)
and federal (EEZ) waters. As such, after the issuance of
Proclamation 8031, the State of Hawaii’s Department of Natural
Resources, the U.S. Department of the Interior’s Fish and
Wildlife Service, and NOAA signed a Memorandum of Agreement
(“MOA”) addressing how the state and federal entities would
coordinate management of the PMNM. See Memorandum of Agreement to

34

Promote Coordinated Management of the Northwestern Hawaiian
Islands Marine National Monument (Dec. 8, 2006), available at
http://www.papahanaumokuakea.gov/PDFs/MOA_Dec06_Color.pdf. Under
the MOA, Hawaii agreed to have State lands and waters in the PMNM
managed as part of the Monument, with the three parties (the U.S.
Secretary of Commerce, the U.S. Secretary of the Interior, and
the State of Hawaii) serving as Co-Trustees. Id.; see also
Papahanaumokuakea Marine National Monument Management Plan Vol. 1
at ES-2 (Dec. 2008), available at
http://www.papahanaumokuakea.gov/management/mp/vol1_mmp08.pdf.
(“[M]anagement of the [PMNM] is the responsibility of the three
parties acting as Co-Trustees: the State of Hawai‘i, Department
of Land and Natural Resources; the U.S. Department of the
Interior, FWS; and the U.S. Department of Commerce, NOAA.”). The
MOA expressly states that the State of Hawaii has primary
responsibility for managing the State waters of the PMNM, in
coordination and cooperation with its Co-Trustees. Id. at 2.
Thus, while the State of Hawaii, pursuant to the MSA, could not
issue any fishing permits that would conflict with the federal
regulations governing the federal waters within the PMNM once
those regulations were issued, it retained jurisdiction and
management authority over the State waters and lands within the
PMNM. As such, Plaintiffs cannot show that NOAA’s implementation

35

of Proclamation 8031 negligently diminished the jurisdiction of
the State of Hawaii.
Plaintiffs nevertheless argue that the State of
Hawaii’s jurisdiction was diminished because they could fish on
their state permits in the PMNM waters prior to the issuance of
Proclamation 8031, and could no longer do so once the
Proclamation issued. This argument is unavailing, however,
because the State of Hawaii stopped permitting all commercial
fishing in the State waters within the PMNM in 2005 when it
designated the Northwestern Hawaiian Islands Marine Refuge. See
Haw. Admin. R. § 13-60.5-4 (making it unlawful for any person to
“take for the purpose of sale or sell marine life taken from” the
Northwestern Hawaiian Islands Marine Refuge). Indeed, in
establishing the Northwestern Hawaiian Islands Marine Refuge and
prohibiting commercial fishing within its bounds, the State of
Hawaii specifically stated that it intended to “coordinate
management and process permit review among” the relevant state
and federal agencies, including the U.S. Fish and Wildlife
Service and NOAA, as well as “[t]o be consistent with federal law
where federal law is applicable.” Haw. Admin. R. § 13-60.5-1(6)(7). As such, it appears that Plaintiffs could not fish in the
state waters within the PMNM on their state permits after 2005
because the State of Hawaii had terminated their fishing rights,
not because of the issuance of Proclamation 8031. Apparently,

36

Plaintiffs could still fish on state permits in the federal (EEZ)
waters within the PMNM even after 2005; however, once
Proclamation 8031 was issued in 2006, Plaintiffs could no longer
do so.
In sum, because Plaintiffs have failed to demonstrate
directly or by analogy that a private person would be liable in
Hawaii under the circumstances alleged in the Second Amended
Complaint, the Court must conclude that, even assuming Plaintiffs
properly exhausted their administrative remedies as to their FTCA
negligence claims, the Court nevertheless lacks subject matter
jurisdiction over those claims. Plaintiffs claims for negligent
failure to follow regulations specifically prescribing NOAA’s
duties, and negligent performance of an operational task are
therefore DISMISSED WITHOUT PREJUDICE.
B.

Intentional Infliction of Emotional Distress Claim
NOAA argues that Plaintiffs have not exhausted their

administrative remedies as to their claim for intentional
infliction fo emotional distress. (Mot. at 11-12.) NOAA submits
as evidence the two Form 95 administrative claims submitted by
Plaintiffs on January 7, 2011, both of which complain only of
“economic damages.” (Mot. Exs. A & B.)
As this Court noted in its May 31, 2013 Order Granting
Defendants’ Motion to Dismiss, Plaintiffs’ administrative claim
forms make no mention of emotional distress and seek no damages

37

for emotional harm. (See Mot. Exs. A & B.) Nor do they mention
the threats of arrest or the allegedly misleading statements made
by NOAA officials which apparently form the basis for Plaintiffs’
emotional distress claim. (See id.) Plaintiffs do not dispute
this. Further, Plaintiffs’ Second Amended Complaint contains no
new allegations indicating that they presented a claim for
emotional distress to NOAA. Plaintiffs have thus failed to
exhaust their administrative remedies as to this claim.
Plaintiffs’ claim for intentional infliction of
emotional distress is therefore DISMISSED WITH PREJUDICE because
Plaintiffs failed to exhaust their administrative remedies.
II.

Claims Under the Administrative Procedure Act
Plaintiffs bring two claims under the Administrative

Procedure Act (“APA”): (1) arbitrary and capricious abuse of
administrative discretion under Proclamation 8031 and the
Consolidated Appropriations Act, and (2) a procedural violation
in the adoption of regulations pursuant to 8031. (SAC ¶¶ 910.) Under the 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
38

Plaintiffs’ first APA claim is premised upon “NOAA’s
arbitrary and capricious abuse of administrative discretion
pursuant to Proclamation 8031 and the Consolidated Appropriations
Act of 2008.” (SAC ¶ 9.)
First, as to Proclamation 8031, Plaintiffs allege that
NOAA repeatedly changed its mind as to whether Dettling was
allowed to fish in PMNM waters after Proclamation 8031 was
issued, repeatedly threatened to have Dettling arrested if he
fished in the PMNM without a federal permit, refused to allow
Cabos to fish in the PMNM with his federal PRIA lobster fishing
permit, and ultimately failed to issue Dettling or Cabos a permit
to fish in the PMNM. (SAC ¶¶ 12-15, 30-32, 46-49, 60.)
As this Court stated in its May 31, 2013 Order,
however, Proclamation 8031 clearly states that federal lobster
fishing permits “shall be subject to a zero annual harvest
limit,” and that fishing for “bottomfish and associated pelagic
species” may continue in PMNM 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 admit
that they did not have federal fishing permits for the PMNM
waters on the date that Proclamation 8031 was issued. (SAC ¶ 26.)
At the time Proclamation 8031 was issued, NOAA had issued 8
federal bottomfish permits and 15 federal lobster permits for the

39

PMNM waters, none of which Plaintiffs held. (See Mot. Ex. 1 (74
Fed. Reg. 47119, 47120 (Sept. 15, 2009)).) Plaintiffs claim that
they should have been issued federal permits, but do not support
this claim with any factual evidence. It is clear from the record
that Plaintiffs did not have federal fishing permits for the PMNM
waters at the time Proclamation 8031 was issued. As such,
Plaintiffs have failed to plead facts showing that they were
entitled to fish in PMNM waters, and, thus, cannot show that NOAA
abused its discretion in its implementation of Proclamation 8031.
As to the Consolidated Appropriations Act, Plaintiffs
allege that NOAA compensated other fishermen under the Act, but
did not compensate Plaintiffs, notwithstanding their alleged
eligibility. (See SAC ¶¶ 76-78.) The Consolidated Appropriations
Act defines eligible participants as “those individuals holding
commercial Federal fishing permits for either lobster or
bottomfish in the designated waters within” the PMNM.
Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, 121
Stat. 1844. Plaintiffs conclusorily assert that they were
eligible for federal compensation. (E.g., SAC ¶ 77.)
Nevertheless, as the Court stated in its May 31, 2013 Order, 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 do not plead that they held federal fishing permits

40

for the PMNM waters on the date the Consolidated Appropriations
Act was enacted (which they would have had to have prior to the
issuance of Proclamation 8031 in 2006); rather, they plead that
NOAA had not issued any federal fishing permits for the PMNM at
that time. (SAC ¶ 26.) In other words, the facts that they plead
appear to show that they were not eligible for compensation under
the Consolidated Appropriations Act. As such, Plaintiffs have
failed to plead a claim that they were wrongfully denied
compensation under the Consolidated Appropriations Act.
Plaintiffs’ first APA claim is therefore 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 pursuant to Proclamation 8031.” (SAC ¶ 10.) As was
the case with Plaintiffs’ prior complaint, however, the rest of
the Second Amended Complaint 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.
C.

Plaintiffs’ Compensation Claim and the Tucker Act
In addition to seeking recovery for NOAA’s alleged

“tortious and/or arbitrary and capricious” actions, Plaintiffs
41

seek compensation for the loss of their traditional fishing
grounds. (SAC at “Prayer for Relief” (n.p.).) NOAA argues that
Plaintiffs’ claims for compensation should be dismissed because
they are Tucker Act claims seeking money damages and therefore
this Court does not have jurisdiction over them. (Mot. at 26-29.)
Plaintiffs counter that they are not raising Tucker Act claims,
but APA claims that are appropriate because they do not seek
monetary damages, but, rather seek specific relief – namely, “to
compel compensation wrongfully withheld or unreasonably delayed
pursuant to the [Consolidated Appropriations Act.]” (Opp’n at 2830.)
1.

Jurisdiction Under the APA

The APA provides subject matter jurisdiction only over
claims seeking relief “other than money damages.” 5 U.S.C. § 702;
Tucson Airport Auth. v. General Dynamics Corp., 136 F.3d 641, 645
(9th Cir. 1998) (“By its own terms, [the APA] does not apply to
claims for ‘money damages’[.]”). Plaintiffs correctly point out,
however, that not all claims for relief that may require one
party to pay money to another party are considered claims for
“money damages” for purposes of the APA. See Bowen v.
Massachusetts, 487 U.S. 897, 893-94 (1988). Rather, in some
circumstances, an equitable action for specific relief may
include an order providing for the recovery of money wrongfully
withheld. See id. at 893. As such, the fact that Plaintiffs’ make

42

claims for money does not, in itself, preclude their purported
APA claims.
Nevertheless, in their Second Amended Complaint
Plaintiffs ask for the following relief: that “Plaintiff Dettling
be compensated for the loss of his fishing rights [in the PMNM,]”
“Plaintiff Dettling be compensated for damages resulting from
NOAA’s tortious and/or arbitrary and capiricous refusal to give
Dettling a federal permit to fish in the [PMNM,]” “Plaintiff
Cabos be compensated for the loss of his fishing rights [in the
PMNM,]” and “Plaintiff Cabos be compensated for the loss of his
lobster fishing rights in the [PRIA Monument.]” (SAC at “Prayer
for Relief” (n.p.).) Thus, based on the plain language of the
Second Amended Complaint, and notwithstanding Plaintiffs’
argument to the contrary in their Opposition, Plaintiffs appear
to be seeking compensatory monetary damages, rather than
equitable relief in the form of specific performance. As such, to
the extent Plaintiffs attempt to base their claim for
compensation under the Consolidated Appropriations Act upon the
APA, this Court lacks subject matter jurisdiction over that
claim.
2.

Jurisdiction Under the Tucker Act

Having found that this Court lacks subject matter
jurisdiction over Plaintiffs’ claims for compensation under the
APA, the Court now addresses whether it nevertheless has

43

jurisdiction over those claims under the Tucker Act.
Notwithstanding the fact that Plaintiffs state in their
opposition that they do not attempt to bring any Tucker Act
claims, Plaintiffs include in their Second Amended Complaint the
following statement: “If the Tucker Act precludes claims over
$10,000.00 being heard by this court under the APA, Plaintiffs
expressly waive damages in excess of $10,000 for their APA
claims.” (SAC ¶¶ 9-10.) This appears to be Plaintiffs’ attempt to
address the Court’s instruction in its May 31, 2013 Order that
Plaintiffs address the Court’s Tucker Act analysis in drafting
any future amended complaint. (Doc. No. 68, at 28.)
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 or 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).18/

18/

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, as
Plaintiffs appear to attempt to do in their Second Amended
Complaint. (SAC ¶¶ 9-10). See also, e.g., Waters v. Rumsfeld, 320
44

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, such as “the Constitution, or
any Act of Congress, or any regulation of an executive
department,” id. (quoting 28 U.S.C. § 1491), and 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).
In this case, as this Court noted in its May 31, 2013
Order, Plaintiffs’ claim for compensation under the Consolidated
Appropriations Act 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). 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 Consolidated
Appropriations Act provision reads “The Secretary [of Commerce]
shall promulgate regulations [that] provide[] a mechanism to

F.3d 265, 271 (D.C. Cir. 2003).
45

compensate eligible participants for no more than the economic
value of their permits.” Pub. L. No. 110-161, 121 Stat. 1844, at
1893 (emphasis added). Thus, the Consolidated Appropriations Act
appears to be a money-mandating statute under the meaning of the
Tucker Act jurisdictional analysis. Because Plaintiffs have
expressly waived any damages in excess of $10,000, (SAC ¶¶ 910), it would appear this Court has jurisdiction pursuant to the
Tucker Act over Plaintiffs’ claims for compensation under the
Consolidated Appropriations Act.
Importantly, however, “to fall within the Tucker Act’s
waiver of sovereign immunity, the plaintiff must sue for money
the Government improperly exacted or retained, or the plaintiff
‘must identify a separate source of substantive law that creates
the right to money damages.’” Matsuo v. United States, 416 F.
Supp. 2d 982, 989 (quoting Fisher v. United States, 402 F.3d 1167
(Fed. Cir. 2005)). As such, Plaintiffs must not only identify the
substantive law that creates a right to money damages – here, the
Consolidated Appropriations Act – but Plaintiffs must also allege
“that the particular provision of law relied upon grants [them],
expressly or by implication, a right to be paid a certain sum.”
Id.
Here, Plaintiffs have failed to make a showing that
they had a right to be compensated under the Consolidated
Appropriations Act. As discussed above and in this Court’s May

46

31, 2013 Order, the Consolidated Appropriations Act defines
eligible participants as “those individuals holding commercial
Federal fishing permits for either lobster or bottomfish in the
designated waters within” the PMNM. Pub. L. No. 110-161, 121
Stat. 1844, at 1893. Plaintiffs conclusorily assert that they
were eligible for federal compensation, but do not support this
assertion with any relevant facts. (E.g., SAC ¶ 77.) In fact,
Plaintiffs state in their Second Amended Complaint that NOAA had
not issued any federal fishing permits for the PMNM waters on the
date the Consolidated Appropriations Act was enacted. (SAC ¶ 26.)
Plaintiffs do allege that “Cabos had a Federal lobster fishing
permit to fish in the designated waters within the [PMNM,]” (SAC
¶ 66); however, Plaintiffs have not substantiated this claim with
any evidence, and NOAA has introduced evidence that Cabos was not
issued and did not possess a commercial federal lobster fishing
permit in 2006, or anytime thereafter, for the waters that were
designated as the PMNM. (Tosatto Decl. ¶¶ 4-6.) The parties agree
that Cabos did have two federal lobster permits for the PRIA
Monument waters for fishing years 2007-08 and 2008-09; however,
the PRIA Monument is not within the boundaries of the PMNM.
Because Plaintiffs have failed to demonstrate that they
ever held commercial federal fishing permits for the PMNM, they
have not shown that they were entitled to receive benefits under
the Consolidated Appropriations Act. As such, this Court lacks

47

subject matter jurisdiction over Plaintiffs’ claims to the extent
they are brought under the Tucker Act.19/ Plaintiffs’ claims for
compensation pursuant to the Consolidated Appropriations Act are
therefore DISMISSED WITHOUT PREJUDICE.
CONCLUSION
For the foregoing reasons, the Court DISMISSES
Plaintiffs’ Second Amended Complaint in its entirety.20/
First, the Court DISMISSES WITHOUT PREJUDICE
Plaintiffs’ FTCA claims based on NOAA’s alleged negligent failure
to follow regulations that specifically prescribed its duties
pursuant to Proclamation 8031 and the Consolidated Appropriations
Act, and negligent performance of an operational task mandated by
Proclamation 8031 and the Consolidated Appropriations Act.
Plaintiffs have failed to exhaust their administrative remedies
as to these claims, and this Court lacks subject matter
jurisdiction over these claims because they do not fall within
the FTCA’s waiver of sovereign immunity.

19/

In an abundance of caution, the Court has discussed
Plaintiffs’ Tucker Act claim set forth in their Second Amended
Complaint, notwithstanding the fact that they appear to have
withdrawn this claim in their Opposition.
20/

The Court notes that NOAA admitted at the hearing that,
prior to 2006, both Plaintiffs had general marine permits issued
by the State of Hawaii for all types of fishing within the
general area of the PMNM; yet neither Dettling nor Cabos received
any compensation from the State of Hawaii or the federal
Defendants for the loss of their fishing grounds. The Court finds
this troubling; however, the Plaintiffs have failed to establish
any legal right to compensation.
48

Second, the Court DISMISSES WITH PREJUDICE Plaintiffs’
claim of intentional infliction of emotional distress. Plaintiffs
have failed to exhaust their administrative remedies as to this
claim.
Third, the Court DISMISSES WITHOUT PREJUDICE
Plaintiffs’ APA claims based on NOAA’s alleged arbitrary and
capricious abuse of administrative discretion in implementing
Proclamation 8031 and the Consolidated Appropriations Act, and
procedural violations in the adoption of Proclamation 8031.
Plaintiffs have failed to present factual allegations sufficient
to show that Plaintiffs were entitled to fish in the
Papahanaumokuakea Marine National Monument area under the terms
of Proclamation 8031, or that they were entitled to compensation
under the Consolidated Appropriations Act.
Fourth and finally, the Court DISMISSES WITHOUT
PREJUDICE any remaining claims Plaintiffs make for compensation
under the Consolidated Appropriations Act of 2008. This Court
lacks jurisdiction to address those claims under the
Administrative Procedure Act, and Plaintiffs have failed to
demonstrate that they had a right to compensation under the
Consolidated Appropriations Act such that this Court may exercise
jurisdiction over those claims pursuant to the Tucker Act.
Plaintiffs must file any further amended complaint
within thirty days, or else judgment will be entered against them

49

and this action will be closed. The Court notes that Plaintiffs
have now had two opportunities to amend their complaint. Any
further amended complaint must correct all the deficiencies noted
in this Order, or Plaintiffs’ claims will be dismissed with
prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 15, 2013

________________________________
Alan C. Kay
Sr. United States District Judge

Dettling et al. v. United States et al., Civ. No. 11-00374 ACK KSC, Order
Granting Defendants’ Amended Motion to Dismiss

50