State Of N.Y. v. Atl. States Marine Fisheries Comm'n, Docket No. 09-1594-cv.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: WESLEY, Circuit
• Citation: 609 F.3d 524
• Parties: State of NEW YORK, New York State Department of Environmental Conservation, and Alexander B. Grannis, Plaintiffs,United Boatmen of New York, Inc., New York Fishing Tackle Trade Association, Inc., and Fishermen's Conservation Association, Intervenor-Plaintiffs-Appellees,v.ATLANTIC STATES MARINE FISHERIES COMMISSION, Defendant-Appellant,Gary Locke, United States Department of Commerce, Conrad C. Lautenbacher, National Oceanic and Atmospheric Administration, and James W. Balsiger, Defendants.
• Docket Number: Docket No. 09-1594-cv.
• Decision Date: 29 June 2010

609 F.3d 524

State of NEW YORK, New York State Department of Environmental Conservation, and Alexander B. Grannis, Plaintiffs,
United Boatmen of New York, Inc., New York Fishing Tackle Trade Association, Inc., and Fishermen's Conservation Association, Intervenor-Plaintiffs-Appellees,
v.
ATLANTIC STATES MARINE FISHERIES COMMISSION, Defendant-Appellant,
Gary Locke, United States Department of Commerce, Conrad C. Lautenbacher, National Oceanic and Atmospheric Administration, and James W. Balsiger, Defendants.^*

Docket No. 09-1594-cv.

United States Court of Appeals,
Second Circuit.

Argued: March 9, 2010.
Decided: June 29, 2010.

609 F.3d 525

COPYRIGHT MATERIAL OMITTED

609 F.3d 526

Sean H. Donahue, Donahue & Goldberg, LLP, Washington, D.C., for Appellant.

Shaun M. Gehan, Kelley Drye & Warren LLP, Washington, D.C. (Philip L. Curcio, Melville, N.Y., on the brief), for Appellees.

Before LEVAL, SACK, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge:

For 68 years, the Atlantic States Marine Fisheries Commission (“ASMFC” or the “Commission”) has endeavored to promote the utilization and protection of the fisheries of the Atlantic seaboard. The Commission is the product of a congressionally approved interstate compact authorized by Article I, § 10, clause 3 of the United States Constitution. This interlocutory appeal requires us to determine whether the intervenor-plaintiffs, United Boatmen of New York, Inc., New York Fishing Tackle Trade Association, Inc., and the Fishermen's Conservation Association (collectively “intervenor-plaintiffs” or “United Boatmen”), may assert a claim under section 702 of the Administrative Procedure Act, 5 U.S.C. § 702 (the “APA”), to seek judicial review of the Commission's decisions.

In essence, the premise of United Boatmen's complaint in intervention is a simple one: intervenor-plaintiffs maintain that the Commission is more than a congressionally authorized state cooperative agreement. In the view of the intervenor-plaintiffs, ASMFC is a federal agency, or at least acts so much like one that we should treat it as one for purposes of the APA.

609 F.3d 527

We hold that the ASMFC is not a federal agency within the meaning of the APA; it is not an “authority of the [g]overnment of the United States.” 5 U.S.C. § 701(b)(1). We further hold that, in this case, the “quasi-federal” agency doctrine should not be used to expand the statutory definition of an agency under the APA. Thus, United Boatmen are not entitled, pursuant to 5 U.S.C. § 702, to seek judicial review of the actions of the Commission. We therefore reverse and remand this matter to the district court for further proceedings consistent with the opinion of this Court.

I. BACKGROUND

This case arises from disputes over the management of the summer flounder fishery off of the Atlantic coast. In response to a decrease in the stock of summer flounder, also known as fluke, regulatory “efforts have been made to conserve and restore the population.” Connecticut v. U.S. Dep't of Commerce, 204 F.3d 413, 414 (2d Cir.2000). The Atlantic seaboard states retain primary authority over the conservation and management of fisheries within the “territorial sea”-waters within three miles of shore, as well as in rivers and estuaries. The federal government is responsible for regulation of the “exclusive economic zone”-waters from three to 200 miles from shore. See 16 U.S.C. §§ 1801(b)(1), 1856(a), 5102(6); see also Sea Hawk Seafoods, Inc. v. Locke, 568 F.3d 757, 760 (9th Cir.2009); United Boatmen v. Gutierrez, 429 F.Supp.2d 543, 546 (E.D.N.Y.2006).

The facts and procedural history of this controversy are set out in detail in the opinions of the district court. See New York v. Gutierrez, No. 08 Civ. 2503(CPS)(RLM), 2008 WL 5000493, at *1-4 (E.D.N.Y. Nov. 20, 2008); see also New York v. Locke, No. 08 Civ. 2503(CPS)(RLM), 2009 WL 2413463, at *1-2 (E.D.N.Y. Aug. 3, 2009); New York v. Locke, No. 08 Civ. 2503(CPS)(RLM), 2009 WL 1194085, at *1-7 (E.D.N.Y. April 30, 2009); New York v. Gutierrez, 623 F.Supp.2d 301, 305-06 (E.D.N.Y.2009). A brief review of the facts and history of this case is all that is needed to provide context for our decision.

This suit was commenced by the State of New York, the Commissioner of the New York State Department of Environmental Conservation, and the New York State Department of Environmental Conservation (collectively “New York State plaintiffs”), against the Secretary of the United States Department of Commerce, the United States Department of Commerce, the Under Secretary of Commerce and Administrator for the National Oceanic and Atmospheric Administration, the National Oceanic and Atmospheric Administration, and the Acting Assistant Administrator for the National Marine Fisheries Service (collectively “federal defendants”).¹ The New York State plaintiffs contend that the final management rule for the 2008 recreational summer flounder fishery violates the Magnuson-Stevens Fishery Conservation and Management Act, as amended in 1996 by the Sustainable Fisheries Act,

609 F.3d 528

16 U.S.C. § 1801 et seq. (the “MSA”), and the APA, 5 U.S.C. § 706(2)(A).²

Intervenor-plaintiffs in this action are private groups who maintain that the New York State plaintiffs failed to adequately represent their interests in defining the scope of their suit. United Boatmen of New York, Inc. is a professional trade organization that represents the for-hire fishing vessel industry in New York. Members of United Boatmen derive a substantial portion of their revenue from sport fishing for summer flounder. The New York Fishing Tackle Trade Association, Inc. is a professional trade organization that represents the wholesale and retail bait and tackle dealer industry in New York. The Fishermen's Conservation Association is a non-profit organization whose members are individual recreational anglers who target, among other species, summer flounder in state and federal waters contiguous to New York State.

In 1942, the ASMFC was created by a congressionally approved interstate compact (“ASMFC Compact”). See Pub.L. No. 77-539, 56 Stat. 267 (1942), as amended by Pub.L. No. 81-721, 64 Stat. 467 (1950); see also U.S. Const. art. I, § 10, cl. 3. The purpose of the Compact “is to promote the better utilization of the fisheries ... of the Atlantic seaboard” through a “joint program for the promotion and protection of such fisheries.” ASMFC Compact, art. I. The Compact specifically provides that it shall not “be construed to limit the powers of any signatory state or to repeal or prevent the enactment of any legislation or the enforcement of any requirement by any signatory state imposing additional conditions and restrictions to conserve its fisheries.” ASMFC Compact, art. IX.

Each member state appoints three representatives to the Commission.³ ASMFC Compact, art. III. The Compact requires that these representatives be the state's director of marine fisheries, a state legislator, and a citizen with knowledge relevant to the regulation of marine fisheries. Id. The signatories to the ASMFC “exercise joint regulatory oversight of their fisheries through the development of interstate fishery management plans.” R.I. Fishermen's Alliance, Inc. v. R.I. Dep't of Envtl. Mgmt., 585 F.3d 42, 46 (1st Cir.2009); accord Medeiros v. Vincent, 431 F.3d 25, 27 (1st Cir.2005). From the inception of the ASMFC until 1993, participation in the interstate fishery management plans adopted by the Commission was voluntary. Medeiros, 431 F.3d at 27. Consequently, “compliance was spotty.” Id.

In 1993, Congress adopted the Atlantic Coastal Fisheries Cooperative Management

609 F.3d 529

Act, 16 U.S.C. §§ 5101-5108 (the “ACFCMA”), in order to give the ASMFC some “teeth.” R.I. Fishermen's Alliance, 585 F.3d at 46. Congress sought to accomplish this goal by mandating state participation in the interstate fishery management plans promulgated by the Commission. 16 U.S.C. § 5104(a)(1). Pursuant to the ACFCMA, a plan must “specify the requirements necessary for [s]tates to be in compliance,” and the ASMFC must “identify each [s]tate that is required to implement and enforce that plan.” Id. The Commission is obligated to review member states' “implementation and enforcement of coastal fishery management plans” and “report the results of the reviews” to the Secretary of Commerce Id. § 5104(c).

Under the ACFCMA, the Secretary of Commerce is empowered to make an independent finding regarding whether a state has failed to implement management measures and, if so, “whether the measures that the [s]tate has failed to implement and enforce are necessary for the conservation of the fishery in question.” Id. § 5106(a)(2). If the Secretary makes a determination of noncompliance with respect to “necessary” measures, he or she “shall declare a moratorium on fishing in the fishery in question within the waters of the noncomplying [s]tate.” Id. § 5106(c)(1).

The congressional findings accompanying the ACFCMA note that “[b]ecause no single governmental entity has exclusive management authority for Atlantic coastal fishery resources, harvesting of such resources is frequently subject to disparate, inconsistent, and intermittent [s]tate and [f]ederal regulation that has been detrimental to the conservation and sustainable use of such resources.” Id. § 5101(a)(3). The ACFCMA explicitly affirms, however, that the “responsibility for managing Atlantic coastal fisheries rests with the [s]tates, which carry out a cooperative program of fishery oversight and management through the Atlantic States Marine Fisheries Commission.” Id. § 5101(a)(4).

On July 16, 2008, United Boatmen moved to intervene in the action commenced by the New York State plaintiffs and to join the Commission as a defendant. See 2008 WL 5000493, at *5-14. The court granted United Boatmen's motion and “decline[d] to limit the scope of [United Boatmen's] intervention to the parties and issues asserted in [the New York] plaintiffs' complaint.” ⁴ Id. at *13...