United States District Court, N.D. California
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 ...