United Boatmen of New York, Inc. et al. v., No. 09-1594 (2d Cir. 2010)

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09-1594-cv United Boatmen of New York, Inc. et al. v. Atlantic States Marine Fisheries Commission 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: March 9, 2010 Decided: June 29, 2010) Docket No. 09-1594-cv STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and ALEXANDER B. GRANNIS, Plaintiffs, UNITED BOATMEN OF NEW YORK, INC., NEW YORK FISHING TACKLE TRADE ASSOCIATION, INC., and FISHERMEN S CONSERVATION ASSOCIATION, Intervenor-Plaintiffs-Appellees, v. ATLANTIC STATES MARINE FISHERIES COMMISSION, Defendant-Appellant, GARY LOCKE, UNITED STATES DEPARTMENT OF COMMERCE, CONRAD C. LAUTENBACHER, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, and JAMES W. BALSIGER, Defendants. * * The Clerk of the Court is directed to amend the official caption as set forth above. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Before: LEVAL, SACK, and WESLEY, Circuit Judges. Interlocutory appeal from an order of the United States District Court for the Eastern District of New York (Sifton, J.), entered on March 9, 2009, denying the Atlantic States Marine Fisheries Commission s motion to dismiss the complaint in intervention and certifying to this Court the question of whether the Atlantic States Marine Fisheries Commission is subject to suit under the Administrative Procedure Act. We hold that the Atlantic States Marine Fisheries Commission is not a federal agency within the meaning of the Administrative Procedure Act. We further hold that, assuming its validity, the quasi-federal agency doctrine is inapplicable to the facts of this dispute. Consequently, intervenor-plaintiffs cannot maintain a cause of action against the Commission under the Administrative Procedure Act. REVERSED and REMANDED. SEAN H. DONAHUE, Donahue & Goldberg, LLP, Washington, D.C., for Appellant. SHAUN M. GEHAN, Kelley Drye & Warren LLP, Washington, D.C. (Philip L. Curcio, Melville, N.Y., on the brief), for Appellees. WESLEY, Circuit Judge: For 68 years, the Atlantic States Marine Fisheries 32 Commission ( ASMFC or the Commission ) has endeavored to 33 promote the utilization and protection of the fisheries of 34 the Atlantic seaboard. 35 congressionally approved interstate compact authorized by 36 Article I, § 10, clause 3 of the United States Constitution. The Commission is the product of a 2 1 This interlocutory appeal requires us to determine whether 2 the intervenor-plaintiffs, United Boatmen of New York, Inc., 3 New York Fishing Tackle Trade Association, Inc., and the 4 Fishermen s Conservation Association (collectively 5 intervenor-plaintiffs or United Boatmen ), may assert a 6 claim under section 702 of the Administrative Procedure Act, 7 5 U.S.C. § 702 (the APA ), to seek judicial review of the 8 Commission s decisions. 9 In essence, the premise of United Boatmen s complaint 10 in intervention is a simple one: 11 maintain that the Commission is more than a congressionally 12 authorized state cooperative agreement. 13 intervenor-plaintiffs, ASMFC is a federal agency, or at 14 least acts so much like one that we should treat it as one 15 for purposes of the APA. 16 intervenor-plaintiffs In the view of the We hold that the ASMFC is not a federal agency within 17 the meaning of the APA; it is not an authority of the 18 [g]overnment of the United States. 19 We further hold that, in this case, the quasi-federal 20 agency doctrine should not be used to expand the statutory 21 definition of an agency under the APA. 22 are not entitled, pursuant to 5 U.S.C. § 702, to seek 3 5 U.S.C. § 701(b)(1). Thus, United Boatmen 1 judicial review of the actions of the Commission. 2 therefore reverse and remand this matter to the district 3 court for further proceedings consistent with the opinion of 4 this Court. I. 5 6 We BACKGROUND This case arises from disputes over the management of 7 the summer flounder fishery off of the Atlantic coast. In 8 response to a decrease in the stock of summer flounder, also 9 known as fluke, regulatory efforts have been made to 10 conserve and restore the population. 11 Dep t of Commerce, 204 F.3d 413, 414 (2d Cir. 2000). 12 Atlantic seaboard states retain primary authority over the 13 conservation and management of fisheries within the 14 territorial sea waters within three miles of shore, as 15 well as in rivers and estuaries. 16 responsible for regulation of the exclusive economic zone 17 waters from three to 200 miles from shore. 18 §§ 1801(b)(1), 1856(a), 5102(6); see also Sea Hawk Seafoods, 19 Inc. v. Locke, 568 F.3d 757, 760 (9th Cir. 2009); United 20 Boatmen v. Gutierrez, 429 F. Supp. 2d 543, 546 (E.D.N.Y. 21 2006). 4 Connecticut v. U.S. The The federal government is See 16 U.S.C. 1 The facts and procedural history of this controversy 2 are set out in detail in the opinions of the district court. 3 See New York v. Gutierrez, No. 08 Civ. 2503 (CPS) (RLM), 4 2008 WL 5000493, at *1-4 (E.D.N.Y. Nov. 20, 2008); see also 5 New York v. Locke, No. 08 Civ. 2503 (CPS) (RLM), 2009 WL 6 2413463, at *1-2 (E.D.N.Y. Aug. 3, 2009); New York v. Locke, 7 No. 08 Civ. 2503 (CPS) (RLM), 2009 WL 1194085, at *1-7 8 (E.D.N.Y. Apr. 30, 2009); New York v. Gutierrez, 623 F. 9 Supp. 2d 301, 305-06 (E.D.N.Y. 2009). A brief review of the 10 facts and history of this case is all that is needed to 11 provide context for our decision. 12 This suit was commenced by the State of New York, the 13 Commissioner of the New York State Department of 14 Environmental Conservation, and the New York State 15 Department of Environmental Conservation (collectively New 16 York State plaintiffs ), against the Secretary of the United 17 States Department of Commerce, the United States Department 18 of Commerce, the Under Secretary of Commerce and 19 Administrator for the National Oceanic and Atmospheric 20 Administration, the National Oceanic and Atmospheric 21 Administration, and the Acting Assistant Administrator for 22 the National Marine Fisheries Service (collectively federal 5 1 defendants ). 1 2 the final management rule for the 2008 recreational summer 3 flounder fishery violates the Magnuson-Stevens Fishery 4 Conservation and Management Act, as amended in 1996 by the 5 Sustainable Fisheries Act, 16 U.S.C. § 1801 et seq. (the 6 MSA ), and the APA, 5 U.S.C. § 706(2)(A). 2 7 The New York State plaintiffs contend that Intervenor-plaintiffs in this action are private groups 1 As a result of this Court s holding, intervenorplaintiffs claims against ASMFC must be dismissed. The New York State plaintiffs suit against the federal defendants will continue in the district court. See 623 F. Supp. 2d at 316. On July 24, 2009, the New York State plaintiffs filed a complaint challenging the management measures for the 2009 summer flounder season. New York v. Locke, 09 Civ 3196 (NG) (RLM) (E.D.N.Y. July 24, 2009). In this iteration of the litigation, the New York State plaintiffs named as defendants both the federal defendants and the ASMFC. 2 On March 4, 2010 counsel for the New York State plaintiffs sent a letter to the district court arguing that [b]ecause the same issues underlying this action are recurring, . . . the expiration of the 2008 management measures has not rendered [the case] moot. Letter to the Honorable Nina Gershon by Alexander B. Grannis, New York State Department of Environmental Conservation, Grannis, et al. v. Locke, et al., 08 Civ. 2503 (E.D.N.Y. Mar. 4, 2010) (Gershon, J.) (D. Ct. Doc. No. 148). Although the 2008 management measures have expired, we agree that because (1) the challenged action [is] in its duration too short to be fully litigated prior to its . . . expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again, the controversy is not moot. Van Wie v. Pataki, 267 F.3d 109, 114 (2d Cir. 2001) (alterations in original). 6 1 who maintain that the New York State plaintiffs failed to 2 adequately represent their interests in defining the scope 3 of their suit. 4 professional trade organization that represents the for-hire 5 fishing vessel industry in New York. 6 Boatmen derive a substantial portion of their revenue from 7 sport fishing for summer flounder. 8 Tackle Trade Association, Inc. is a professional trade 9 organization that represents the wholesale and retail bait United Boatmen of New York, Inc. is a Members of United The New York Fishing 10 and tackle dealer industry in New York. 11 Conservation Association is a non-profit organization whose 12 members are individual recreational anglers who target, 13 among other species, summer flounder in state and federal 14 waters contiguous to New York State. 15 The Fishermen s In 1942, the ASMFC was created by a congressionally 16 approved interstate compact ( ASMFC Compact ). See Pub. L. 17 No. 77-539, 56 Stat. 267 (1942), as amended by Pub. L. No. 18 81-721, 64 Stat. 467 (1950); see also U.S. Const. art. I, § 19 10, cl. 3. 20 better utilization of the fisheries . . . of the Atlantic 21 seaboard through a joint program for the promotion and 22 protection of such fisheries. The purpose of the Compact is to promote the 7 ASMFC Compact, art. I. The 1 Compact specifically provides that it shall not be 2 construed to limit the powers of any signatory state or to 3 repeal or prevent the enactment of any legislation or the 4 enforcement of any requirement by any signatory state 5 imposing additional conditions and restrictions to conserve 6 its fisheries. 7 ASMFC Compact, art. IX. Each member state appoints three representatives to the 8 Commission. 3 9 that these representatives be the state s director of marine 10 fisheries, a state legislator, and a citizen with knowledge 11 relevant to the regulation of marine fisheries. 12 signatories to the ASMFC exercise joint regulatory 13 oversight of their fisheries through the development of 14 interstate fishery management plans. 15 Alliance, Inc. v. R.I. Dep t of Envtl. Mgmt., 585 F.3d 42, 16 46 (1st Cir. 2009); accord Medeiros v. Vincent, 431 F.3d 25, 17 27 (1st Cir. 2005). ASMFC Compact, art. III. The Compact requires Id. The R.I. Fishermen s From the inception of the ASMFC until 3 The ASMFC Compact was ratified by Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, Pennsylvania, and the District of Columbia. ASMFC Compact, arts. II, XII, § 2; see also R.I. Fishermen s Alliance, Inc. v. R.I. Dep t of Envtl. Mgmt., 585 F.3d 42, 46 (1st Cir. 2009). 8 1 1993, participation in the interstate fishery management 2 plans adopted by the Commission was voluntary. 3 431 F.3d at 27. 4 Medeiros, Consequently, compliance was spotty. Id. In 1993, Congress adopted the Atlantic Coastal 5 Fisheries Cooperative Management Act, 16 U.S.C. §§ 5101-5108 6 (the ACFCMA ), in order to give the ASMFC some teeth. 7 R.I. Fishermen s Alliance, 585 F.3d at 46. 8 to accomplish this goal by mandating state participation in 9 the interstate fishery management plans promulgated by the 10 Commission. 11 ACFCMA, a plan must specify the requirements necessary for 12 [s]tates to be in compliance, and the ASMFC must identify 13 each [s]tate that is required to implement and enforce that 14 plan. 15 states implementation and enforcement of coastal fishery 16 management plans and report the results of the reviews to 17 the Secretary of Commerce. 18 Id. 16 U.S.C. § 5104(a)(1). Congress sought Pursuant to the The Commission is obligated to review member Id. § 5104(c). Under the ACFCMA, the Secretary of Commerce is 19 empowered to make an independent finding regarding whether a 20 state has failed to implement management measures and, if 21 so, whether the measures that the [s]tate has failed to 22 implement and enforce are necessary for the conservation of 9 1 the fishery in question. 2 Secretary makes a determination of noncompliance with 3 respect to necessary measures, he or she shall declare a 4 moratorium on fishing in the fishery in question within the 5 waters of the noncomplying [s]tate. 6 Id. § 5106(a)(2). If the Id. § 5106(c)(1). The congressional findings accompanying the ACFCMA note 7 that [b]ecause no single governmental entity has exclusive 8 management authority for Atlantic coastal fishery resources, 9 harvesting of such resources is frequently subject to 10 disparate, inconsistent, and intermittent [s]tate and 11 [f]ederal regulation that has been detrimental to the 12 conservation and sustainable use of such resources. 13 5101(a)(3). 14 the responsibility for managing Atlantic coastal fisheries 15 rests with the [s]tates, which carry out a cooperative 16 program of fishery oversight and management through the 17 Atlantic States Marine Fisheries Commission. 18 5101(a)(4). 19 Id. § The ACFCMA explicitly affirms, however, that Id. § On July 16, 2008, United Boatmen moved to intervene in 20 the action commenced by the New York State plaintiffs and to 21 join the Commission as a defendant. 22 *5-14. See 2008 WL 5000493, at The court granted United Boatmen s motion and 10 1 decline[d] to limit the scope of [United Boatmen s] 2 intervention to the parties and issues asserted in [the New 3 York] plaintiffs complaint. 4 4 concluded that the New York State plaintiffs failure to 5 join ASMFC as a defendant constituted nonfeasance, id., 6 sufficient to rebut the presumption of adequate 7 representation present when a state brings suit in its 8 capacity as parens patriae, see, e.g., United States v. 9 Hooker Chem. & Plastics Corp., 749 F.2d 968, 984-85 (2d Cir. 10 1984); see also United States v. City of N.Y., 198 F.3d 360, 11 367 (2d Cir. 1999). 12 decision, intervenor-plaintiffs filed their complaint in Id. at *13. The court Following the district court s 4 The district court improperly concluded that the ASMFC was subject to joinder, by motion of the intervenorplaintiffs, pursuant to Federal Rule of Civil Procedure 19(a)(1)(A). Except in extraordinary cases, . . . intervenors may only join issue on a matter that has been brought before the court by another party[.] They cannot expand the proceedings. Lamprecht v. Fed. Commc n Comm n, 958 F.2d 382, 389 (D.C. Cir. 1992) (internal quotation marks and citations omitted). United Boatmen s motion should have been evaluated under Federal Rule of Civil Procedure 15(c). Nonetheless, the general rule that an intervening party may join issue only on a matter that has been brought before the court by another party is only a prudential restraint, and therefore does not impair this Court s ability to reach the questions certified for interlocutory review. Synovus Fin. Corp. v. Bd. of Governors of the Fed. Reserve Sys., 952 F.2d 426, 434 (D.C. Cir. 1991) (internal quotation marks and brackets omitted). 11 1 intervention on December 19, 2008. 2 ASMFC brought a motion to dismiss United Boatmen s 3 complaint in intervention for failure to state a claim. 4 F. Supp. 2d at 306; see also Fed. R. Civ. P. 12(b)(6). 5 support of its motion to dismiss, ASMFC pointed out that 6 neither its governing Compact 5 nor any federal statute 7 provide a private right of action to seek judicial review of 8 its regulatory decisions. 6 9 this litigation, the Commission maintained that the 10 623 In More importantly for purposes of provisions of the APA, which provide a right of action 5 By contrast, other interstate compacts do provide for judicial review. E.g., Washington Metropolitan Transit Regulation Compact, Pub. L. No. 101-505, art. XIII, § 5(a), 104 Stat. 1300, 1312 (1990); Tahoe Regional Planning Compact, Pub. L. No. 96-551, art. VI(j)(3), 94 Stat. 3233, 3247 (1980); Northeast Dairy Compact, § 16(C), S.J. Res. 28, 104th Cong. (1995). 6 The district court properly rejected the idea that United Boatmen could avail themselves of an implied right of action. Gutierrez, 2008 WL 5000493, at *9. [T]he Supreme Court has come to view the implication of private remedies in regulatory statutes with increasing disfavor. Hallwood Realty Partners, LP v. Gotham Partners, LP, 286 F.3d 613, 618 (2d Cir. 2002). An implied private right of action exists only if Congress intended to create such a right. Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001). In looking to the text and structure, id. at 288, of the ASMFC Compact and the ACFCMA, we find no exception to the ordinary rule is warranted. On appeal, United Boatmen do not seek to imply a cause of action from the ASMFC Compact or the ACFCMA. 12 1 against federal agencies, 5 U.S.C. §§ 701(b)(1), 702, do not 2 apply to action by an interstate compact entity. 7 3 The district court denied ASMFC s motion to dismiss. 4 623 F. Supp. 2d at 305. The court concluded that 5 intervenor-plaintiffs could maintain a claim against the 6 Commission under section 702 of the APA based on the theory 7 that the Commission is a quasi-federal agency. 8 311. 9 allowing ASMFC[ s] actions essentially to escape judicial Id. at In so holding, the district court concluded that 10 review [would be] inappropriate. 11 court then granted the Commission s request for 12 certification of its order for interlocutory appeal. 13 U.S.C. § 1292(b). 14 appeal the interlocutory order of the district court. 15 Id. at 312. The district 28 A panel of this Court granted leave to On appeal, the Commission advances largely the same 7 In support of its motion to dismiss, the Commission also made an alternative argument that it should be accorded Eleventh Amendment immunity from suit. The district court rejected this argument. 623 F. Supp. 2d at 311; see also Alabama v. N. Carolina, No. 132-orig, 2010 WL 2160786, at *15 n.5 (June 1, 2010); Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 40-41 (1994); Gorton v. Gettel, 554 F.3d 60, 62 (2d Cir. 2009). In light of our determination that the Commission is not subject to suit under the APA, we decline to address the district court s sovereign immunity ruling. 13 1 arguments that it did before the district court. 2 Essentially, ASMFC argues that intervenor-plaintiffs 3 complaint should be dismissed as it pertains to the 4 Commission because it is not a federal agency; therefore, 5 intervenor-plaintiffs may not seek review of the 6 Commission s fishery management decisions under the APA. 7 contrast, intervenor-plaintiffs urge us to affirm the 8 district court s determination that the Commission is a 9 quasi-federal agency subject to suit under the APA. By 10 Intervenor-plaintiffs also suggest that this Court take an 11 even stronger position than the one adopted by the district 12 court and find that the Commission is actually a federal 13 agency for the purpose of regulating coastal fishing 14 activities. 15 suit by United Boatmen under the APA. We hold that the Commission is not subject to II. 16 17 DISCUSSION The coverage of the APA, including its judicial review 18 provisions, is governed by the statutory definition of the 19 term agency. 20 Sec. & Exch. Comm n v. Dorozhko, 574 F.3d 42, 46 (2d Cir. 21 2009), of section 701(b)(1), which provides a definition of 22 this term. Thus, we must first look to the text, see See Bailey v. United States, 516 U.S. 137, 144 14 1 (1995). 2 definition as not very satisfactory. 3 Inc. v. Fed. Reserve Bank, 558 F. Supp. 165, 173 (D. Md. 4 1982) (quoting 1 K. Davis, Administrative Law Treatise § 5 1.01, at 1 & n.1 (1958)); see also Soucie v. David, 448 F.2d 6 1067, 1073 (D.C. Cir. 1971) (stating the APA s statutory 7 definition of agency is not entirely clear ). 8 that we cannot say that the meaning of agency as defined by 9 the APA is so plain on its face as to end our inquiry. 10 E.g., Barscz v. Dir., Office of Workers Comp. Programs & 11 Elec. Boat Corp., 486 F.3d 744, 749 (2d Cir. 2007). 12 this may not be a case where our inquiry should end with 13 the text, but see United States v. Ron Pair Enters., Inc., 14 489 U.S. 235, 241 (1989), the text of the APA does provide 15 significant guidance. 16 Other authorities have characteriz[ed] the APA Lee Constr. Co., We agree While Examination of the definition of a federal agency, as 17 provided by the APA, reveals that the ASMFC Compact does not 18 fall within the scope of the statute. 19 conclusion, [w]e consider not only the bare meaning of 20 [the] word agency, Bailey, 516 U.S. at 145, but also the 21 purpose of the APA and the structure and function of the 15 In reaching this 1 Commission. We further hold that, assuming the validity of 2 the quasi-federal agency doctrine, even on its own terms, 3 it does not apply to the Commission. 4 5 6 7 A. 8 structure upon which federal administrative law is built. 9 Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1012 (9th Cir. 10 2000) (internal quotation marks omitted and alteration in 11 original). 12 wrong because of agency action, or adversely affected or 13 aggrieved by agency action . . . is entitled to judicial 14 review thereof. 15 agency is defined as an authority of the [g]overnment of 16 the United States. 17 Trolley Tours of Wash., Inc. v. Wash. Metro. Area Transit 18 Comm n, 129 F.3d 201, 204 (D.C. Cir. 1997). 19 express definition, courts that have wrestled with its 20 application have declared that the law on the simple 21 question of what is an agency is quite complex. 22 v. Caldera, 141 F. Supp. 2d 25, 31 (D.D.C. 2001) (quoting 23 Lee Constr. Co., 558 F. Supp. at 172). The Statutory Definition of Agency Does not Encompass the Commission The provisions of the APA provide[] the statutory The APA states that [a] person suffering legal 5 U.S.C. § 702. Under the APA the term 5 U.S.C. § 701(b)(1); see also Old Town 16 Despite this McKinney These courts have 1 emphasized the need to examine the structure, function, and 2 mandate of the entity in question in determining whether it 3 falls within the definition set out in the APA. 4 see also Wash. Research Project, Inc. v. Dep t of Health, 5 Educ. & Welfare, 504 F.2d 238, 245-46 (D.C. Cir. 1974). 6 Id. at 33; The APA definition expressly excludes certain entities, 7 such as Congress and the federal courts. 5 U.S.C. § 8 701(b)(1)(A)-(B); see also id. § 701(b)(1)(C)-(H). 9 an interstate compact entity is not specifically exempted Although 10 from the definition, this textual silence, when read 11 against the backdrop of . . . the canons of construction 12 applicable to statutes that implicate the separation of 13 powers, points, Armstrong v. Bush, 924 F.2d 282, 289 (D.C. 14 Cir. 1991), to the conclusion that the ASMFC is not a 15 federal agency within the meaning of the APA. 16 axiomatic that the statutory definition of the term excludes 17 unstated meanings of that term. 18 465, 484 (1987); see also Day v. Shalala, 23 F.3d 1052, 1064 19 & n.12 (6th Cir. 1994) (concluding that a state entity 20 administering a federal program was not subject to the 21 requirements of the APA because the APA applies only to 17 It is Meese v. Keene, 481 U.S. 1 federal agencies). In any event, the statutory exclusions 2 from the coverage of the APA applies only to bodies that 3 would otherwise be authorit[ies] of the [g]overnment of the 4 United States. 5 Commission is not such an authority. 5 U.S.C. § 701(b)(1). We find that the 6 The wording of section 701(b)(1) indicates that we 7 should not give the definition of agency a more expansive 8 reading. 9 (2d Cir. 1981). The text of the APA tells us what the term 10 agency means. 5 U.S.C. § 701(b)(1). 11 interpreted the word means as a more restrictive statutory 12 term than another term that could have been selected by 13 Congress in defining surrounding statutory language. 14 Angelilli, 660 F.2d at 31. 15 example, the definitional language of the APA would have a 16 different meaning if it told us that an agency includes 17 various governmental authorities. 18 See United States v. Angelilli, 660 F.2d 23, 31 We have previously We read it that way here. For See id. The fact that the ASMFC was created by an interstate 19 compact and approved by Congress does not alter this 20 analysis. 21 agency does not fit the Commission. 22 states that the Commission shall be a body corporate, with We find that the APA s definition of a federal 18 The ASMFC Compact 1 the powers and duties set forth in the Compact. 2 Compact, art. III. 3 with the federal government in managing the stock of summer 4 flounder off of the Atlantic coast, it exists outside the 5 federal administrative law framework. 6 the federal-state balance, Armstrong, 924 F.2d at 289, to 7 subject its actions to accountability measures devised to 8 restrain the actions of federal authorities. 9 Commc ns Comm n v. Fox Television Stations, Inc., U.S. , 10 11 ASMFC Although the Commission acts in parallel And, it would upset Cf. Fed. 129 S. Ct. 1800, 1817 (2009). The regulation of the territorial sea is a matter 12 traditionally left to the states. See In re Air Crash Off 13 Long Island, New York, on July 17, 1996, 209 F.3d 200, 204 14 (2d Cir. 2000). 15 economic zone, however, is governed by federal authorities 16 pursuant to the MSA. 8 Fishery management in the exclusive With one enumerated exception, see 16 8 The MSA establishes eight Regional Fishery Management Councils, 16 U.S.C. § 1852(a)(1), that are responsible for preparing fishery management plans for federal waters, id. § 1852(h)(1). The Secretary of Commerce has final authority to approve each plan developed under the MSA. Id. § 1854. Parties who allege that they are aggrieved by regulations adopted by the Secretary have a right to judicial review, id. § 1855(f), conducted in accord with the review provisions of the APA, 5 U.S.C. § 701 et seq. See Connecticut, 204 F.3d at 414-16. 19 1 U.S.C. § 1856(b), the MSA states that it shall not be 2 construed as extending or diminishing the jurisdiction or 3 authority of any [s]tate within its boundaries, id. § 4 1856(a)(1). 5 state and federal waters. 6 Fisherman s Best, Inc., 310 F.3d 155, 160 (4th Cir. 2002) 7 (recognizing that the habitat for swordfish spans both 8 federal and state waters). 9 activities make good sense in this context. Of course, summer flounder move freely between Cf. City of Charleston v. A Thus, coordinated regulatory However, the 10 fact that federal and state entities act toward a common 11 goal does not convert the state or interstate body into 12 a federal one. 13 Although interstate compacts are contemplated by the 14 Constitution, U.S. Const. art. I, § 10, cl. 3, and subject 15 to congressional approval, we cannot escape the fact that 16 the entity itself is an aggregation of states. 17 interstate compact or agreement becomes federal law if it is 18 a congressionally sanctioned interstate compact within the 19 meaning of the Compact Clause of the Constitution, NYSA-ILA 20 Vacation & Holiday Fund v. Waterfront Comm n, 732 F.2d 292, 21 297 (2d Cir. 1984), it does not follow that the Commission 22 is a federal agency. While an To hold otherwise would have the 20 1 effect of treating every congressionally authorized 2 interstate compact entity, regardless of the body s 3 structure and function, into a federal agency for purposes 4 of the APA. 5 this result was intended by Congress. 6 For reasons explained below, we do not think The authority exercised by ASMFC under the Compact is 7 not federal in nature. The signatory states have agreed to 8 coordinate their regulatory activity in order to promote 9 the better utilization of the fisheries. ASMFC Compact, 10 art. I. 11 states understood themselves to be compacting to create a 12 federal agency. 13 be the subject of careful consideration before they are 14 entered into, and are drawn by persons competent to express 15 their meaning, and to choose apt words in which to embody 16 the purposes of the . . . contracting parties. 17 v. Delaware, 552 U.S. 597, 615-16 (2008) (internal quotation 18 marks omitted). 19 anything other than a state cooperative agreement, from 20 which states are free to withdraw upon notice to the other 21 member states. 22 But, there is no indication that the contracting Interstate compacts . . . are presumed to New Jersey We therefore decline to find that ASMFC is ASMFC Compact, art. XII. While it is true that there is a strong presumption 21 1 that Congress intends judicial review of administrative 2 action, Sharkey v. Quarantillo, 541 F.3d 75, 84 (2d Cir. 3 2008) (internal quotation marks omitted), that presumption 4 is only available with regard to the administrative acts of 5 federal agencies as defined in the APA. 6 Acad. of Family Physicians, 476 U.S. 667, 670-71 (1986), 7 superseded on other grounds by Omnibus Budget Reconciliation 8 Act of 1986, Pub. L. No. 99-509, 100 Stat. 1874, 2037-38 9 (1986). See Bowen v. Mich. United Boatmen maintain that their claim should be 10 accorded this presumption because the enactment of the 11 ACFCMA rendered ASMFC a federal agency. 12 United Boatmen assume the conclusion they seek to reach. 13 ASMFC is simply not an authority of the United States. 14 primary purpose, Elliott Assocs., LP v. Banco de la 15 Nacion, 194 F.3d 363, 371 (2d Cir. 1999), of the APA is not 16 to reach contracts between states. 17 ACFCMA makes it clear that the authority to regulate the 18 summer flounder fishery within the territorial sea remains 19 with the states and that the federal government plays only a 20 supporting role in this endeavor. 21 Therefore, we hold that ASMFC does not satisfy the 22 definition of an agency as set forth in § 701(b)(1) of the 22 We disagree. The And, the language of the 16 U.S.C. § 5101(a)(4). 1 APA. 2 3 4 5 6 B. 7 designates an entity as a federal agency does not end the 8 inquiry as to whether the entity in fact operates as a 9 federal agency. 9 The Quasi-Federal Agency Doctrine Does Not Bring the Commission Within the Meaning of the Term Agency under the APA The court below maintained that whether Congress Gutierrez, 623 F. Supp. 2d at 307. The 10 district judge opined that if the ASMFC had become so 11 federal in character that it should be regarded as a 12 quasi-federal agency, then it would be amenable to suit by 13 the intervenor-plaintiffs under the APA. 14 the court found that, [i]n light of [the] substantial 15 federal involvement in the Commission, it is not 16 unreasonable to conclude that, despite state sovereignty 17 concerns, ASMFC should be treated as a quasi-federal 18 agency and subjected to a private right of action under the 19 APA. 20 21 Id. at 308. Thus, Id. at 312. The district court relied on decisions of several other courts that have acknowledged this doctrine. 9 See Am. While this may be true as a matter of semantics, Congress must do more than authorize the formation of an interstate body and coordinate its regulatory activities with this body to bring it within the reach of the APA. 23 1 Trucking Ass n, Inc. v. Del. River Joint Toll Bridge Comm n, 2 458 F.3d 291, 304 n.10 (3d Cir. 2006); Heard Commc ns, Inc. 3 v. Bi-State Dev. Agency, 18 F. App x 438, 439-40 (8th Cir. 4 2001) (per curiam) (unpublished disposition); Elcon Enters., 5 Inc. v. Wash. Metro. Area Transit Auth., 977 F.2d 1472, 6 1479-80 (D.C. Cir. 1992). 10 We find these decisions 10 No circuit court of appeals has adopted the quasiagency doctrine in a published decision. Only the Eighth Circuit Court of Appeals has endorsed the analysis that underpins the quasi-agency doctrine. Heard Commc ns, 18 F. App x at 440. In any event, for the reasons expressed in this opinion, we are not persuaded that the doctrine even as expressed by the courts that have accepted it is properly invoked here. Indeed, no circuit court has applied the doctrine to bring an entity that does not otherwise meet the definition of an agency under § 701(b)(1) within the judicial review provisions of the APA. In American Trucking Association, the Third Circuit concluded that the appellants had waived the issue of whether or not review under the APA was available; therefore, it did not decide the issue. 458 F.3d at 304 n.10. Thus, this case cannot properly be read as an endorsement of the quasi-federal agency doctrine. The Eighth Circuit expressly held that the bi-state compact that was the subject of the litigation in Heard Communications was not a quasi-federal agency subject to the APA. 18 F. App x at 439. In Elcon, the Court of Appeals for the District of Columbia simply assumed, without deciding, that the Washington Metropolitan Transit Authority was a federal agency. 977 F.2d at 1480. It appears that this doctrine is the creation of several district courts. E.g., Seal & Co., Inc. v. Wash. Metro. Area Transit Auth., 768 F. Supp. 1150, 1154-56 (E.D. Va. 1991); Coal. for Safe Transit, Inc. v. Bi-State Dev. Agency, 778 F. Supp. 464, 467-68 (E.D. Mo. 1991) (citing Union Switch & Signal, Inc. v. Bi-State Dev. Agency, No. 91-1401C (7) (E.D. Mo. Oct. 23, 1991) (unpublished disposition)). 24 1 unpersuasive. 2 support for the quasi-federal agency doctrine. 3 are skeptical of the validity of this judge-created concept. 4 Taken together, this authority provides scant Indeed, we It is clear to us, at the very least, that the quasi- 5 federal agency doctrine whatever its merit does not 6 apply to the Commission. 7 that the quasi-federal agency cases identify three 8 factors relevant to whether a compact authority warrants the 9 quasi-federal agency classification. The lower court was of the view 623 F. Supp. 2d at 10 308 (internal quotation marks omitted). 11 forthrightly acknowledged that two of the three factors do 12 not apply to the ASMFC. 13 implicitly recognized that, given the facts of this case, 14 designation as a quasi-federal agency is an ill-fitting 15 means by which to describe the ASMFC. 16 district court concluded that, irrespective of other 17 considerations, federal involvement in the activities of the 18 Commission warranted a finding that it is a quasi-federal 19 agency. 20 However, the court With that concession, the court Nonetheless, the We disagree. By its nature, there will always be federal involvement 21 in a congressionally approved interstate compact. 22 unpersuaded, however, that this requires us to subject what 25 We are 1 is, at its core, a contract between states to the judicial 2 review provisions of the APA. 3 only of its constituent states. 4 Metro. Area Transit Auth., 359 F. Supp. 457, 460 (D.D.C. 5 1973). 6 would be in tension with its governing Compact, which serves 7 as a contractual agreement between the member states. 8 structure and composition of the ASMFC weigh against 9 characterizing it as a quasi-federal agency. The ASMFC is a body comprised Cf. Saunders v. Wash. A finding that the ASMFC is a quasi-federal agency The We may infer 10 that congressional approval of the ASMFC was granted as a 11 means of aiding the contracting states in their regulatory 12 activities. 13 Parole, 513 F.3d 95, 104 (3d Cir. 2008). 14 chose to endorse the creation of this regulatory body 15 comprised of states rather than preempt the area by creating 16 an actual federal agency. 17 at 169. 18 Cf. Doe v. Pennsylvania Bd. of Probation & And, Congress See A Fisherman s Best, 310 F.3d Beyond federal involvement, the fact that federal 19 interests are implicated by the activities of the Commission 20 does not transform ASMFC into a federal entity subject to 21 suit under the APA. See California v. Sierra Club, 451 U.S. 22 287, 297-98 (1981). An interstate compact represents a 26 1 political compromise between constituent elements of the 2 Union. 3 542 (8th Cir. 2004) (internal quotation marks omitted). 4 Congress may often have an interest in the terms of such a 5 compromise, but this does not lead us to conclude that 6 private parties are therefore entitled to assert a claim 7 against the compact as if it were a federal agency. 8 9 Entergy Arkansas, Inc. v. Nebraska, 358 F.3d 528, The import of the district court s reasoning is that, because sound policy choices animate the APA, these policies 10 must apply to the Commission; we again disagree. 11 district court in essence created a presumption of APA 12 coverage for any entity whose functions may implicate 13 federal interests. 14 legislation imposing federal obligations, oversight, 15 funding, or otherwise, transform an entity into something 16 closely resembling a federal agency, and yet escape the 17 accountability mechanism it intended to apply to such 18 federal agencies unless, of course, it specifically 19 provides that the APA shall not apply to the entity in 20 question. 21 for the district court s observation that the Commission 22 closely resembl[es] a federal agency eludes us. It noted: The Congress may not, through Gutierrez, 623 F. Supp. 2d at 307. 27 The basis And, 1 regardless of whether or not it would be desirable, as a 2 policy matter, to extend the reach of the APA to the ASMFC, 3 we see no basis to expand the definition of agency so as 4 to allow it to reach the ASMFC. 5 work in partnership in the interest of a common regulatory 6 goal without subjecting an interstate body to review 7 provisions designed to apply to federal agencies. 8 9 Congress and the states may Even assuming, without deciding, that there may be circumstances in which Congress has endowed an entity that 10 is not an authority of the [g]overnment of the United 11 States, 5 U.S.C. § 701(b)(1), with attributes that make it 12 so similar to a federal agency that it is subject to the 13 judicial review provision of the APA, the district court 14 erred in concluding that the ASMFC is a quasi-federal 15 agency. 16 present in this case, the acts of Congress in approving the 17 interstate Compact, in adopting the ACFCMA, and in providing 18 funding to the Commission, 11 did not transmogrify the ASMFC 19 into a quasi-federal agency. We hold that, in the absence of other factors not 11 See Seattle Master Builders Pursuant to the ASMFC Compact, the signatory states also make annual appropriations to the support of the Commission. ASMFC Compact, art. XI. 28 1 Ass n v. Pac. Nw. Elec. Power & Conservation Planning 2 Council, 786 F.2d 1359, 1364 (9th Cir. 1986); but see Heard, 3 18 F. App x at 440. 4 The APA is designed, at least in part, to ensure that 5 federal actors are held accountable to the public. See 6 Cohen v. Rice, 992 F.2d 376, 380 (1st Cir. 1993). This 7 concern is not a salient one here. 8 on the Commission s actions, which rest primarily within the 9 authority of the states that comprise the Commission and the 10 state-level officials that represent ASMFC s member states. 11 There are other checks The fact that the ASMFC is an interstate compact entity 12 provides an inherent restraint on its decision making 13 process. 14 regard to its general affairs except by the affirmative vote 15 of a majority of the whole number of compacting states 16 present at any meeting. 17 [n]o recommendation shall be made by the Commission in 18 regard to any species of fish except by the affirmative vote 19 of a majority of the compacting states which have an 20 interest in such species. 21 state is obligated to carry out the terms of the ASMFC 22 Compact, and member states may seek judicial relief to No action shall be taken by the Commission in ASMFC Compact, art. VI. ASMFC Compact, art. VI. 29 And, Each 1 enforce rights under the agreement. See Texas v. New 2 Mexico, 462 U.S. 554, 569-70 (1983); see also Nebraska v. 3 Cent. Interstate Low-Level Radioactive Waste Compact Comm n, 4 187 F.3d 982, 985 (8th Cir. 1999). 5 may avail themselves of an internal appeal mechanism; states 6 may appeal decisions of a management board to the full 7 membership of the Commission. 12 Further, member states 8 Although its actions are not subject to review under § 9 702 of the APA, the Commission is a politically accountable 10 body. ASMFC is composed of state conservation agency 11 directors, state legislators, and public citizens appointed 12 by the governors of the member states. 13 13 art. III. 14 exercise of the states sovereign policy-making powers. 15 this regard, the Commission is more akin to a legislative 16 body than to a federal agency. 17 are implemented through rule-making by the individual ASMFC Compact, The actions of the ASMFC involve the coordinate In The Commission s decisions 12 See the Interstate Fisheries Management Program Charter, §§ 3(d)(9), 4(h), available at http://www.asmfc.org/. 13 Federal legislators are constitutionally prohibited from serving as federal agency officials. U.S. Const., art. I, § 6, cl. 2. 30 1 states, which affords an opportunity for public 2 participation in the management process. 3 ASMFC makes its decisions public. 4 In addition, the Finally, the ACFCMA provides a check on the actions of 5 the Commission; it requires that the Secretary of Commerce 6 review a finding that a state has failed to comply with a 7 fishery management plan. 8 provides that, if the Secretary determines a state has 9 failed to comply with measures that are necessary for the 16 U.S.C. § 5106(a). The Compact 10 conservation of a fishery, the Secretary shall impose a 11 moratorium. 12 and enforces a federal moratorium based on his or her 13 independent findings of noncompliance, a party that is 14 allegedly aggrieved by the Secretary s action can obtain APA 15 review of that federal agency action. 16 704. 17 Id. §§ 5106(a), (c). If the Secretary imposes 5 U.S.C. §§ 702, The Commission is designed to address concerns that are 18 traditionally within the province of the states. That the 19 Commission seeks to address these concerns with support from 20 the federal government, and in a manner that is harmonious 21 with federal regulations, does not alter its essential 22 nature. The fact that federal interests are implicated by 31 1 the activities of the ASMFC does not transform it into a 2 federal agency for purposes of seeking judicial review of 3 its actions. 4 5 III. CONCLUSION The district court s order of March 9, 2009, denying 6 the Atlantic States Marine Fisheries Commission s motion to 7 dismiss the complaint in intervention as it pertains to that 8 defendant, is hereby REVERSED and the case is REMANDED for 9 further proceedings consistent with this opinion. 32

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