Dettling v. United States

• Decision Date: 31 May 2013
• Docket Number: Civ. 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.

948 F.Supp.2d 1116

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.

United States District Court,

D. Hawai‘i.

May 31, 2013.

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, Denver, CO, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

ALAN C. KAY, Senior District Judge.

For the following reasons, the Court hereby DISMISSES Plaintiffs' Complaint in its entirety with partial leave to amend, as set out in detail below.

PROCEDURAL BACKGROUND

Plaintiffs Joe Dettling and Robert Cabos filed their original complaint in this action on June 14, 2011. (Doc. No. 1.) On August 9, 2012, they filed the First Amended Complaint, the operative complaint (“Compl.”). (Doc. No. 35.) The Complaint names as defendants the United States and the U.S. Department of Commerce, acting through co-defendant the National Oceanic Atmospheric Administration (together, “NOAA”). ( See id.)

NOAA filed a Motion To Dismiss the First Amended Complaint on September 21, 2012, arguing that the Court lacked subject-matter jurisdiction over Plaintiffs' claims and that Plaintiffs had failed to state their claims. (Doc. No. 40 (“Mot.”).) On April 25, 2013, Plaintiffs filed an Opposition. (Doc. No. 60.) NOAA filed a reply on May 2, 2013. (Doc. No. 61.) After reviewing the parties briefs, the Court directed the parties to file supplemental briefs discussing whether the Court had subject-matter jurisdiction over Plaintiffs' claims. (Doc. No. 63.) The parties filed their supplemental briefs on May 24, 2013. (Doc. Nos. 65 (“NOAA Supp. Bf.”) & 66 (“Pl. Supp. Bf.”).) A hearing on the Motion was held on May 30, 2013.¹

FACTUAL BACKGROUND & STATUTORY SCHEME²

This case concerns fishing rights in two marine national monuments located near Hawaii. Dettling fished in the monument areas in 1999, and for many years beforehand, on a state-issued fishing permit. (Compl. ¶¶ 15, 50.) Cabos also fished in the monument areas, during an unspecified period. ( See Id. ¶ 84.)

I. Executive Orders 13178 & 13196

On December 4, 2000, President William J. Clinton issued Executive Order 13178, establishing the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve (the “Reserve”). See Exec. Order No. 13,178, 65 Fed.Reg. 76,903 (Dec. 7, 2000) (Mot. Ex. A). The Reserve included all submerged lands and waters of the Northwestern Hawaiian Islands, extending “50 [nautical miles] from the approximate center geographical positions of [the islands].” Id. at 76,906–07.

A few weeks later, President Clinton modified Executive Order 13178 via Executive Order 13196, which was issued, in part, to “to address concerns raised, particularly regarding commercial and recreational fishing within the Reserve.” 66 Fed.Reg. 7395 (Jan. 18, 2001) (Mot. Ex. B). Together, the Executive Orders state:

(a)(1) Commercial Fishing. All currently existing commercial Federal fishing permits and current levels of fishing effort and take, as determined by the Secretary and pursuant to regulations in effect on the date of this order, shall be capped as follows:

...

(C)(2) All other commercial fishing [other than bottomfishing]—the annual aggregate level shall be the permittee's individual take in the year preceding December 4, 2000, as determined by the Secretary [of Commerce].

...

(F) Trolling for pelagic species shall be capped based on reported landings for the year preceding December 4, 2000.

Id. at 7396; 65 Fed.Reg. at 76,907. Each Executive Order also states:

Judicial Review. This order does not create any right or benefit, substantive or procedural, enforceable in law or equity by a party against the United States, its agencies, its officers, or any person.

65 Fed.Reg. at 76,910; 66 Fed.Reg. at 7397.

At a 2002 meeting in Honolulu, Dettling provided NOAA with his 1999 fishing log and stated his claim that he had trolled for pelagic species in the waters now designated as the Reserve in the year preceding December 4, 2000. ( See Compl. ¶¶ 22–24.) He argued that under the Executive Orders he was entitled to fish in the Reserve up to the amount he had caught in 2000. ( Id.) On April 20, 2006, at another meeting, Dettling again provided proof of his claim. ( See id. at 28–29.) NOAA never issued any permits for pelagic trolling in the Reserve. (Id. ¶ 37.)

II. Proclamation 8031

On June 15, 2006, President George H.W. Bush issued Proclamation 8031, which established the waters previously designated as the Reserve as the new Northwestern Hawaiian Islands National Monument ³ (the “NWHI Monument”). See71 Fed.Reg. 36,443, 36,453–54 (June 26, 2006) (Mot. Ex. C). Proclamation 8031 prohibited virtually all commercial and recreational fishing within the bounds of the NWHI Monument, except for five additional years—until 2011—of certain types of fishing. Id. at 36,447. Specifically, Proclamation 8031 stated:

Commercial fishing for bottomfish and associated pelagic species may continue within the monument for not longer than 5 years from the date of this proclamation provided that:

(i) The fishing is conducted in accordance with a valid commercial bottomfish permit issued by NOAA; and

(ii) Such permit is in effect on the date of this proclamation and is subsequently renewed pursuant to NOAA regulations ... as necessary.

Id. Unlike the two Executive Orders discussed above and Proclamation 8336 (discussed below), Proclamation 8031 does not contain a provision barring judicial review.

On July 19, 2006, Dettling asked NOAA to clarify whether he was allowed to continue pelagic trolling in the newly-established NWHI Monument. (Compl. ¶ 11, 49.) On August 3, 2006, NOAA responded that Dettling was not allowed to fish in the NWHI Monument on his state fishing permit, and that he would be arrested if he tried to do so. ( Id. ¶¶ 11, 50–51.) On September 17, 2006, Dettling filed a claim for compensation premised on NOAA's closureof his traditional fishing grounds. ( Id. ¶¶ 11, 54.) On April 4, 2007, NOAA apparently changed course and informed Dettling that he could continue commercial fishing in the NWHI Monument and that his claim was therefore unwarranted. ( Id. ¶¶ 11, 55–57.) When Dettling later gave notice of a planned fishing trip, however, NOAA threatened to have him arrested if he went through with the fishing trip. ( Id. ¶¶ 11, 58–59.)

Dettling continued to follow up with NOAA periodically regarding a federal permit to fish. (Id. ¶ 41.) NOAA assured Dettling that it was working on getting him a federal permit to fish in the NWHI Monument. (Id. ¶ 42.)

III. Proclamation 8336

On January 6, 2009, President Bush issued Proclamation 8336, which established the Pacific Remote Islands Marine National Monument (the “PRIA Monument”). See74 Fed.Reg. 1565 (Jan. 12, 2009) (Mot. Ex. E). The boundaries of the PRIA Monument are “the waters and submerged and emergent lands of the Pacific Remote Islands ... which lie approximately 50 nautical miles from the mean low water lines of [the Pacific Remote Islands].” Id. at 1567. The PRIA Monument thus is near to but does not overlap with the NWHI Monument.⁴

Proclamation 8336 prohibits all commercial fishing within the boundaries of the PRIA Monument. Id. at 1568. Proclamation 8336, like the two Executive Orders, contains a provision barring judicial review, which states: “This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees, agents, or any other person.” Id. at 1570.

IV. Disbursement of Funds

According to Plaintiffs, in 2008, Congress had designated six million dollars to compensate displaced fishermen, and Plaintiffs were eligible to receive compensation. (Compl. ¶¶ 65, 78–79.) NOAA disbursed the funds in May 2010. ( Id. ¶¶ 78, 81.) Federally-permitted lobster fishermen displaced by Proclamations 8031 and 8336 received money, but Dettling and Cabos did not. ( Id. ¶¶ 78–79.)

V. Permits

NOAA issued Dettling a federal permit for pelagic fishing in the PRIA and NWHI Monument waters in 2010, 2011, and 2012 through May 2013. (Id. ¶ 71.) Nonetheless, whenever Dettling gave notice that he intended to fish there, NOAA threatened to have him arrested. (Id. ¶ 72.)

VI. Administrative Claim

On January 7, 2011, Dettling and Cabos filed claims for damages with NOAA. (Id. ¶ 12; see Mot. Exs. H & I.) On February 14, 2011, Dettling filed another separate claim. (Compl. ¶ 12; see Mot. Ex. J.) On February 24, 2011, Dettling and Cabos received a letter from the Department of Commerce denying their claim. (Compl. ¶ 12; see Mot. Ex. K.)

STANDARD

I. Motion To Dismiss Under Rule 12(b)(1)

A court's subject matter jurisdiction may be challenged under Federal Rule of Civil Procedure (“Rule”) 12(b)(1). Such challenges may be either “facial” or “factual.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004).

In a facial attack, “the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004)). When opposing a facial attack on subject matter jurisdiction, the nonmoving party is not required to provide evidence outside the pleadings. Wolfe, 392 F.3d at 362;see Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir.2009) (treating defendant's challenge to subject matter jurisdiction as facial because defendant “introduced no evidence contesting any of the allegations” of the complaint). In deciding a facial Rule 12(b)(6) motion, the court must assume the plaintiff's allegations in...