Anglers Conservation Network v. Pritzker

• Decision Date: 05 January 2016
• Docket Number: No. 14–5304.,14–5304.
• Citation: 809 F.3d 664
• Parties: ANGLERS CONSERVATION NETWORK, et al., Appellants v. Penny Sue PRITZKER, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

809 F.3d 664

ANGLERS CONSERVATION NETWORK, et al., Appellants

v.Penny Sue PRITZKER, et al., Appellees.

No. 14–5304.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 20, 2015.

Decided Jan. 5, 2016.

Roger M. Fleming argued the cause for appellants. With him on the briefs were Erica A. Fuller and Stephen E. Roady.

Robert J. Lundman, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the briefs were John C. Cruden, Assistant Attorney General, and Brian C. Toth, Attorney. Thekla Hansen–Young, Attorney, entered an appearance.

Before: BROWN, Circuit Judge, and SENTELLE and RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge RANDOLPH.

RANDOLPH, Senior Circuit Judge:

Plaintiffs brought this lawsuit claiming that federal agencies unlawfully neglected to manage stocks of river herring (alewives and blueback herring), and shad (American shad and their smaller relatives, hickory shad) in the Atlantic Ocean from New York to North Carolina.

These are schooling ocean fish. In early spring, as waters warm, river herring and shad begin their annual spawning runs into the mid-Atlantic coastal rivers and tributaries.¹ Shad, especially American shad, and more specifically the larger female American shad, are prized game fish. They are like small tarpon, some say, and are caught on shad darts (tiny lures) in the rivers even though shad feed on plankton at sea and feed not at all on their spawning runs. While migrating upstream, shad and river herring² are prey for bald eagles and ospreys and other birds, such as cormorants and gulls, and for striped bass making their annual spawning run from the ocean about the same time into many of the same rivers, and for other fish when they are at sea.

Plaintiffs are two membership organizations. One is dedicated to conserving wild marine fish, the other to promoting surf fishing for striped bass and other saltwater fish. Two individuals are also plaintiffs, one a fishing boat captain on the New Jersey shore, the other a town "herring warden" responsible for ensuring fish passage during spawning runs. They sued the Secretary of the Department of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service (an agency within the Commerce Department), claiming that a decision of the Mid–Atlantic Fishery Management Council—of which more hereafter—failed to manage and protect river herring and shad, thus reducing their availability as food for other species such as striped bass. The district court granted the government's motion to dismiss the complaint on the ground that there was no basis for judicial review of the Fishery Council's decision.

In support of their complaint, plaintiffs invoked the Fishery Conservation and Management Act of 1976, Pub.L. No. 94–265, 90 Stat. 331, as amended, and the judicial review provision of the Administrative Procedure Act, 5 U.S.C. § 706. The 1976 Fishery Conservation Act, commonly known as the Magnuson–Stevens Act, seeks to "promote domestic commercial and recreational fishing under sound conservation and management principles," 16 U.S.C. § 1801(b)(3), in the "exclusive economic zone" of the United States, an area extending 200 nautical miles seaward from each state's coastline. (Within the territorial sea, which extends three geographic miles from the coastline, the state has jurisdiction to regulate fishing, see United States v. Maine, 469 U.S. 504, 513, 105 S.Ct. 992, 83 L.Ed.2d 998 (1985).) The Act established eight regional Fishery Management Councils, each of which has "authority over a specific geographic region and is composed of members who represent the interests of the states included in that region." C & W Fish Co., Inc. v. Fox, 931 F.2d 1556, 1557–58 (D.C.Cir.1991) (citing 16 U.S.C. § 1852 ). The voting members of these Councils are officials responsible for fishery management in each coastal state in the region, individuals nominated by state Governors and others appointed by the Commerce Secretary, and the regional administrator of the Commerce Department's Fisheries Service. 16 U.S.C. § 1852(b). The Mid–Atlantic Council now has twenty-one voting members—seven state officials, thirteen private individuals, and the Fisheries Service regional administrator. 16 U.S.C. § 1852(a)(1)(B). The Council adopts proposals by a majority vote of those present and voting. 16 U.S.C. § 1852(e)(1).

The Mid–Atlantic Council, like all regional Councils, has no authority to promulgate federal rules. See Gen. Category Scallop Fishermen v. Sec'y, U.S. Dep't of Commerce, 635 F.3d 106, 112 n. 15 (3d Cir.2011). Under its long-time Executive Director, Daniel T. Furlong, the Mid–Atlantic Council has assisted federal authorities in seeking to accomplish the goals of the Act. The Mid–Atlantic Council has held numerous open hearings, conducted extensive research, and forwarded proposals to the National Marine Fisheries Service, to whom the Secretary delegated authority.

Under the Magnuson–Stevens Act, the Council "shall" propose fishery management plans and implementing regulations "for each fishery under its authority that requires conservation and management...." 16 U.S.C. § 1852(h)(1). The Council "shall" also propose amendments to these plans when "necessary from time to time," id., and suggest regulations to implement these proposed amendments, 16 U.S.C. § 1853(c). After receiving a proposal from the Mid–Atlantic Council, the Fisheries Service must initiate a comment period and must then decide to accept, reject, or partially accept the proposed plan or amendment. 16 U.S.C. § 1854(a)(3). If the Fisheries Service takes no action within thirty days after the close of the comment period, the Council's proposal goes into effect "as if approved." Id. The Act also provides that the Commerce Secretary "may prepare a fishery management plan" for fisheries in need of conservation if "the appropriate Council fails to develop and submit [a plan] after a reasonable period of time...." 16 U.S.C. § 1854(c)(1).

The controversy here deals with a proposed amendment to an existing management plan that the Fisheries Service first adopted in 1983. The plan covers mackerel, squid, and butterfish, which are managed together because they are commercially fished in the same manner, using bottom or mid-water trawls. The initial management plan, amended many times since its adoption, established yearly quotas for each of these species and limited the gear used to catch them. The management plan also acknowledged that foreign and domestic ships trawling for mackerel, squid, and butterfish inadvertently catch other fish in their nets. Among the "bycatch" in the mackerel fishery are river herring and shad. In an effort to protect river herring and shad in the exclusive economic zone, plaintiffs and others encouraged the Mid–Atlantic Council to propose amendments to add these species to the mackerel, squid, and butterfish plan and subject them to "science-based annual catch limits ... and accountability measures...." Appellants' Br. 2.

The Mid–Atlantic Council has not yet taken that step. In 2012, the Council began developing Amendment 15 to the Mackerel, Squid, and Butterfish Fishery Management Plan, which would have proposed adding river herring and shad to the Plan. Notice of Initiation of Scoping Process, 77 Fed.Reg. 65,867 (Oct. 31, 2012). After considering the Amendment, the Council—in a ten-to-nine vote—decided in an October 2013 meeting that rather than approving the Amendment and proposing it to the Fisheries Service, the Council would set up a working group to study river herring and shad in more detail and revisit the issue in three years.³

This decision, plaintiffs claim, violated the Magnuson–Stevens Act and is subject to judicial review under § 1855(f) of that statute and the judicial review provision of the Administrative Procedure Act, 5 U.S.C. § 706. The Magnuson–Stevens Act provides for judicial review of "[r]egulations promulgated by the Secretary under this chapter and ... actions that are taken by the Secretary under regulations which implement a fishery management plan...." 16 U.S.C. § 1855(f)(1)-(2). The Act incorporates, but only in part, the judicial review section of the APA: "the appropriate court shall only set aside any such regulation or action on a ground specified in section 706(2)(A), (B), (C), or (D) of" the APA. 16 U.S.C. § 1855(f)(1)(B).⁴ The Magnuson–Stevens Act thus does not incorporate § 706(1) of the APA, which authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed."

According to plaintiffs, the Council's decision not to propose Amendment 15 at this time is within the Magnuson–Stevens Act's provision allowing judicial review of "actions that are taken by the Secretary under regulations which implement a fishery management plan." 16 U.S.C. § 1855(f)(2). This, they say, was an "action under the regulations that define all Mid–Atlantic fisheries" because "the Secretary terminated [the] rulemaking...." Appellants' Br. 26. But it was the Mid–Atlantic Council, not the Secretary or the Fisheries Service, who tabled Amendment 15 pending further study. Plaintiffs' efforts to show otherwise do not survive examination.

In their complaint, plaintiffs alleged that because the regional administrator of the Fisheries Service spoke against adopting the Amendment and voted against it in the October 2013 meeting, the Council's decision could be attributed to the Fisheries Service. See Anglers Conservation Network v. Pritzker, 70 F.Supp.3d 427, 435–36 (D.D.C.2014). On appeal, plaintiffs have not repeated this argument. Instead, they assert that if a Council decides to forgo a necessary management plan or amendment, the Fisheries Service is "the party responsible for that action" because it "must fulfill its statutory responsibility as a backstop" to the Council. Appellants' Br. 30 (quoting Guindon v. Pritzker, 31 F.Supp.3d 169,...