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

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JOHN C. CRUDEN
Assistant Attorney General
Environment and Natural Resources Division
United States Department of Justice
SETH M. BARSKY, Section Chief
Wildlife and Marine Resources Section
KRISTEN GUSTAFSON, Assistant Section Chief
BRIDGET KENNEDY McNEIL, CO Bar # 34299
Senior Trial Attorney
999 18th St., Suite 370
Denver, CO 80202
(303) 844-1484
(303) 844-1350 (fax)
Bridget.McNeil@usdoj.gov
Attorneys for Federal Defendants

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UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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PACIFIC CHOICE SEAFOOD


COMPANY; SEA PRINCESS, LLC;
PACIFIC FISHING, LLC,
Plaintiffs,
v.

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PENNY PRITZKER, U.S. SECRETARY


OF COMMERCE; NATIONAL
MARINE FISHERIES SERVICE,

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Defendants.

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

FEDERAL DEFENDANTS NOTICE OF


MOTION AND MOTION TO DISMISS
Date:
March 10, 2016
Time:
2:00 P.M.
Location: Courtroom 15

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 2 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

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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.

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Pursuant to Fed. R. Civ. P. 12(b)(1) and (12)(b)(6), Federal Defendants hereby move to
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dismiss the Complaint for lack of subject matter jurisdiction and/or failure to state a claim. In

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

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

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

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the hearing on this motion.

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

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

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
i

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

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

TABLE OF CONTENTS

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NOTICE OF MOTION AND MOTION TO DISMISS .................................................................. i


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INTRODUCTION .......................................................................................................................... 1

STATUTORY BACKGROUND.................................................................................................... 2

A.

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B.

The Magnuson-Stevens Fishery Conservation and Management Act ................................ 2


1.

Procedures for Developing and Amending FMPs .......................................................... 2

2.

Judicial Review under the Magnuson Act ...................................................................... 3


The National Environmental Policy Act ............................................................................. 4

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FACTUAL BACKGROUND ......................................................................................................... 4

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A.

The Pacific Groundfish Fishery .......................................................................................... 4

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B.

Amendments 20 and 21 ...................................................................................................... 5

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C.

Previous Legal Challenges.................................................................................................. 6

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D.

Implementation and Adjustments ....................................................................................... 7

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STANDARDS OF REVIEW .......................................................................................................... 8


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Federal Rule Of Civil Procedure 12(b)(1) .......................................................................... 8

B.

Federal Rule of Civil Procedure 12(b)(6) ........................................................................... 9

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ARGUMENT ................................................................................................................................ 10
I.

The Court Lacks Jurisdiction Over Claims One Through Five ................................ 10
A.

The Claims Challenge Program Features Established in 2010. ............................ 10

B.

The Magnuson Act Limitation Applies Equally to Plaintiffs


NEPA Claim. ........................................................................................................ 15

C.

Dismissal is in Accordance with Congressional Purpose. .................................... 17

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
ii

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 4 of 35

II.

Claim Six Should Be Dismissed For Lack Of Standing Or Failure


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

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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

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

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
iii

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 5 of 35

TABLE OF AUTHORITIES

Alliance Against IFOs v. Brown,


84 F.3d 343 (9th Cir. 1996) ....................................................................................................... 2

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Am. Iron & Steel Inst. v. EPA,


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

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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

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Connecticut v. Daley,
53 F. Supp. 2d 147 (D. Conn. 1999) ........................................................................................ 13

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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

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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
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
iv

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 6 of 35

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Lane v. Pena,
518 U.S. 187 (1996) ................................................................................................................... 3
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................................................................................. 20

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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 Assn v. Evans,
172 F. Supp. 2d 792 (E.D. Va. 2001) ...................................................................................... 13
N.C. Fisheries Assn v. Gutierrez,
550 F.3d 16 (D.C. Cir. 2008) ................................................................................................. 2, 3

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Nat'l Mining Ass'n v. U.S. Dep't of Interior,


70 F.3d 1345 (D.C. Cir. 1995) ................................................................................................. 14

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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 Assn v. Gutierrez,
452 F.3d 1104 (9th Cir. 2006) ........................................................................................... 11, 12
P & V Enters. v. U.S. Army Corps of Engrs,
516 F.3d 1021 (D.C. Cir. 2008) ............................................................................................... 14
Pac. Coast Fedn of Fishermens Assns v. Blank (PCFFA),
693 F.3d 1084 (9th Cir. 2012) ......................................................................................... 4, 6, 17

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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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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
v

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 7 of 35

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Pac. Dawn, LLC v. Pritzker,


2013 WL 6354421 (N.D. Cal. Dec. 5, 2013) ............................................................................. 7
Pac. Dawn, LLC. v. Bryson,
2011 WL 6748501 (N.D. Cal. Dec. 22, 2011) ........................................................................... 7

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Pub. Citizen v. Nuclear Regulatory Comm'n,


901 F.2d 147 (D.C. Cir. 1990) ................................................................................................. 13
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989) ................................................................................................................... 4
Salmon Spawning & Recovery Alliance v. Gutierrez,
545 F.3d 1220 (9th Cir. 2008) ................................................................................................. 20
Sea Hawk Seafoods v. Locke,
568 F.3d 757 (9th Cir. 2009) ............................................................................................. 13, 18
Sebelius v. Auburn Reg'l Med. Ctr.,
133 S. Ct. 817 (2013) ............................................................................................................... 11

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Starr v. Baca,
652 F.3d 1202 (9th Cir. 2011) ................................................................................................... 9

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Tex. Shrimp Ass'n v. Daley, 4:00CV20RH,


2000 WL 35938412 (N.D. Fla., Apr. 12, 2000) ....................................................................... 13
Turtle Island Restoration Network v. U.S. Dept of Commerce,
438 F.3d 937 (9th Cir. 2006) ............................................................................................ passim
Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,
435 U.S. 519 (1978) .................................................................................................................. 23
White v. Lee,
227 F.3d 1214 (9th Cir. 2000) ................................................................................................... 9
FEDERAL STATUTES

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5 U.S.C. 705 ............................................................................................................................... 17

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5 U.S.C. 701-706 ....................................................................................................................... 3

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

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16 U.S.C. 1801(b)(4) ................................................................................................................... 2


MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
vi

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 8 of 35

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) .............................................................................................................. 2

16 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

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

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

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

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

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

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

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FEDERAL REGULATIONS

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

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

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

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

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

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

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

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

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

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

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


MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
vii

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 9 of 35

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, 24

80 Fed. Reg. 69,141 ............................................................................................................ 8, 19, 23

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
viii

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 10 of 35

INTRODUCTION

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The 2010 trawl rationalization of the Pacific groundfish fishery, administered pursuant to
the Magnuson-Stevens Fishery Conservation and Management Act (MSA or Magnuson

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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

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managed under the plan, as well as an aggregate limit across the species. The implementing
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regulations required participants to sell or trade the excess quota share by a certain deadline

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

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

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

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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

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

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

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

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

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

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

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

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

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dismiss Plaintiffs case with prejudice.


MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
1

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 11 of 35

STATUTORY BACKGROUND

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A.

The Magnuson-Stevens Fishery Conservation and Management Act


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

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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

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region. 16 U.S.C. 1801(b)(5); Alliance Against IFOs v. Brown, 84 F.3d 343, 344-45 (9th Cir.
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1996). Fishery management plans (FMPs) are to achieve and maintain, on a continuing basis,

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

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

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

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1.

Procedures for Developing and Amending FMPs

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

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

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

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

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

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

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

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

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FMPs or amendments do not themselves have any regulatory effect implementing

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regulations must also be enacted in order to effectuate them. N.C. Fisheries Assn v. Gutierrez,
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
2

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 12 of 35

550 F.3d 16, 17 (D.C. Cir. 2008). The Council is responsible for submitting proposed regulations

to the Secretary for review concurrently with a proposed FMP or amendment. 16 U.S.C.

1853(c). Within 15 days of receiving the proposed regulations, the Secretary must review the

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proposed regulations to determine if they are consistent with the FMP, the ten national standards,

the remaining provisions of the Magnuson Act, and any other applicable law. Id. 1851(a);

1854(b)(1). If the Secretary makes an affirmative determination, she must publish the proposed

regulations in the Federal Register and solicit public comments; if the Secretary makes a

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negative determination, she must notify the Council in writing of the inconsistencies and provide
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recommendations on revisions that would bring the proposed regulations into compliance. Id.

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1854(b)(1)(A)-(B). Final regulations must be published within 30 days after the end of the

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comment period. Id. 1854(b)(3).

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The Secretary has delegated her authorities under the Magnuson Act to NMFS, a sub-

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agency of the National Oceanic and Atmospheric Administrative (NOAA) within the
Department of Commerce. Fishermen's Finest v. Locke, 593 F.3d 886, 889 (9th Cir. 2010).

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2.

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The Magnuson Act provides for judicial review, in accordance with the deferential

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Judicial Review under the Magnuson Act

standards set forth in the Administrative Procedure Act (APA), 5 U.S.C. 701-706, of

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[r]egulations promulgated by the Secretary, or actions that are taken by the Secretary under

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regulations which implement a fishery management plan. 16 U.S.C. 1855(f)(1)-(2). A petition

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for review must be filed within 30 days after the date on which the regulations are promulgated

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or the action is published in the Federal Register. Id. This is a limited waiver of sovereign

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immunity that must be narrowly construed. Lane v. Pena, 518 U.S. 187, 192 (1996).

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Accordingly, challenges to regulations implementing fishery management plans that are brought
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
3

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 13 of 35

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

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

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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

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Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA does not mandate particular results or
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impose substantive environmental obligations on federal agencies. Id. at 351-52; Marsh v. Or.

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

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

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

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

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

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

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

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FACTUAL BACKGROUND

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A.

The Pacific Groundfish Fishery

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

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

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

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

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
4

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 14 of 35

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

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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.

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

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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

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

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

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

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as unsustainable. Id.

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B.

Amendments 20 and 21

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

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

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

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

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

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its goals into two proposals, one for rationalization of the trawl sector and another for allocations
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
5

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

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

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

4
5

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

9
number of fishing privileges within each sector, including the individual fishing quota program
10
11

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

12

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

13

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

14

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

15
16

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

17

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

18

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

19

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

20

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

21
22
23

C.F.R. pt. 660).


C.

Previous Legal Challenges

24

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

25

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

26

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

27
28

primarily on the allocation of quota shares. In August 2011, the district court upheld the
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
6

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

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

amendments on all counts. See Pac. Coast Fed'n of Fishermen's Ass'ns v. Locke, No. 3:10-cv-

04790 CRB, 2011 WL 3443533, at *1 (N.D. Cal. Aug. 5, 2011). The plaintiffs appealed the

decision, which was affirmed by the Ninth Circuit in August 2012. PCFFA, 693 F.3d at 1086.

4
Simultaneously, a separate group of plaintiffs filed another lawsuit in the Northern

5
6

District of California challenging Amendments 20 and 21 with a specific focus on the Pacific

whiting allocation. In December 2011, the Court denied many of their claims, but granted

summary judgment on the issue of whether the allocation formula reasonably excluded more

9
recent fishing history after the control date. Pac. Dawn, LLC. v. Bryson, No. 3:10-cv-4829-TEH,
10
11

2011 WL 6748501, at *8 (N.D. Cal. Dec. 22, 2011). The Court remanded the regulations for

12

reconsideration prior to the April 1 start of the 2013 fishing season. Pac. Dawn, LLC v. Bryson,

13

2012 WL 554950, at *1 (N.D. Cal. Feb. 21, 2012). After the Council and NMFS engaged in

14

thorough reconsideration of the issues, supported by additional analysis, NMFS issued a final

15
16

rule maintaining the existing initial whiting allocations. 78 Fed. Reg. 18,879 (Mar. 28, 2013).

17

The Pacific Dawn plaintiffs renewed their challenge, but the Court upheld the final rule in

18

December 2013. Pac. Dawn, LLC v. Pritzker, No. 3:13-cv-1419-TEH, 2013 WL 6354421 (N.D.

19

Cal. Dec. 5, 2013). The Pacific Dawn II plaintiffs appealed this decision, which is currently

20

pending before the Ninth Circuit. See Pac. Dawn, No. 3:13-cv-1419-TEH, ECF No. 68.

21
22
23

D.

Implementation and Adjustments


While the two legal challenges were pending, NMFS began implementation of the trawl

24

rationalization program. Because quota share was initially allocated based on catch history

25

during qualifying years, some individuals and entities were awarded initial quota share amounts

26

that exceeded one or more of the control limits. 80 Fed. Reg. 69,138, 69,139 (Nov. 9, 2015). The

27
28

regulations provided these owners an adjustment period to hold the excess quota shares but
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
7

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 17 of 35

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

4
5

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

9
excess shares, as the regulations allowed the sale and trading of quota shares to begin on January
10
11

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

12

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

13

regulatory revision was finalized. Id.

14

STANDARDS OF REVIEW

15
16

A.

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

17

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

18

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

19

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

20

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

21
22
23

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

24
25
26
27
28

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.
1

MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
8

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 18 of 35

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

4
5

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

9
Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001).
10
11

B.

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

12

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

13

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

14

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

15
16

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

17

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

18

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

19

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

20

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

21
22

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

23

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

24

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

25

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

26

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

27
28

Cir. 2011).
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
9

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 19 of 35

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

4
5

nearly five years after the closure of the Magnuson Acts 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

9
limit would be especially egregious here, where the regulations have already been subject to
10
11

other legal challenges and fishery participants have relied upon the programs requirements and

12

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

13

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

14

a claim upon which relief can be granted.

15
16

I.

THE COURT LACKS JURISDICTION OVER CLAIMS ONE THROUGH FIVE

17

A.

18

The First Claim alleges that the Programs definition of ownership and control runs

19
20

The Claims Challenge Program Features Established in 2010.

contrary to federal common law. However, the IFQ Programs definitions of ownership and
control were adopted in the October 1, 2010 final rule setting forth the overall regulations for the

21
22

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

23

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

24

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

25

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

26

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

27
28

claims were established in the 2010 regulations. Finally, the Fifth Claim challenges the
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
10

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 20 of 35

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 MSAs judicial review provision.

4
The MSA authorizes judicial review of [r]egulations promulgated by the Secretary or

5
6

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

9
is a strict jurisdictional requirement that cannot be avoided through careful pleading. Turtle
10
11

Island Restoration Network v. U.S. Dept of Commerce, 438 F.3d 937, 945 (9th Cir. 2006); see

12

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

13

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

14

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

15
16

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

17
18

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

19

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

20
21
22
23
24
25
26
27
28

Although Turtle Island and Norbird categorize the Magnuson Acts 30-day time limitation as
jurisdictional, the United States recognizes that, in intervening years, the Supreme Court has
called 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 governments position that 16 U.S.C. 1855(f) meets the test for
classification 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.
2

The complaint does not explicitly state this fact but it may be inferred from Plaintiffs
statements that Pacific Choices Eureka facility has been in operation since the 1940s, and that
Sea Princess and Pacific Fishings other LLCs have quota share, which was only distributed to
those with a certain history in the fishery. Compl. 15-17.
3

MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
11

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 21 of 35

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

Magnuson Acts 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

4
5

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

9
or recreational fishing. 16 U.S.C. 1855(f)(2).
10
11

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

12

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

13

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

14

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

15
16

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

17

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

18

21. It does not fit within the example given in the Magnuson Acts definition of action

19

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

20

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

21
22

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

23

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

24

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

25

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

26

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

27
28

modified to November 30, 2015). The 2015 rulemaking here is not an action that applies any
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
12

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

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

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 Circuits repeated instruction that the Magnuson

4
5

Acts 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

8
9

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

10
11

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

12

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

13

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

14

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

15
16

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

17
18
19
20
21
22
23
24
25
26
27
28

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 plan
amendment which retained state quota system was in actuality an untimely challenge seeking
to overturn state quota system established four years previously), affd, 204 F.3d 413 (2nd Cir.
2000); Tex. Shrimp Ass'n v. Daley, 4:00CV20RH, 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 Acts 30-day limit).
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).
5

MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
13

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 23 of 35

substantive reconsideration of the [existing] rule. P & V Enters. v. U.S. Army Corps of Engrs,

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)

4
5

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

9
actually at issue, goad an agency into a reply, and then sue on the grounds that the agency had re10
11
12
13
14

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

15
16

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

17

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

18

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

19

divest before the deadline.). Pursuant to the Councils limited recommendations, NMFS

20

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

21
22

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

23

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

24

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

25

control rule, or the divestiture deadline.

26

The agencys responses to the two comment letters received also demonstrate that NMFS

27
28

was not reopening the earlier provisions. A commenter asked NMFS to reconsider proportional
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
14

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 24 of 35

revocation as well as the proportional reallocation of any revoked quota share; NMFS responded

that each issue was approved and implemented under Amendment 20 and is beyond the scope

of this rulemaking. 80 Fed. Reg. at 69,139; id. at 69,140. Similarly, a commenter asserted that

4
5

the aggregate control limit be re-evaluated, with NMFS responding that the aggregate control

limit was approved by NMFS in 2010 and is beyond the scope of this rulemaking, which

addresses final implementation aspects of the control limits.6 Id. at 69,140. There is no

indication that NMFS undertook a serious and substantive reconsideration of the Program when

9
the minor procedural modifications were proposed and adopted in 2015. Therefore, the
10
11

reopening doctrine would not permit Claims One through Five to proceed.

12

B.

13

Plaintiffs may argue that their Fifth Claim, alleging that NMFS failed to comply with the

14

The Magnuson Act Limitation Applies Equally to Plaintiffs NEPA Claim.

requirements of NEPA, is brought pursuant to the APA and therefore not subject to the 30-day

15
16

statute of limitations set forth in the Magnuson Act. Such an argument is plainly contrary to the

17

Ninth Circuits prior resolution of the issue. In Turtle Island, the plaintiffs filed an August 2004

18

complaint alleging NEPA claims, among others, targeting NMFSs March 2004 regulations re-

19

opening the Hawaii long-line fishery. The district court dismissed the case for a failure to

20

comply with the Magnuson Acts 30-day judicial review provision, rejecting the plaintiffs

21
22
23

argument that the general six-year statute of limitations set forth in 28 U.S.C. 2401(a) applied
instead. 438 F.3d at 943.

24
25

The Ninth Circuit affirmed the district court based on the rationale that the Magnuson
Acts 30-day time limit applies to any challenge to regulations promulgated under the Act,

26
27
Notably, [n]o comments specific to the aggregate control limit of 2.7% were submitted to
NMFS during the 2010 rulemaking process. 80 Fed. Reg. at 69,140.
6

28

MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
15

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 25 of 35

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

4
5

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

9
found that plaintiff is really trying to attack and undo the regulations implementing the Fishery
10
11

Management Plan amendment. Id.

12

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

13

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

14

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

15
16

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

17

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

18

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

19

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

20

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

21
22

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

23

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

24

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

25

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

26

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

27
28

of 2.7% as the aggregate limit and the resulting effects of that decision. Id. 69-74. Finally, the
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
16

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 26 of 35

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

4
5

Acts 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 Courts

9
determination that this claim is barred by the Magnuson Acts 30-day statute of limitations.
10
11
12
13
14

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,

15
16

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

17

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

18

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

19

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

20

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

21
22

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

23

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

24

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

25

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

26

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

27
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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
17

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 27 of 35

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

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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

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

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

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

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

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

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

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

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

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Additionally, the Ninth Circuit has repeatedly held that the Magnuson Acts extensive public

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

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

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the proposed FMP amendments, application of the MSA's thirty-day statute of limitations to
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
18

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 28 of 35

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.

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

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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

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implementation of the [IFQ] program. 16 U.S.C. 1853a(c)(1)(G). Thus, Congress made a
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policy judgment that implementation issues should be addressed by the Council through the five-

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

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

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

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

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

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II.

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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

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

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

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A.

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

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

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

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

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
19

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 29 of 35

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

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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

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

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

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

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

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proportion to the amount of quota share percentage from each permits contributions to the total

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

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

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

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

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

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

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
20

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 30 of 35

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

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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

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their shares. Indeed, Plaintiffs specifically allege that Sea Princess voluntarily divested quota
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shares prior to the November 30, 2015 deadline, id. 16, meaning that the proportional reduction

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

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

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

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

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

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

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

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

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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 extent
Plaintiffs 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).
7

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
21

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 31 of 35

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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.

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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

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2015 Rule violate various aspects of the Magnuson Act. Compl. 77-80. However, the quota
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share limits, the revocation of excess quota share, and redistribution of those revoked shares to

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

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

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

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

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

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

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

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

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

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

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

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

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

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fail to allege any facts that would support a claim that supplementation was required pursuant to
MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
22

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 32 of 35

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

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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.

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519, 553 (1978). A failure to do so forfeits the ability to raise the claim for judicial review. Dep't
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of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65 (2004); Havasupai Tribe v. Robertson, 943 F.2d

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

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

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

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be granted.

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

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

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

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

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

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

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

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

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

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
23

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 33 of 35

Council, not any aspect of NMFSs 2015 regulation.8 As the D.C. Circuit recently reaffirmed, an

intermediate decision by the Council to not move forward with a proposal is not judicially

reviewable under either the Magnuson Act or APA Section 706(1). Anglers Conservation

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Network v. Pritzker, --- F.3d ---, 2016 WL 43602, at *3-6 (D.C. Cir. Jan. 5, 2016).

The fourth theory is that the 2015 regulation violates the Magnuson Act because either

the Council or NMFS failed to consider an auction system for revoked quota share, instead of

proportional redistribution. Compl. 84. However, the proportional redistribution of revoked

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excess quota share was established in the original 2010 regulations, 75 Fed. Reg. at 60,955, and
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recasting this issue as a failure to reconsider the issue in the 2015 rulemaking is another

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attempt to avoid the fact that Plaintiffs challenge is time-barred under the Magnuson Acts 30-

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day limit. As NMFS correctly recognized, changing the redistribution of revoked quota share to

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an auction process is outside of the scope of this rulemaking. This is an administrative rule to

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add to existing procedures for the revocation and redistribution of excess quota share after the

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divestiture deadline. 80 Fed. Reg. at 69,140. Furthermore, the auction alternative was

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apparently never even raised to the Council during the 2015 rulemaking process. Id. (While

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NMFS agrees that an auction for revocation and redistribution of quota share or IBQ in 2016 or

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beyond may be worthy of consideration, this proposal needs to make its way through the Council

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process. The commenter can choose to participate in the 5-year review to pursue this issue.).

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See 80 Fed. Reg. at 53,092-93 (NMFS raised issue to Council in April 2015 that permit owners
might need to divest of one or more of the other non-widow species to get under the aggregate
limit by the deadline, and the Council moved to continue to include widow rockfish in the
aggregate calculation); 80 Fed. Reg. at 69,140 (issue was presented to the Council for
consideration in November 2014 and April 2015 and after much discussion, the Council did not
modify its original decision and the divestiture requirement and deadline remain in place).

MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
24

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 34 of 35

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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

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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.

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None of the five bases for challenging the 2015 regulatory revision assert a viable legal
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claim and therefore Claim Six should be dismissed for failure to state a claim upon which relief
can be granted.

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

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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 Division
United States Department of Justice
SETH M. BARSKY, Section Chief
Wildlife and Marine Resources Section
KRISTEN GUSTAFSON, Assistant Section Chief
/s/ Bridget Kennedy McNeil
BRIDGET KENNEDY McNEIL, CO Bar # 34299
Senior Trial Attorney
999 18th St., Suite 370
Denver, CO 80202
(303) 844-1484
(303) 844-1350 (fax)
Bridget.McNeil@usdoj.gov

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Attorneys for Federal Defendant

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG

25

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202

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

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CERTIFICATE OF SERVICE

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I hereby certify that on February 1, 2016, I served the foregoing electronically via the
CM/ECF system on the following counsel:

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Edward C. Duckers
ed.duckers@stoel.com

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Jeffrey W. Leppo
jeffrey.leppo@stoel.com

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Ryan P. Steen
ryan.steen@stoel.com

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/s/ Bridget Kennedy McNeil

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MOTION TO DISMISS
CASE NO. 3:15-cv-05572-HSG
26

U.S. DEPT OF JUSTICE


Envt & Nat. Res. Division
Wildlife & Marine Resources Section
Denver, CO 80202