United Cook Inlet Drift Ass'n v. Nat'l Marine Fisheries Serv.

ORDER ON PLAINTIFFS' MOTION

FOR LEAVE TO FILE

SUPPLEMENTAL COMPLAINT

(DKT. 192)

TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter comes before the Court on Plaintiffs Cook Inlet Drift Association's and Cook Inlet Fisherman's Fund's Motion for Leave to File an Amended or Supplemental Complaint at Docket 192 (the “Motion”).^[1] Plaintiffs seek leave to amend and/or supplement their original pleadings with additional allegations regarding the Defendant National Marine Fisheries Service's and the other federal defendants' (collectively the “Federal Defendants”) compliance with the Court's previous order and promulgation of new regulations.^[2] For the reasons discussed below, the Court DENIES the Motion.

II. BACKGROUND

Plaintiffs filed this action in 2013 to seek judicial review of Defendant National Marine Fisheries Service's (“NMFS”) promulgation of Amendment 12 to the Fishery Management Plan

2

for Salmon Fisheries in the EEZ off the Coast of Alaska (the “Salmon FMP”), which removed federal waters in Cook Inlet from the Salmon FMP and left them to be managed by the State of Alaska.^[3] Plaintiffs argued that “Amendment 12 to the Salmon FMP and NMFS's regulations implementing that Amendment are arbitrary, capricious, and contrary to the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801-1819d; the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.; and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559, 701-706.”^[4] The State of Alaska intervened on behalf of the Federal Defendants, though its participation is limited to filing briefs and joining or opposing the principal parties' motions.^[5]

The Court ruled in favor of the Federal Defendants, concluding that the MSA was ambiguous as to whether NMFS had to create an FMP for all fisheries requiring conservation and management and giving Chevron deference to the agency's interpretation of the statute.^[6] The Ninth Circuit reversed, holding that the MSA unambiguously requires NMFS to create FMPs for each fishery under its authority that requires conservation and management and that “Amendment 12 is therefore contrary to law to the extent it removes Cook Inlet from the FMP.”^[7] The Ninth Circuit remanded with instruction that judgment be entered in favor of the Plaintiffs.^[8]

3

On remand, the Court adopted the parties' jointly proposed Judgment without revision.^[9]The Judgment, entered on August 3, 2017, remanded NMFS's decision on Amendment 12 without vacatur and required NMFS to file tri-annual status reports with the Court.^[10] The Judgment required NMFS to “work with the North Pacific Council (“Council”) to ensure that the affected public has appropriate input in the development of any new Salmon FMP amendment that addresses Cook Inlet.”^[11] The Judgment also required that “[i]f the Council adopts a Salmon FMP amendment that addresses Cook Inlet, NMFS shall take final agency action and/or promulgate a final rule within 1 year from the Council meeting at which the Council takes final action to adopt that Salmon FMP amendment.”^[12] However, it expressly “[did] not bind the Council or NMFS with regard to the contents of the new FMP amendment.”^[13] The Court retained jurisdiction over the case only to “oversee compliance” with the terms of the Judgment.^[14]

After more than two years elapsed without NMFS adopting a Salmon FMP amendment addressing Cook Inlet, Plaintiffs filed a motion to enforce the judgment.^[15] The Court granted the motion in part, ordering that “[the Council] adopt a final FMP amendment by December 31,

4

2020”^[16] and that NMFS's “promulgation of a final rule shall occur within one year thereafter.”^[17]The Ninth Circuit affirmed the Court's enforcement order on appeal.^[18]

On December 7, 2020, the Council recommended Amendment 14, which amended the Salmon FMP to include Cook Inlet federal waters within the West Area of the Salmon FMP.^[19]After a public notice-and-comment period, NMFS adopted Amendment 14 in a final regulation published in the Federal Register on November 3, 2021, marking final agency action.^[20]

Plaintiffs have now filed a Rule 15 motion to supplement or amend their Complaint to include additional allegations challenging Amendment 14 under the MSA, the APA, and NEPA and asserting the Federal Defendants have failed to comply with the Judgment.^[21] Because the MSA requires petitions for judicial review of NMFS agency action to be filed “within 30 days after the date on which the regulations are promulgated . . . in the Federal Register, ”^[22] Plaintiffs face a compressed timeline to seek review of Amendment 14.

Accordingly, the Court granted Plaintiffs' request for supplemental briefing on an expedited basis.^[23] Per the Court's order, the parties simultaneously filed supplemental briefs on November 11, 2021, and responses on November 12, 2021, addressing “whether the Federal

5

Defendants have complied with the terms of the Court's judgment at Docket 102” and whether the Court should allow Plaintiffs to supplement or amend their complaint.^[24]

On November 17, 2021, Plaintiffs filed a new complaint against the Federal Defendants, challenging NMFS's adoption of Amendment 14.^[25] The complaint is substantially identical to the supplemented complaint at issue in this motion, minus the allegations relating to Amendment 12.^[26]

III. LEGAL STANDARD

Whether a motion is treated as a motion to amend under Federal Rule of Civil Procedure (“Rule”) 15(a) or (b) or a motion to supplement under Rule 15(d) depends on whether the new allegations relate to events that happened before or after the date of the original pleading.^[27] If they occurred before the date of the original pleading, it is a motion to amend under Rule 15(a) or (b); if they occurred afterward, it is a motion to supplement under Rule 15(d), even if the moving party captions the motion erroneously.^[28] Here, Plaintiffs' new allegations regarding Amendment 14 relate to events that happened after the date of the original pleading. The Court will, accordingly, treat Plaintiffs' request as a motion to supplement under Rule 15(d).

Rule 15(d) provides that “[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event

6

that happened after the date of the pleading to be supplemented.”^[29] Supplemental allegations need not arise out of the same transaction as those in the original pleadings, and must have only “some relationship” to the subject of the original action.^[30]

“Rule 15(d) is intended to give district courts broad discretion in allowing supplemental pleadings.”^[31] Rule 15(d) motions are “tool[s] of judicial economy and convenience, ”^[32] and their goal is judicial efficiency.^[33] They “ought to be allowed as [a matter] of course, unless some particular reason for disallowing them appears.”^[34]

A court may deny a motion to supplement when the supplemental allegations constitute a separate cause of action.^[35] Supplemental pleadings “cannot be used to introduce a ‘separate, distinct and new cause of action, '” and leave to supplement will be denied where “the supplemental pleading could be the subject of a separate action.”^[36] Whether supplemental pleadings constitute a separate cause of action depends on factors such as whether the new allegations challenge a

7

different statute than the original pleadings, whether a final judgment has been rendered in the original action, and whether the court has retained jurisdiction.^[37]

IV. DISCUSSION

Plaintiffs seek leave to supplement their Complaint to “include new facts demonstrating [Federal Defendants'] failure to comply with the prior decision of the Ninth Circuit [regarding Amendment 12]” and “new facts and claims specific to Amendment 14, including the failure of Amendment 14 to meet the requirements of the [MSA] and Defendants' failure to comply with [NEPA] when it approved Amendment 14.”^[38] They argue that supplementing or amending the Complaint is “the most efficient way to resolve any lingering claims . . . related to the existing lawsuit as well as new (and potentially overlapping) claims relating specifically to Amendment 14.”^[39] They argue that granting leave to supplement will not prejudice any of the parties, ^[40] but that denying leave to supplement will prejudice them because it will render them unable to enforce the Federal Defendants' “commitment” in the Judgment to allow appropriate public input.^[41]

The Federal Defendants and the State disagree, arguing that leave to supplement is improper because it introduces allegations that “should be the subject of a separate action.”^[42] They argue that Plaintiffs' supplemental complaint contains “entirely new, distinct claims for relief,

8

challenging agency action that was not at issue in the previous complaint.”^[43] The State also disagrees, arguing that Plaintiffs' motion to supplement contains “a completely separate cause of action” and “would unnecessarily extend this litigation by allowing a new case to rise up in place of the current cas[e] that has reached it[s] end.”^[44]

On the question of whether the Federal Defendants have complied with the Judgment's requirements, Plaintiffs allege noncompliance in two ways. First, they allege the Federal Defendants did not “ensure that the affected public had appropriate input” in the development of Amendment 14.^[45] Second, they allege that Amendment 14 is not “compliant with the Ninth Circuit's decision” because it impermissibly allows Cook Inlet federal waters to be...