Anglers Conservation Network v. Penny Pritzker
420 U.S. App. D.C. 418
| D.C. Cir. | 2016Background
- Plaintiffs (two conservation/fishing organizations and two individuals) sued Commerce Secretary, NOAA, and NMFS claiming failure to manage Atlantic river herring and shad by not adding them to the Mid-Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan via Amendment 15.
- The Mid-Atlantic Fishery Management Council developed Amendment 15 but, in October 2013, voted 10–9 to postpone proposing it and formed a working group to study the stocks further for three years; NMFS/Fisheries Service has taken no regulatory action to add the species.
- Plaintiffs invoked the Magnuson‑Stevens Fishery Conservation and Management Act and the APA, seeking review/relief for the Council’s decision not to propose Amendment 15 (and alleging agency inaction).
- The district court dismissed for lack of judicially reviewable action by the Secretary/NMFS; plaintiffs appealed.
- The D.C. Circuit affirmed: the Council’s vote was not a Secretary/NMFS action subject to Magnuson‑Stevens review, Council recommendations are not final agency action under the APA, and the statutory provisions relied on do not impose a mandatory duty giving rise to relief under APA § 706(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Council’s decision to postpone Amendment 15 is reviewable under Magnuson‑Stevens §1855(f) | The Council’s inaction is effectively an "action under the regulations" because NMFS must backstop Councils; §1855(f) allows review of actions implementing a FMP | The only action was by the regional Council (not the Secretary/NMFS); §1855(f) covers Secretary/NMFS actions, not Council decisions | Not reviewable under §1855(f); Council decision is not an action "taken by the Secretary" |
| Whether the Council’s vote can be attributed to NMFS/Secretary because the regional administrator voted against Amendment 15 | Council’s vote reflects NMFS influence; thus NMFS action is present | Even if NMFS officials participated, the Council—not the Secretary—made the decision; NMFS took no final action | Attribution fails; NMFS took no action subject to Magnuson‑Stevens review |
| Whether the Council decision is "final agency action" under APA §704/§706(2) | The Council’s decision is final enough to affect plaintiffs and thus reviewable under the APA | Council recommendations are subordinate/intermediate, not final agency action; the Council is not a federal agency defendant | Not final agency action; recommendations/subordinate steps not judicially reviewable |
| Whether NMFS has a nondiscretionary duty to act (entitling plaintiffs to compel action under APA §706(1)) | Statutory scheme (including §1854(c) and amendments/deadlines) creates a duty to prepare plans when Councils fail; plaintiffs seek a writ compelling NMFS to add species | §1854(c) uses "may"—discretionary authority, not a mandatory command; no discrete ministerial duty exists absent an overfished determination under §1854(e) | §706(1) relief unavailable — no specific, unequivocal statutory command; §1854(c) is permissive, not mandatory |
Key Cases Cited
- United States v. Maine, 469 U.S. 504 (statutory allocation of coastal fisheries jurisdiction)
- C & W Fish Co., Inc. v. Fox, 931 F.2d 1556 (D.C. Cir.) (regional council composition and authority)
- Gen. Category Scallop Fishermen v. Sec’y, U.S. Dep’t of Commerce, 635 F.3d 106 (3d Cir.) (regional councils lack rulemaking authority)
- Franklin v. Massachusetts, 505 U.S. 788 (intermediate recommendations are not final agency action)
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (APA §706(1) relief limited to discrete, nondiscretionary duties)
- Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97 (party‑joinder and jurisdiction principles)
- Lopez v. Davis, 531 U.S. 230 (canons on shall/may statutory interpretation)
- Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir.) (statutory interpretation of discretionary vs. mandatory duties)