                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

ANGLERS CONSERVATION
NETWORK, et al .

                Plaintiffs,
                                                      Civil Action No. 13-1761 (GK)
        v.

PENNY PRITZKER, et al.,

                Defendants.


                                     MEMORANDUM OPINION

        Plaintiffs,          Anglers       Conservation      Network,          Gateway      Striper

Club,        Inc.,     Paul      Eidman,     and     Philip       Lofgren          (collectively,

"Plaintiffs"),           bring       this    case    against       the      Secretary       of   the

Department of Commerce                  ("the   Secretary") ,         the     National      Oceanic

and Atmospheric Administration                     ("NOAA"),      and the National Marine

Fisheries Service              ( "NMFS")    (collectively,         "Defendants")           pursuant

to the Magnuson-Stevens Fishery Conservation and Management Act

("MSA"),       16 U.S.C.         §§ 1801 et seq.;           the National Environmental

Policy       Act      ("NEPA"),       42    U.S.C.     §§      4321      et    seq.;       and   the

Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq.

        This matter          is before       the Court       on    Defendants'            Motion to

Dismiss        [Dkt.     No.     17].        Upon    consideration            of    the     Motion,

Opposition           [Dkt.     No.   28],    and    Reply      {Dkt.     No.       29],    and   the

entire record herein,                including the arguments presented at the
Motion Hearing on September 30,                          2014,    and for the reasons set

forth below, Defendants' Motion shall be granted.

I .      BACKGROUND

         A.         The Magnuson-Stevens Act

         Congress first enacted the MSA in 197 6 "to take immediate

action to conserve and manage the                          fishery resources           found off

the     coasts        of the       United States [.]"             16   u.s.c.   §    1801(b) (1).

The      Act        establishes       a     federal-regional             framework     "for     the

conservation           and     management          of   the      fishery   resources     of     the

United         States"       in     order     to    "prevent        overfishing,"       "rebuild

overfished            stocks,"       "[e]nsure          conservation,"       and     "facilitate

long-term            protection        of     essential           fish     habitats."           Id.

§     1801(a) (6); see also Natural Res. Def. Council, Inc. v. Daley,

209 F.3d 747,           749       (D.C. Cir. 2000).           Regulation of fisheries is

accomplished through fishery management plans                               ("FMPs")    that are

developed            and      prepared        by        independent        regional      fishery

management           councils       and approved,          implemented and enforced by

NMFS,     a        division within          the    Department       of Commerce. 1        See    16

u.s.c.        §§   1853-1854.


1
      The Secretary of the Department of Commerce has delegated her
responsibility to ensure compliance with the MSA to NOAA, which,
in turn, has subdelegated that responsibility to NMFS.       Compl.
<JI<JI 13-14; see also Oceana, Inc. v. Locke, 831 F. Supp. 2d 95,
101      (D.D.C.  2011).   At times,    the Court shall refer to
Defendants collectively as either "NMFS" or "the Secretary."
                                  -2-
         The MSA divides the United States into eight regions,                                          each

of     which     is       represented           by    an      independent        fishery        management

council.       See id.          §    1852 (a) (1).          Councils are composed primarily

of members who represent the interests of the states included in

their region and who are appointed by the Secretary from a list

of     individuals          submitted           by    the         governor    of    each    constituent

state.         Id.    §   1852 (b) (1),          (2);      see also C        &   W Fish Co.       v.    Fox,

Jr.,     931    F.2d       1556,         1557-58        (D.C.      Cir.    1991).       The      remaining

voting members of each council consist of the principal marine

fishery management officials from each constituent state and the

regional director of NMFS for the related geographic area.                                                16

U.S.C.     §   1852 (b) (1) (A),            (B).

        Each     council            is     required        to      prepare       and   submit      to    the

Secretary        (acting            through      NMFS)        a    fishery management            plan   and

any necessary amendments to such plan,                                    "for each fishery under

its authority that requires conservation and management[.]"                                              Id.

§    1852 (h) (1).         The term "fishery" is defined in the Act as "one

or    more     stocks       of       fish       which      can      be    treated      as   a    unit    for

purposes of conservation and management and which are identified

on      the      basis              of      geographical,                 scientific,           technical,

recreational,             and economic characteristics;                       and           any fishing

for    such stocks."                 Id.    §   1802 (13).           A fishery management plan

must describe             the       species      of     fish       involved in the          fishery and

                                                        -3-
specify         the      "conservation             and        management       measures"        that     are

"necessary and appropriate" to "prevent overfishing and rebuild

overfished            stocks,      and       to    protect,           restore,       and   promote       the

long-term           health       and     stability             of     the     fishery[.]"          Id.     §


1853(a)(l)(A),            (2).

        After a council prepares and approves a fishery management

plan or amendment,                 it    is       sent        to NMFS,       which    reviews     it     for

consistency with the MSA and other applicable law and publishes

it     in     the      Federal         Register          for        notice    and     comment.           Id.

§    1854 (a)   (1).         After a         60-day notice and comment period,                         NMFS

must        "approve,         disapprove,           or        partially       approve      a    plan      or

amendment [,]"           taking        into       account           the    views     and   comments       of

interested persons.                Id.       §   1854 (a) (2), (3).

        If NMFS approves a plan or amendment, or does not expressly

disapprove          it    within        30       days,        it    becomes    effective.          Id.     §


1854 (a) (3).          If NMFS disapproves or partially approves the plan

or amendment,            NMFS must thereafter notify the council of "the

applicable             law      with         which            the     plan      or     amendment          is

inconsistent";               the    "nature              of        such     inconsistencies";            and

specific "actions that could be taken by the Council to conform

such plan or amendment to the requirements of applicable law."

Id.     §    1854 (a) (3).             The        council          "may"     thereafter        "submit     a



                                                     -4-
    revised plan or amendment to the Secretary for review[.]"                                         Id. §

    1854 (a) (4).

          With limited exceptions not                        relevant here,           there are only

two situations in which the Secretary is permitted to develop an

FMP or amendment herself:                        (1)    where,     "after a reasonable period

of      time,"        the        appropriate           council     has       failed     to     make       any

recommendation regarding an FMP or necessary amendment;                                            and    (2)

where         the    council         has     failed     to   submit      a   revised         (or    further

revised)        plan after the Secretary has disapproved or partially

approved            an       FMP        plan,     amendment,        or       revision.              Id.     §

1854 (c) (1) (A),             (B).       In these circumstances, the Secretary "may"

promulgate               a       plan       or    amendment         herself       after            inviting

consideration and comment from the council and other interested

parties         and          a      60-day       notice      and     comment          period.             Id.

§     1854(c)(1),            (3),    (4).

         B.         Factual Background2

         Plaintiffs are fishing organizations based in New York and

New Jersey;              the owner of an eco-tours and fishing business                                    in

Tinton Falls, New Jersey; and the "assistant herring warden" for

2
  The facts are taken from the Complaint ("Compl.") [Dkt. No. 1]
and documents incorporated by reference in the Complaint.     See,
~' Wagener v. SBC Pension Benefit Plan-Non Bargained Program,
407 F.3d 395, 397 (D.C. Cir. 2005) (on a motion to dismiss,
facts may be "taken from plaintiffs'   complaint, as well as the
exhibits   attached  to,  and    the documents   incorporated   by
reference in, that complaint") .
                                                       -5-
the    Town of Weymouth,                Massachusetts.                 Compl.       CJ[Cj[    8-11.      Their

Complaint          pertains        to        the     Atlantic            Mackerel,               Squid     and

Butterfish         fishery       ("MSB"        or    "mackerel"                fishery),          which      is

managed by the            Mid-Atlantic             Fishery Management                        Council     ("Mid-

Atlantic      Council"        or        "Council").           The             Mid-Atlantic             Council

represents         the     states        of    New       York,          New     Jersey,           Delaware,

Pennsylvania, Maryland, Virginia, and North Carolina.                                             16    u.s.c.
§    1852(a)(1)(B).

              1.      The MSB Fishery

        The   MSB        fishery        is    "a     directed            fishery              dominated     by

midwater      trawl      vessels,"           which    catch            fish    by     "dragging          large

nets     behind their vessels."                     Compl.       en:    57.         These        nets    snare

large numbers of other fish and marine wildlife at the same time

as    they    catch      their     target          fish.      Of         particular             concern     to

Plaintiffs are four species of fish,                         which shall be referred to

simply as the "river herring" and "shad," which are often caught

incidentally with Atlantic mackerel. 3                                  River herring              and    shad

provide essential forage for large fish, marine mammals, and sea

birds,    including striped bass,                    weakfish,            blue       fish,        blue    fish



3
  The four species at issue are: ( 1) blueback herring (Alosa
aesti val is) , ( 2) alewife (Alosa pseudoharengus) , ( 3) American
shad    (Alosa     sapidissima), and   (4)  hickory   shad   (Alosa
mediocris). Compl. en: 47 & n.1.

                                                   -€-
    tuna,     marlin,           sharks,       ospreys,              loons,       herons,        bald     eagles,

    egrets, whales, and river otters.                               Compl.   ~    47.

            The FMP for the mackerel fishery,                              which was promulgated in

    1983,    recommends           conservation             and management measures                       for    the

Atlantic mackerel,                    long fin      squid,          Ill ex squid,          and butterfish.

Compl.         ~     56.         It    does        not,    however,           currently          include        any

protections for the river herring and the shad because they are
                                                                                    4
not designated as "stocks" in the MSB fishery.

            Plaintiffs           allege       that        the        incidental          catch      of      river

herring            and     shad       by    trawls        in    the     MSB       fishery        "contributes

significantly" to the                       total     known mortality of these                         species.

Id.     ~    59.        They allege that "river herring and shad populations

have declined to historic lows in recent decades as a result of

overfishing,               habitat         loss,    and        other       factors."            Compl.      ~   48.

They        claim,        for     example,         that        23    out     of    24   stocks         of   river

herring are "depleted" and that stocks of shad are "at all-time

lows         and     [do]       not        appear     to       be      recovering          to     sustainable

levels."            Id.    ~   49.

                   2.       Amendment 14 to the MSB Plan

            The Mid-Atlantic Council is aware of the depleted state of

the river herring and shad in federal waters.                                           In 2D10, it began

4
   The term "stock of fish" is defined under the MSA as "a
species, subspecies, geographical grouping, or other category of
fish capable of management as a unit." 1-6 U.S.C. § 1802(42).
                               -7-
    development             of Amendment           14   to    the   MSB plan,                   with one       of the

    stated purposes being to "consider                              [measures]              that would bring

    [the river herring and shad]                          into the                    .    plan as a managed

 stock [.]"                Compl.   c:IT   70.      Plaintiffs allege. that,                       "at the last

minute," NMFS advised the Council that its analysis of Amendment

 14     was      insufficient              to    add    river    herring and                    shad to       the MSB

 fishery as managed stocks and "recommended initiation of a new

 amendment to fully analyze the issue."                                 Id.    c:IT       72.

            In     response,         the         Council      decided     not             to     add     the    river

herring and shad to                        the    FMP by way of Amendment                          14    and opted

 instead "to develop a                          separate      amendment,         Amendment               15    to   the

MSB         FMP,      that     would        fully       analyze     the       necessity             of     managing

these              stocks           under           the         Magnuson-Stevens                        Act,        the

interjurisdictional                        issues       related      to       management                 of     these

stocks,          as well as the required and discretionary FMP provisions

that would apply to these stocks if added to the fishery."                                                          Id.

c:IT   73   (citing Amendment 14 FEIS, at 111). 5

                      3.      Amendment 15 to the MSB Plan

            In the fall of 2012,                    the Council released a                        Draft Scoping

Document              and    Action        Plan     for      Amendment        15          and     announced         its

intent           to    prepare       an     environmental           impact            statement           regarding

5
  On February 24, 2014, NMFS published a final rule for Amendment
14 to the MSB FMP; however, that Amendment is not at issue in
this case.
                                                          -8-
the proposed Amendment.               Id.    ~~    75, 76.         The Council also formed

several     technical      committees           and     a     fishery    management       action

team ("FMAT") to consider direct management of the river herring

and shad in the MSB fishery.                 Id.    ~   76.

        In June of 2013,           the NMFS's Regional Administrator for the

Mid-Atlantic Region,           John Bullard, who is also a                      voting member

of the Mid-Atlantic Council,                  sent a Guidance Memorandum to the

Executive     Director         of     the     Council,            Dr.   Christopher       Moore,

"outlining    how     to      make     the    determination             whether    or    not   to

include river herring and shad as stocks to be managed in the

MSB fishery [.]"        Id.    ~     77;    see also Ex.           3 to Pls.'     Opp'n    (Mem.

from Regional Administrator Bullard to Dr. Moore,                               dated June 6,

2013)     ("Bullard's         Guidance            Memorandum")          [Dkt.     No.     28-4].

Plaintiffs claim that this Memorandum was flawed because it "did

not recommend reliance on the statutory process outlined in the

Magnuson-Stevens           Act"       or      the           "statutory      definition         of

'conservation and management.'" Compl.                        ~   77.

        In response to Bullard's Guidance Memorandum,                             the Council

prepared a white paper analyzing whether "additional management"

of the river herring and shad was required.                               Compl.    ~~    7"8-79;

see also Ex.     5 to Pls.'            Opp' n      (Mem.      from Jason Didden to the

Mackerel,    Squid,     and Butterfish                (MSB)       Committee/Council,       dated

September 30, 2013)           ("White Paper")               [Dkt. No. 28-6].       Plaintiffs
                                              -9-
contend          that          this   White                 Paper      "strongly           suggest [ed]"           that    the

decision whether to add the river herring and shad to the MSB

plan should be based on certain "National Standards" prepared by

NMFS        and          "their       (non-binding)                         guidelines,"            which         Plaintiffs

contend "unlawfully introduce [d]                                           a    'cost-benefit'            analysis        into

the decision [.]"                 ·Compl.             <J[    7 9.

          On October 8,                2013,                the Council met to consider Amendment

15.        Id.    <J[    81.     Although "37,000 comments were received in favor

of adding river herring and shad to the MSB FMP,                                                            and only one

    (1)   comment opposed it[,]" the Council voted, in a 9 to 10 vote,

against a motion to move forward with the continued development

of Amendment 15.                      Id.    <J[<J[         81,     83. 6        Plaintiffs allege that "NMFS

Regional            Administrator                      Bullard                  cast     the     deciding           vote     to

terminate Amendment 15," and "advocated strongly against adding

river herring and.shad to the MSB FMP[.]"                                                  Id.   <J[<J[   82, 84.

          After          declining          to         proceed              with       immediate          development       of

Amendment               15,    the Council decided to                                  revisit     the      issue of the

river       herring             and    shad             in        three          years    and,        in    the     interim,




6
  Some confusion was raised at the Motion Hearing as to whether
the Council's vote formally terminated further consideration of
Amendment 15, as Plaintiffs argued, or simply postponed it, as
the Government argued.    Because this is a Motion to Dismiss
pursuant to Fed.    R.  Civ.  P.   12(b) (6), the Court accepts
Plaintiffs' characterization of the October 8, 2013, vote as
true.
                              -10-
approved the creation of an "ad hoc interagency working group"

to study the issue.                  Id.    ~~   85, 86.

        C.      Procedural Background

        On November 7,              2013,    one month after the Council's vote of

October       8,    2013,       Plaintiffs            filed    this          case        challenging             what

they referred to as                  "NMFS' s      decision to terminate Amendment 15

and     to   not    include          river       herring       and       shad           as     stocks       in    the

mackerel fishery [.]"                 Compl.      ~   101.

        On January 24,              2014, Defendants filed the instant Motion to

Dismiss,       arguing          that       the    Complaint             fails       to        state     a     claim

because the decision not to proceed with Amendment 15 was taken

by    the    Mid-Atlantic            Council,          which       is    "not           an     agency       of    the

federal      government for purposes of the APA,                                    [or]       a    division of

the    Department         of       Commerce [.]"             Defs.'          Mot.        to       Dismiss        at    1

[Dkt. No. 17] .

        Plaintiffs            did     not        immediately            respond              to      Defendants'

Motion to Dismiss.                  Instead,      on March 26,               2014, they filed a new

case     based      on        Defendants'         publication                of     a        final     rule       for

Amendment          14     to        the     MSB       plan.              See        generally            Ariglers

Conservation Network v.                     Pritzker,        No.        14-509          (GK)       (D.D.C.       Mar.

26,    2014).           The    same       day,    they       filed       a    Motion           to    Supplement

their       Complaint         in     this    case       to     add       all-egations                related          to



                                                      -11-
Amendment 14 and to stay briefing on the instant Motion until

    Defendants responded to the proposed supplemental claims.

        On April 28,     2014,    the Court denied Plaintiffs'                Motion to

Supplement,     observing that the original and supplemental claims

"challenge      two     discrete     decisions        taken       by   two    different

decision-makers and involve two separate administrative records,

each of which must be compiled and evaluated separately."                             Mem.

Order of April 28,        2014,     at 4     [Dkt.    No.    27] . 7   The Court did,

however,     grant Plaintiffs'       request for an extension of time to

file their Opposition to the instant Motion.

        Thereafter,     in accordance with the Court's Order of April

28,    2014, on June 2,     2014,    Plaintiffs filed their Opposition to

the Defendants' Motion to Dismiss [Dkt. No. 28], and on June 16,

2014, Defendants filed their Reply [Dkt. No. 29].

II.     LEGAL STANDARD

        To survive a motion to dismiss brought under Rule 12(b) (6),

a complaint must contain sufficient factual matter "to state a

claim to relief that is plausible on its face" and to "nudge{

[the     plaintiff's]    claims     across    the     line     from    conceivable      to

plausible."      Bell Atlantic Corp.          v.     Twombly,      550 U.S.    544,    57 0

(2007) .

7
  Plaintiffs' lawsuit challenging Amendment 14 is proceeding as a
separate case, also before this Court.      See Anglers Conserv.
Network v. Pritzker, No. 14-509 (GK) (D.D.C. Mar. 26, 2014).
                               -12-
        In applying this                 standard,      the court "must assume all the

allegations           in     the    complaint          are     true      (even          if    doubtful       in

fact)"       and     give     the    plaintiff          "the      benefit          of    all      reasonable

inferences derived from the                      facts       alleged."             Aktieselskabet AF

21. November 2001 v.                Fame Jeans Inc.,              525 F.3d 8,                17   (D.C.    Cir.

2008)        (internal       quotation          marks    and      citations             omitted).           The

court     does       not,    however,        accept      as    true      "legal          conclusions         or

inferences         that      are    unsupported by the                facts            alleged."          Ralls

Corp. v.       Comm.        on Foreign Inv.            in U.S.,       758 F.3d 296,               315     (D.C.

Cir.    2014)        (citation omitted).                 Furthermore,              a    complaint which

"tenders           'naked      assertion[s]'             devoid          of        'further          factual

enhancement'"           will       not    suffice.           Ashcroft         v.        Iqbal,     556     U.S.

662, 678       (2009)       (quoting Twombly, 550 U.S. at 557).

III. ANALYSIS

        As     set     forth        above,       the     MSA       establishes                a    carefully

calibrated scheme under which the Secretary reviews the work of

the    regional        councils,          and    her    decision         is    appealable            to     the

courts.        Plaintiffs seek to circumvent this framework by asking

the Court to review an intermediate decision of the Mid-Atlantic

Council,       which was never presented to the Secretary for review,

has    not    been published              for    notice        and comment,               and was         never

formally       approved        or        disapproved         by    the    Secretary.                 Because



                                                  -13-
neither the MSA, nor the APA,                        nor NEPA provide any authority for

this request, the Motion to Dismiss must be granted.

     A.            Count 1: Violation of the MSA

     In Count              1,     Plaintiffs        challenge,          under both the           MSA and

the APA,           what    they       refer    to     as    "NMFS' s        decision      to    terminate

Amendment 15 and to not include river herring and shad as stocks

in the mackerel fishery[.]"                      Compl.       <JI   101.

                   1.     There Is no Basis for Judicial Review under the
                          MSA

     Plaintiffs                 first      contend    that          their   claim    in    Count      1    is

directly reviewable under the MSA,                              which provides            for    judicial

review        of        "actions        that    are        taken      by     the    Secretary         under

regulations which implement a                         fishery management plan" so long

as the "petition for such review is filed within 30 days after .

     the       action           is    published       in    the       Federal      Register [.]"           16

u.s.c.    §   1855(f) (1)-(2) . 8

     The           lengthy           and    detailed         factual         allegations         in       the

Complaint make              abundantly         clear       that       the   decision       to   postpone

any further development of                     Amendrri.~nt         15 was not an "action .

taken by the Secretary" within the meaning of Section 1855 {f),


8
   The MSA also permits      judicial review of "[r]egulations
promulgated by the Secretary under this chapter," 16 U.S .C. §
1885(f)(1), but Plaintiffs do not claim to challenge any such
regulations.  See Pls~' Opp'n at 24.

                                                     -14-
but    a     non-final         decision       of      the     independent             Mid-Atlantic

Council.       Plaintiffs do not purport to challenge the Council's

decision,     and concede they purposefully did not name                                    it as    a

defendant in this case.               Pls.' Opp'n at 26.                 In fact, Plaintiffs

acknowledge       that    "the Council             itself has           no power"       to   create

legally binding rules or obligations.                        Id. at 27.

      The     Secretary,        who   does      have        the    power       to    take    legally

binding      action      and    whose        sole    actions           are     reviewable     under

Section      1855(f),      never      had     occasion        to       act     on    Amendment      15

because it was never approved "by majority vote of the voting

members"     of    the    Council       or    "transmit [ted]            by     the    Council      to

[her]."      16 U.S.C.     §§    1852(e) (1), 1854(a) (1).

      Plaintiffs do not allege otherwise.                          They suggest, instead,

that Regional Administrator John Bullard's June 2013 provision

of guidance and advice to the Council regarding Amendment 15 and

participation       in    the    October        8,    2013,       vote       either     themselves

constituted        "actions                          taken        by     the        Secretary"      or

transformed the decision of the Council into an action of the

Secretary.

      This theory is not consistent with the entire structure of

the   MSA.        The    MSA    encourages          and     requires         collaborati-on      and

information-sharing between the councils and NMFS                                    (including by

requiring a NMFS Regional Administrator, such as Bullard, to sit
                                              -15-
..


     on each council) .                  See 16 U.S.C.              §§   1852 (b) (1) (B),     (c) (1) (A)-

         (D) '     (e) (4),          (f) (2)'         (f) (5)'       (g) (1) (C),        (h) (2),     h ( 4) •

     Nevertheless,              it     clearly         establishes         separate      decisionmaking

     roles         for    councils        and       the   Secretary        and,     importantly,          only

     authorizes           judicial       review         over     "actions                 taken      by    the

     Secretary."              16 U.S.C.         §    1855 (f)    (emphasis added).            Therefore,

     the         mere    fact    that      Bullard        fulfilled        his    statutory         duty    by

     participating in the development and consideration of Amendment

     15 clearly cannot transform a                          vote of the           independent Council

     into one "taken by the Secretary."

                 This    conclusion        is        reinforced      by    the    fact     that     Section

     1855(f)        directly authorizes judicial review of only secretarial

     "actions" that are "published in the Federal Register"                                       (emphasis

     added).             16     u.s.c.     §        1855 (f) (1).         Amendment      15   was     never

     published in the Federal Register, nor could it have been having

     never been approved by the Council. 9


     9
       The Court also notes that although Plaintiffs now argue, in an
     apparent attempt to fit their allegations into the limited scope
     of Section 1855(f), that Bullard's actions were taken "under" 50
     C.F.R.   §   648.1,  that   regulation  section  is   merely  an
     introductory provision explaining that Chapter VI, Part 648 of
     Title 50 "implements the fishery management plans (FMPs) for the
     Atlantic mackerel, squid, and butterfish fisheries" and ·other
     fisheries in the Northeastern United States.     It contains no
     substantive content whatsoever and does not purport to authoriz€
     or support any specific action of Bullard or the Secretary
     pertaining to the MSB plan.

                                                          -1u-
      Finally,            to    the     extent       Plaintiffs        rely      on     the         MSA    to

challenge NMFS' s              independent          failure      to add the river herring

and shad to the MSB plan, see Pls.' Opp'n at 26, this Court has

previously         held        that    "the        clear     text    of    the    MSA"         fails       to

provide any authority for judicial review of such                                     11 1
                                                                                             inaction.     1 11




Gulf Restoration Network, Inc. v. Nat 1 l Marine Fisheries, Serv.,

730   F.      Supp.        2d        157'     172     (D. D.C.       2010).           Consequently,

Plaintiffs' "inaction" theory also fails to state a claim under

the MSA. 10

      For     these        reasons,           Plaintiffs       have       not    stated         a     claim

directly under the MSA.

              2.      There is No Basis for Judicial Review under the
                      APA

      Lacking         a        basis        for     judicial        review      under         the     MSA,

Plaintiffs also seek judicial rBview under th€ APA.                                          Courts have

recognized         that        the     APA        provides     an    alternative              basis       for

10
    Plaintiffs cite Guindon v. Pri tzker, No. 13-988, 2014 WL
1274076 (D.D.C. Mar. 26, 2014) as support for th€ir argument
that the MSA specifically authorizes judicial review of the
Secretary's "unlawful failure to act."      Pls.' Opp' n at 31-32.
What the court held in Guindon, however, was that the MSA' s
limited judicial review provision did not preclude it from
considering the Secretary's alleged failure to act under 5
U.S.C. § 706(1) of the APA.     Guindon, 2014 WL 1274076, at *16-
17.   Defendants agree, as does the Court, that such review is
available under the APA . (even though it is not specifically
available under the MSA) .   Plaintiffs' "inaction" theory shall
thBrefore be considered in more detail in the context of their
claim for review under the APA.

                                                    -17-
judicial       review              of        the     Secretary's             actions        that      exists           in

addition       to           Section          1855(f).               See,      e.g.,        Guindon,         2014       WL

1274076,       at *16-17                (applying the APA to claims under the MSA);

Hawaii Longline Ass'n v.                            Nat'l Marine Fisheries Serv.,                           No.     01-

7 6 5, 2 0 0 2 WL 7 3 2 3 6 3, at * 4 (D. D. C . Apr . 2 5, 2 0 0 2)                          ( s arne) .

        The APA,             however,          limits          judicial review to "final agency

action [s]         for       which           there       is    no      other       adequate        remedy         in    a

court [.]"          5       u.s.c.       §    704.        "A final agency action is one that

marks    the       consummation                of        the    agency's           decisionmaking            process

and that establishes rights                               and obligations or creates binding

legal consequences."                         Nat' 1 Res.            Def.     Council v.        EPA,         559 F. 3d

561,    564    (D.C.         Cir.        2009)       (citing DRG Funding Corp.                     v.       Sec'y of

Hous.    &    Urban Dev.,                76    F.3d 1212,              1214        (D.C.    Cir.   1996));          see

also Bennett v. Spear, 520 U.S. 154, 177-78 (1997).

        An action by the Mid-Atlantic Council does not qualify as

an "agency action" under the APA because,                                            a-s   Plaintiffs appear

to concede,             Pls.'      Opp' n at 26-27,                    a   fishery management council

is   "not     itself an              'agency'"            subject to           judicial        review.             Gen.

Category Scallop Fishermen v.                              Sec'y, U.S.             Dep't of Commerce,               635

F. 3d 106,         112 n.15             (3d Cir.          2011)        (citation omitted);                  see also

(J.H.    Miles          &    Co.    v.       Brown,       910     F.       Supp.    1138,     1159      (E.D.       Va.

1995)    {holding that the Mid-Atlantic Council is not an "agency

within       the    meaning              of        the     [APA]                      because        it      has       no
                                                           -18-
 'authority'     to do anything");           Gulf Restoration Network,                   Inc.,

730   F.    Supp.    2d at     172-74    (council's passage of                 FMP was     not

final      agency    action    because     FMP    had   no        legal       effect     until

promulgation of Secretary's implementing regulations) . 11

        Plaintiffs advance        several    theories        as    to how the events

surrounding         the   development       of      Amendment           15     nevertheless

constitute       "final    agency       action"     reviewable          under      the   APA.

None, however, are persuasive.

                     a.    Federal Involvement in the Development of
                           Amendment 15

        First,      Plaintiffs    again     argue     that        the     involvement       of

Regional Administrator           Bullard and other           federal          employees     in

the     development       of   Amendment     15     transformed              the   Council's

consideration of the Amendment into an action by the Secretary.

As discussed earlier, however, the MSA specifically contemplates

and requires the collaboration of federal employees and regional


11
   Although Plaintiffs concede that the Council has no power to
pass binding rules or regulations, Pls. Opp'n at 27, they argue
that councils "have been treated as federal agency for certain
purposes."   Pls. ' Opp' n at 39. Plaintiffs do not specify which
"purposes" they refer to, and the sole case on which they ·rely
noted only that a regional council was "not a party to this
litigation" and therefore declined to reach the question of
whether it could be considered an "applicant" under the
Endangered Species Act.    See Hawaii Longline Ass'n, 281 F. Supp.
2d at 21 n.30.       Hawaii Longline Ass'n did not hold or even
imply that    regional councils are federal authorities for
purposes of any statute relevant to this case, nor has the Court
found any such case.
                                -19-
councils in developing conservation and management measures; the

mere fact of such collaboration, therefore, cannot transform the

Council's actions into final "agency action" under the APA.

        Moreover,       Bullard's           Guidance        Memorandum           to     the     Council

Staff, which Plaintiffs have incorporated by reference in their

Complaint,       merely       sets        forth    his     opinion       as     to     the     required

legal     framework          for    deciding        whether         to    move         forward     with

Amendment     15.        See       Ex.     3 to     Pls.'    Opp' n       (Bullard's Guidance

Memorandum) at 1-3 [Dkt. No. 28-4].                          That guidance, influential

as   it    may        have     been,        certainly        did         not     constitute         the

"consummation" of NMFS' s decisionmaking process on Amendment 15

(no such Amendment having yet been approved by the Council or

submitted to NMFS for review).

     Nor was          it a decision from which "rights or obligations"

were determined or "legal consequences"                             flowed.            See Bennett,

520 U.S.     at 178          (noting that "tentative recommendation [s]" and

recommendations          that       are    "purely       advisory"         do     not     constitute

"final" actions for purposes of the APA); Sprint Nextel Corp. v.

F.C.C.,    508        F.3d    1129,       1132     (D.C.     Cir.        2007)        (holding     that

statements       of    individual          commissioners        are        not        "institutional

Commission       actions"           because         they      "do        not      represent         the

Commission's          views").           Thus,     Regional     Administrator                 Bullard's

Guidance Memorandum in June 2013 was not a final agency action.
                                                  -20-
       Plaintiffs also appear to rely on NMFS' s                                 guidance to the

Council regarding Amendment 14 and the fact that NMFS and NOAA

employees       served on the           fishery management action team                        ( FMAT)

for    Amendment       15.       See     Pls.'     Opp' n      at       16-20.        As   with   the

guidance provided by Bullard,                    however,       the mere fact that NMFS

and NOAA employees played an advisory role in the development of

Amendments 14 and 15 does not transform the Council's actions on

Amendment       15    into   a    final     action        of   the       Secretary.          To   the

contrary,       Section          1852 (g)    expressly              requires          councils     to

establish       committees        and    advisory panels                composed of        "Federal

employees,           State    employees,           academicians,                 or    independent

experts," but states that any "[d] ecisions and recommendations

made by [such]         committees and panels .                            shall be considered

to be advisory in nature."                       16 U.S.C.          §    1852(g) (5)       (emphasis

added) .

       Therefor€,       neither         Bullard's     guidancB            memorandum       nor    the

collaboration         and    feedback       between        federal         employees       and    the

Council     in developing Amendments                 14     and 15 constitute "final"

action     of   the    Secretary subject            to      judicial        review under          the

APA.




                                             -21-
                             b.      Bullard's Participation in the October 8,
                                     2013 Vote

            Next,     Plaintiffs            suggest         that    Bullard's           participation         in

the Council's October 8,                       2013,         vote was         either itself a             final

action of the Secretary,                      or transformed the Council's vote into

a     final     action of the               Secretary.             P1 s . '    Opp' n    at 2 9- 3 0 .       The

Complaint is clear,                   however,          that Bullard participated in that

vote in accordance with his statutory role as a voting member of

the Council,· not as a final decision-maker of NMFS.                                            See Compl.

CJI   84;    see     also         16 U.S.C.       §    (b) (1) (B)        (voting members             of each

Council shall include "[t] he regional director of the National

Marine        Fisheries            Service     for      the     geographic          area      concerned") .

        Moreover,            Bullard's vote was simply one of nineteen equally

weighted Council member votes                               regarding         further     development of

Amendment 15.                Tak-en by itself, it had no conclusive Bffect and,

therefore,           cannot         even be characterized as                     an "action" of the

Council,        much         less     one    of       the    Secretary.            See       Sprint      Nextel

Corp.,        508 F. 3d at 1131-32                (holding that "votes were actions of

the individual Commissioners, not the Commission" and citing the

"'almost            universally         accepted             common-law         rule'        that     only     a

'majority           of   a        coll-ective         body    is    empower-ed          to    act     for    the

body'")        (citations omitted).




                                                       -22-
        Plaintiffs make much of the fact that,                       in an October 28,

2013,        email        to      NOAA      official       Daniel       Morris,        Bullard

characterized his vote at the October 8 meeting as the                             ~deciding


vote" on Amendment 15.                   See Pls.' Opp'n at 30, 31,              34,   36,    38.

They do       not,    however,       allege       that   there was      anything       special

about his vote as a Regional Administrator of NMFS that set it

apart    from     the      other     nine    votes       cast   against    the     continued

development          of    Amendment        15.          Furthermore,      although          they

question      Bullard's        authority      to    be    present    at    the     October      8

meeting because it occurred during a Government furlough,                                    they

fail    to    cite    any      authority      to    support     their     suggestion         that

Bullard's participation in the Council's vote constituted final

agency       action       simply     because        Bullard     arguably         lacked       the

authority to appear at the meeting. 12

        In sum,      Regional Administrator Bullard's participation in

the October 8,            2013,    vote also did not constitute final agency

action under the APA.




12
  Any such lack of authority {as to which this Court expresses
no opinion) would, at best, merely call into question the
validity of the final vote; it would not transform the Council's
vote into a final agency action of the Secretary, as Plaintiffs
suggest. See Pls.' Opp'n at 29 and n.19.
                              -23-
                      c.        NMFS's Failure to Add the River Herring and
                                Shad to the MSB F.MP

       Third,       Plaintiffs      argue      that     NMFS     had    a    "mandatory duty"

under the MSA to establish conservation and management measures

for    the    river    herring      and       shad,    which     it     failed     to   fulfill,

thereby giving rise to what they assert                           is    a    cognizable claim

under 5 U.S.C. § 706(1). See, e.g., Pls.' Opp'n at 25-28.

       It    should        be    noted    that        Plaintiffs'           Complaint    focuses

entirely       on      the      Council's        activities            in     developing     and

considering         Amendments           14     and     15,       and        the   affirmative

involvement in those activities of various NMFS officials.                                    It

nowhere alleges any independent failure by NMFS to take action

to protect the river herring and shad.                          Nor does it include any

factual      allegations that would support consideration of such a

theory,      such as the         length of time the river herring and shad

stocks      have    be.en declining,          the     results     of    scientific       studies

suggesting such declines are directly attributable to fishing in

the MSB fishery,           and/or any efforts of NMFS and NOAA to addiess

the issue to date and why those efforts are inadequate under the

MSA.

       Even if,       however,     the Complaint could be read to challenge

NMFS's inaction und.er 5 U.S.C.                  §    70-6(1),    Plaintiffs still have




                                               -24-
not identified any such inaction that would qualify for judicial

review.

        Section 706 (1)            authorizes a court to "compel agency action

unlawfully          withheld         or       unreasonably          delayed."             5     u.s.c.        §

706 (1).         The Supreme Court has clearly warned, however, that an

agency's         failures      to    act       are only "sometimes                remediable under

[Section 706(1)], but not always."                               Norton v. S. Utah Wilderness

Alliance,         542   U.S.       55,    61    (2004).            More    specifically,           such a

claim      is     cognizable         "only where             a    plaintiff       asserts        that        an

agency      failed      to     take       a    discrete           agency     action       that         it    is

required to take."                 Id. at 64 (emphasis in original).

        Plaintiffs rely on 16 U.S.C.                     §       1854(c) as the source of the

Secretary's purportedly mandatory duty to add the river herring

and shad to the MSB FMP.                        See Pls.'          Opp' n at 34       &       n. 25.        The

only part of that provision relevant to this case,                                        however,           is

Section         1854 (c) (1) (A),         which    states          that     the   Secretary            "may"

develop a         "necessary amendment" to an                        FMP without waiting for

action by the Council if,                      "after a reasonable period of time,"

the    council       fails     to develop and submit                       such an amendment to

her.       16      U.S.C.      §     1854(c) (1) (A);             see     also    Hawaii         Longline

Ass'n., 281 F. Supp. 2d at 3.

       While        Section         1854 (c) ( 1) (A)            clearly     provides          that         th-e

Secretary herself "may" develop a "necessary amendment," it does
                                                  -25-
not     mandate          that       she   "shall"     or       "must"       do     so.         By    contrast,

Section 1852(h)               states that each council "shall" prepare fishery

management              plans       and      any    necessary          amendments,             and     Section

1854(a) provides that the Secretary "shall" review such plans or

amendments,             "shall"        publish      them       for     notice       and       comment,       and

"shall"           thereafter          approve,       disapprove,             or     partially          approve

them.        16 U. S . C. § 18 54 (a) ( 1) ,          ( 3) .

        As    our        Court       of Appeals       has          held,    "when        a    statute      'uses

both     'may'          and    'shall,'       the    normal          inference       is       that    each    is

used    in        its    usual       s-ense         the    one       act    being        permissive,         the

other mandatory.'"                    Sierra Club v.                Jackson,       648       F.3d 848,       856

(D.C.    Cir.       2011)        (citations omitted);                  see also Lopez v.                Davis,

531 U.S. 230, 241                   (2001)    ("Congress' use of the permissive 'may'

       . contrasts with the legislators' use of a mandatory 'shall'

       . to impose discretionless obligations[.]").

        Therefore,              Section        1854(c) (1) (A)             permits           but    does     nDt

require       the       Secretary to           develop         a    necessary amendment                 in the

absence of action by a                       council.       See,       e.g.,      Sea Hawk Seafoods,

Inc.    v.    Locke,          568    F.3d 757,       767       (9th Cir.          2009)       ("Because the

word    'may'       [in the American Fisheries Act]                               implies discr-etion,

there        is     no        legally        required          action        imposed           on     [NMFS] II)

(emphasis               in      original);           Martha's               Vineyard/Dukes                 Cnty.

Fishermen's Ass'n v. Locke, 811 F. Supp. 2d 302,                                         308 n.7       (D.D.C.
                                                     -26-
2011)    (noting that     NMFS       is    "in no     way    required     to    promulgate

plaintiffs'    requested regulations" under several sections of the

MSA, including 16 U.S.C. § 1854 (c) (1))                (emphasis in original) . 13

        Plaintiffs also argue that this Court and others have held

that    the MSA "plainly gives             NMFS   the    final       responsibility       for

ensuring     that   any   FMP    is       consistent    with     the     MSA' s      National

Standards,    and     'the overall objectives'               of the Act," including

"Section 1852 (h)'s       requirement that the Council prepare an FMP

or amendment for any stock of fish that                       'requires conservation

and management[.]'"          See Pls.' Opp'n at 24-25; see also Flaherty

v. Bryson, 850 F. Supp. 2d 38, 54-66 (D.D.C. 2012).

        But each of the cases on which Plaintiffs rely challenged

final actions of the Secretary and therefore did not rely on the

Secretary's inaction under Section 706 ( 1) .                        Instead,     they fell

squarely within the provisions of 5 U.S.C.                       §    706(2),     providing

for     judicial    review      of    affirmative            agency     actions.          See

Flaherty,    850 F.    Supp.    2d at 51        (considering challenge to final

FMP    amendment    promulgated           by   NMFS    and    published         in    Federal


13
   Despite Section 1854(c)(l)(A)'s clear use of the word "may,"
Plaintiffs argue that it imposes a mandatory obligation and that
"Congress used the word 'may'" simply because "there are both
mandatory  and   discretionary  provisions  under   the  Act [.]"
Plaintiffs do not, however, cite any authority or specific
characteristic of the statutory framework that supports this
argument.

                                           -27-
Register);          Guindon,        2014    WL     1274076,          at     *7-10        (considering

challenge to two final rules and one temporary rule promulgated

by NMFS, each of which were published in the Federal Register);

Oceana,       Inc. v.       Pritzker,       No.    11-1896,         2014 WL 912364,                at *3-4

(D.D.C.       Mar.    10,      2014)       (considering             challenge       to    final           FMP

amendment          promulgated         by       NMFS      and        published           in        Federal

Register) .          Plaintiffs,       by contrast,             seek to challenge a non-

final     action       of     the     Mid-Atlantic          Council,          which       was        never

published for notice and comment or approved by the Secretary.

There would,         quite simply,           be nothing for this Court to review

and "set aside" under Section 706(2) in this case.

        Plaintiffs      also        suggest       that    Defendants          failed          to    comply

with     their       duty     under        16     U.S.C.        §     1854(e),       to        identify

overfished populations.                    Under    Section          1854 (e),      the       Secretary

must "report annually to the Congress and the Councils on the

status    of       fisheries     within         each     Council's          geographic             area   of

authority and identify those                      fisheri-es         that    are overfished or

are approaching a condition of bring overfished."                                        16    u.s.c.       §


1854(e) (1).         The Act defines "overfished" as a "rate or level of

fishing mortality that jeopardizes the capacity of a fishery to

produce the maximum sustainable yield on a                                  continuing basis."

16   u.s.c.    §   1802 (34).



                                                  -28-
        As in Norton,           however,       while these provisions collectively

require the Secretary to assess and report whether any fisheries

are being fished at an unsustainable level, there is no specific

statutory requirement that she designate the river herring and

shad in the MSB fishery as overfished.                                  The Act leaves it to the

agency's     sound           discretion       to    apply         the     definition         in    Section

1802(34)      and            determine        whether             any     fisheries          are         being

overfished.             See Norton,         542 U.S.          at 65        (" [W] hen an agency is

compelled by law to act                            . but the manner of its action is

left to the agency's discretion,                          a court ·can compel the agency

to act, but has no power to specify what the action must be.").

        In   sum,        Section       1854(e)        does         not     impose       a    "discrete"

statutory requirement to identify the river herring and shad as

overfished.

        Finally,        Plaintiffs          also    cite          Massachusetts         v.        EPA,     549

U.S. 497, 527-28              (2007) and Am. Elec. Power Co. v. Conn., 131 S.

Ct. 2527, 2539 (2011)              for the proposition that "[t]he refusal to

issue    a   rule         (~,          by    denying          a    petition       for       rulemaking)

constitutes         a     'denial'          [under]       5       U.S.C.     §   551(13),           and     is

subject to review."                Pls.'       Opp' n at 33.               While Plaintiffs are

correct that an agency's final denial of a                                   rulemaking petition

under 5 U.S.C.           §    553(e)    is final agency action reviewable under

the APA,     they have not alleged anywhere in their Complaint that
                                                   -29-
they ever petitibned NMFS for a rulemaking pursuant to 5 U.S.C.

§    553 (e),      much less that NMFS issued a               final decision denying

such a petition. 14

        For all of the foregoing reasons, Plaintiffs have failed to

state        a     claim      under   the     MSA    and   the        APA     in    Count     1.

Consequently, that claim shall be dismissed.

        B.        Count 2: Violation of NEPA

        In       Count   2,    Plaintiffs     allege   that      Defendants        failed     to

prepare an environmental impact statement and to "take a                                    hard

look at associated environmental impacts" in connection with the

termination of Amendment 15.                  See Compl.   ~~    103-110.          They claim

that this failure violated NEPA,                    42 U.S.C.     §    4332 (2) (C),    which

requires          federal     agencies      implementing   "major           Federal   actions

significantly affecting the quality of the human environment" to

examine the environmental effects of such action by preparing an

environmental impact statement ("EIS").                    42 U.S.C.         §   4332(2) (C).




14
    In their Opposition brief, Plaintiffs argue that they did,
indeed, "petition Defendants for rulemaking, consistent with the
unique rulemaking process establish€d in the MSA, through their
participation in the development of Amendments 14 and 15 by NMFS
and the Mid-Atlantic Council."    Pls.' Opp' n at 32-34. However,
even in their Opposition brief, Plaintiffs merely suggest that
they participated in the Council's consideration of Amendment
15.   They do not refer to any specific petition under 5 U.S.C. §
553 (e) , directed to or acted upon by Def€ndants, as opposed to
the Council, who as noted, is not a defendant in this case.
                               -30-
         As our Court of Appeals has held, "because NEPA creates no

private right of action,               challenges to agency compliance with

the     statute     must     be     brought       pursuant       to     the     [APA],       which

requires     'final     agency        action       for     which      there     is     no    other

adequate remedy in a               court [.] '"         Karst Envtl.          Educ.    &    Prot.,

Inc. v. E.P.A.,        475 F.3d 1291, 1295                (D.C. Cir. 2007)            (citations

omitted) .       "[T]he 'final agency action' r.equired by the APA must

also be a        'major federal           action'       under NEPA."           Id.     (citation

omitted).

        Agency     decisions       that     "maintain[]        the     substantive          status

quo" do not constitute "major federal actions" under NEPA.                                       See

Fund for Animals,          Inc. v. Thomas, 127 F.3d 80,                    83-84      (D.C. Cir.

1997)    (citing Comm. for Auto Responsibility v. Solomon, 603 F. 2d

992,    1002-03      (D.C.    Cir.     1979)       ("The      duty    to   prepare          an   EIS

normally is triggered when there                       is a    proposal to change the

status     quo.")).          Furthermore,          NEPA       applies      only       to    "major

Federal actions," even where,                   as here,      it is alleged that "the

environmental consequences of inaction may be greater than the

consequences of action[.]"                 Defenders of Wildlife v. Andrus, 627

F.2d 1238, 1243-44 (D.C. Cir. 1980).

        Finally,     even    where         an    agency       does    contemplate           taking

affirmative        action,    an     EIS    is    not     required      until        the    agency

"reaches the critical stage of a decision which will result in
                                                -31-
'irreversible and irretrievable commitments of resources'                                            to an

actLon       that     will     affect       the        environment."             Wyoming        Outdoor

Council v.          U.S.    Forest Serv.,         165 F.3d 43,              49   (D.C.       Cir.    1999)

(citation omitted).

        As        discussed        at    length           above,      Plaintiffs              have     not

identified any             final    agency      action        under       the    APA.         They cite

Ramsey       v.      Kantor,       96    F.3d        434      (9th        Cir.     1996)       for     the

proposition that NMFS's inaction can support a claim under NEPA.

Pls.'    Opp'n at 41-42.                But the inaction at issue in Ramsey was

that NMFS' s         failure to disapprove plans prepared by a                                 regional

council       resulted in the plans                  at    issue attaining ·the                force    of

law.         See     Ramsey,       96   F.3d      at      445.       See     also       16    U.S.C.      §

1854 (a) (3).

        In this case,          by contrast,               NMFS' s    failure       to act did not

result       in    any proposals         or plans           attaining        the    force       of    law.

Consequently,          an    EIS    under      NEPA is        not     required.              See,    e.g. ,

Int'l Ctr.          for Tech. Assessment v.                 Thompson,        421 F.      Supp.       2d 1,

9   (D.D.C.        2006)    (finding NEPA inapplicable because "{t]he FDA's

decision not          to    regulate GloFish is not an agency action,                                  but

rather,       an    agency     inaction"        to      which       "no    resources          are    being

committed").

        In sum,       Plaintiffs have failed to state a claim under NEPA

because Defendants have not taken any final                                  agency action that
                                                -32-
alters         the    substantive     status        quo    or     constitutes      an

"irreversible and irretrievable commitment of resources'                       to an

action        that   will   affect   the     environment."        Wyoming     Outdoor

Council, 165 F.3d at 49.

IV. CONCLUSION

        For    the   foregoing    reasons,       Defendants'    Motion   to   Dismiss

shall    be     granted.     An   Order    shall     accompany    this   Memorandum

Opinion.




September 30, 2014                                G~~
                                                 Gladys Kess er
                                                 United States District Judge




Copies to: attorneys on record via ECF




                                          -33-
