Dettling v. United States
| Decision Date | 15 November 2013 |
| Docket Number | Civil No. 11–00374 ACK–KSC. |
| Court | U.S. District Court — District of Hawaii |
| Parties | 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. |
OPINION TEXT STARTS HERE
Harvey M. Nakamoto, Jr., Aiea, HI, Elizabeth Jubin Fujiwara, Fujiwara and Rosenbaum, LLLC, Joseph T. Rosenbaum, Law Office of Elizabeth Jubin Fujiwara, Honolulu, HI, for Plaintiffs.
Edric Ming–Kai Ching, Office of the United States Attorney, Honolulu, HI, Rickey D. Turner, U.S. Department of Justice Wildlife & Marine Resources Section, Denver, CO, for Defendants.
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.
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, 948 F.Supp.2d 1116 (D.Hawai'i 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 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.)
This case concerns NOAA's alleged improper denial of Plaintiffs' fishing rights within the Papahanaumokuakea Marine National Monument (“PMNM”), located near Hawaii. Plaintiffs allege that they fished in the PMNM area for many years prior to its establishment in 2006. (SAC ¶¶ 19, 38.)
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 specie 4 may continue within the monument for not longer than 5 years from the date of this proclamation provided that:
(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.
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).
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.
(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 waterswithin 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.
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.
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 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. ( 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. ( Plaintiffs allege that, on September 17, 2006, Dettling filed a claim for compensation premised on NOAA's closure of his traditional fishing grounds pursuant to the implementation of Proclamation 8031. ( 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. ¶¶ 49–50.)
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 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. ( 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...
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