federal motion to dismiss pacific choice case

8/20/2019 Federal motion to dismiss Pacific Choice case

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MOTION TO DISMISS U.S. DEP’T OF JUSTICE

CASE NO. 3:15-cv-05572-HSG Env’t & Nat. Res. Division

Wildlife & Marine Resources SectionDenver, CO 80202

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JOHN C. CRUDEN

Assistant Attorney GeneralEnvironment and Natural Resources Division

United States Department of Justice

SETH M. BARSKY, Section Chief

Wildlife and Marine Resources SectionKRISTEN GUSTAFSON, Assistant Section Chief

BRIDGET KENNEDY McNEIL, CO Bar # 34299

Senior Trial Attorney999 18th St., Suite 370

Denver, CO 80202

(303) 844-1484(303) 844-1350 (fax)

[email protected]

Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

PACIFIC CHOICE SEAFOOD

COMPANY; SEA PRINCESS, LLC;

PACIFIC FISHING, LLC,

Plaintiffs,

v.

PENNY PRITZKER, U.S. SECRETARY

OF COMMERCE; NATIONALMARINE FISHERIES SERVICE,

Defendants.

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Case No. 3:15-cv-05572-HSG

FEDERAL DEFENDANTS’ NOTICE OF

MOTION AND MOTION TO DISMISS

Date: March 10, 2016Time: 2:00 P.M.

Location: Courtroom 15

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 1 of 35


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NOTICE OF MOTION AND MOTION TO DISMISS

PLEASE TAKE NOTICE that, on March 10, 2016, at 2:00 P.M. or as soon thereafter as

counsel may be heard, Federal Defendants, Penny Pritzker, in her official capacity as United

States Secretary of Commerce, and the National Marine Fisheries Service (collectively,

“NMFS”), by and through undersigned counsel, will bring for hearing their Motion to Dismiss in

the Courtroom of the Honorable Haywood S. Gilliam, Jr., United States Judge, U.S. District

Court for the Northern District of California, San Francisco Division, 18th Floor, Courtroom 15.

Pursuant to Fed. R. Civ. P. 12(b)(1) and (12)(b)(6), Federal Defendants hereby move to

dismiss the Complaint for lack of subject matter jurisdiction and/or failure to state a claim. In

support of this Motion, Federal Defendants rely upon the enclosed Memorandum of Points and

Authorities, the proposed order accompanying this Motion, the pleadings on file in this action,

and upon such additional matters the Court may entertain, including oral argument, at the time of

the hearing on this motion.

Federal Defendants conferred with counsel for Plaintiffs, but they were unable to resolve

the issues raised by the instant motion; Plaintiffs’ counsel represents that the motion is opposed.



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II. Claim Six Should Be Dismissed For Lack Of Standing Or Failure

To State A Claim Upon Which Relief Can Be Granted ........................................... 19

A. Plaintiffs Fail to Show an Injury Traceable to the 2015 Regulatory

Revision. ............................................................................................................... 19

B. Claim Six Fails to State A Claim Upon Which Relief Can Be

Granted. ................................................................................................................. 22

CONCLUSION ............................................................................................................................. 25



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TABLE OF AUTHORITIES

Alliance Against IFOs v. Brown,84 F.3d 343 (9th Cir. 1996) ....................................................................................................... 2

Am. Iron & Steel Inst. v. EPA,

886 F.2d 390 (D.C. Cir. 1989) ................................................................................................. 14

Anglers Conservation Network v. Pritzker ,

2016 WL 43602 (D.C. Cir. Jan. 5, 2016) .................................................................................. 24

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ................................................................................................................... 9

Attorneys Tr. v. Videotape Comput. Prods.,

93 F.3d 593 (9th Cir. 1996) ........................................................................................................ 9

Bell Atl. Corp. v. Twombly,550 U.S. 544 (2007) ................................................................................................................... 9

California v. Block ,

690 F.2d 753 (9th Cir. 1982) ..................................................................................................... 4

Connecticut v. Daley,

53 F. Supp. 2d 147 (D. Conn. 1999) ........................................................................................ 13

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) ................................................................................................................. 19

Dep't of Transp. v. Pub. Citizen,

541 U.S. 752 (2004) ................................................................................................................. 23

Epstein v. Wash. Energy Co.,

83 F.3d 1136 (9th Cir. 1996) ..................................................................................................... 9

Fishermen's Finest v. Locke,593 F.3d 886 (9th Cir. 2010) ..................................................................................................... 3

Havasupai Tribe v. Robertson,

943 F.2d 32 (9th. Cir. 1991) .................................................................................................... 23

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994) ................................................................................................................... 8

Kramer v. Mosbacher ,

878 F.2d 134 (4th Cir. 1989) ................................................................................................... 17



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Lane v. Pena,

518 U.S. 187 (1996) ................................................................................................................... 3

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ................................................................................................................. 20

Marsh v. Or. Nat. Res. Council,

490 U.S. 360 (1989) ................................................................................................................... 4

Miranda v. Reno,

238 F.3d 1156 (9th Cir. 2001) ................................................................................................... 9

Moss v. U.S. Secret Serv.,

572 F.3d 962 (9th Cir. 2009) ................................................................................................... 21

N.C. Fisheries Ass’n v. Evans,

172 F. Supp. 2d 792 (E.D. Va. 2001) ...................................................................................... 13

N.C. Fisheries Ass’n v. Gutierrez,550 F.3d 16 (D.C. Cir. 2008) ................................................................................................. 2, 3

Nat'l Mining Ass'n v. U.S. Dep't of Interior ,70 F.3d 1345 (D.C. Cir. 1995) ................................................................................................. 14

Norbird Fisheries v. NMFS ,112 F.3d 414 (9th Cir. 1997) .......................................................................................... 4, 11, 13

Oceana, Inc. v. Bryson,

940 F. Supp. 2d 1029 (N.D. Cal. 2013) ....................................................................... 13, 14, 18

Oregon Trollers Ass’n v. Gutierrez,452 F.3d 1104 (9th Cir. 2006) ........................................................................................... 11, 12

P & V Enters. v. U.S. Army Corps of Eng’rs,516 F.3d 1021 (D.C. Cir. 2008) ............................................................................................... 14

Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank (“PCFFA”),693 F.3d 1084 (9th Cir. 2012) ......................................................................................... 4, 6, 17

Pac. Coast Fed'n of Fishermen's Ass'ns v. Locke,2011 WL 3443533 (N.D. Cal. Aug. 5, 2011) ...................................................................... 7, 17

Pac. Dawn, LLC v. Bryson,

2012 WL 554950 (N.D. Cal. Feb. 21, 2012) ............................................................................. 7



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16 U.S.C. § 1801(b)(5) ................................................................................................................... 2

16 U.S.C. § 1851(a) .................................................................................................................... 2, 3

16 U.S.C. § 1852 ............................................................................................................................. 2

16 U.S.C. § 1852(h)(1)(B) .............................................................................................................. 216 U.S.C. § 1853(c) ........................................................................................................................ 3

16 U.S.C. § 1853a(c)(1)(G) .......................................................................................................... 19

16 U.S.C. § 1854(a)(l)................................................................................................................... 18

16 U.S.C. § 1851(a)(1)(A) .............................................................................................................. 2

16 U.S.C. § 1854(a)(3) .................................................................................................................. 18

16 U.S.C. § 1854(b) ...................................................................................................................... 18

16 U.S.C. § 1855(f) ................................................................................................................. 11, 17

16 U.S.C. § 1855(f)(1)-(2) ........................................................................................................ 3, 11

16 U.S.C. § 1855(f)(2) ............................................................................................................ 11, 12

28 U.S.C. § 2401(a) ...................................................................................................................... 15

42 U.S.C. § 4332(2)(C) ................................................................................................................... 4

FEDERAL REGULATIONS

40 C.F.R. § 1502.9(c).................................................................................................................... 23

50 C.F.R. pt. 660 ............................................................................................................................. 6

75 Fed. Reg. 32,994, 33,004 (June 10, 2010) ................................................................................. 6

75 Fed. Reg. 60,868 (Oct. 1, 2010). ................................................................................................ 6

75 Fed. Reg. 60,954-55 ............................................................................................... 10, 21, 22, 24

75 Fed. Reg. 78,344 (Dec. 15, 2010) .............................................................................................. 6

77 Fed. Reg. 45,508 (Aug. 1, 2012).................................................................................... 8, 10, 15

78 Fed. Reg. 72, 78 (Jan. 2, 2013) ................................................................................................ 23

78 Fed. Reg. 3848 (Jan. 17, 2013) .................................................................................................. 8

78 Fed. Reg. 18,879 (Mar. 28, 2013) ........................................................................................ 7, 23

78 Fed. Reg. 18,895-96 ............................................................................................................. 8, 21



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80 Fed. Reg. 53,088, 53,089 (Sept. 2, 2015) ................................................................ 8, 14, 20, 22

80 Fed. Reg. 53,092-93 ................................................................................................................. 24

80 Fed. Reg. 69,138, 69,139 (Nov. 9 2015)........................................................................... passim

80 Fed. Reg. 69,140 ...................................................................................................... 8, 15, 23, 2480 Fed. Reg. 69,141 ............................................................................................................ 8, 19, 23



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INTRODUCTION

The 2010 trawl rationalization of the Pacific groundfish fishery, administered pursuant to

the Magnuson-Stevens Fishery Conservation and Management Act (“MSA” or “Magnuson

Act”), was developed through a seven-year public process that resulted in two amendments to

the fishery management plan. Among other elements, the program altered the structure of the

fishery to assign individual fishing quota (“IFQ”) shares to limited-entry trawl participants. The

program also set individual control limits for accumulating quota share for each of 30 species

managed under the plan, as well as an aggregate limit across the species. The implementing

regulations required participants to sell or trade the excess quota share by a certain deadline

(extended to November 30, 2015). In September 2015, NMFS proposed “minor procedural

modifications” to the regulations addressing how NMFS would revoke excess shares from

participants that failed to voluntarily divest by the deadline, as well as providing an alternative

method by which participants could “abandon” excess shares, if they could not be sold or traded.

Only now, after five years, two timely legal challenges, and the extended divestiture

deadline, do Plaintiffs come forward to challenge myriad aspects of the two amendments and

2010 implementing regulations. The majority of their case challenges the program as established

in 2010. As such, Plaintiffs’ claims are time-barred by the Magnuson Act’s 30-day time limit for

bringing challenges to regulations issued pursuant to the Act. To the extent that the last claim,

challenging the 2015 regulatory revision, is not simply a restatement of these time-barred claims,

Plaintiffs fail to make even the barest demonstration that they have standing to challenge the

2015 rule and they also fail to state a claim upon which relief can be granted.

Therefore, Federal Defendants respectfully request this Court to grant this motion and

dismiss Plaintiffs’ case with prejudice.



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STATUTORY BACKGROUND

A. The Magnuson-Stevens Fishery Conservation and Management Act

Congress enacted the MSA to conserve and manage the nation's coastal fisheries, prevent

overfishing, and rebuild overfished stocks. 16 U.S.C. § 1801(b). The Magnuson Act establishes

eight Regional Fishery Management Councils composed primarily of state fisheries officials and

fisheries experts nominated by the governors of the member states. 16 U.S.C. § 1852. Each

Council's principal task is to prepare, monitor, and revise fishery management plans for its

region. 16 U.S.C. § 1801(b)(5); Alliance Against IFOs v. Brown, 84 F.3d 343, 344-45 (9th Cir.

1996). Fishery management plans (“FMPs”) are to “achieve and maintain, on a continuing basis,

the optimum yield from each fishery.” 16 U.S.C. § 1801(b)(4); see also Alliance Against IFQs,

84 F.3d at 344-45. The MSA also directs Councils to prepare amendments to fishery

management plans when such amendments become necessary. 16 U.S.C. § 1852(h)(1)(B).

1. Procedures for Developing and Amending FMPs

Upon receiving a proposed FMP or amendment from the Council, the Secretary of

Commerce (“Secretary”) commences a review to determine if the FMP or amendment is

consistent with ten “national standards for fishery conservation and management,” the remaining

provisions of the Magnuson Act, and other applicable law. 16 U.S.C. §§ 1851(a), 1854(a)(1)(A).

The Secretary must also publish notice of the proposed FMP or amendment in the Federal

Register and solicit public comments. Id. § 1854(a)(1)(B). Within 30 days of the close of the

comment period, the Secretary must either “approve, disapprove, or partially approve [the] plan

or amendment . . . by written notice to the Council.” Id. § 1854(a)(3).

FMPs or amendments “do not themselves have any regulatory effect – implementing

regulations must also be enacted in order to effectuate them.” N.C. Fisheries Ass’n v. Gutierrez,



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after the 30-day period are time-barred as a matter of law and must be dismissed for lack of

subject matter jurisdiction. Norbird Fisheries v. NMFS , 112 F.3d 414, 416 (9th Cir. 1997).

B. The National Environmental Policy Act

The National Environmental Policy Act (“NEPA”) serves the dual purpose of informing

agency decision-makers of the environmental effects of proposed Federal actions and ensuring

that relevant information is made available to the public so that it “may also play a role in both

the decisionmaking process and the implementation of that decision.” Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA does not mandate particular results or

impose substantive environmental obligations on federal agencies. Id. at 351-52; Marsh v. Or.

Nat. Res. Council, 490 U.S. 360, 371 (1989). Instead, NEPA ensures “that [an] agency will not

act on incomplete information, only to regret its decision after it is too late to correct.” Id. NEPA

requires the preparation of an environmental impact statement (“EIS”) for “major Federal actions

significantly affecting the quality of the human environment. . .” 42 U.S.C. § 4332(2)(C). In

reviewing NEPA decisions, courts evaluate whether the analysis includes a “reasonably thorough

discussion of the significant aspects of the probable environmental consequences.” California v.

Block , 690 F.2d 753, 761 (9th Cir. 1982) (citation omitted).

FACTUAL BACKGROUND

A. The Pacific Groundfish Fishery

The Pacific groundfish fishery extends 200 miles into the Pacific Ocean, along the coasts

of California, Oregon, and Washington, and includes more than 90 species of fish that dwell near

the sea floor. Pac. Coast Fed'n of Fishermen's Ass’ns v. Blank (“PCFFA”), 693 F.3d 1084, 1088

(9th Cir. 2012). Fishers use many different types of gear, including trawl nets (nets dragged by



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boats), traps, and longlines, but trawls dominate. Id. The trawl sector consists of two fisheries,

one targeting Pacific whiting and another for non-whiting species. Id.

Every two years, the Pacific Council establishes catch limits, which “represent an annual

quantity of fish that the groundfish fishery as a whole may catch.” Id. Catch limits are divided

among different sectors of the fishery, such as between trawlers and fixed gear fishers; these

divisions are called “allocations.” Id. Prior to Amendments 20 and 21, the Council enforced

catch limits primarily by regulating trip limits, gear restrictions, and seasonal and area closures.

Id. at 1089. Through these methods, the Council was able to measure and restrict harvests, but it

was not able to comprehensively measure or limit “bycatch,” which refers to non-targeted (and

often overfished) species that are incidentally caught and discarded. Id.

In mixed-stock fisheries like the Pacific groundfish fishery, harvests of healthy species

are constrained by measures to protect overfished species, “even if those species are not targeted

by any particular fishery.” Id. The Council has made various efforts over the years to achieve

optimum yields in the trawl fishery while reducing adverse impacts to these overfished species,

but biological, social, and economic concerns remained, and the fishery continued to be viewed

as unsustainable. Id.

B. Amendments 20 and 21

In 2003, the Pacific Council set out to develop a program for better managing the Pacific

groundfish fishery. The Council ultimately settled on a goal to develop a capacity rationalization

plan that increases net economic benefits, creates individual economic stability, provides for full

utilization of the trawl sector allocation, considers environmental impacts, and achieves

individual accountability of catch and bycatch. 693 F.3d at 1089. The Council decided to divide

its goals into two proposals, one for rationalization of the trawl sector and another for allocations



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and Pacific halibut bycatch. Id. Accordingly, NMFS prepared a separate draft and final EIS for

each proposal, evaluating alternatives, considering the alternatives' potential environmental and

economic consequences, and discussing possible mitigation. Id. In August 2010, NMFS

approved Amendments 20 and 21. Id. NMFS issued two sets of regulations codifying the

amendments in October and December, 2010. 75 Fed. Reg. 60,868 (Oct. 1, 2010); see also 75

Fed. Reg. 78,344 (Dec. 15, 2010).

Amendment 20 divides the trawl fishery into three sectors and then assigns a discrete

number of fishing privileges within each sector, including the individual fishing quota program

for the shorebased trawl sector at issue in this litigation. PCFFA, 693 F.3d at 1089-90. Besides

limiting Pacific halibut bycatch, Amendment 21 does various things to support Amendment 20,

the most important of which is to fix allocations of 19 groundfish stocks among the various trawl

and non-trawl sectors. Id. at 1090. For other species, the Pacific Council will continue to assign

allocations every two years. Id. The amendments also limit the amount of quota share that a

person, individually or collectively, may own or control. 75 Fed. Reg. 32,994, 33,004 (June 10,

2010). There are individual control limits for 30 species, as well as an aggregate non-whiting

control limit across species. Id. The regulations implementing Amendments 20 and 21 became

effective on January 1, 2011. See 75 Fed. Reg. at 60,868; 75 Fed. Reg. at 78,344 (codified at 50

C.F.R. pt. 660).

C. Previous Legal Challenges

Shortly after the first set of implementing regulations were published in October 2010, a

group of non-trawl fishing interests challenged Amendments 20 and 21 in the Northern District

of California. The lawsuit presented claims pursuant to the Magnuson Act and NEPA, centering

primarily on the allocation of quota shares. In August 2011, the district court upheld the



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provided that they must divest themselves of all excess quota share by November 30, 2015.1 80

Fed. Reg. 53,088, 53,089 (Sept. 2, 2015). The regulations provided that NMFS would revoke the

excess share of any quota share holder that did not divest the excess shares by the deadline and

redistribute the excess shares to other quota share permit owners in proportion to their current

shares, up to the control limits. Id. Revocation only applies to situations in which permit owners

do not voluntarily divest of their excess shares by the deadline by either selling, trading, or

otherwise divesting. 80 Fed. Reg. at 69,140. Permit owners had nearly two years to divest of

excess shares, as the regulations allowed the sale and trading of quota shares to begin on January

1, 2014. Id. Many fishery participants had been planning for years how to divest themselves of

excess quota share or had already divested down to the control limits even before the 2015

regulatory revision was finalized. Id.

STANDARDS OF REVIEW

A. Federal Rule Of Civil Procedure 12(b)(1)

Federal courts are courts of limited jurisdiction. Unlike state courts, they have no

“inherent” or “general” subject matter jurisdiction. They can adjudicate only those cases which

the Constitution and Congress authorize them to adjudicate – those involving diversity of

citizenship or a federal question, or those to which the United States is a party. Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 380-81 (1994). The burden of establishing

jurisdiction rests on the party asserting jurisdiction. Id. at 377. Lack of subject matter jurisdiction

1 After considerable discussion and public comment during the Amendment 20 rulemaking,divestiture was initially scheduled to occur during years three and four of the program. 80 Fed.

Reg. at 69,141. However, the divestiture period was extended due to the first Pacific Dawn

litigation. Id.; see also 77 Fed. Reg. 45,508 (Aug. 1, 2012); 78 Fed. Reg. 3848 (Jan. 17, 2013);

78 Fed. Reg. at 18,895-96. Thus, program participants had nearly five years to prepare for the

divestiture deadline.



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is never waived, and may be raised by either party or the court at any time. Attorneys Tr. v.

Videotape Comput. Prods., 93 F.3d 593, 594-95 (9th Cir. 1996).

On a Rule 12(b)(1) motion to dismiss, the applicable standard turns on the nature of the

jurisdictional challenge. A defendant may either challenge jurisdiction on the face of the

complaint or provide extrinsic evidence demonstrating lack of jurisdiction on the facts of the

case. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In evaluating a facial attack on

jurisdiction, the court must accept the factual allegations in plaintiff's complaint as true. See

Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001).

B. Federal Rule of Civil Procedure 12(b)(6)

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). A claim is facially plausible when there are sufficient factual allegations to draw a

reasonable inference that the defendants have committed the violation alleged. While a court

“must take all of the factual allegations in the complaint as true,” it is “not bound to accept as

true a legal conclusion couched as a factual allegation,” id ., and a “formulaic recitation of the

elements of a cause of action” is not enough, Twombly, 550 U.S. at 555. Likewise, “conclusory

allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for

failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)

(citation omitted). The allegations in a complaint “may not simply recite the elements of a cause

of action, but must contain sufficient allegations of underlying facts to give fair notice and to

enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th

Cir. 2011).



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ARGUMENT

The Court should dismiss Plaintiffs’ case in its entirety. Plaintiffs’ first five claims

directly challenge Amendments 20 and 21 and the 2010 implementing regulations, but were filed

nearly five years after the closure of the Magnuson Act’s 30-day review provision. Although

Plaintiffs advance an argument that these claims are reviewable in relation to the November 2015

regulatory revision, this exception does not apply to the case at bar and does not salvage

Plaintiffs’ Claims. Allowing Plaintiffs to flout the Congressional purpose of the 30-day review

limit would be especially egregious here, where the regulations have already been subject to

other legal challenges and fishery participants have relied upon the program’s requirements and

deadlines. The only timely claim advanced by Plaintiffs is one for which they fail to make even

the barest showing of standing, and even if they did, Plaintiffs’ various legal theories fail to state

a claim upon which relief can be granted.

I. THE COURT LACKS JURISDICTION OVER CLAIMS ONE THROUGH FIVE

A. The Claims Challenge Program Features Established in 2010.

The First Claim alleges that the Program’s definition of ownership and control runs

contrary to federal common law. However, the IFQ Program’s definitions of ownership and

control were adopted in the October 1, 2010 final rule setting forth the overall regulations for the

Program. See 75 Fed. Reg. 60,954-55. The Second Claim raises various critiques of the Council

and NMFS’s choice in setting the aggregate non-whiting groundfish quota share limit at 2.7%.

This limit was established in the October 1, 2010 regulations. Id. at 60,954. The Third and

Fourth Claims challenge aspects of the Program as inconsistent with various requirements of the

Magnuson Act and/or arbitrary and capricious. However, all Program elements targeted in these

claims were established in the 2010 regulations. Finally, the Fifth Claim challenges the



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sufficiency of the 2010 NEPA analysis conducted for Amendments 20 and 21 and its

implementing regulations, established in 2010. Accordingly, all five claims are time-barred by

the MSA’s judicial review provision.

The MSA authorizes judicial review of “[r]egulations promulgated by the Secretary” or

“actions that are taken by the Secretary under regulations which implement a [FMP],” provided a

petition for review is “filed within 30 days after the date on which the regulations are

promulgated or the action is published in the Federal Register.” 16 U.S.C. § 1855(f)(1)-(2). This

is a strict jurisdictional requirement that cannot be avoided “through careful pleading.” Turtle

Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 945 (9th Cir. 2006); see

also Norbird , 112 F.3d at 416.2 Here, as Plaintiffs were participating in the fishery during the

development of Amendments 20 and 21,3 they had ample notice of the Program components that

might affect them, yet chose not to challenge them at the appropriate time. Plaintiffs’ failure to

do so is sharply contrasted with the two timely lawsuits challenging Amendments 20 and 21.

It may be that Plaintiffs will argue that they can challenge the regulations implementing

Amendments 20 and 21 because the November 2015 regulatory revision is an “action”, pursuant

to 16 U.S.C. § 1855(f)(2). See Compl. ¶ 33. As explained by the Ninth Circuit in Oregon

2 Although Turtle Island and Norbird categorize the Magnuson Act’s 30-day time limitation as

jurisdictional, the United States recognizes that, in intervening years, the Supreme Court hascalled for a finer-grained assessment of whether a limitations statute is classified as

“jurisdictional” or a claims processing rule. See Sebelius v. Auburn Reg'l Med. Ctr., 133 S. Ct.

817, 824 (2013). While it is the government’s position that 16 U.S.C. § 1855(f) meets the test forclassification as “jurisdictional,” if the Court disagrees, Claims One through Five may be

dismissed pursuant to Rule 12(b)(6) for failure to state a claim.

3 The complaint does not explicitly state this fact but it may be inferred from Plaintiffs’statements that Pacific Choice’s Eureka facility has been in operation since the 1940s, and that

Sea Princess and Pacific Fishing’s other LLCs have quota share, which was only distributed to

those with a certain history in the fishery. Compl. ¶¶ 15-17.



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Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1112-13 (9th Cir. 2006), Congress amended the

Magnuson Act’s judicial review provision in 1990 so that a party later impacted by an “action”

taken pursuant to an earlier regulation issued under the Act could challenge both that action and

the underlying regulation. However, this expansion of the waiver of sovereign immunity must

still be narrowly construed. The Magnuson Act defines “action” for the purposes of this section

as those “taken by the Secretary under regulations which implement a fishery management plan,

including but not limited to actions that establish the date of closure of a fishery to commercial

or recreational fishing.” 16 U.S.C. § 1855(f)(2).

This separate subsection of the judicial review provision does not allow Plaintiffs to

reach back and challenge the 2010 regulations because the November 2015 revision is not an

“action” as defined in the Magnuson Act. As the Ninth Circuit took pains to explain, “action”

cannot be conflated with “regulation.” Or. Trollers, 452 F.3d at 1115. The 2015 regulatory

revision is a “regulation” that itself can be challenged within 30 days, as Plaintiffs do in Claim

Six, but it is not an “action” taken under the 2010 regulations implementing Amendments 20 and

21. It does not fit within the example given in the Magnuson Act’s definition of “action” –

setting a closure date of a fishery – or the situation in Oregon Trollers, which centered on annual

management measures that closed specific areas during the the 2005 fishery season in order to

meet biological escapement goals authorized in a 1989 amendment to the fishery management

plan. 16 U.S.C. § 1855(f)(2); Or. Trollers, 452 F.3d at 1115-16. By contrast here, the 2010

amendments and implementing regulations did not set up a future “action” to be later applied to

the fishery. Instead, NMFS adopted and implemented the entire trawl rationalization program in

2010, even if the divestiture deadline was not set to occur until year four of the program (later

modified to November 30, 2015). The 2015 rulemaking here is not an “action” that applies any



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portion of the 2010 regulations; rather, it is a subsequent revision of those regulations, and so

cannot also be an “action” “taken under” those same regulations. To indulge Plaintiffs in such an

interpretation would run counter to the Ninth Circuit’s repeated instruction that the Magnuson

Act’s 30-day time limit cannot be evaded “through careful pleading.” Turtle Island , 438 F.3d at

945; see also Sea Hawk Seafoods v. Locke, 568 F.3d 757, 764-65 (9th Cir. 2009); Norbird , 112

F.3d at 416.4

Nor did NMFS “reopen” the substantive provisions of the 2010 regulations when it

proposed and adopted the “minor procedural modifications” in the November 2015 rulemaking.5

The reopening doctrine allows a challenge to an earlier, time-barred action “where an agency's

actions show that it has not merely republished an existing rule in order to propose minor

changes to it, but has reconsidered the rule and decided to keep it in effect . . .” Pub. Citizen v.

Nuclear Regulatory Comm'n, 901 F.2d 147, 150 (D.C. Cir. 1990). But the doctrine applies only

where “‘the entire context,’ ... demonstrates that the agency ‘ha[s] undertaken a serious,

4 Numerous other courts have found that a plaintiff may not use challenges to regulations as a

vehicle for raising objections to FMP provisions that were previously implemented. See, e.g.,

Connecticut v. Daley, 53 F. Supp. 2d 147, 162 (D. Conn. 1999) (holding that challenge to planamendment which “retained” state quota system was in actuality an untimely challenge seeking

to overturn state quota system established four years previously), aff’d , 204 F.3d 413 (2nd Cir.

2000); Tex. Shrimp Ass'n v. Daley, 4:00CV20–RH, 2000 WL 35938412, at *3 (N.D. Fla., Apr.

12, 2000) (“Plan amendments which are premised upon or retain a status quo do not equate to“promulgation” of a new status quo. Thus, even when a proposed amendment includes new

limits which are contingent upon a previously-enacted status quo amount, only the new limits

themselves, and not the status quo amount, are subject to timely challenge.”); N. C. Fisheries Ass'n v. Evans, 172 F. Supp. 2d 792, 798-99 (E.D. Va. 2001) (nominally challenged rules did not

alter fishery management plan measures targeted by claims, which were accordingly time-barred by the Magnuson Act’s 30-day limit).

5 While the Ninth Circuit has not addressed whether the reopening doctrine is law in this circuit,

NMFS conservatively addresses it here since at least three district courts have applied the

analysis. See Oceana, Inc. v. Bryson, 940 F. Supp. 2d 1029, 1045 (N.D. Cal. 2013).



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substantive reconsideration of the [existing] rule.’” P & V Enters. v. U.S. Army Corps of Eng’rs,

516 F.3d 1021, 1024 (D.C. Cir. 2008) (quoting Nat'l Mining Ass'n v. U.S. Dep't of Interior , 70

F.3d 1345, 1352 (D.C. Cir. 1995)). When evaluating this context, factors evaluated include: (1)

whether the notice of proposed rulemaking invites comment on a prior provisions; and (2)

whether the agency substantively responds to comments on prior provisions. Oceana, 940 F.

Supp. 2d at 1045 (summarizing cases). However, the reopening doctrine is not to be used as “a

license for bootstrap procedures by which petitioners can comment on matters other than those

actually at issue, goad an agency into a reply, and then sue on the grounds that the agency had re-

opened the issue.” Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989).

Here, the context does not show that NMFS was reconsidering the IFQ program, itself the

product of over seven years of analysis, public participation, and rulemaking; in fact, the

language demonstrates the exact opposite. In the summary of the proposed rule, NMFS described

the action as “minor procedural modifications” meant “to clarify how” the divestiture aspect of

the Program would proceed. 80 Fed. Reg. at 53,088; see also id. at 53,089 (“NMFS seeks to

clarify the revocation protocols for cases where quota share permit owners do not voluntarily

divest before the deadline.”). Pursuant to the Council’s limited recommendations, NMFS

proposed to add “two regulatory mechanisms that further implement original quota share

divestiture provisions” of the Program. Id. The notice of proposed rulemaking was narrow and

circumscribed to the procedural modifications, and cannot be reasonably read to invite comment

on the broader issues challenged in Plaintiffs’ first five claims, such as the aggregate limit, the

control rule, or the divestiture deadline.

The agency’s responses to the two comment letters received also demonstrate that NMFS

was not reopening the earlier provisions. A commenter asked NMFS to reconsider proportional



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regardless of how such challenges are framed or whether they are framed as an alleged violation

of statutes other than the Magnuson Act. Id. at 945 (“the decisive question is whether the

regulations are being attacked, not whether the complaint specifically asserts a violation of the

Magnuson Act”). In addition to evaluating the relief requested, which was to enjoin the fishing

activity authorized by the regulations, the Court looked behind the merits of each claim to

evaluate its target. Id. For the NEPA claim, the Court rejected the notion that there could be a

“stand-alone challenge” to the NEPA analysis, distinct from the issuance of the regulations, as it

found that plaintiff “is really trying to attack and undo the regulations implementing the Fishery

Management Plan amendment.” Id.

Finally, the Court found the overall structure of the Magnuson Act, including the detailed

public process leading to the adoption of regulations and the expedited judicial review provision

to favor the interpretation that Congress meant for all challenges to the regulations to be brought

within 30 days. Id. at 947-948. “The Magnuson Act's high level of specificity does not evince

congressional intent to allow other, more general statutes of limitation to be transplanted or

imported, and thus spoil this fine-tuned scheme. It seems unlikely that Congress would have

constructed this well-oiled machine, which anticipates compliance with other applicable

environmental statutes, and yet intended its path to be so easily sidestepped.” Id. at 948.

Plaintiffs’ Fifth Claim is virtually indistinguishable from the situation before the Ninth

Circuit in Turtle Island. Plaintiffs ask for both declaratory and injunctive relief against

Amendments 20 and 21 and their implementing regulations issued in 2010. See Compl. Prayer,

¶¶ B-C. Although couched in critiques of the sufficiency of the NEPA analysis undertaken, the

target of Plaintiffs’ Fifth Claim is the substance of the 2010 regulations, specifically the selection

of 2.7% as the aggregate limit and the resulting effects of that decision. Id. ¶¶ 69-74. Finally, the



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long and detailed public process leading up to publication of the 2010 regulations, and the

subsequent legal challenges, support this Court following the Turtle Island rationale for holding

that NEPA challenges to the regulation are also required to be brought within the Magnuson

Act’s 30-day time limit. In fact, the timely PCFFA lawsuit against the 2010 regulations

contained numerous NEPA challenges, all of which were rejected. See Pac. Coast Fed'n of

Fishermen's Ass'ns, 2011 WL 3443533, at *16-28; PCFFA, 693 F.3d at 1097-1104. The fact that

Plaintiffs have clothed their Fifth Claim in the guise of NEPA should not alter this Court’s

determination that this claim is barred by the Magnuson Act’s 30-day statute of limitations.

C. Dismissal is in Accordance with Congressional Purpose.

The structure of the MSA as a whole evidences Congress' intent to expedite review of

MSA regulations, which comports with strictly construing the 30-day limitation period. The

limitations on judicial review contained in 16 U.S.C. § 1855(f) - “the thirty-day time limitation,

the bar on preliminary injunctive relief, and the provision for expedited review - demonstrate

Congress's intent to ensure that regulations promulgated under the Magnuson Act are effectuated

without interruption and that challenges are resolved swiftly.” Turtle Island , 438 F.3d at 948.

Specifically, in addition to the 30-day statute of limitations on petitions for review of regulations

and actions, section 1855(f)(3)(A) requires the Secretary to respond to a petition for review

within 45 days, and section 1855(f)(4) directs the courts to expedite such cases “in every possible

way.” Section 1855(f)(1)(A) states that the APA provision authorizing a court to grant

preliminary injunctive relief, 5 U.S.C. § 705, is “not applicable,” thus precluding the courts from

entering preliminary injunctions postponing the effective date of a regulation or action pending

judicial review. See Kramer v. Mosbacher , 878 F.2d 134, 137 (4th Cir. 1989).



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The relatively short limitations period is also consistent with the MSA's repeated

directives to the Secretary to take expeditious action to implement proposed fishery management

plans and regulations. For example, after the Secretary receives a proposed fishery management

plan or plan amendment from a council, he must “immediately” commence his review and

“immediately” publish notice of the proposal's availability. 16 U.S.C. § 1854(a)(l). After a 60-

day comment period, the Secretary has 30 days to approve, disapprove, or partially approve the

proposed plan or amendment; if he fails to do so, the plan or amendment automatically takes

effect. 16 U.S.C. § 1854(a)(3). The Secretary's review of regulations proposed by a council is

subject to similarly short deadlines. 16 U.S.C. § 1854(b).

In short, the 30-day statute of limitations, combined with expedited judicial review, the

ban on preliminary injunctive relief, and the short time frames in which the Secretary is to

review and implement a plan or plan amendment evidences Congress' intent to ensure that MSA

regulations are reviewed and can be implemented without delay. Allowing plaintiffs to raise

challenges such as the ones set forth in Claims One through Five would render the MSA's 30-day

statute of limitations meaningless and undermine congressional intent as expressed by the

limitations on judicial review in section 1855(f). Oceana, 940 F. Supp. 2d at 1048. This is

especially true in this case where the regulations have been in effect for five years, requiring

fishery participants to drastically alter their fishing and business practices accordingly, and these

same Amendments have been litigated and upheld by both this Court and the Ninth Circuit.

Additionally, the Ninth Circuit has repeatedly held that the Magnuson Act’s extensive public

participation process counsels in favor of strictly construing the 30-day time limit. Turtle Island ,

438 F.3d at 947-948; Sea Hawk Seafoods, 568 F.3d at 766 (given the four-year public process of

the proposed FMP amendments, “application of the MSA's thirty-day statute of limitations to



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Plaintiffs' complaint is not particularly unfair”). In accordance with the plain language of the

provision and this clear Congressional intent, this Court should similarly strictly construe the 30-

day limitations period and find that Plaintiffs’ Claims One through Five are time-barred.

Nor does dismissal of Claims One through Five leave Plaintiffs without a remedy for

their concerns. Although Congress limited the time in which a request for judicial review can be

filed, it did not leave those impacted by fisheries regulations without a remedy. The MSA

requires that NMFS and the Council undertake “a formal and detailed review 5 years after the

implementation of the [IFQ] program.” 16 U.S.C. § 1853a(c)(1)(G). Thus, Congress made a

policy judgment that implementation issues should be addressed by the Council through the five-

year review, and not through untimely litigation. The Council and NMFS have commenced this

review process and Plaintiffs may submit comments and suggestions for consideration and

discussion at the June 2016 Council meeting. 80 Fed. Reg. at 69,141. Because Plaintiffs have

other avenues for seeking judicial review and their claims are time-barred by the 30-day

limitation period, the Court should grant the motion to dismiss Claims One through Five.

II. CLAIM SIX SHOULD BE DISMISSED FOR LACK OF STANDING OR

FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

Plaintiffs’ Claim Six focuses on the 2015 rule, alleging myriad violations in connection

with that regulatory revision. However, Plaintiffs lack standing to maintain such a challenge and

fail to state a claim upon which relief can be granted.

A. Plaintiffs Fail to Show an Injury Traceable to the 2015 Regulatory Revision.

A plaintiff must demonstrate standing for each claim he or she seeks to press and for each

form of relief sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). For Article III

standing, a plaintiff must satisfy three “irreducible constitutional minimum” requirements: (1) he



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or she suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the

injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by

a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The

plaintiff also bears the burden of proof to establish standing “with the manner and degree of

evidence required at the successive stages of the litigation.” Id. at 561. Although “[a]t the

pleading stage, general factual allegations of injury resulting from the defendant's conduct may

suffice,” id., the plaintiffs’ basis for standing “must affirmatively appear in the record.” Salmon

Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1228 n.5 (9th Cir. 2008) (citation

and quotes omitted).

The action challenged in Claim Six is the November 2015 regulatory revision, which

made “narrow procedural additions . . . to clarify how divestiture and revocation of excess quota

share will occur” and established “procedures for the future if divestiture becomes necessary.”

80 Fed. Reg. at 69,138. The revision implemented two main clarifications to the previously

established Program. First, for permittees who exceed control limits across several species and

fail to voluntarily divest these shares by the deadline, NMFS would revoke quota share in

proportion to the amount of quota share percentage from each permit’s contributions to the total

quota share percentage owned. 80 Fed. Reg. at 53,089. Similarly, for permittees who exceed the

aggregate limit and fail to voluntarily divest these shares by the deadline, NMFS would revoke

quota share at the species level in proportion to the amount of the aggregate overage divided by

the aggregate total owned. Id. Second, NMFS added a process by which permittees who are over

the aggregate limit may abandon shares of their own choosing to NMFS by November 15, 2015,

providing additional flexibility instead of NMFS proportionally revoking some of each species’



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quota share. Id . NMFS also proposed to revise the regulations to allow these same procedures to

be used in the future if necessary.7 Id.

Plaintiffs’ allegations of harm stem from Program elements established in the 2010

regulations - namely the aggregate limit and the required divestiture of excess shares. See Compl.

¶¶ 15-17, 42. While Plaintiffs allege that Sea Princess and other LLCs owned by Pacific Fishing

were required to divest quota share as part of the Program, they do not allege that the

proportional reduction methodology instituted by the November 2015 revision was applied to

their shares. Indeed, Plaintiffs specifically allege that Sea Princess voluntarily divested quota

shares prior to the November 30, 2015 deadline, id. ¶ 16, meaning that the proportional reduction

methodology could not apply to it, as the methodology applies only to those who did not divest

their excess shares by the deadline. Nor do Plaintiffs allege that they have any expectation of

being affected by the proportional reduction methodology or the abandonment procedures in the

future. Nowhere in Plaintiffs’ complaint do they allege an injury traceable to the 2015 regulatory

revision or that the requested vacatur of that action would redress their injuries. Instead, it is

clear that the attack against the 2015 regulatory revisions is simply another method by which to

challenge Amendments 20 and 21 and their implementing regulations established in 2010 –

challenges that are time-barred, as set forth above.

7 Plaintiffs incorrectly present a much broader characterization of the 2015 rule. See Compl. ¶ 34.However, the divestiture requirements, including the proportional reallocation of excess shares,was established in the 2010 regulations, see 75 Fed. Reg. at 60,955, and the specific November

30, 2015 divestiture deadline was set in 2013, see 78 Fed. Reg. at 18,895-96. To the extentPlaintiffs’ allegations are the basis for any argument that their injuries stem from the 2015

revisions, the Court is not required to accept as true any legal conclusions or unwarranted factual

inferences. Moss v. U.S. Secret Serv., 572 F.3d 962, 970-71 (9th Cir. 2009).



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Because Plaintiffs fail to even allege an injury traceable to the 2015 regulatory revision,

this Court should dismiss Claim Six for lack of standing.

B. Claim Six Fails to State A Claim Upon Which Relief Can Be Granted.

Although Claim Six is pled as a single claim, it advances five legal theories. However,

these theories either improperly reiterate the time-barred bases of Plaintiffs’ Claims One through

Five or fail to state a claim upon which relief can be granted.

The first theory is that the “proportional revocation and other aspects of the November

2015 Rule” violate various aspects of the Magnuson Act. Compl. ¶¶ 77-80. However, the quota

share limits, the revocation of excess quota share, and redistribution of those revoked shares to

other quota share owners in proportion to their quota share holdings were all established in the

October 1, 2010 regulations. See 75 Fed. Reg. at 60,955. As discussed above, a comment on the

proposed 2015 revision requested NMFS to “reconsider” the revocation aspect of the Program,

but NMFS correctly noted that the revocation requirement was approved and implemented in

2010 and beyond the scope of the 2015 rulemaking. 80 Fed. Reg. at 69,139. This aspect of Claim

Six merely seeks to re-package Plaintiffs’ time-barred challenges to the 2010 regulations as a

challenge to the 2015 regulatory revision. Once those improper elements are excised, Plaintiffs

fail to state a claim with respect to a provision of the 2015 regulatory revision itself.

The second theory is that the 2015 regulatory revision fails to comply with NEPA.

Compl. ¶ 81. The proposed rule indicated that NMFS was relying on the NEPA analysis

performed for Amendment 20, 80 Fed. Reg. at 53,089, to which a direct challenge is time-barred,

as discussed above. To the extent that Plaintiffs believe some aspect of the 2015 “minor

procedural modifications” required NMFS to perform a supplemental NEPA analysis, Plaintiffs

fail to allege any facts that would support a claim that supplementation was required pursuant to



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40 C.F.R. § 1502.9(c). Furthermore, if Plaintiffs believed supplementation is necessary, they

were required to raise this contention during the public comment period. Plaintiffs do not allege

that they did so and the response to comments in the final rule does not indicate that NMFS

received any comments pertaining to NEPA. See 80 Fed. Reg. at 69,139-41. A party challenging

an agency's compliance with NEPA must “structure their participation so that it ... alerts the

agency to the [parties'] position and contentions,” in order to allow the agency to give the issue

meaningful consideration. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S.

519, 553 (1978). A failure to do so forfeits the ability to raise the claim for judicial review. Dep't

of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65 (2004); Havasupai Tribe v. Robertson, 943 F.2d

32, 34 (9th Cir. 1991). Because Plaintiffs fail to allege facts supporting a claim that supplemental

NEPA analysis is required and waived the right to assert a NEPA violation in connection with

the 2015 regulatory revision, this aspect of Claim Six fails to state a claim upon which relief can

be granted.

The third theory advanced is that NMFS arbitrarily refused to delay the divestiture

deadline until after reallocation of the widow rockfish quota share. Compl. ¶¶ 82-83. There are at

least two problems with this theory. First, the decision to uncouple the November 30, 2015

divestiture deadline from the reallocation of widow rockfish quota share was proposed in

January 2013 and finalized in March 2013. See 78 Fed. Reg. 72, 78 (Jan. 2, 2013); 78 Fed. Reg.

18,879. Nothing in the 2015 regulations affected or impacted that earlier decision. To the extent

that Plaintiffs are simply seeking to recast a time-barred challenge to the 2013 regulations, the

Court should not indulge such an attempt. Second, to the extent that this third theory challenges

a “refusal” to revisit this earlier discussion, Plaintiffs challenge an unreviewable decision of the



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Finally, the fifth theory, to the extent it can be so construed, simply alleges that the 2015

regulatory revision is unlawful because it “implements” the allegedly unlawful 2010 regulations.

Compl. ¶ 85. As discussed above, Plaintiffs’ challenges to the 2010 regulations are time-barred

and NMFS did not “reopen” those issues when it proposed and finalized the “minor procedural

modifications” in the 2015 rulemaking. In the absence of any re-opening, the fact that NMFS

continues to “implement” Program features finalized in 2010 does not provide Plaintiffs with an

avenue for judicial review of those 2010 regulations.

None of the five bases for challenging the 2015 regulatory revision assert a viable legal

claim and therefore Claim Six should be dismissed for failure to state a claim upon which relief

can be granted.

CONCLUSION

For the reasons set forth above, NMFS respectfully requests this Court to grant the motion

to dismiss and dismiss all counts of Plaintiffs’ amended complaint with prejudice.

Respectfully submitted this 1st day of February, 2016,

JOHN C. CRUDEN

Assistant Attorney General

Environment and Natural Resources DivisionUnited States Department of Justice

SETH M. BARSKY, Section Chief

Wildlife and Marine Resources SectionKRISTEN GUSTAFSON, Assistant Section Chief

/s/ Bridget Kennedy McNeil

BRIDGET KENNEDY McNEIL, CO Bar # 34299Senior Trial Attorney

999 18th St., Suite 370

Denver, CO 80202(303) 844-1484

(303) 844-1350 (fax)

[email protected]

Attorneys for Federal Defendant



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CERTIFICATE OF SERVICE

I hereby certify that on February 1, 2016, I served the foregoing electronically via the

CM/ECF system on the following counsel:

Edward C. [email protected]

Jeffrey W. Leppo [email protected]

Ryan P. Steen

[email protected]

/s/ Bridget Kennedy McNeil


federal motion to dismiss pacific choice case

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