Flaherty v. Pritzker
17 F. Supp. 3d 52
D.D.C.2014Background
- Plaintiffs challenge Amendment 4 to the Atlantic Herring FMP under the MSA, APA, and NEPA.
- The Court previously remanded for agency action and issued a Remedial Order with specific steps to cure procedural deficiencies.
- Defendants issued memoranda and letters and conducted NEPA analyses as part of remedies for the identified failures.
- Plaintiffs moved to enforce the Remedial Order; after briefing and a hearing, the Motion to Enforce is ripe for decision.
- The Court finds Defendants have complied with the Remedial Order and denies enforcement of the remedial mandate.
- The court notes Amendment 4 remains in effect; vacatur is denied as moot, and supplemental challenges may proceed on other grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Defendants comply with the Remedial Order? | Flaherty asserts Defendants failed to address MSA, NEPA, and bycatch requirements on remand. | Defendants argue they addressed each Remedial Order item, including river herring considerations, alternatives, and bycatch analysis. | Yes; Defendants complied with the Remedial Order. |
| Whether river herring should be added as a stock and considered under the FMP. | Plaintiffs contend the agency failed to meaningfully consider river herring as a stock. | Defendants provided an explanation and sent a letter recommending consideration of river herring as a stock. | Complied; explanation and letters satisfied the remedy. |
| Whether a reasonable range of alternatives to the ABC rule was considered in NEPA. | Plaintiffs argue the agency did not consider reasonable alternatives based on best available science. | Council considered alternatives in the NEPA analysis and Defendants attached that analysis to the Remedial Report. | Complied; alternatives were considered. |
| Whether measures to minimize bycatch to the extent practicable were taken. | Plaintiffs claim Defendants failed to address bycatch minimization substantively. | Defendants filed a lengthy memorandum concluding minimization was achieved to the extent practicable. | Complied; bycatch minimization analysis completed. |
| Should Amendment 4 be vacated for procedural deficiencies? | Plaintiffs imply vacatur may be warranted for identified procedural flaws. | Because the violations were procedural and remedied, vacatur is unwarranted. | No vacatur; Amendment 4 remains in effect. |
Key Cases Cited
- The Fund for Animals v. Norton, 390 F. Supp. 2d 12 (D.D.C. 2005) (district courts may enforce their mandates)
- Int'l Ladies' Garment Workers' Union v. Donovan, 733 F.2d 920 (D.C. Cir. 1984) (remanded agency action; agency explanation on remand is permissible)
- Thompson, 328 F. Supp. 2d 8 (D.D.C. 2004) (remand rather than specific remedies; consider alternatives)
- Leavitt, 415 F.3d 24 (D.C. Cir. 2005) (agency actions reviewable; remedies may be limited to procedural compliance)
- Allied-Signal, Inc. v. Nuclear Regulatory Comm'n, 988 F.2d 146 (D.C. Cir. 1993) (factors for vacatur: deficiencies and disruptive consequences)
- Cty. of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999) (district court should remand for examination; avoid devising specific remedies)