Federal Motion To Dismiss Pacific Choice Case

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
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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
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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

A.
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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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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TABLE OF AUTHORITIES
Alliance Against IFOs v. Brown,

84 F.3d 343 (9th Cir. 1996) ....................................................................................................... 2
3
4
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
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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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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

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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) .............................................................................................................. 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

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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, 24
80 Fed. Reg. 69,141 ............................................................................................................ 8, 19, 23
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MOTION TO DISMISS
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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.

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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,
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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
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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
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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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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
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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
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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
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number of fishing privileges within each sector, including the individual fishing quota program
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for the shorebased trawl sector at issue in this litigation. PCFFA, 693 F.3d at 1089-90. Besides
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limiting Pacific halibut bycatch, Amendment 21 does various things to support Amendment 20,
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the most important of which is to fix allocations of 19 groundfish stocks among the various trawl
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and non-trawl sectors. Id. at 1090. For other species, the Pacific Council will continue to assign
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allocations every two years. Id. The amendments also limit the amount of quota share that a
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person, individually or collectively, may own or control. 75 Fed. Reg. 32,994, 33,004 (June 10,
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2010). There are individual control limits for 30 species, as well as an aggregate non-whiting
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control limit across species. Id. The regulations implementing Amendments 20 and 21 became
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effective on January 1, 2011. See 75 Fed. Reg. at 60,868; 75 Fed. Reg. at 78,344 (codified at 50
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C.F.R. pt. 660).

C.
Previous Legal Challenges
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Shortly after the first set of implementing regulations were published in October 2010, a
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group of non-trawl fishing interests challenged Amendments 20 and 21 in the Northern District
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of California. The lawsuit presented claims pursuant to the Magnuson Act and NEPA, centering
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primarily on the allocation of quota shares. In August 2011, the district court upheld the
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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.
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Simultaneously, a separate group of plaintiffs filed another lawsuit in the Northern
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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
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recent fishing history after the control date. Pac. Dawn, LLC. v. Bryson, No. 3:10-cv-4829-TEH,
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2011 WL 6748501, at *8 (N.D. Cal. Dec. 22, 2011). The Court remanded the regulations for
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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
7

Denver, CO 80202
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
8

Denver, CO 80202
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
9

Denver, CO 80202
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
10

Denver, CO 80202
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
11

Denver, CO 80202
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
12

Denver, CO 80202
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
13

Denver, CO 80202
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
14

Denver, CO 80202
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
15

Denver, CO 80202
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
16

Denver, CO 80202
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
28
MOTION TO DISMISS
17

Denver, CO 80202
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
4
5
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
9
effect. 16 U.S.C. 1854(a)(3). The Secretary's review of regulations proposed by a council is
10
11
12
13
14
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
15
16
regulations are reviewed and can be implemented without delay. Allowing plaintiffs to raise
17
challenges such as the ones set forth in Claims One through Five would render the MSA's 30-day
18
statute of limitations meaningless and undermine congressional intent as expressed by the
19
limitations on judicial review in section 1855(f). Oceana, 940 F. Supp. 2d at 1048. This is
20
especially true in this case where the regulations have been in effect for five years, requiring
21
22
fishery participants to drastically alter their fishing and business practices accordingly, and these
23
same Amendments have been litigated and upheld by both this Court and the Ninth Circuit.
24
Additionally, the Ninth Circuit has repeatedly held that the Magnuson Acts extensive public
25
participation process counsels in favor of strictly construing the 30-day time limit. Turtle Island,
26
438 F.3d at 947-948; Sea Hawk Seafoods, 568 F.3d at 766 (given the four-year public process of
27
28
the proposed FMP amendments, application of the MSA's thirty-day statute of limitations to
MOTION TO DISMISS
18

Denver, CO 80202
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.
4
Nor does dismissal of Claims One through Five leave Plaintiffs without a remedy for
5
6
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
9
implementation of the [IFQ] program. 16 U.S.C. 1853a(c)(1)(G). Thus, Congress made a
10
11
policy judgment that implementation issues should be addressed by the Council through the five-
12
year review, and not through untimely litigation. The Council and NMFS have commenced this
13
review process and Plaintiffs may submit comments and suggestions for consideration and
14
discussion at the June 2016 Council meeting. 80 Fed. Reg. at 69,141. Because Plaintiffs have
15
16
other avenues for seeking judicial review and their claims are time-barred by the 30-day
17
limitation period, the Court should grant the motion to dismiss Claims One through Five.
18
II.
19
20
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
21
with that regulatory revision. However, Plaintiffs lack standing to maintain such a challenge and
22
fail to state a claim upon which relief can be granted.
23
A.
Plaintiffs Fail to Show an Injury Traceable to the 2015 Regulatory Revision.
24
25
A plaintiff must demonstrate standing for each claim he or she seeks to press and for each
26
form of relief sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). For Article III
27
standing, a plaintiff must satisfy three irreducible constitutional minimum requirements: (1) he
28
MOTION TO DISMISS
19

Denver, CO 80202
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
4
5
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
9
Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1228 n.5 (9th Cir. 2008) (citation
10
11
12
13
14
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.
15
16
80 Fed. Reg. at 69,138. The revision implemented two main clarifications to the previously
17
established Program. First, for permittees who exceed control limits across several species and
18
fail to voluntarily divest these shares by the deadline, NMFS would revoke quota share in
19
proportion to the amount of quota share percentage from each permits contributions to the total
20
quota share percentage owned. 80 Fed. Reg. at 53,089. Similarly, for permittees who exceed the
21
22
aggregate limit and fail to voluntarily divest these shares by the deadline, NMFS would revoke
23
quota share at the species level in proportion to the amount of the aggregate overage divided by
24
the aggregate total owned. Id. Second, NMFS added a process by which permittees who are over
25
the aggregate limit may abandon shares of their own choosing to NMFS by November 15, 2015,
26
providing additional flexibility instead of NMFS proportionally revoking some of each species
27
28
MOTION TO DISMISS
20

Denver, CO 80202
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
4
5
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
9
their shares. Indeed, Plaintiffs specifically allege that Sea Princess voluntarily divested quota
10
11
shares prior to the November 30, 2015 deadline, id. 16, meaning that the proportional reduction
12
methodology could not apply to it, as the methodology applies only to those who did not divest
13
their excess shares by the deadline. Nor do Plaintiffs allege that they have any expectation of
14
being affected by the proportional reduction methodology or the abandonment procedures in the
15
16
future. Nowhere in Plaintiffs complaint do they allege an injury traceable to the 2015 regulatory
17
revision or that the requested vacatur of that action would redress their injuries. Instead, it is
18
clear that the attack against the 2015 regulatory revisions is simply another method by which to
19
challenge Amendments 20 and 21 and their implementing regulations established in 2010
20
challenges that are time-barred, as set forth above.
21
22
23
24
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
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Denver, CO 80202
1
2
3
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.
4
5
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
9
2015 Rule violate various aspects of the Magnuson Act. Compl. 77-80. However, the quota
10
11
share limits, the revocation of excess quota share, and redistribution of those revoked shares to
12
other quota share owners in proportion to their quota share holdings were all established in the
13
October 1, 2010 regulations. See 75 Fed. Reg. at 60,955. As discussed above, a comment on the
14
proposed 2015 revision requested NMFS to reconsider the revocation aspect of the Program,
15
16
but NMFS correctly noted that the revocation requirement was approved and implemented in
17
2010 and beyond the scope of the 2015 rulemaking. 80 Fed. Reg. at 69,139. This aspect of Claim
18
Six merely seeks to re-package Plaintiffs time-barred challenges to the 2010 regulations as a
19
challenge to the 2015 regulatory revision. Once those improper elements are excised, Plaintiffs
20
fail to state a claim with respect to a provision of the 2015 regulatory revision itself.
21
22
The second theory is that the 2015 regulatory revision fails to comply with NEPA.
23
Compl. 81. The proposed rule indicated that NMFS was relying on the NEPA analysis
24
performed for Amendment 20, 80 Fed. Reg. at 53,089, to which a direct challenge is time-barred,
25
as discussed above. To the extent that Plaintiffs believe some aspect of the 2015 minor
26
procedural modifications required NMFS to perform a supplemental NEPA analysis, Plaintiffs
27
28
fail to allege any facts that would support a claim that supplementation was required pursuant to
MOTION TO DISMISS
22

Denver, CO 80202
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
4
5
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.
9
519, 553 (1978). A failure to do so forfeits the ability to raise the claim for judicial review. Dep't
10
11
of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65 (2004); Havasupai Tribe v. Robertson, 943 F.2d
12
32, 34 (9th Cir. 1991). Because Plaintiffs fail to allege facts supporting a claim that supplemental
13
NEPA analysis is required and waived the right to assert a NEPA violation in connection with
14
the 2015 regulatory revision, this aspect of Claim Six fails to state a claim upon which relief can
15
16
be granted.
17
The third theory advanced is that NMFS arbitrarily refused to delay the divestiture
18
deadline until after reallocation of the widow rockfish quota share. Compl. 82-83. There are at
19
least two problems with this theory. First, the decision to uncouple the November 30, 2015
20
divestiture deadline from the reallocation of widow rockfish quota share was proposed in
21
22
January 2013 and finalized in March 2013. See 78 Fed. Reg. 72, 78 (Jan. 2, 2013); 78 Fed. Reg.
23
18,879. Nothing in the 2015 regulations affected or impacted that earlier decision. To the extent
24
that Plaintiffs are simply seeking to recast a time-barred challenge to the 2013 regulations, the
25
Court should not indulge such an attempt. Second, to the extent that this third theory challenges
26
a refusal to revisit this earlier discussion, Plaintiffs challenge an unreviewable decision of the
27
28
MOTION TO DISMISS
23

Denver, CO 80202
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
4
5
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
9
excess quota share was established in the original 2010 regulations, 75 Fed. Reg. at 60,955, and
10
11
recasting this issue as a failure to reconsider the issue in the 2015 rulemaking is another
12
attempt to avoid the fact that Plaintiffs challenge is time-barred under the Magnuson Acts 30-
13
day limit. As NMFS correctly recognized, changing the redistribution of revoked quota share to
14
an auction process is outside of the scope of this rulemaking. This is an administrative rule to
15
16
add to existing procedures for the revocation and redistribution of excess quota share after the
17
divestiture deadline. 80 Fed. Reg. at 69,140. Furthermore, the auction alternative was
18
apparently never even raised to the Council during the 2015 rulemaking process. Id. (While
19
NMFS agrees that an auction for revocation and redistribution of quota share or IBQ in 2016 or
20
beyond may be worthy of consideration, this proposal needs to make its way through the Council
21
22
process. The commenter can choose to participate in the 5-year review to pursue this issue.).
23
24
25
26
27
28
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
24

Denver, CO 80202
1
2
3
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
4
5
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.
9
None of the five bases for challenging the 2015 regulatory revision assert a viable legal
10
11
12
claim and therefore Claim Six should be dismissed for failure to state a claim upon which relief
can be granted.
13
14
CONCLUSION
For the reasons set forth above, NMFS respectfully requests this Court to grant the motion
15
16
17
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
28
MOTION TO DISMISS
25

Denver, CO 80202
1
CERTIFICATE OF SERVICE
2
3
4
I hereby certify that on February 1, 2016, I served the foregoing electronically via the
CM/ECF system on the following counsel:
5
6
Edward C. Duckers
ed.duckers@stoel.com
7
8
Jeffrey W. Leppo
jeffrey.leppo@stoel.com
9
10
Ryan P. Steen
ryan.steen@stoel.com
11
/s/ Bridget Kennedy McNeil
12
13
14
15
16
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25
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MOTION TO DISMISS
26

Denver, CO 80202

Federal Motion To Dismiss Pacific Choice Case

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Federal Motion To Dismiss Pacific Choice Case

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

UNITED STATES DISTRICT COURT

PACIFIC CHOICE SEAFOOD

PENNY PRITZKER, U.S. SECRETARY

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

FEDERAL DEFENDANTS NOTICE OF

U.S. DEPT OF JUSTICE

Case 3:15-cv-05572-HSG Document 22 Filed 02/01/16 Page 2 of 35

NOTICE OF MOTION AND MOTION TO DISMISS

the hearing on this motion.

U.S. DEPT OF JUSTICE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Magnuson Act Limitation Applies Equally to Plaintiffs

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

U.S. DEPT OF JUSTICE

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

Claim Six Should Be Dismissed For Lack Of Standing Or Failure

Plaintiffs Fail to Show an Injury Traceable to the 2015 Regulatory

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

U.S. DEPT OF JUSTICE

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

Alliance Against IFOs v. Brown,

Am. Iron & Steel Inst. v. EPA,

Anglers Conservation Network v. Pritzker,

DaimlerChrysler Corp. v. Cuno,

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

U.S. DEPT OF JUSTICE

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

Marsh v. Or. Nat. Res. Council,

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

Norbird Fisheries v. NMFS,

Pac. Coast Fed'n of Fishermen's Ass'ns v. Locke,

U.S. DEPT OF JUSTICE

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

Pac. Dawn, LLC v. Pritzker,

Pub. Citizen v. Nuclear Regulatory Comm'n,

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

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

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

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

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

U.S. DEPT OF JUSTICE

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. 1851(a)(1)(A) .............................................................................................................. 2