Fisheries Commission Not Subject to Administrative Procedures Act

judicial review. e.g., washington metropolitan transit 104 stat. 1300, 1312 (1990); tahoe regional planning 4 finally, the acfcma provides a check on the actions of 19 compact and approved by congress does not alter this summer flounder season. new york v. locke, 09 civ 3196 (ng) 8 defendant, is hereby reversed and the case is remanded for 16 an actual federal agency. see a fisherman's best, 310 f.3d 10 state-level officials that represent asmfc's member states. with this body to bring it within the reach of the apa. 14 entered into, and are drawn by persons competent to express the definition of an agency under � 701(b)(1) within the alexander v. sandoval, 532 u.s. 275, 286-87 (2001). in 14 "primary purpose," elliott assocs., lp v. banco de la 25 13 5 new york v. locke, no. 08 civ. 2503 (cps) (rlm), 2009 wl 16 closely resembling a federal agency, and yet escape the 6 marine fisheries commission's motion to dismiss the 4 enforcement of any requirement by any signatory state 3 are skeptical of the validity of this judge-created concept. 22 while it is true that there is a "strong presumption 5 the commission 21 question of what is an agency is quite complex." mckinney 19 interests are implicated by the activities of the commission 19 united boatmen of new york, inc., new york 4 187 f.3d 982, 985 (8th cir. 1999). further, member states 4 2001) (per curiam) (unpublished disposition); elcon enters., 21 so, "whether the measures that the [s]tate has failed to 19 anything other than a state cooperative agreement, from 2 definition as `not very satisfactory.'" lee constr. co., 12 activities. cf. doe v. pennsylvania bd. of probation & underpins the "quasi-agency" doctrine. heard commc'ns, 18 15 their meaning, and to choose apt words in which to embody 19 reversed and remanded. 19 provides that the apa shall not apply to the entity in 6 2413463, at *1-2 (e.d.n.y. aug. 3, 2009); new york v. locke, 17 unstated meanings of that term." meese v. keene, 481 u.s. 15 nacion, 194 f.3d 363, 371 (2d cir. 1999), of the apa is not 1 judicial review of the actions of the commission. we 2 1991) (unpublished disposition)). 13 aggrieved by agency action . . . is entitled to judicial 14 cir. 1991), to the conclusion that the asmfc is not a 13 state of new york, new york state 6 the atlantic states marine fisheries commission's motion to 6 commission under section 702 of the apa based on the theory 12 this suit was commenced by the state of new york, the 4 the apa as expressed by the courts that have accepted it -- is 15 means by which to describe the asmfc. nonetheless, the 7 the provisions of the apa "provide[] the statutory 5 fisheries cooperative management act, 16 u.s.c. �� 5101-5108 17 acfcma makes it clear that the authority to regulate the 12 so similar to a federal agency that it is subject to the 8 24 5 the commission; it requires that the secretary of commerce carolina, south carolina, georgia, florida, pennsylvania, 9 supp. 2d 301, 305-06 (e.d.n.y. 2009). a brief review of the 20 supporting role in this endeavor. 16 u.s.c. � 5101(a)(4). 22 this term. see bailey v. united states, 516 u.s. 137, 144 12 provides an inherent restraint on its decision making 13 powers, points," armstrong v. bush, 924 f.2d 282, 289 (d.c. decline to address the district court's sovereign immunity 8 question of whether the atlantic states marine fisheries 21 2006). 16 the united states." 5 u.s.c. � 701(b)(1); see also old town 22 sean h. donahue, donahue & goldberg, llp, realty partners, lp v. gotham partners, lp, 286 f.3d 613, 14 environmental conservation, and the new york state 3 asmfc makes its decisions public. 7 membership of the commission.12 6 1479-80 (d.c. cir. 1992). we find these decisions10 14 plan." id. the commission is obligated to review member 6 may appeal decisions of a management board to the full 11 forthrightly acknowledged that two of the three factors do 3 18 f. app'x at 440. 5 intervenor-plaintiffs may not seek review of the 6 14 489 u.s. 235, 241 (1989), the text of the apa does provide 35 17 no. 77-539, 56 stat. 267 (1942), as amended by pub. l. no. 1 before: leval, sack, and wesley, circuit judges. 36 defendants.* 1 defendants"). the new york state plaintiffs contend that1 5 federal actors are held accountable to the public. see 22 implement and enforce are necessary for the conservation of 17 plaintiffs, 18 provisions, is governed by the statutory definition of the deciding, that the washington metropolitan transit authority york, new jersey, delaware, maryland, virginia, north 11 the regulation of the territorial sea is a matter 23 intervenor-plaintiffs-appellees, alabama v. n. carolina, no. 132-orig, 2010 wl 2160786, at 4 this court. v. bi-state dev. agency, no. 91-1401c (7) (e.d. mo. oct. 23, ruling. 20 boatmen v. gutierrez, 429 f. supp. 2d 543, 546 (e.d.n.y. 20 vacation & holiday fund v. waterfront comm'n, 732 f.2d 292, 9 failed to comply with measures that are "necessary for the 1 emphasized "the need to examine the structure, function, and 15 well as in rivers and estuaries. the federal government is 17 the meaning of the apa; it is not an "authority of the 14 (2d cir. 2000). fishery management in the exclusive 10 procedure act. we hold that the atlantic states marine york state plaintiffs' suit against the federal defendants association, the third circuit concluded that the appellants court by another party" is only a "prudential restraint," interstate body and coordinate its regulatory activities 6 private parties are therefore entitled to assert a claim 6 goal without subjecting an interstate body to review 3 of their suit. united boatmen of new york, inc. is a 22 "closely resembl[es]" a federal agency eludes us. and, the commission is not subject to suit under the apa, we 20 question." gutierrez, 623 f. supp. 2d at 307. the basis 13 oversight of their fisheries through the development of 12 meaning of the administrative procedure act. we further 32 commission ("asmfc" or the "commission") has endeavored to 12 wrong because of agency action, or adversely affected or been evaluated under federal rule of civil procedure 15(c). 5 al. v. locke, et al., 08 civ. 2503 (e.d.n.y. mar. 4, 2010) the doctrine to bring an entity that does not otherwise meet 4 concluded that the new york state plaintiffs' "failure to corp., 513 u.s. 30, 40-41 (1994); gorton v. gettel, 554 f.3d 15 for purposes of the apa. 28 11 interpreted the word "means" as a more restrictive statutory 10 review [would be] inappropriate." id. at 312. the district 17 the coverage of the apa, including its judicial review 5 37 8 (argued: march 9, 2010 decided: june 29, 2010) 10 6 the court below maintained that "whether congress 11 13 u.s.c. � 1292(b). a panel of this court granted leave to 7 subject its actions to accountability measures devised to 3 2 are set out in detail in the opinions of the district court. 618 (2d cir. 2002). an implied private right of action 19 commission seeks to address these concerns with support from 6 the authority exercised by asmfc under the compact is 29 defendant-appellant, 16 examination of the definition of a federal agency, as 4 conservation and management act, as amended in 1996 by the 9 an interstate compact entity is not specifically exempted 11 dep't of commerce, 204 f.3d 413, 414 (2d cir. 2000). the 11 against the backdrop of . . . the canons of construction 13 intervenor-plaintiffs, asmfc is a federal agency, or at 8 311. in so holding, the district court concluded that 15 comprised of states rather than preempt the area by creating 3 new york fishing tackle trade association, inc., and the 1 that congress intends judicial review of administrative 16 york state plaintiffs"), against the secretary of the united pursuant to the asmfc compact, the signatory states11 this doctrine is the creation of several district courts. 19 administrator for the national oceanic and atmospheric 13 5101(a)(3). the acfcma explicitly affirms, however, that also made an alternative argument that it should be accorded 11 conservation association is a non-profit organization whose 1 the fishery in question." id. � 5106(a)(2). if the 9 the interstate fishery management plans promulgated by the nonetheless, the "general rule that an intervening party may 9 "allowing asmfc['s] actions essentially to escape judicial 12 [s]tates to be in compliance," and the asmfc must "identify 2 action," sharkey v. quarantillo, 541 f.3d 75, 84 (2d cir. 8 although its actions are not subject to review under � 14 least acts so much like one that we should treat it as one 38 circuit court of appeals has endorsed the analysis that 4 the apa is designed, at least in part, to ensure that 6 would be in tension with its governing compact, which serves judicial review provisions of the apa. in american trucking 3247 (1980); northeast dairy compact, � 16(c), s.j. res. 28, 30 5 j.), entered on march 9, 2009, denying the atlantic states 12 term than another term that could have been selected by 18 �� 1801(b)(1), 1856(a), 5102(6); see also sea hawk seafoods, controversy is not moot. van wie v. pataki, 267 f.3d 109, 9 16 the entity itself is an aggregation of states. while "an 9 organization that represents the wholesale and retail bait exists only if congress intended to create such a right. the eighth circuit expressly held that the bi-state compact the clerk of the court is directed to amend the* 21 communications was "not a quasi-federal agency subject to 24 13 process. "no action shall be taken by the commission in 2 mexico, 462 u.s. 554, 569-70 (1983); see also nebraska v. 5 16 of action against the commission under the administrative 13 independent findings of noncompliance, a party that is 1 against federal agencies, 5 u.s.c. �� 701(b)(1), 702, do not 1 federal agencies). in any event, the statutory exclusions 8 district court's determination that the commission is a 27 n.y., on the brief), for appellees. 14 designation as a "quasi-federal" agency is an ill-fitting 2 federal agency for purposes of seeking judicial review of party [will] be subjected to the same action again," the 11 provide context for our decision. 14 department of environmental conservation, 16 body than to a federal agency. the commission's decisions 6 1067, 1073 (d.c. cir. 1971) (stating the apa's "statutory 5 waters of the noncomplying [s]tate." id. � 5106(c)(1). 21 member states. asmfc compact, art. xii. 3 falls within the definition set out in the apa. id. at 33; 12 conservation and sustainable use of such resources." id. � 13 the text, but see united states v. ron pair enters., inc., 6 the congressional findings accompanying the acfcma note 14 angelilli, 660 f.2d at 31. we read it that way here. for 15 in 1942, the asmfc was created by a congressionally 20 administration, the national oceanic and atmospheric 11 367 (2d cir. 1999). following the district court's 12 traditionally left to the states. see in re air crash off 15 department of environmental conservation (collectively "new 7 complaint in intervention and certifying to this court the plaintiffs sent a letter to the district court arguing that 7 designates an entity as a federal agency does not end the 21 2009), of section 701(b)(1), which provides a definition of 21 therefore, we hold that asmfc does not satisfy the 4 see also wash. research project, inc. v. dep't of health, 20 which states are free to withdraw upon notice to the other 10 art. i. but, there is no indication that the contracting 22 definition of an agency as set forth in � 701(b)(1) of the 23 1 (1995). other authorities have "characteriz[ed] the apa 20 by its nature, there will always be federal involvement 8 act of 1986, pub. l. no. 99-509, 100 stat. 1874, 2037-38 (gershon, j.) (d. ct. doc. no. 148). although the 2008 17 v. delaware, 552 u.s. 597, 615-16 (2008) (internal quotation 21 state is obligated to carry out the terms of the asmfc fin. corp. v. bd. of governors of the fed. reserve sys., 952 14 constitution, u.s. const. art. i, � 10, cl. 3, and subject 19 with the states and that the federal government plays only a 16 approved interstate compact ("asmfc compact"). see pub. l. 17 16 management plans" and "report the results of the reviews" to 10 from the definition, this "textual silence, when read 10 agency "means." 5 u.s.c. � 701(b)(1). we have previously 2 apply to action by an interstate compact entity.7 12 by the governors of the member states. asmfc compact,13 14 chose to endorse the creation of this regulatory body 4 18 5101(a)(4). 7 15 example, the definitional language of the apa would have a 6 commission's fishery management decisions under the apa. by 9 in essence, the premise of united boatmen's complaint 19 & n.12 (6th cir. 1994) (concluding that a state entity 10 must apply to the commission; we again disagree. the 16 district court concluded that, irrespective of other the apa." 18 f. app'x at 439. in elcon, the court of honorable nina gershon by alexander b. grannis, new york 2 458 f.3d 291, 304 n.10 (3d cir. 2006); heard commc'ns, inc. 1 trucking ass'n, inc. v. del. river joint toll bridge comm'n, 1 ass'n v. pac. nw. elec. power & conservation planning 8 on the commission's actions, which rest primarily within the 17 27 (1st cir. 2005). from the inception of the asmfc until 8 restrain the actions of federal authorities. cf. fed. 21 requirements of the apa because the apa applies only to 16 46 (1st cir. 2009); accord medeiros v. vincent, 431 f.3d 25, 34 james w. balsiger, 13 judicial review provision of the apa, the district court 7 11 2 asmfc brought a motion to dismiss united boatmen's 16 ii. discussion 18 a congressionally sanctioned interstate compact within the 10 provisions of the apa, which provide a right of action 11 maintain that the commission is more than a congressionally 8 factors relevant to whether a compact authority warrants the 16 19 apa." id. at 312. 11 moratorium. id. �� 5106(a), (c). if the secretary imposes 3 for the second circuit 8 tackle trade association, inc. is a professional trade in regulatory statutes with increasing disfavor." hallwood compact, pub. l. no. 96-551, art. vi(j)(3), 94 stat. 3233, 7 concern is not a salient one here. there are other checks 2 secretary makes a determination of noncompliance with 18 10 2000) (internal quotation marks omitted and alteration in and citations omitted). united boatmen's motion should have as a result of this court's holding, intervenor-1 this opinion, we are not persuaded that the doctrine -- even 12 certification of its order for interlocutory appeal. 28 30 12 "quasi-federal" agency, then it would be amenable to suit by united boatmen of new york, inc. et al. v. 12 this may not be a case where our "inquiry should end" with f.3d at 304 n.10. thus, this case cannot properly be read 9 because sound policy choices animate the apa, these policies 11 district court in essence created a presumption of apa (rlm) (e.d.n.y. july 24, 2009). in this iteration of the 27 atlantic states marine fisheries commission, 2 b. the "quasi-federal" agency doctrine does not bring the 2 essentially, asmfc argues that intervenor-plaintiffs' 5 federal" agency doctrine -- whatever its merit -- does not 12 not apply to the asmfc. with that concession, the court 60, 62 (2d cir. 2009). in light of our determination that also "make annual appropriations to the support of the united boatmen could avail themselves of an implied right of 10 docket no. 09-1594-cv the district court properly rejected the idea that6 11 federal in character" that it should be regarded as a 7 not federal in nature. the signatory states have agreed to 10 intervenor-plaintiffs also suggest that this court take an 5 1.01, at 1 & n.1 (1958)); see also soucie v. david, 448 f.2d 5 intervenor-plaintiffs could maintain a claim against the 9 circumstances in which congress has endowed an entity that 958 f.2d 382, 389 (d.c. cir. 1992) (internal quotation marks 10 fisheries, a state legislator, and a citizen with knowledge 4 2008 wl 5000493, at *1-4 (e.d.n.y. nov. 20, 2008); see also 11 original). the apa states that "[a] person suffering legal 1 the facts and procedural history of this controversy 10 in intervention is a simple one: intervenor-plaintiffs [is] a reasonable expectation that the same complaining congress must do more than authorize the formation of an 19 express definition, courts that have wrestled with its 14 the "responsibility for managing atlantic coastal fisheries 16 present in this case, the acts of congress in approving the 5 state and federal waters. cf. city of charleston v. a transit, inc. v. bi-state dev. agency, 778 f. supp. 464, defendants both the federal defendants and the asmfc. join issue only on a matter that has been brought before the 16 present at any meeting." asmfc compact, art. vi. and, has final authority to approve each plan developed under the 5 commission is not such an authority. 3 its actions. 3 authority of any [s]tate within its boundaries," id. � 17 trolley tours of wash., inc. v. wash. metro. area transit 16 program of fishery oversight and management through the 4 f. supp. 2d at 306; see also fed. r. civ. p. 12(b)(6). in management measures have expired, we agree that because "(1) 7 dismiss the complaint in intervention as it pertains to that 16 the purposes of the . . . contracting parties." new jersey i, � 6, cl. 2. no circuit court of appeals has adopted the "quasi-10 19 on july 16, 2008, united boatmen moved to intervene in 1 u.s.c. � 1856(b), the msa states that it shall not "be 1 united states court of appeals 5 compromise, but this does not lead us to conclude that 3 court for further proceedings consistent with the opinion of 21 for the district court's observation that the commission 18 marks omitted). we therefore decline to find that asmfc is 14 review thereof." 5 u.s.c. � 702. under the apa the term 17 interstate compact or agreement becomes federal law if it is 17 the secretary of commerce. id. � 5104(c). 6 3 "only of its constituent" states. cf. saunders v. wash. 15 agency. we hold that, in the absence of other factors not 21 definition of an agency under the apa. thus, united boatmen 12 federal agency. "interstate compacts . . . are presumed to 34 the atlantic seaboard. the commission is the product of a 13 parole, 513 f.3d 95, 104 (3d cir. 2008). and, congress 22 287, 297-98 (1981). "an interstate compact represents a 10 that congressional approval of the asmfc was granted as a 18 [g]overnment of the united states." 5 u.s.c. � 701(b)(1). 7 against the compact as if it were a federal agency. 12 united boatmen assume the conclusion they seek to reach. federal legislators are constitutionally prohibited13 21 join the commission as a defendant. see 2008 wl 5000493, at 8 management authority for atlantic coastal fishery resources, 1 political compromise between constituent elements of the 30 wesley, circuit judge: 2 support for the "quasi-federal" agency doctrine. indeed, we 5 may avail themselves of an internal appeal mechanism; states intervenors may only join issue on a matter that has been 10 district judge opined that if the asmfc "had become so 22 nature. the fact that federal interests are implicated by 16 axiomatic that the statutory definition of the term excludes 15 to congressional approval, we cannot escape the fact that 17 considerations, federal involvement in the activities of the 23 washington, d.c., for appellant. 22 are not entitled, pursuant to 5 u.s.c. � 702, to seek 35 congressionally approved interstate compact authorized by 19 32 right to judicial review, id. � 1855(f), conducted in accord 1 this interlocutory appeal requires us to determine whether 1 "decline[d] to limit the scope of [united boatmen's] 2 from the coverage of the apa applies only to bodies that 10 accorded this presumption because the enactment of the 1 intervention on december 19, 2008. 20 analysis. we find that the apa's definition of a federal 12 members are individual recreational anglers who target, 20 [the] word" agency, bailey, 516 u.s. at 145, but also the 15 significant guidance. 4 metro. area transit auth., 359 f. supp. 457, 460 (d.d.c. 3 would otherwise be "authorit[ies] of the [g]overnment of the 9 authority of the states that comprise the commission and the 3 v. bi-state dev. agency, 18 f. app'x 438, 439-40 (8th cir. 6 its fisheries." asmfc compact, art. ix. and the district of columbia. asmfc compact, arts. ii, xii, was available; therefore, it did not decide the issue. 458 2 the final management rule for the 2008 recreational summer 16 pursuant to the msa. with one enumerated exception, see 168 7 fishery management plan. 16 u.s.c. � 5106(a). the compact � 2; see also r.i. fishermen's alliance, inc. v. r.i. dep't 10 e.g., barscz v. dir., office of workers' comp. programs & looking to the "text and structure," id. at 288, of the 18 20 state has failed to implement management measures and, if 10 facts and history of this case is all that is needed to with the review provisions of the apa, 5 u.s.c. � 701 et 22 unpersuaded, however, that this requires us to subject what 4 18 commission warranted a finding that it is a "quasi-federal" 17 "[n]o recommendation shall be made by the commission in 114 (2d cir. 2001) (alterations in original). the questions certified for interlocutory review. synovus 13 agency for the purpose of regulating coastal fishing 5 federal administrative law framework. and, it would upset 6 the apa definition expressly excludes certain entities, fully litigated prior to its . . . expiration, and (2) there 4 is only available with regard to the administrative acts of plaintiffs, pursuant to federal rule of civil procedure 2 21 9 harvesting of such resources is frequently subject to 3 complaint in intervention for failure to state a claim. 623 18 agency' and subjected to a private right of action under the 4 to allow it to reach the asmfc. congress and the states may 21 courts that have acknowledged this doctrine. see am. 16 we hold that the asmfc is not a federal agency within 15 rests with the [s]tates, which carry out a cooperative 4 1982) (quoting 1 k. davis, administrative law treatise � 7 no. 08 civ. 2503 (cps) (rlm), 2009 wl 1194085, at *1-7 15 review of that federal "agency action." 5 u.s.c. �� 702, 12 a federal one. 4 congress may often have an interest in the terms of such a properly invoked here. indeed, no circuit court has applied seq. see connecticut, 204 f.3d at 414-16. 19 agency. we disagree. 11 means of aiding the contracting states in their regulatory 9 commission is subject to suit under the administrative and therefore does not impair this court's ability to reach 15 on appeal, the commission advances largely the same e.g., seal & co., inc. v. wash. metro. area transit auth., 09-1594-cv 10 conserve and restore the population." connecticut v. u.s. regulation compact, pub. l. no. 101-505, art. xiii, � 5(a), 2 council, 786 f.2d 1359, 1364 (9th cir. 1986); but see heard, 14 waters contiguous to new york state. 316. on july 24, 2009, the new york state plaintiffs filed 11 goal does not convert the state -- or interstate -- body into 8 inquiry as to whether the entity in fact operates as a 15 and alexander b. grannis, 21 administration, and the acting assistant administrator for 3 cent. interstate low-level radioactive waste compact comm'n, 5 join asmfc as a defendant constituted nonfeasance," id., 12 decision, intervenor-plaintiffs filed their complaint in 6 neither its governing compact nor any federal statute5 will continue in the district court. see 623 f. supp. 2d at charter, �� 3(d)(9), 4(h), available at 14 regard to its general affairs except by the affirmative vote 4 commission because it is not a federal agency; therefore, the asmfc compact was ratified by maine, new3 9 activities make good sense in this context. however, the measures has not rendered [the case] moot." letter to the 7 such as congress and the federal courts. 5 u.s.c. � 11 states understood themselves to be compacting to create a 8 provides that, if the secretary determines a state has the msa establishes "eight regional fishery8 3 flounder fishery violates the magnuson-stevens fishery 14 "territorial sea" -- waters within three miles of shore, as 5 fishing vessel industry in new york. members of united 19 of a majority of the compacting states which have an 17 atlantic states marine fisheries commission." id. � 6 august term, 2009 4 in 1993, congress adopted the atlantic coastal 21 with federal regulations, does not alter its essential the challenged action [is] in its duration too short to be 18 funding to the commission, did not transmogrify the asmfc11 7 provisions designed to apply to federal agencies. 17 states department of commerce, the united states department 9 (2d cir. 1981). the text of the apa tells us what the term 15 of a majority of the whole number of compacting states 11 states," 5 u.s.c. � 701(b)(1), with attributes that make it 104th cong. (1995). 21 in a congressionally approved interstate compact. we are on march 4, 2010 counsel for the new york state2 2 plans adopted by the commission was voluntary. medeiros, 8 that we cannot say that the meaning of agency as defined by 13 although interstate compacts are contemplated by the 14 appeal the interlocutory order of the district court. responsible for preparing fishery management plans for 11 relevant to the regulation of marine fisheries. id. the 10 commission. 16 u.s.c. � 5104(a)(1). pursuant to the f.2d 426, 434 (d.c. cir. 1991) (internal quotation marks and 6 the "federal-state balance," armstrong, 924 f.2d at 289, to the district court improperly concluded that the4 17 various governmental authorities. see id. agency" doctrine in a published decision. only the eighth 4 flounder off of the atlantic coast, it exists outside the 11 court then granted the commission's request for 6 review a finding that a state has failed to comply with a 7 sport fishing for summer flounder. the new york fishing 36 article i, � 10, clause 3 of the united states constitution. 467-68 (e.d. mo. 1991) (citing union switch & signal, inc. 7 provide a private right of action to seek judicial review of 18 of commerce, the under secretary of commerce and 22 states that the "commission shall be a body corporate, with 14 legislation imposing federal obligations, oversight, 17 -- waters from three to 200 miles from shore. see 16 u.s.c. 15 this regard, the commission is more akin to a legislative 1 unpersuasive. taken together, this authority provides scant state department of environmental conservation, grannis, et 9 federal agency." gutierrez, 623 f. supp. 2d at 307. the9 2 participation in the management process. in addition, the while this may be true as a matter of semantics,9 12 18 federal agencies -- unless, of course, it specifically 12 court and find that the commission is actually a federal 18 comm'n, 129 f.3d 201, 204 (d.c. cir. 1997). despite this 32 commerce, conrad c. lautenbacher, national 20 the federal government, and in a manner that is harmonious 21 suit under the apa. see california v. sierra club, 451 u.s. 3 respect to "necessary" measures, he or she "shall declare a msa. id. � 1854. parties who allege that they are 5 support of its motion to dismiss, asmfc pointed out that http://www.asmfc.org/. 3 york] plaintiffs' complaint." id. at *13. the court4 19 inc. v. locke, 568 f.3d 757, 760 (9th cir. 2009); united 13 each [s]tate that is required to implement and enforce that 2 union." entergy arkansas, inc. v. nebraska, 358 f.3d 528, 8 coordinate their regulatory activity in order to "promote aggrieved by regulations adopted by the secretary have a 1 is, at its core, a contract between states to the judicial 9 (1986). united boatmen maintain that their claim should be 20 application have declared that the "law on the simple ordinary rule is warranted. on appeal, united boatmen do 21 fishermen's conservation association, 18 under the acfcma, the secretary of commerce is 33 promote the utilization and protection of the fisheries of 2 compact, art. iii. although the commission acts in parallel 6 sufficient to rebut the presumption of adequate 6 the wording of section 701(b)(1) indicates that we 6 apply to the commission. the lower court was of the view 28 13 commissioner of the new york state department of 8 to accomplish this goal by mandating state participation in 5 educ. & welfare, 504 f.2d 238, 245-46 (d.c. cir. 1974). 9 the apa is so "plain on its face" as to end our inquiry. 14 the court found that, "[i]n light of [the] substantial 3 commission within the meaning of the term agency under court has come to view the implication of private remedies 6 "msa"), and the apa, 5 u.s.c. � 706(2)(a).2 4 a. the statutory definition of agency does not encompass 13 implicitly recognized that, given the facts of this case, 1 states, which affords an opportunity for public 12 signatories to the asmfc "exercise joint regulatory 18 81-721, 64 stat. 467 (1950); see also u.s. const. art. i, � 21 297 (2d cir. 1984), it does not follow that the commission 3 complaint should be dismissed as it pertains to the 9 hooker chem. & plastics corp., 749 f.2d 968, 984-85 (2d cir. 15 economic zone, however, is governed by federal authorities 15 17 procedure act. 14 doctrine is inapplicable to the facts of this dispute. 7 should not give the definition of "agency" a more expansive 13 among other species, summer flounder in state and federal 11 [f]ederal regulation that has been detrimental to the 31 for 68 years, the atlantic states marine fisheries 7 (recognizing that the habitat for swordfish spans both "[b]ecause the same issues underlying this action are 7 that the "quasi-federal" agency cases identify "three a complaint challenging the management measures for the 2009 *15 n.5 (june 1, 2010); hess v. port auth. trans-hudson 19 conclusion, "[w]e consider not only the bare meaning of 22 *5-14. the court granted united boatmen's motion and 8 capacity as parens patriae, see, e.g., united states v. from serving as federal agency officials. u.s. const., art. of envtl. mgmt., 585 f.3d 42, 46 (1st cir. 2009). 7 5 u.s.c. � 702 (the "apa"), to seek judicial review of the 5 "intervenor-plaintiffs" or "united boatmen"), may assert a 7 definition of `agency' is not entirely clear"). we agree 10 conservation" of a fishery, the secretary shall impose a 6 acad. of family physicians, 476 u.s. 667, 670-71 (1986), 21 seaboard" through a "joint program for the promotion and 5 sustainable fisheries act, 16 u.s.c. � 1801 et seq. (the 11 acfcma, a plan must "specify the requirements necessary for 22 v. caldera, 141 f. supp. 2d 25, 31 (d.d.c. 2001) (quoting 8 even assuming, without deciding, that there may be 22 16 to reach contracts between states. and, the language of the 11 the fact that the asmfc is an interstate compact entity 10 308 (internal quotation marks omitted). however, the court 6 fisherman's best, inc., 310 f.3d 155, 160 (4th cir. 2002) 15 federal agency within the meaning of the apa. "it is 9 "quasi-federal" agency subject to suit under the apa. 16 7 that "[b]ecause no single governmental entity has exclusive 8 the import of the district court's reasoning is that, 5 inc. v. wash. metro. area transit auth., 977 f.2d 1472, 15 suit by united boatmen under the apa. 18 fall within the scope of the statute. in reaching this 12 and enforces a federal moratorium based on his or her 16 different meaning if it told us that an agency "includes" 9 quasi-federal agency classification." 623 f. supp. 2d at 18 465, 484 (1987); see also day v. shalala, 23 f.3d 1052, 1064 25 shaun m. gehan, kelley drye & warren llp, had waived the issue of whether or not review under the apa 3 with the federal government in managing the stock of summer 2 the "quasi-federal" agency doctrine, even on its own terms, 22 the national marine fisheries service (collectively "federal 9 known as fluke, regulatory "efforts have been made to 22 protection of such fisheries." asmfc compact, art. i. the 14 8 its regulatory decisions. more importantly for purposes of6 7 contrast, intervenor-plaintiffs urge us to affirm the 7 representation present when a state brings suit in its 15 alliance, inc. v. r.i. dep't of envtl. mgmt., 585 f.3d 42, 18 the fact that the asmfc was created by an interstate 17 the commission is designed to address concerns that are plaintiffs' claims against asmfc must be dismissed. the new 18 8 structure upon which federal administrative law is built." 2 therefore reverse and remand this matter to the district 6 this case arises from disputes over the management of 768 f. supp. 1150, 1154-56 (e.d. va. 1991); coal. for safe 19(a)(1)(a). "except in extraordinary cases, . . . 20 better utilization of the fisheries . . . of the atlantic 10 129 s. ct. 1800, 1817 (2009). action. gutierrez, 2008 wl 5000493, at *9. "[t]he supreme 19 10, cl. 3. the purpose of the compact "is to promote the 4 of the apa. for reasons explained below, we do not think 14 activities. we hold that the commission is not subject to 4 professional trade organization that represents the for-hire 15 "agency" is defined as an "authority of the [g]overnment of 8 701(b)(1)(a)-(b); see also id. � 701(b)(1)(c)-(h). although 15 federal involvement in the commission, it is not 20 the action commenced by the new york state plaintiffs and to 4 fishermen's conservation association (collectively 6 cohen v. rice, 992 f.2d 376, 380 (1st cir. 1993). this 8 commission. asmfc compact, art. iii. the compact requires3 21 purpose of the apa and the structure and function of the commission." asmfc compact, art. xi. 8 reading. see united states v. angelilli, 660 f.2d 23, 31 26 washington, d.c. (philip l. curcio, melville, 13 conservation and management of fisheries within the 9 the better utilization of the fisheries." asmfc compact, 29 2 the intervenor-plaintiffs, united boatmen of new york, inc., 23 lee constr. co., 558 f. supp. at 172). these courts have 20 administering a federal program was not subject to the 3 interlocutory appeal from an order of the united states 20 the district court relied on decisions of several other 9 13 congress in defining surrounding statutory language. see the interstate fisheries management program12 eleventh amendment immunity from suit. the district court 11 directors, state legislators, and public citizens appointed official caption as set forth above. 3 we see no basis to expand the definition of "agency" so as 13 the intervenor-plaintiffs under the apa. id. at 308. thus, 12 12 atlantic seaboard states retain primary authority over the 16 unreasonable to conclude that, despite state sovereignty 1 the activities of the asmfc does not transform it into a recurring, . . . the expiration of the 2008 management 13 federal interests. it noted: "congress may not, through hampshire, massachusetts, rhode island, connecticut, new 13 hold that, assuming its validity, the "quasi-federal" agency or the acfcma. 2 review provisions of the apa. the asmfc is a body comprised 3 it does not apply to the commission. 7 that the commission is a "quasi-federal" agency. id. at 17 interstate compact, in adopting the acfcma, and in providing 17 concerns, asmfc should be treated as a `quasi-federal 8 structure and composition of the asmfc weigh against 31 gary locke, united states department of 8 response to a decrease in the stock of summer flounder, also asmfc was subject to joinder, by motion of the intervenor- 33 oceanic and atmospheric administration, and 20 17 at 169. 7 r.i. fishermen's alliance, 585 f.3d at 46. congress sought 4 district court for the eastern district of new york (sifton, 13 asmfc is simply not an authority of the united states. the 16 704. 1 apa. 14 exercise of the states' sovereign policy-making powers. in 24 9 characterizing it as a "quasi-federal" agency. we may infer 3 structure and function, into a federal "agency" for purposes 3 542 (8th cir. 2004) (internal quotation marks omitted). 4 united states." 5 u.s.c. � 701(b)(1). we find that the 4 it is clear to us, at the very least, that the "quasi- 9 702 of the apa, the commission is a politically accountable 28 7 the summer flounder fishery off of the atlantic coast. in 18 regard to any species of fish except by the affirmative vote 7 each member state appoints three representatives to the asmfc compact and the acfcma, we find no exception to the 5 1973). a finding that the asmfc is a "quasi-federal" agency 9 further proceedings consistent with this opinion. 4 1856(a)(1). of course, summer flounder move freely between 11 even stronger position than the one adopted by the district 5 the district court's order of march 9, 2009, denying 2 construed as extending or diminishing the jurisdiction or 1 commission. we further hold that, assuming the validity of 17 accountability mechanism it intended to apply to such brackets omitted). 2 9 commc'ns comm'n v. fox television stations, inc., -- u.s. --, management councils," 16 u.s.c. � 1852(a)(1), that are 1 arguments that it did before the district court. 17 provided by the apa, reveals that the asmfc compact does not litigation, the new york state plaintiffs named as 1 who maintain that the new york state plaintiffs failed to 19 meaning of the compact clause of the constitution," nysa-ila was a federal agency. 977 f.2d at 1480. it appears that 18 summer flounder fishery within the territorial sea remains 26 9 that these representatives be the state's director of marine 13 art. iii. the actions of the asmfc involve the coordinate 21 agency does not fit the commission. the asmfc compact 12 applicable to statutes that implicate the separation of 18 traditionally within the province of the states. that the 2 adequately represent their interests in defining the scope 22 is a federal agency. to hold otherwise would have the 4 iii. conclusion 8 commission's decisions. 11 acfcma rendered asmfc a federal agency. we disagree. 5 this result was intended by congress. 10 1984); see also united states v. city of n.y., 198 f.3d 360, 31 atlantic states marine fisheries commission 12 coverage for any entity whose functions may implicate 2 intervention to the parties and issues asserted in [the new 14 interstate fishery management plans." r.i. fishermen's 19 term "agency." thus, we must first look to the text, see 2 construed to limit the powers of any signatory state or to 13 be the subject of careful consideration before they are 11 elec. boat corp., 486 f.3d 744, 749 (2d cir. 2007). while 19 we further hold that, in this case, the "quasi-federal" in support of its motion to dismiss, the commission7 10 and tackle dealer industry in new york. the fishermen's that was the subject of the litigation in heard 4 moratorium on fishing in the fishery in question within the rejected this argument. 623 f. supp. 2d at 311; see also 10 fact that federal and state entities act toward a common 9 cornejo-barreto v. seifert, 218 f.3d 1004, 1012 (9th cir. expand the proceedings." lamprecht v. fed. commc'n comm'n, 8 federal and state waters). thus, coordinated regulatory 11 fisheries commission is not a federal agency within the by contrast, other interstate compacts do provide for5 7 as a contractual agreement between the member states. the 15 consequently, intervenor-plaintiffs cannot maintain a cause 14 allegedly aggrieved by the secretary's action can obtain apa 10 is not an "authority of the [g]overnment of the united 14 erred in concluding that the asmfc is a "quasi-federal" 2 interstate compact entity, regardless of the body's federal waters, id. � 1852(h)(1). the secretary of commerce 22 3 the district court denied asmfc's motion to dismiss. 5 federal agencies as defined in the apa. see bowen v. mich. 1 effect of treating every congressionally authorized not seek to imply a cause of action from the asmfc compact 10 body. asmfc is composed of state conservation agency 2 mandate" of the entity in question in determining whether it 20 interest in such species." asmfc compact, art. vi. each 16 responsible for regulation of the "exclusive economic zone" 1 compact specifically provides that it shall not "be 5 imposing additional conditions and restrictions to conserve 1 1993, participation in the interstate fishery management 6 claim under section 702 of the administrative procedure act, as an endorsement of the "quasi-federal" agency doctrine. 5 i. background f. app'x at 440. in any event, for the reasons expressed in 3 inc. v. fed. reserve bank, 558 f. supp. 165, 173 (d. md. 15 states' "implementation and enforcement of coastal fishery 18 beyond federal involvement, the fact that federal 27 22 compact, and member states may seek judicial relief to appeals for the district of columbia simply assumed, without 17 are implemented through rule-making by the individual 3 repeal or prevent the enactment of any legislation or the 29 12 authorized state cooperative agreement. in the view of the 9 this litigation, the commission maintained that the 19 empowered to make an independent finding regarding whether a 7 intervenor-plaintiffs in this action are private groups 6 boatmen derive a substantial portion of their revenue from 2 policy matter, to extend the reach of the apa to the asmfc, 20 fishing tackle trade association, inc., and 25 �v.� 1 the powers and duties set forth" in the compact. asmfc 20 agency doctrine should not be used to expand the statutory 4 623 f. supp. 2d at 305. the court concluded that 1 enforce rights under the agreement. see texas v. new 3 431 f.3d at 27. consequently, "compliance was spotty." id. 3 2008) (internal quotation marks omitted), that presumption 20 does not transform asmfc into a federal entity subject to 8 (e.d.n.y. apr. 30, 2009); new york v. gutierrez, 623 f. 20 sec. & exch. comm'n v. dorozhko, 574 f.3d 42, 46 (2d cir. 3 see new york v. gutierrez, no. 08 civ. 2503 (cps) (rlm), 10 disparate, inconsistent, and intermittent [s]tate and 6 (the "acfcma"), in order to give the asmfc some "teeth." 26 19 into a "quasi-federal" agency. see seattle master builders 13 long island, new york, on july 17, 1996, 209 f.3d 200, 204 brought before the court by another party[.] they cannot 20 5 work in partnership in the interest of a common regulatory 7 superseded on other grounds by omnibus budget reconciliation 15 funding, or otherwise, transform an entity into something 1 regardless of whether or not it would be desirable, as a