                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


MICHAELS. FLAHERTY, et al.,

             Plaintiffs,

     v.

PENNY PRITZKER, in her                           Civil Action No. 11-660 (GK)
official capacity as Secretary:
of the Department of Commerce,:
     et al.,

             Defendants.


                                  MEMORANDUM OPINION

     In    2011,    Plaintiffs Michael            S.    Flaherty,         Captain Alan A.

Hastbacka,    and     the    Ocean       River     Institute       brought       this      suit
                                                                           1
against Defendants Commerce Secretary Gary Locke,                              the National

Oceanic     and     Atmospheric          Administration           ("NOAA") ,         and    the

National     Marine     Fisheries          Services           ( "NMFS")        (collectively

"Defendants").       Plaintiffs          alleged       that     Amendment        4    to    the

Atlantic Herring Fishery Management Plan violated the Magnuson-

Stevens    Fishery    Conservation          and    Management         Act       ("MSA"),     16

U.S.C. §§ 1801-1884, the Administrative Procedure Act                            ("APA"),     5

U.S.C.    §§ 701-706,       and    the    National       Environmental           Policy    Act

("NEPA"), 42 U.S.C. §§ 4321-4370.




1
  Secretary Pritzker is substituted for Gary Locke pursuant to
Federal Rule of Civil Procedure 25(d).
             This matter         is      presently before the                 Court     on    Plaintiffs'

Motion          to       Enforce         August    2,     2012        Remedial        Order     Regarding

Amendment            4    to     the      Atlantic      Herring        Fishery        Management            Plan

    [ Dkt.    No.     62] .    Upon       consideration          of    the     Motion,        Opposition,

Reply, Motion Hearing held February 12,                                 2014,      the entire record

herein,         and for the reasons stated below,                            Plaintiffs' Motion to

Enforce is denied.

I .          BACKGROUND 2

             On April 1,         2011,      Plaintiffs filed a Complaint challenging

Amendment            4    to     the     Atlantic       Herring        Fishery        Management            Plan

    ("FMP"), developed by the New England Fishery Management Council

    (the     "Council").          Flaherty        v.    Bryson,       850     F.   Supp.       2d     38,     45

    (D.D.C. 2012)          ("Mem. Op.").

             Plaintiffs'         principal        concern was           for    four     species           often

caught         incidentally with Atlantic                    herring but              not,     as     of    the

filing         of    their       Complaint,            actively       managed      by    the        Atlantic

Herring FMP.              These four species are collectively referred to as

"river         herring":          ( 1)    blueback herring              (Alosa     aesti val is) ,           (2)

alewive             (Alosa       pseudoharengus),            {3)        American             shad         (Alosa

sapidissima),              and     (4)    hickory shad           (Alosa mediocris).                 Id.    Like

Atlantic            herring,       river      herring      provide          essential         forage        for

2
  A complete statutory, factual, and procedural background may be
found at Flaherty v. Bryson, 850 F. Supp. 2d 38, 43-47 (D.D.C.
2012) .
                               -2-
large       fish     and       marrnnals,     including       cod,     striped bass,           bluefin

tuna,      sharks,        marine        marrnnals,    and     seabirds.     Id.     The       Atlantic

Herring FMP,             as updated by Amendment                 4,    provides Annual Catch

Limits      ("ACLs")       and accountability measures                   ("AMs")       for Atlantic

herring but not for river herring. Id. at 44-45.

          On March        8,     2012,      the     Court    issued a     Memorandum Opinion

[Dkt.      No.     31]   granting in part and denying in part Plaintiffs'

Motion for Surrunary Judgment and granting in part and denying in

part Defendants' Motion for Surrunary Judgment. On August 2, 2012,

the       Court     issued        a     detailed      Memorandum        Order     remanding           the

action to Defendants and containing specific guidance,                                        as well

as    a     timeline,           for      actions      Defendants        were      to    take,         and

complete,         within one year              ("Remedial Order")          [ Dkt.      No.    41] .    On

November 8,          2013,       Defendants filed its Final Report on Remedial

Actions [Dkt. No. 60].

        On November 22,               2013,    Plaintiffs filed a Motion to Enforce

August      2,     2012        Remedial       Order        Regarding    Amendment         4    to     the

Atlantic          Herring        Fishery       Management        Plan     [#62].        Defendants'

Opposition was filed Dec.                     23,    2013    [#65],    Plaintiffs'        Reply was

filed January 10,                2014    [#70],      and the Motion to Enforce is now

ripe.




                                                     -3-
I I .     STANDARD OF REVIEW

          District courts have the authority to enforce the terms of

their mandates. See The Fund for Animals v. Norton, 390 F. Supp.

2d 12,        15     (D.D.C.      2005)     ("At the outset,          the Court notes that

district courts clearly have the authority to enforce the terms

of       their       mandates.").           The     exercise     of      this       authority              is

"particularly appropriate" when a case returns to a court on a

motion to enforce the terms of its mandate to an administrative

agency. See Int'l Ladies' Garment Workers' Union v. Donovan, 733

F.2d 920, 922 (D.C. Cir. 1984).

         A motion           to    enforce     should     be    granted     if       a       "prevailing

plaintiff demonstrates that a defendant has not complied with a

judgment entered against it." Heartland Hosp.                                 v.    Thompson,          32 8

F.      Supp.       2d 8,    11    (D.D.C.    2004).     However,      if a plaintiff "has

received all relief required by that prior judgment,                                         the motion

to enforce is denied." Id.;                       see also Heartland Reg'l Med.                       Ctr.

v.      Leavitt,       415       F.3d 24,     29    (D.C.     Cir.    2005)        ("Success          on    a

motion to enforc-e a                judgment gets a plaintiff only                          'the relief

to which [the plaintiff] is entitled under [its] original action

and      the        judgment        entered        therein.'")        (quoting              Watkins        v.

Washington, 511 F.2d 404, 406 (D.C. Cir. 1975)).

         In     a    case    where    a     court    has      remanded    an       administrative

action        to     the    agency    for     further       explanation       of        a    challenged
                                                   -4-
 rule,    "the court will deny a motion to enforce judgment against

 the     agency       if    the    agency        adequately          explains       its   reasons     for

 adopting the rule." Thompson, 328 F. Supp. 2d at 11.

 III. ANALYSIS

         In its Memorandum Opinion,                      the     Court        held that       Defendants

 violated       (1)        the    MSA     and     APA    by     failing        to   "reasonably       and

 rationally        consider []           whether        Amendment       4' s    definition       of   the

 fishery     complied with                the     [MSA' s]     National         Standards      and with

 the   MSA' s     directive          that        FMPs    be    generated        for    any    fisheries

 requiring conservation and management";                               (2)     the MSA and APA by

 approving        Amendment         4     "without       addressing           the   minimization       of

bycatch to the extent practicable";                             and     (3)     NEPA by failing to

consider the environmental impacts of reasonable alternatives in

its Environmental Assessment. Mem. Op. at 56, 59, 71-73.

         In its Remedial Order,                   the Court ordered Defendants to take

several      specific             steps     to     remedy       these        procedural       failures.

Plaintiffs argue that Defendants have failed to comply with the

Court's     Remedial             Order    in     three       ways.    The      Court   disagrees      and

·finds     that            Defendants           have     complied            with      each     of    the

requirements set forth in the Remedial Order.

         First,        Plaintiffs               argue        that     Defendants          failed       to

meaningfully consider whether river herring should be added as a

stock to the Atlantic Herring FMP.                             The Remedial Order required

                                                       -5-
    Defendants to consider whether Amendment                      4' s      definition of the

    fishery    complied       with     the     MSA        and     file        a   supplemental

explanation          describing      its    considerations             in    detail.     Remedial

Order at 10-11.             Defendants      filed    an explanation on August                  31,

2012,     in which they concluded that the Council's determination

was reasonable and complied with the MSA [Dkt. No. 42-1].

         In addition, the Remedial Order required Defendants to send

a     letter    to    the    Council       "explaining          the    abplicable        law   and

National        Standard      1   Guidelines        relating           to    determining       the

stocks to be included in a fishery                    .               and recommending that

the Council consider,             in an amendment               to the Atlantic Herring

FMP, whether         'river herring'         should be designated as a stock in

the     fishery."      Remedial      Order     at    11.        Defendants        sent    such   a

letter to the Council on August 31,                   2012,           recommending that the

Council consider whether river herring should be designated as a

"stock in the fishery." Letter from John K.                              Bullard,      Northeast

Regional Administrator of the National Marine Fisheries Service

to C. M.       "Rip" Cunningham,           Chairman of the New England Fishery

Management Council at 1-3 ("Letter to Council")                             [Dkt. No. 42-2]. 3


3
  The Court notes that, on August 29, 2013, Defendants sent an
additional letter to the Council reiterating its recommendations
and "strongly urg [ing]" the Council to develop an amendment to
consider river herring and shad as stocks in the herring
fishery,  among other things. Letter from John K.        Bullard,
Northeast   Regional  Administrator  of   the   National  Marine
                              -6-
        Second, Plaintiffs argue that Defendants failed to consider

a   reasonable    range    of     alternatives           to    the      interim       Atlantic

Herring     Acceptable     Biological           Catch         ("ABC")        control       rule,

including    at   least    one    based       on   the    best       available        science.

Defendants     were   ordered to        recommend that           the     Council       address

reasonable     alternatives      to     a   variety of         issues,        including the

ABC control rules,        when it completed its NEPA analysis for the

Final Rule entitled Fisheries of the Northeastern United States;

Atlantic     Herring       Fishery;           Framework          Adjustment            2     and

Specifications.       78 Fed.    Reg.       61828-61838       (Oct.     4,    2013)    ("2013-

2015    Specifications").        Remedial       Order     at     12.     Defendants        were

also ordered to file a completed NEPA analysis for the 2013-2015

Specifications as part of their Final Remedial Report.                                Remedial

Order at 13.

        In its letter to the Council,               Defendants recommended that

the Council consider alternative ABC control rules in the NEPA

analysis for the 2013-2015 Specifications. Letter to Council at

3-4. The Council considered two alternatives to the ABC Control

Rule in the Environmental Assessment it prepared for the 2013-

2 015   Specifications,    and     Defendants        attached          that    analysis       to

its Final Remedial Report as required.                    Environmental Assessment


Fisheries Service to Ernest F. Stockwell, I II, Acting Chairman
of the New England Fishery Management Council at 1-2 [Dkt. No.
60-9].
                              -7-
for    Framework      Adjustment        2     to    the     Atlantic       Herring      Fishery

Management          Plan    and       Proposed            Atlantic      Herring         Fishery

Specifications for the 2013-2015 Fishing Years at 15-21,                                    30-33,

35-46 (Sept. 24, 2013)            [Dkt. No. 60-3].

       Third,       Plaintiffs       argue     that       Defendants       failed      to     take

measures necessary to minimize bycatch of river herring to the

extent      practicable.      The     Remedial       Order     required      Defendants         to

"consider whether the Atlantic herring FMP minimizes bycatch to

the    extent   practicable          under    National        Standard      9"   and    file     a

supplemental        explanation        setting        forth    its    considerations            in

detail.      Remedial       Order     at     12.      Defendants       filed     a      lengthy

memorandum with the Court on November 8,                        2013,      concluding that

the Atlantic Herring FMP minimizes bycatch and bycatch mortality

to    the   extent    practicable          consistent        with    the    MSA' s     National

Standard 9 Requirement [Dkt. No. 60-8] . 4

       Plaintiffs do not          deny that         Defendants       have    completed the

various     actions     they were      ordered to perform.                 See Tr.     of Mot.

Hearing,     Feb.     12,   2 014,    at     15,    16.    Rather,     Plaintiffs           insist

4
   The memorandum addressed the FMP as amended by Amendment 5,
which will be effective March 17,       2014.  Fisheries of the
Northeastern United States; Atlantic Herring Fishery; Amendment
~'  79 Fed. Reg. 8786-01 (Feb. 13, 2014) (to be codified at 50
C.F.R. pt. 648). Moreover, the Council has approved the river
herring and shad catch cap sought by Plaintiffs, and counsel for
Defendants   represented  that NMFS  is   acting  with  all  due
diligence to review that measure. Tr. of Mot. Hearing, Feb. 12,
2014, at 36-37.
                                              -8-
that    "Defendants         still     have    not    addressed these           violations       in

any substantive way." Pls.'                  Reply at 3-4;         see also Tr.            of Mot.

Hearing,      Feb.    12,     2014,     at    17     (arguing      that    "the      agency    has

failed to remedy their substantive violations with the law, even

though they hit all the procedural requirements"). This argument

fails to recognize the limits on this Court's authority as well

as the respective roles of the executive and judicial branches

of our government.

        Our Court of Appeals has made clear that "[w]hen a district

court     reverses     agency       action         and   determines        that      the    agency

acted     unlawfully,                   the     appropriate         course      is    simply    to

identify a      legal error and then remand to the agency,                                 because

the role of the district court in such situations is to act as

an appellate tribunal." N.               Air Cargo v.             Postal Serv.,        67 4 F. 3d

852,    861   (D.C.    Cir.     2012)        (citing     PPG     Indus.,      Inc.    v.    United

States,    52 F.3d 363,        365     (D.C. Cir. 1995).            Indeed,       to order the

agency to take specific actions is reversible error. See Cty. of

Los Angeles v.        Shalala,        192 F.3d 1005            (D.C.   Cir.    1999)       (noting

that district court erred when it devised a "specific remedy for

the Secretary to follow" instead of remanding to the agency for

examination      of    the     evidence        and       proper    fact-finding) .           Thus,

because the violations that the Court found were procedural, the

remedies      the     Court     granted        were       also     procedural.         See     id.
                                               -9-
 (concluding that appropriate remedy in APA case was remand);                                               ~


Carolina Fisheries Ass'n, Inc. v. Gutierrez, 518 F. Supp. 2d 62,

103     (D.D.C.      2007)        (observing that MSA incorporates APA);                               Sierra

Club v.      Army Corps of Engineers,                            701 F.2d 1011,           1029     (2d Cir.

1983)      (noting that              the     "judicially reviewable duties                        that are

imposed on the agencies                       [by NEPA]           are essentially procedural")

(internal quotation marks and citation omitted).

        For these reasons,                  the Court rejected Plaintiffs'                        original

request      for     injunctive relief and remanded Amendment                                     4 to the

agency      for      "reconsideration                    and     action       consistent         with"     the

Memorandum Opinion and Order. Remedial Order at 10; see also id.

at 7 - 9    ( r 9 :i-@c-t.i-ng   P-~a-i-H-t-i-f-:&s-'-   - Fe~Hes-t-   ~G±'   -iH-j-Hnct.i-GH -and- -nGt i-ng--

that    "the typical              relief for              a    successful challenge to agency

decisionmaking is                a    remand rather than an injunction") .                               Thus,

this Court has already found that Plaintiffs are not entitled to

the specific remedial relief they now seek.

        Plaintiffs insist that this Court did order Defendants to

take       specific         steps          when          it     ordered        Defendants         to      take

"reconsideration and action consistent with" the Court's Opinion

and    Order.       Pls.         Reply      at      2         (quoting    Remedial        Order     at     10)

(emphasis in original); Tr.                         of Mot.         Hearing,       Feb.    12,    2014,     at

15.    This argument reads too much into the word "action." In a

similar      case,         the       district             court     remanded         a    rule     to      the
                                                         -10-
Department          of    Health        and    Human        Services        ("HHS")       for    "action

consistent with the                foregoing          opinion" after finding                    that       the

Secretary had failed to consider reasonable alternatives to the

rule.    Thompson,          328    F.    Supp.       2d at         10.    The plaintiff filed a

motion        to     enforce      the        judgment,        arguing           that    the     "action"

language indicated that the court intended to grant Plaintiff a

particular substantive result. Id.

        The    district         court         rejected        that       interpretation.            Noting

that the rule had been'remanded because the Secretary had failed

to    consider        certain      alternatives,              it     held       that    all     that       was

required on remand was                   that        it    reconsider those alternatives.

Id.   at 13.        Since HHS had done so,                   the court          den~ed     plaintiff's

motion to enforce.              Id.     at 15; see also Leavitt,                       415 F.3d at 28

("The    only        obligation          [the    court]            expressly       imposed          on     the

agency was to consider the two alternatives suggested during the

comment period. That is precisely what the agency did.").

        Similarly         here,       the     Court        identified           various       procedural

violations          committed by Defendants.                   Mem.       Op.     at 56,      59,        71-73

(finding           that    Defendants           failed         to        consider        whether           the

definition          of    the     fishery       complied           with     the    MSA,       failed        to

consider the environmental impacts of reasonable alternatives in

its Environmental Assessment,                        and failed to address whether the

FMP   minimized           bycatch       to     the        extent     practicable) .           Defendants
                                                 -11-
have    now    considered and addressed each of                            those       issues.      Thus,

Plaintiffs          have    obtained      all    of     the    relief           to   which    they     are

entitled and the motion to enforce is denied. 5 See Thompson,                                          238

F.    Supp.    2d     at    9    ("If    the    plaintiff           has    received         all   relief

required       by     that       prior    judgment,           the    motion           to    enforce       is

denied") .

       This     does       not    mean,        however,       that        the        agency's     recent

actions       are    invulnerable         from     review.      As        our    Court      of Appeals

has    repeatedly          observed,      Plaintiffs          are     free       to    "attack       on    a

ground    other       than      the     agency's       failure       to    consider          reasonable

alternatives               for    example,        on    the         ground       that       the   agency

arbitrarily rejected those alternatives." See Leavitt,                                        415     F. 3d

at 28; see also Bennett v. Donovan,                       703 F.3d 582,               589    (D.C. Cir.



5
   Given that Defendants have fully complied with the Court's
Remedial Order, the Court concludes that Amendment 4 is not
vacated.  In considering whether to vacate a       flawed agency
action, the law of this circuit requires a district court to
consider two factors: 1) the seriousness of the deficiencies,
measured by how likely it is the agency can justify its decision
on remand; and 2) the "disruptive consequences" of vacatur. See
Allied-Signal, Inc. v. Nuclear Regulatory Comm'n, 988 F.2d 146,
150-51 (D.C. Cir. 1993). When this Court originally considered
these factors, it concluded that vacatur should be suspended for
one year, "providing Defendants a window of time within which to
remedy their violations without interrupting the operation of
Amendment   4." Remedial Order at     5-6.  Defendants have now
remedied those violations, and thus there is no longer any need
for vacatur. Thus, Amendment 4 remains intact, and Defendants'
Motion for Clarification or, In the Alternative, to Reinstate
the Stay of Vacatur of Amendment 4 Pending Resolution of
Plaintiffs' Motion to Enforce [Dkt. No. 82] is denied as moot.
                              -12-
2013)     (noting that plaintiff dissatisfied with an agency remedy

"would always have the option to seek review on the ground that

[the agency's]           actions were      'arbitrary,   capricious,      an abuse of

discretion,           or otherwise not in accordance with law'")                 (quoting

5     U.S.C.     §    706(2) (A)).    Indeed,     Plaintiffs     have     raised        such

claims in their Supplemental Complaint                   [Dkt. No.   67],       and those

claims will be addressed in the coming months. See Order of Jan.

27, 2014 [Dkt. No. 78]             (setting briefing schedule).

IV.     CONCLUSION

        For     the    foregoing     reasons,     Plaintiffs'    Motion     to    Enforce

August     2,     2012    Remedial     Order    Regarding    Amendment       4    to    the

Atlantic Herring Fishery Management Plan [Dkt. No. 62] is denied

and Defendants' Motion for Clarification or, In the Alternative,

to    Reinstate         the   Stay    of    Vacatur    of   Amendment       4     Pending

Resolution       of     Plaintiffs'    Motion     to   Enforce   [Dkt.    No.     82]    is

denied as moot.

        An Order shall accompany this Memorandum Opinion.




February 19, 2014                                 Gladys Kes er
                                                  United States District Judge


Copies to: attorneys on record via ECF


                                           -13-
