The Boat Company v. Pritzker et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THE BOAT COMPANY, )
)
Plaintiff, )
)
and )
)
THE FIXED GEAR ALLIANCE, )
)
Intervenor-Plaintiff, )
)
vs. )
)
PENNY PRITZKER, in her official capacity as )
Secretary of the United States Department of )
Commerce, et al., )
) No. 3:12-cv-0250-HRH
Defendants. )
__________________________________________)
O R D E R
Cross-Motions for Summary Judgment re Fixed Gear Alliance’s Claims
Plaintiff-intervenor moves for summary judgment.1 This motion is opposed and
defendants cross-move for summary judgment.2 Oral argument was requested and has
been heard.
1Docket No. 33.
2Docket No. 51.
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Fixed Gear Alliance (FGA) is a nonprofit corporation comprised of vessel owners,
operators, and crew who use fixed longline or pot fishing gear to fish in the Bering Sea,
Aleutian Islands, and Gulf of Alaska management areas. FGA was allowed to intervene
in this action,3 which was commenced by The Boat Company to challenge a Final Rule
which implemented changes to the Fishery Management Plan for the Gulf of Alaska
(GOA) Groundfish Fishery. The proceedings that led to the promulgation of the Final Rule
are set out in the order, which is being entered concurrently with this order, resolving The
Boat Company’s motion for summary judgment and defendants’ cross-motion thereto and
are not repeated here.
In its complaint-in-intervention, FGA alleges numerous claims that the National
Marine Fishery Service (NFMS) violated the Magnuson-Stevens Act, NEPA, the Regulatory
Flexibility Act (RFA), and the Administrative Procedure Act (APA).4 FGA’s claims are,
however, time-barred.
“[A] party seeking judicial review of ‘[r]egulations promulgated by the Secretary
under the [Magnuson-Stevens Act]’ must do so within thirty days of their promulgation.”
3Docket No. 21.
4FGA also appears to allege claims based on the Equal Protection and Due Process
Clauses of the Constitution, the Paperwork Reduction Act, and the Northern Pacific
Halibut Act. However, because FGA made no argument as to any of these claims in its
motion for summary judgment, these claims are deemed abandoned. United States v.
Kimble, 107 F.3d 712, 715-16 n.2 (9th Cir. 1997).
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Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 943 (9th Cir.
2006) (quoting 16 U.S.C. § 1855(f)(1)). This 30-day limitation period also applies to any
APA claim challenging a regulation promulgated by the Secretary pursuant to the
Magnuson-Stevens Act. Sea Hawk Seafoods, Inc. v. Locke, 568 F.3d 757, 765 (9th Cir. 2009).
It also applies to FGA’s NEPA and RFA claims. See Turtle Island, 438 F.3d at 944 (“Turtle
Island attempts to gloss over its statute of limitations problem by assiduously avoiding
citation to the Magnuson Act and instead alleging claims under various other
environmental statutes. This effort to circumvent the strict time limits under the Magnuson
Act is to no avail.”); 5 U.S.C. § 611(a)(3)(A) (“A small entity may seek such review during
the period beginning on the date of final agency action and ending one year later, except
that where a provision of law requires that an action challenging a final agency action be
commenced before the expiration of one year, such lesser period shall apply to an action
for judicial review under this section”).
The Final Rule was published on November 21, 2012. FGA filed its complaint-in-
intervention on March 7, 2013,5 after its motion to intervene, which had been filed on
February 19, 2013, was granted.6 Because FGA’s complaint-in-intervention was filed after
the 30-day period had elapsed on December 21, 2012, FGA’s claims are time barred.
5Docket No. 22.
6Docket No. 12.
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FGA’s arguments to the contrary are unavailing. First, FGA argues that defendants
waived their objection to its participation in this case by not objecting to FGA’s motion to
intervene. When FGA moved to intervene on February 19, 2013, the court gave any party
opposing FGA’s intervention until March 5, 2013 to file an objection.7 Because defendants
did not file an objection, FGA argues that defendants have waived their statute of
limitations defense. However, the 30-day time limit in the Magnuson-Stevens Act “is a
‘strict jurisdictional’ requirement....” Sea Hawk Seafoods, 568 F.3d at 765 (quoting Turtle
Island, 438 F.3d at 945). “A court’s ‘[s]ubject-matter jurisdiction can never be waived or
forfeited[.]’” Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1035 (9th Cir. 2013) (quoting
Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012)). Thus, defendants could not have waived
their statute of limitations defense.
Secondly, FGA argues that its complaint-in-intervention is timely because it relates
back to The Boat Company’s complaint, which was filed within the 30-day limitation
period. FGA cites to Cummings v. United States, 704 F.2d 437, 439 (9th Cir. 1983), in which
the court held that a complaint-in-intervention filed by a subrogee related back to the
insured’s timely-filed complaint because the subrogee was the real party in interest in the
insured’s subrogation suit. FGA also cites to New York v. Gutierrez, Case No. 08-CV-2503
(CPS)(RLM), 2008 WL 5000493 (E.D.N.Y. Nov. 20, 2008), a Magnuson-Stevens Act case,
7Docket No. 19.
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which relied on Cummings. In Gutierrez, the intervenors cited Ross v. Patrusky, Mintz &
Semel, No. 90 Civ. 1356, 1997 WL 214957 (S.D.N.Y. Apr. 29, 1997), in support of their
argument. Gutierrez, 2008 WL 500493, at *13. The Guiterrez court explained that the Ross
court, citing Cummings,
reasoned that a complaint in intervention barred by a statute
of limitations relates back to the date of the original complaint
where (1) the proposed intervenor is the real party in interest,
or there is a “community of interest” between proposed
intervenor’s and plaintiff’s claims; (2) intervenor’s motion is
timely within the meaning of Rule 24; and (3) no prejudice to
defendants would result.
Id.
FGA’s relation back argument fails because there is no “community of interest”
between FGA and The Boat Company. Rather, FGA’s and The Boat Company’s interests
are adverse. FGA wants less monitoring by human observers, and The Boat Company
wants more monitoring by human observers. Because FGA and The Boat Company have
opposing views of what defendants should have done, there can be no “community of
interest” between them. See Nasr v. De Leon, Case No. No. 99-56710, 2001 WL 1024041,
at *1 (9th Cir. Sept. 4, 2001) (“We further agree with the district court that the Trustee’s
Complaint-in-Intervention did not relate back to the filing date of the original complaint
because there is no identity of interests between Nasr and the Trustee, as their interests are
adverse.”).
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In conclusion, because FGA’s claims are time barred, its motion for summary
judgment8 is denied and defendants’ cross-motion for summary judgment on FGA’s
claims9 is granted. In addition, FGA’s motion to strike10 is denied as moot.
The clerk of court shall enter judgment dismissing FGA’s complaint-in-intervention
with prejudice.
DATED at Anchorage, Alaska, this 6th day of August, 2014.
/s/ H. Russel Holland
United States District Judge
8Docket No. 33.
9Docket No. 51.
10Docket No. 99.
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