Pacific Choice Seafood Co. v. Pritzker

          ORDER DENYING DEFENDANTS’ MOTION TO DISMISS RE: DKT. NO. 22

          HAYWOOD S. GILLIAM, JR. United States District Judge

         Pending before the Court is a motion to dismiss Plaintiffs’ first amended complaint brought by Federal Defendants Penny Pritzker, in her official capacity as United States Secretary of Commerce, and the National Marine Fisheries Service. Dkt. No. 22 (“MTD”). For the reasons articulated below, the motion to dismiss is DENIED.

         I. BACKGROUND

         A. Regulatory Background

         The Magnuson-Stevens Fishery Conservation and Management Act (the “Magnuson Act”) was established in part “to take immediate action to conserve and manage the fishery resources found off the coasts of the United States.” 16 U.S.C. § 1801(b)(1).^[1] The Magnuson Act establishes eight Regional Fishery Management Councils that are each responsible for preparing a proposed fishery management plan (“FMP”) and related amendments directed at the conservation and management of the fishery’s resources. 16 U.S.C. § 1852(a), (h).

         Each Council proposes FMPs, FMP amendments, and implementing regulations to the National Marine Fisheries Service (“NMFS”) for review and approval. Dkt. No. 14 (“FAC”) ¶¶ 24-25. Upon receipt of a proposal, NMFS reviews the proposal to determine if it is consistent with national standards and applicable law, publishes the proposal, and requests public comment. 16 U.S.C. § 1854(1). After the public comment period, NMFS may approve, disapprove, or partially approve a proposed FMP, amendment, or regulation. 16 U.S.C. § 1854(2).

         NMFS may approve a limited access privilege program (“LAPP”) to achieve optimum yield for any fishery. 16 U.S.C. § 1853(b)(6); 16 U.S.C. § 1853a. LAPPs must promote “fishing safety, ” “fishery conservation and management, ” and “social and economic benefits.” 16 U.S.C. § 1853a. They also must “establish procedures to ensure fair and equitable initial allocations” of fish harvests and “ensure that limited access privilege holders do not acquire an excessive share of the total limited access privileges in the program.” Id.

         B. Factual Background

         In this action, Plaintiffs Pacific Choice Seafood Company, Sea Princess, LLC, and Pacific Fishing, LLC “challenge decisions of [NMFS] that establish and implement an individual transferable quota program (the ‘IFQ Program’) for the Pacific Coast shorebased groundfish limited-entry trawl fishery.” FAC ¶¶ 5, 30-32.

         In 2010, NMFS partially approved Amendments 20 and 21 to the Pacific Fishery Management Council’s FMP (the “Pacific FMP”) and published the associated implementing regulations. Id. ¶ 33. At that time, the IFQ Program established four regulatory components at issue in the current action: (1) a 2.7% aggregate limit on the amount of total quota share (“QS”) of all non-whiting species fished in the Pacific Fishery that a person or entity may own or “control”; (2) a control rule that defines “control” as “the ability through any means whatsoever to control or have a controlling influence” over QS; (3) a divestiture rule that required any participant whose ownership or control of QS exceeded the 2.7% limit to divest his excess share by November 30, 2015; and (4) a revocation provision providing that excess QS not divested by the November 30, 2015, deadline would be automatically revoked by NMFS (together, the “2010 Regulations”). Id. ¶ 5; Dkt. No. 32 (“Opp’n”) at 4-5. On September 2, 2015, NMFS published an additional proposed rule that set out specific divestiture-related deadlines, created a process for revocation of QS, added an option for the abandonment of QS, established that excess QS would be proportionally revoked across fish species and permits, and reaffirmed that revoked QS would be proportionally distributed among the Pacific Fishery participants. FAC ¶ 34 (citing 80 Fed. Reg. 53, 088 (September 2, 2015) (to be codified at 50 CFR pt. 660)). On November 9, 2015, after the required public comment period, NMFS issued the proposed rule as a final rule (the “November 2015 Rule”). Opp’n at 7; FAC ¶ 34; 80 Fed. Reg. 53, 088 (September 2, 2015) (to be codified at 50 CFR pt. 660); 80 Fed. Reg. 69, 138 (November 9, 2015) (codified at 50 CFR pt. 660). The November 2015 Rule applied the IFQ Program’s revocation provisions beyond the November 30, 2015, deadline into the future. FAC ¶ 34 (citing 80 Fed. Reg. 53, 088 (September 2, 2015) (to be codified at 50 CFR pt. 660)); 80 Fed. Reg. 69, 138 (November 9, 2015) (codified at 50 CFR pt. 660); Opp’n at 7-8.^[2]

         Plaintiffs filed their complaint within 30 days of the November 2015 Rule and articulate six claims for relief that can be summarized as follows: Claims one through four allege that substantive provisions of the IFQ Program established under the 2010 Regulations violate the Administrative Procedures Act (“APA”) and the Magnuson Act. Claim five alleges that aspects of the 2010 Regulations violate the APA and the National Environmental Policy Act (“NEPA”). Finally, claim six asserts that the November 2015 Rule violates the APA, NEPA, and the Magnuson Act. See Id. ¶¶ 43-86.

         II. DISCUSSION

         Defendants move to dismiss claims one through five as time-barred by the Magnuson Act’s 30-day judicial review provision. See MTD at 10-11. Defendants further assert that claim six should be dismissed because (1) Plaintiffs lack Article III standing to challenge the November 2015 Rule and (2) Plaintiffs fail to state a claim upon which relief can be granted. Id. at 10, 19-25.

         A. Rule 12(b)(1) Legal Standard

         Rule 12(b)(1) allows a defendant to move for dismissal on grounds that a court lacks jurisdiction over the subject matter of an action. Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of establishing a court’s subject matter jurisdiction. See Assoc. of Am. Medical Colleges v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376-78 (1994).

         “A complaint will be dismissed if, looking at the complaint as a whole, it appears to lack federal jurisdiction either ‘facially’ or ‘factually.’” Thornhill Publishing Co., Inc. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). In resolving a “facial” attack, a court limits its inquiry to a plaintiff’s allegations, which are taken as true, and construes the allegations in the light most favorable to the ...