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Fish Conservation Lawsuit Fails at DC Circuit

By Jonathan R. Tung, Esq. on January 13, 2016 | Last updated on March 21, 2019

In a suit brought before the DC Circuit, plaintiffs claimed that federal agencies acted unlawfully by neglecting to manage various stocks of ocean fish in the Atlantic. The circuit decided to affirm the decision of a lower district court, finding, essentially, that the plaintiffs were blaming the wrong people for their woes.

But even if the plaintiffs had chosen the proper target for their suit, the plaintiffs would still be out of luck, because the law essentially stipulates that a "final agency action" has very particular requirements. Sometimes, you're just not destined to win in court.

Won't Somebody Please Think of the Animals!

The plaintiffs were made up a hodgepodge of environmental groups as well as groups dedicated to the promotion of fishing. The plaintiffs sued Secretary of Commerce Penny Pritzker, the NOAA, and the National Maritime Fisheries Service for a 2013 decision by the Mid-Atlantic Fishery Management Council (MAFMC) to table a decision to add several more types of animals to the list of protected animals under 1983 law.

The fishes in question were a bevy of special fishes: alewife, herring, shad, and handful of others. All of the fishes listed were critical for the local ecosystem where eagles and other animals preyed. But instead of adding the fish to the list, the Council decided to table its decision until further study could be conducted. As a result, plaintiffs contend, fewer herring and shad were available to support the ecosystem.

That's Just Too Bad

At the district level, the court dismissed under a theory similar to subject matter jurisdiction. Plaintiffs relied on the construction of the Magnuson-Stevens Act, the very same law that birthed the MAFMC. The Circuit affirmed the lower court's decision. Here's why.

In plain words, the defendants had no business to "act as a backdrop" to the council when it made its 2013 decision not to add herring to the protected list. The court ruled that it was not the secretary or the Fisheries Service that made the decision, but a defendant not named in the suit.

Theories Under the APA

Other theories were also less than availing. Even if the defendants had been considered some sub-division of the Fisheries Service, recommendations of a subordinate are not considered a "final agency action" for the purposes of the APA, the procedural act on which the plaintiffs rested their alternative theory.

EarthJustice: "Because the Earth Needs a Good Lawyer"

The circuit's decision was obviously not taken well by some advocates of the environment. Roger Fleming, speaking for EarthJustice, opined that the circuit's ruling pretty much only continued a trend in which the the National Oceanic and Atmospheric Administration simply dismissed the core provisions of key federal fisheries laws. Paraphrasing his words, "this can't be what congress intended."

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