N.C. Coastal Fisheries Reform Grp. v. Capt. Gaston LLC

560 F.Supp.3d 979

NORTH CAROLINA COASTAL FISHERIES REFORM GROUP, Joseph William Albea, David Anthony Sammons, Captain Seth Vernon, Captain Richard Andrews, and Dwayne Bevell, Plaintiffs,

v.CAPT. GASTON LLC; Esther Joy, Inc.; Hobo Seafood, Inc.; Lady Samaira Inc.; Trawler Capt. Alfred, Inc.; Trawler Christina Ann, Inc.; and Trawlers Garland and Jeff, Inc., Defendants.¹

NO. 4:20-CV-151-FL

United States District Court, E.D. North Carolina, Eastern Division.

Signed September 17, 2021

Shannon Marie Arata, James L. Conner, II, Calhoun, Bhella & Sechrest, LLP, Durham, NC, for Plaintiffs.

Charles D. Case, Henry L. Kitchin, Jr., Michael F. Easley, Jr., William Dixon Snukals, McGuireWoods, LLP, Raleigh, NC, Stevenson L. Weeks, Wheatly, Wheatly, Weeks, Lupton & Massie, P.A., Beaufort, NC, for Defendants Capt. Gaston LLC, Hobo Seafood, Inc., Lady Samaira Inc., Trawler Capt. Alfred, Inc., Trawler Christina Ann, Inc., Trawlers Garland and Jeff, Inc.

David N. Ventker, Marissa M. Henderson, Ventker Warman Henderson, PLLC, Norfolk, VA, for Defendant Esther Joy, Inc.

ORDER

LOUISE W. FLANAGAN, United States District Judge This case brought pursuant to the Federal Water Pollution Control Act of 1972 ("Clean Water Act" or the "Act"), 33 U.S.C. § 1251 et seq., concerning shrimp trawling activities, is before the court on defendants’ motions to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1), (DE 35, 39), to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), (DE 32, 37), and to strike plaintiffs’ evidentiary documents filed in response (DE 48, 50). Also before the court is plaintiffs’ motion for leave to amend their complaint (DE 58). The motions have been briefed fully, and the issues raised are ripe for ruling. For the following reasons, defendants’ motions to dismiss for lack of subject matter jurisdiction are denied, but their motions to dismiss for failure to state a claim are granted. Defendants’ motions to strike and plaintiffs’ motion for leave to amend are denied.

STATEMENT OF THE CASE

Plaintiffs consist of plaintiff North Carolina Coastal Fisheries Reform Group ("Reform Group"), a nonprofit organization "dedicated to protecting North Carolina's coastal and marine public trust resources" and to "promot[ing] sustainable fishing practices," (Compl. ¶ 6), and plaintiffs Joseph William Albea ("Albea"), David Anthony Sammons ("Sammons"), Captain Seth Vernon ("Vernon"), Captain Richard Andrews ("Andrews"), and Dwayne Bevell ("Bevell") (collectively the "individual plaintiffs"), who all "live, work and recreate around North Carolina's coastal waters and depend on North Carolina's fisheries." (Id. at 1). Additionally, plaintiffs Albea and Sammons are founding members of plaintiff Reform Group. Plaintiffs commenced this action August 4, 2020, asserting that defendants, corporate owner-operators of various shrimp trawling vessels, have violated the Clean Water Act and the North Carolina state law principle known as the public trust doctrine, through their shrimp trawling activities in North Carolina coastal waters.

Plaintiffs claim defendants have violated the Act through unpermitted discharges of pollutants and dredged materials into navigable waters. Plaintiffs seek judicial declarations of defendants’ violations of state and federal law, injunctions preventing defendants from continuing the allegedly illegal shrimp trawling operations, imposition of civil penalties, and award of costs.

Defendants Capt. Gaston LLC ("Capt. Gaston"), Hobo Seafood, Inc. ("Hobo Seafood"), Lady Samaira, Inc. ("Lady Samaira"), Trawler Capt. Alfred, Inc. ("Capt. Alfred"), Trawler Christina Ann, Inc. ("Christina Ann"), and Trawlers Garland and Jeff, Inc. ("Garland & Jeff") (collectively the "Trawler Defendants") have joined together in moving to dismiss for failure to state a claim and for lack of jurisdiction. (DE 37, 39). Defendant Esther Joy, Inc. ("Esther Joy") seeks to rid itself of this lawsuit with separate, similar motions. (DE 32, 35). Defendants incorporate and rely upon all arguments made in support of dismissal. (See Def. Esther Joy's 12(b)(6) Mem. (DE 33) at 12 n.4; Def. Esther Joy's 12(b)(1) Mem. (DE 36) at 5 n.1; Trawler Defs.’ 12(b)(6) Mem. (DE 38) at 7 n.2; Trawler Defs.’ 12(b)(1) Mem. (DE 40) at 6 n.2).²

Defendant Esther Joy, in support of its Rule 12(b)(1) motion specifically relies upon: 1) excerpts from scientific research papers; 2) reports, documents, and transcripts from hearings, all by the North Carolina Division of Marine Fisheries ("DMF"); 3) a transcript of the radio interview of one of scientific research paper's author; 4) a page from plaintiff Reform Group's website; 5) an online news article; and 6) a letter from DMF to plaintiff Albea in his role with plaintiff Reform Group. In support of its Rule 12(b)(6) motion, defendant Esther Joy relies on correspondence exchanged between it and the United States Army Corps of Engineers. While the Trawler Defendants do not rely on any documents in support of their 12(b)(1) motion, they introduce in support of their Rule 12(b)(6) motion a news release by plaintiff Reform Group.

Plaintiffs’ response to the Rule 12(b)(1) motions leans upon numerous affidavits, including those of plaintiffs Albea, Sammons, Andrews, Vernon, and Bevell. Plaintiffs also rely upon plaintiff Sammons's testimony by affidavit on behalf of plaintiff Reform Group, accompanied by 1) a National Marine Fisheries Service technical memorandum; 2) satellite imagery of the Pamlico Sound; 3) scientific research papers and excerpts thereof; 4) a capture of a webpage regarding the Chesapeake Bay; 5) a United States Geological Survey article; 6) Environmental Protection Agency summaries of water pollution reporting categories; 7) North Carolina Department of Environmental Quality and Albemarle Resource Conservation and Development Counsel articles on algal blooms; 8) an online news article; and 9) a document labeled "Florence Commercial Fishing Payment Analysis."

Additionally, defendants have filed motions to strike materials relied upon by plaintiffs in defense of their motions. Plaintiffs have moved for leave to file an amended complaint, which seeks to add Lee Bland Williams ("Williams"), the purported owner-operator of the shrimp trawling vessel Blackbeard, as a defendant. All these motions come now before this court.

STATEMENT OF THE FACTS

The facts alleged in the complaint may be summarized as follows.

Plaintiff Reform Group's membership includes small business owners and recreational fishers who rely on North Carolina's fisheries for their livelihoods and recreation. In addition to being the founding members of plaintiff Reform Group, plaintiffs Albea and Sammons are also recreational fishermen. Plaintiffs Vernon and Andrews are professional fishing guides, the continuing viability of which depends on the health and quality of North Carolina's fisheries, who also fish recreationally in North Carolina's coastal waters. Finally, plaintiff Bevell is a tackle shop owner, whose business primarily comes from recreational fishers and tourists. All of the plaintiffs advocate for improved fisheries practices in North Carolina to ensure the long-term health of North Carolina's fisheries and to mitigate or undo damage to the fisheries already caused by commercial trawling activities.

On the other side, defendants operate various shrimp trawling vessels in North Carolina coastal waters,³ including, specifically, the Pamlico Sound. Plaintiffs allege defendants have caused significant harm to North Carolina's coastal waters and its fisheries through the use of "non-selective, destructive trawling equipment to harvest shrimp." (Id. at 2).

The setting of the instant dispute is primarily the Pamlico Sound, "the largest embayed estuary in the world." (Id. ¶ 33). Pamlico Sound is an "essential habitat" for juvenile shrimp of various species as well as the home to mature shrimp of those same species, harvested for commercial sale. (Id. ¶ 35). However, Pamlico Sound is also an "essential spawning and nursey habitat for many finfish species," including the Atlantic croaker. (Id. ¶ 36). Juvenile finfish of varying species "remain in the Pamlico Sound until they may migrate to nearshore ocean waters." (Id. ¶ 37).

This process allegedly is disturbed by defendants’ harvesting of shrimp in Pamlico Sound by dragging trawl nets along the bottom of the Pamlico Sound. These nets capture both shrimp and "whatever other fish and marine species that are unable to escape," meaning that the nets are "non-selective." (Id. ¶¶ 38-39). The "unwanted" portion of the catch is referred to as "bycatch," and those fish and marine species are "routinely ... caught, injured, killed, and discarded." (Id. ¶ 39). Plaintiffs allege that "[i]t is generally accepted that for every one pound of shrimp harvested in North Carolina coastal waters, roughly four pounds of bycatch are discarded." (Id. ¶ 40). For example, in 2017, 14 million pounds of shrimp were caught in North Carolina waters, with 8.5 million of that coming from Pamlico Sound, alone. This, based on plaintiffs’ proffered ratio, equates to 34 million pounds of bycatch being discarded in Pamlico Sound.

And this bycatch is discarded back into North Carolina coastal waters more generally. According to the complaint, "[t]his large-scale disposal of dead and decomposing fish and marine species results in significant increases in organic matter and nutrient pollution" in the impacted marine environment. (Id. ¶ 41). The resultant pollution allegedly "encourages eutrophication, which decreases dissolved oxygen levels in the water, among other deleterious pollution effects." (Id. ).

More directly, being caught as bycatch allegedly prevents juvenile fish "from joining the adult population, and ... eventually spawning and adding to future juvenile populations." (Id. ¶ 44). Accordingly, plaintiffs allege that some "North Carolina[ ] fisheries have experienced steep and species threatening...