Willie R. Etheridge Seafood Co. et al v. Pritzker et al

Filing 45

ORDER granting 37 Partial Motion to Dismiss. Signed by District Judge Terrence W. Boyle on 7/16/2015. Counsel are directed to read the order in its entirety. Parties are directed to submit a proposed summary judgement briefing schedule within 10 days of the date of the entry of this order. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:14-CV-73-BO

WILLIE R. ETHERIDGE SEAFOOD CO., )
)
et al.,
)
)
)
)
V.
)
THE HONORABLE PENNY PRITZKER, )
)
SECRETARY OF COMMERCE, and
)
DR. KATHRYN SULLIVAN,
ADMINISTRATOR OF THE NATIONAL )
)
OCEANIC AND ATMOSPHERIC
)
ADMINISTRATION,
)
Defendants. )

Plaintiffs,

ORDER

This cause comes before the Court on defendants' motion for partial dismissal. A
hearing was held before the undersigned on July 14,2015, at Edenton, North Carolina and the
motion is ripe for ruling. For the reasons discussed below, defendants' motion is granted and
counts two through five of plaintiffs' complaint are hereby dismissed.

BACKGROUND
Plaintiffs are eighteen fishermen or fishing companies operating out of Wanchese,
Hatteras, Manteo, and Nags Head, North Carolina as well as New York and Florida. Plaintiffs
filed this action on December 30, 2014, to challenge the regulations implementing Amendment 7
to the Consolidated Atlantic Migratory Species Fishery Management Plan, which was published
as a Final Rule on December 2, 2014.

The Atlantic Highly Migratory Fishery includes the harvest and landings of primarily
swordfish and tuna species and has been undergoing extensive rebuilding efforts since the 1990s.
Plaintiffs are pelagic longline fishermen; Bluefin tuna may not be targeted with pelagic
longlines, but such vessels must hold permits for Bluefin tuna because they are common bycatch.
Amendment 7 seeks to minimize the number of Bluefin as bycatch and dead discards in the
pelagic longline fishery while providing a flexible quota system.
Plaintiffs allege that Amendment 7 threatens the economic viability of their business by
implementing onerous monitoring requirements and bycatch quotas. Plaintiffs contend that with
the new restrictions imposed by Amendment 7 the overall swordfish yield in the fishery will be
lower while the cost of compliance will reduce profitability such that many vessels will be
unable to continue to fish. Plaintiffs further contend that Amendment 7' s Individual Bluefin
Quota gives preferential treatment to two groups, is neither fair nor equitable, and
disenfranchises longtime fishermen who have borne the largest brunt of conservation efforts.
Plaintiffs allege five claims in their complaint: count one, violation of the MagnusonStevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801 et seq.; count two,
failure to comply with the Administrative Procedures Act (APA) 5 U.S.C. §§ 551, et seq. and
701, et seq.; count three, deprivation of plaintiffs' property and liberty interests without due
process or just compensation, U.S. Const. Amend. V; count four, violation of the Regulatory
Flexibility Act (RF A) by failing to complete an adequate final regulatory flexibility analysis, 5
U.S.C. §§ 601, et seq.; and count five, failure to comply with the National Environmental
Protection Act (NEPA) and to assess alternatives for mitigating the negative impacts of
Amendment 7 on the human environment, 42 U.S.C. §§ 4321, et seq.

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Defendants seek dismissal of claims two through five for failure to state a claim and lack
of subject matter jurisdiction. Defendants argue that plaintiffs cannot allege a stand-alone claim
for violating the APA, that plaintiffs lack a property interest in their fishing permits and therefore
cannot state a Fifth Amendment claim, that plaintiffs' RF A allegations are threadbare and fail to
state a claim, and that plaintiffs are not within NEP A's zone of interests.

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DISCUSSION
Federal Rule of Civil Procedure 12(b )(I) authorizes dismissal of a claim for lack of
subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the
burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642,
647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district court is to regard
the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment." Richmond,

Fredericksburg & Potomac R.R Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain,
478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court
should accept as true all well-pleaded allegations and should view the complaint in a light most
favorable to the plaintiff." My/an Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for relief that is facially plausible. Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Facial plausibility means that the facts
pled "allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged"; mere recitals of the elements of a cause of action supported by conclusory
statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If the factual allegations
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The Court would note that at the hearing before the undersigned counsel for plaintiffs all but
conceded that count one, their Manguson-Stevens Act claim, is their strongest and only outcome
determinative claim.
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do not nudge the plaintiff's claims "across the line from conceivable to plausible," the
"complaint must be dismissed." Twombly, 550 U.S. at 570.

I.

Count Two
The AP A provides that a "person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning of a relevant statute, is
entitled to judicial review thereof." 5 U.S.C. § 702. However, the APA does not itself create
any substantive rights, and "[t]here is no right to sue for a violation ofthe APA in the absence of
a relevant statute whose violation forms the legal basis for the complaint." El Rescate Leg.

Services, Inc. v. Exec. Off oflmmig. Rev., 959 F.2d 742, 753 (9th Cir. 1991) (internal alterations,
quotation, and citation omitted). Count two of plaintiffs' complaint alleges only that defendants
have violated the AP A, and absent reference to a relevant statute it is properly dismissed.
II.

Count Three
The Fifth Amendment to the Unites States Constitution provides that no person shall be

deprived of"life, liberty, or property, without due process of law .... " U.S. Const. Amend. V.
Plaintiffs claim in count three that Amendment 7 takes certain property rights in the nature of
fishing permits and imposes upon fishermen excessive cost and expense which deprive them of
their property and liberty without due process of law or just compensation. 2 In order to state a
claim for a due process violation a plaintiff must have a legitimate property interest which is
protected by the Fifth Amendment. "To have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it." Bd of Regents

ofState Colleges v. Roth, 408 U.S. 564, 577 (1972). Courts applying "traditional notions of
2

Although based on the language of their claim plaintiffs appear to be asserting a takings clause
as well as due process clause violation, plaintiffs did not respond to defendants argument that
they have failed to state a takings clause claim and thus the Court considers such a claim waived.
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property and existing rules and understandings" have concluded, however, that a fishing permit
does not confer a legitimate property interest. Conti v. United States, 291 F.3d 1334, 1341 (Fed.
Cir. 2002) (permit issued by Department of Commerce to harvest swordfish in Atlantic
Swordfish Fishery does not confer a property interest); see also Am. Pelagic Fishing Co., L.P. v.

United States, 379 F.3d 1363, 1374 (Fed. Cir. 2004) (mackerel and herring commercial fishing
permit does not confer a property interest for purposes of the Fifth Amendment). Plaintiffs in
their response have not proffered any basis which would cause this Court to be unpersuaded that
defendants' Bluefin tuna permits similarly do not confer any property interest, and thus their
Fifth Amendment claim fails.
III.

Count Four
The Regulatory Flexibility Act (RF A) provides that if a rule "will have a significant

economic impact on a substantial number of small entities" a regulatory flexibility analysis must
be conducted. 5 U.S.C. § 605(b). Plaintiffs allege that by failing to complete an initial regulatory
flexibility analysis (IFRA) defendants were unable to complete an adequate final regulatory
flexibility analysis (FRF A) as required by the RF A. Beyond alleging the elements of a cause of
action under the RF A, plaintiffs have failed to plead any facts which would support such a claim.
Moreover, the failure to complete an IFRA is not subject to judicial review. See 5 U.S.C. §
61l(c); Allied Loc. and Reg/. Mfrs. Caucus v. United States E.P.A., 215 F.3d 61, 79 (D.C. Cir.
2000). This claim is therefore properly dismissed.
IV.

Count Five
The National Environmental Protection Act provides for no private right of action,

requiring parties who seek to bring claims under NEPA to file suit under the APA. Town of

Stratford, Connecticut v. FA.A., 285 F.3d 84, 88 (D.C. Cir. 2002). In order to bring suit

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challenging an agency action under the AP A, a plaintiff must demonstrate that he is "adversely
affected or aggrieved ... within the meaning of a relevant statute." 5 U.S.C. § 702; see also

Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 (2014)
("Whether a plaintiff comes within "the 'zone of interests'" is an issue that requires us to
determine, using traditional tools of statutory interpretation, whether a legislatively conferred
cause of action encompasses a particular plaintiffs claim."); Sierra Club v. E.P.A., 755 F.3d 968,
976 (D.C. Cir. 2014) (the Supreme Court inLexmark"clarified that "'prudential standing' is a
misnomer," and that the "zone of interests" inquiry is in fact a question of whether a plaintiff
"falls within the class of plaintiffs whom Congress has authorized to sue," not a question of
standing.") (citation omitted). NEPA's zone of interest has been generally defined as
environmental protection. Indeed, "NEPA declares a national policy of protecting and
promoting environmental quality," Hughes River Watershed Conservancy v. Glickman, 81 F.3d
437,443 (4th Cir. 1996), and its "purpose is to protect the environment, not the economic
interest of those adversely affected by agency decisions." Western Radio Servs. Co., Inc. v.

Espy, 79 F.3d 896, 902-03 (9th Cir. 1996).
Here, plaintiffs do not invoke the APA within their NEPA claim. Further, they allege
only economic and cultural harms. For example, plaintiffs allege that defendants' actions will
permanently and unlawfully modify a traditional way of life for the sake of an agency's
regulatory convenience and that Amendment 7 creates an unduly burdensome system whose
costs will eventually bankrupt the fleet. While a plaintiff can fall within NEP A's zone of
interests "even if his or her interest is primarily economic," this is only true where a plaintiff
"also alleges an environmental interest or economic injuries that are 'causally related to an act
within NEPA's embrace."' Ranchers Cattlemen Action Legal Fund United Stockgrowers ofAm.

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v. US. Dep't ofAgric., 415 F.3d 1078, 1103 (9th Cir. 2005) (citation omitted). Though plaintiffs
argue in opposition that burdens on the fishing industry will have adverse impacts on the health
of Americans and the quality and nature of coastal development, plaintiffs' claim fails to
sufficiently allege any economic harm that is causally related to protection of the environment
and therefore falls within NEPA's embrace. See e.g. id., 415 F.3d at 1103 (matters solely of
human health fall outside NEPA's zone of interests). For this reason, the Court finds that
plaintiffs are not within NEP A's zone of interests and that count five thus fails to state a claim.
CONCLUSION

Accordingly, for the reasons discussed above, defendants' motion for partial dismissal
[DE 37] is GRANTED. Counts two through five of plaintiffs' complaint are dismissed.
Pursuant to the Court's order of February 23, 2015, the parties are DIRECTED to submit a
proposed summary judgment briefing schedule within ten ( 10) days of the date of entry of this
order.

SO ORDERED, this

_j_l!_ day of July, 2015.

~~w~~
ri&
rW. BOYLE
'
,..UNITED STATES DISTRICT JUDGE

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