text:
Home /
Our Sources / About Us
/ FAQs /
Advanced Search
Not what you're
looking for? Try an advanced search.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
November 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.W.O., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 05-04-00160.
Submitted on September 11, 2008
Before Judges Winkelstein, Gilroy and Chambers.
On April 19, 2005, a Hunterdon County Grand Jury charged defendant with two counts of second-degree sexual assault on M.P., a female under thirteen years of age, N.J.S.A. 2C:14-2b (Counts One and Two); and with one count of endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three). The indictment alleged that the crimes occurred on diverse dates between May 26, 1998 and May 26, 2001. A jury trial in May 2006 ended in a mistrial when the jury could not reach a verdict. Prior to retrial, defendant moved to exclude the testimony of A.R., M.P.'s friend, which the State sought to introduce under the "fresh complaint" rule (FCR). After the motion was denied, defendant was tried to a jury. The jury convicted defendant on Counts One and Three and acquitted him on Count Two.
Following his convictions, defendant was evaluated and found ineligible for sentencing under the Sex Offender Act, N.J.S.A. 47-1 to -10. On March 20, 2007, defendant was sentenced on Counts One and Three to concurrent six-year terms of imprisonment; sentenced to community supervision for life, N.J.S.A. 2C:43-6.4; and directed to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -19. In addition, all appropriate fines and penalties were imposed. Defendant appeals, and we reverse.
M.P. was born in May 1988. Defendant is the husband of M.P.'s maternal aunt, D.O. Defendant and his wife have two children, a daughter approximately the same age as M.P, and a son, two years younger. From her earliest memories, M.P. often slept at defendant's home in Hunterdon County until sometime in 2003, when defendant and his wife moved to a new home in a different municipality. Defendant's first home consisted of two stories. The first floor contained a kitchen, dining room, living room, master bedroom, and bathroom, and the second floor consisted of one large room, which served as the bedroom for M.P.'s cousins.
Between 1998 and 2003, M.P. slept at defendant's home approximately 100 times. On those occasions, M.P.'s aunt slept in the first-floor bedroom, defendant slept on the couch in the living room, and defendant's children slept in the second-floor bedroom. Generally, except when it was extremely cold and she would sleep on the floor in the living room, M.P. slept in her cousins' bedroom on a pullout couch. The State alleged that during the five-year period when M.P. slept at defendant's home, she was sexually assaulted by defendant approximately twenty or thirty times. The assaults allegedly occurred between May 1998 and May 2001, when M.P. was between the ages of ten and thirteen.
M.P., who was eighteen years old at the time of trial, testified to the assaults as follows. The first assault occurred in 1998 when she was ten years old. Because her cousins were staying the night at their grandparents' home, M.P. slept on the floor in the living room, while her uncle slept on the couch. M.P. was clothed in her underwear and pajamas and covered by a blanket. M.P. awoke in the middle of the night after feeling someone touching her. On observing that the person touching her was defendant, M.P. continued to pretend she was asleep because she was afraid something would happen. For approximately five or ten minutes, defendant placed his hand under her clothes, touching M.P.'s breasts and genital area.
M.P. testified that other assaults occurred during the next three years while she slept on the pullout couch in her cousins' bedroom. While lying on the couch pretending to be asleep, she observed her uncle enter the bedroom, check on his children to ensure that they were asleep, and then approach M.P., again touching her breasts and genital area. On one or two occasions, defendant took M.P.'s hand and placed it on his penis.
M.P. never said anything to defendant during the assaults because she was afraid that he might hurt her. Following each assault, M.P. neither mentioned anything to her aunt or to her cousins concerning her uncle's actions, nor voiced any complaints to her mother, or to her father, with whom, although divorced from her mother, she retained a good relationship. When questioned why she never said anything to her aunt, M.P. stated that she was afraid her aunt would not believe her. When questioned what she meant by being afraid of her uncle, M.P. said, "He just scared me. He was bigger and stronger." However, M.P. acknowledged that defendant never yelled at her; never threatened her; and never instructed her not to tell anyone about the assaults. The only past act of violence that M.P. attributed to her uncle was when she and one of her cousins had accidentally locked the garage door, and defendant broke a window pane in the door to gain access to the door's lock.
In addition to the above alleged assaults, M.P. testified that during the same three-year period defendant would inappropriately touch her breasts while giving her back rubs. M.P. stated that the back rubs occurred during family functions and in the presence of other family members, including her mother, her grandfather and grandmother, and defendant's wife. According to M.P., the incidents occurred when defendant approached her from behind while she was seated, rubbed her neck and back, and eventually moved his hands toward her chest, touching her breasts underneath her bra. Because M.P. had observed defendant rubbing the backs of others, she did not complain to anyone about the incidents, "just figur[ing] everyone thought it was normal."
The first person M.P. told about the assaults was A.R., one of her best girlfriends during her middle school years from seventh through ninth grade. In the spring of 2003, near the end of eighth grade and two years after the last assault, M.P. slept at A.R.'s home. Because she was frustrated with the way her cousins were treating her, M.P. confided in A.R. that her uncle had inappropriately touched her during the past several years. Approximately six months later, on December 6, 2003, M.P. told her parents of the assaults, which led to the prosecutor's investigation and ultimately to defendant's charges.
A.R., also eighteen years of age at the time of trial, testified that one night in the spring of 2003, when M.P. was at A.R.'s house, M.P. told her about defendant's actions. "She basically began to tell me that her uncle had been touching her in inappropriate ways at nighttime when she was asleep, or seemingly asleep, that he would come in, touch her, have her touch him with him thinking that she was asleep." When questioned whether M.P. had told her where defendant would have M.P. touch him, she replied that M.P. had stated "[i]n the groin area." When asked whether M.P. had told her that the assault had occurred on more than one occasion, A.R. replied:
[w]ith the way she told the story, she had basically suggested that it had occurred many times previously, because she said that that was a great deal as to why she didn't want to go to their house, because she did fear that he would come in at night.
She went on to tell me that there were nights where she'd lie awake anticipat[ing] him coming in, and that once he came in[,] she'd act like she was asleep and hope that it would just stop.
Because M.P. instructed A.R. not to tell anyone, A.R. maintained her silence until after M.P. had informed her parents of the assaults.
At the conclusion of A.R.'s testimony, and that of M.P.'s father who also testified as to what M.P. told him on December 6, 2003, about the assaults, the trial court provided the jury with a limiting instruction concerning their testimonies as to what M.P. told them about the assaults. In pertinent part, the trial court instructed the jury:
You may not automatically conclude that [M.P.'s] testimony is untruthful based only on her silence or a delayed disclosure. Rather, you may consider the silence or delayed disclosure, along with all the other evidence, including her explanation for her silence or delayed disclosure when you decide how much weight to afford to her testimony, and of course, she ha[s] not yet testified.
In cases involving allegations of sexual abuse[,] the [S]tate is permitted to introduce evidence that some complaint was made, but is not permitted to introduce the details of any of such a complaint. The only reason that the evidence is permitted is to prevent you from making a false assumption about whether or not the complaint was made.
Such evidence is not proof that the sexual act occurred, and is not proof that the witness is telling the truth. After all, a complaint may be true or false when it is made. It was for this limited purpose that the [S]tate was permitted to introduce testimony that [M.P.] made a complaint to her friend, [A.R.], and her father, [A.P.].
You may consider all the relevant factors in evidence in determining whether a complaint was in fact made. The limited purpose for which you may use this testimony is as follows: If you should find that a complaint was made within a reasonable time to one whom [M.P.] would confide in, you may consider that fact and all the circumstances relating to the complaint in evaluating her credibility as a witness.
The trial court provided the jury with a similar instruction at the end of the case after M.P. testified to the assaults. Defendant testified that he believed he had a friendly relationship with M.P., and denied ever touching her in an inappropriate manner.
On appeal, defendant argues:
POINT II. THE JURY CHARGE REGARDING FRESH COMPLAINT WAS CONFUSING AND CAPABLE OF CAUSING AN IMPROPER RESULT.*fn1
Defendant argues in Point I that the trial court erred in permitting A.R.'s testimony under the FCR. Defendant contends that the trial court abused its discretion by permitting A.R. to testify as to M.P.'s 2003 complaint, asserting that the complaint was not voiced within a reasonable period of time after the last alleged assault in May 2001. Defendant asserts that "[i]n the absence of coercion, a complaint not made within a reasonable period of time can serve no purpose other than to bolster the victim's testimony, an impermissible use of [the fresh complaint] exception to the hearsay rule."*fn2
On review, we accord deference to a trial court's evidentiary ruling. State v. R.E.B., 385 N.J. Super. 72, 82 (App. Div. 2006). Therefore, we will not reverse a trial court's evidentiary determination "unless the court not only abused its discretion[,] but was also clearly wrong." Ibid. Simply stated, an appellate court should not upset the decision of the trial court unless "the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001) (internal citations and quotations omitted).
The FCR is a common law exception to the hearsay rule. See State v. Hill, 121 N.J. 150, 163-66 (1990) (explaining the historical development and current status of the rule). The purpose of the FCR is to permit "the State to negate the inference that the victim was not sexually assaulted because of [the victim's] silence." Id. at 163. For a victim's complaint to qualify under the FCR, the State must meet a three-prong standard. The statement must have been: 1) voiced "to someone [the victim] would ordinarily turn to for support"; 2) "made within a reasonable time after the alleged assault"; and 3) "spontaneous and voluntary." Ibid. Moreover, for the victim's statement to be admitted under the FCR, the victim must testify at trial; and only the fact that a complaint was made is admissible, not the details of the complaint. Ibid. An exception, however, is that details of the complaint may be permitted "to rehabilitate a witness after impeachment to show that statements were made after the incident consistent with the witness's trial testimony." State v. Pillar, 359 N.J. Super. 249, 281 (App. Div.), certif. denied, 177 N.J. 572 (2003).
Defendant moved pretrial for the trial court to exercise its gatekeeper role regarding the admissibility of A.R.'s testimony. Defendant requested that the court exclude A.R.'s testimony, contending that M.P.'s 2003 statement to A.R. did not meet the second prong of the Hill standard, i.e., it was not voiced "within a reasonable time after the [last] alleged assault". Hill, supra, 121 N.J. at 163.
In denying defendant's motion, the trial court reasoned:
Here, the victim is the niece of the defendant, and she had to interact with him on a regular basis. [M.P.] testified that her aunt, the defendant's wife, often asked [M.P.'s] mother to have [M.P.] spend the night at the defendant's house. [M.P.] testified that she tried to make other plans so that she would not have to go to their house, because when she did spend the night there she testified she was repeatedly sexually abused.
She was only ten years old when the abuse started and it occurred almost every overnight visit to the defendant's house until she was [thirteen] according to her testimony. Family dynamics may have kept [M.P.] silent. Again, she was only ten years old when the purported abuse started. While [M.P.] was not subject to explicit coercion or intimidation during her sworn statement to police and testimony under oath to the Grand Jury and during the first trial, she testified that she was afraid of defendant's "tough guy" reputation. She stated that he had a "strong hand" and did not feel pain, and that she saw him put his hand through a glass window in the garage, or at least that was what she perceived to have happened.
As stated in State v. Bethune, 121 N.J. 137, Page 146 (1990). "The purpose of the fresh complaint rule is to prove only that the alleged victim complained, not to corroborate the victim's allegations concerning the crime. Detailed testimony is impermissible under the rule."
The State submits that it is seeking to admit the fresh complaint testimony of only one witness, [A.R.], because she was the first person to which [M.P.] disclosed the abuse. According to the State's proffer, [A.R.'s] testimony will be limited to merely the fact that [M.P.] told her the defendant had sexually abused her.
This [c]court finds that defendant will not be unduly prejudiced if this witness is allowed to testify. He will have the opportunity to hear what [A.R.] testifies to and defense counsel will be able obviously to cross[-]examine her. Further, the defense may argue in closing that [M.P.] waited a "significant amount of time" before disclosing the abuse to anyone.
Additionally, the jury will be given an instruction specifically regarding fresh complaint testimony and limiting its use.
As in the first trial, the instruction will explain the limits on the use of fresh complaint testimony. For these reasons, the defendant's motion to bar this fresh complaint shall be denied. [(emphasis added).]
On appeal, defendant does not challenge that M.P.'s 2003 complaint to A.R. met the first and third prongs of Hill. Rather, as in the trial court, defendant argues that M.P.'s complaint to A.R. did not satisfy the second prong of Hill. Defendant challenges the trial court's implied determination that M.P. voiced her complaint to A.R. within a reasonable time after the last assault occurred in May 2001, when M.P. turned thirteen years of age. Defendant asserts that M.P. did not proffer a plausible explanation why she remained silent during that two-year period and that an explanation was needed to support the court's determination that the two-year period constituted a "reasonable period of time" under Hill. Ibid.
We agree, under the limited facts of this record, that the trial court failed to properly exercise its gatekeeper function when it denied defendant's pretrial motion to exclude A.R.'s testimony. As evidenced by the jury not reaching a verdict at the end of the first trial and defendant's acquittal on one of the two sexual assault counts at the second trial, the evidence of defendant's guilt was not overwhelming. To the contrary, without any other direct testimony or physical evidence of the assaults, the jury was required to acquit or convict based only on its acceptance or rejection of M.P. and defendant's testimonies.
Depending on the facts of a given case, the term "fresh complaint" may be a misnomer. "Fresh" is defined as: "[r]ecent; not stale; characterized by newness without any material interval." Black's Law Dictionary 692 (8th ed. 2004). However, the time in which a victim must voice the complaint to be admissible under the FCR exception to the hearsay rule has not been so restricted. Whether a victim voiced a complaint within a reasonable period after a sexual assault must be decided on a case-by-case basis with the court "[s]triking the appropriate balance between a defendant's right to confrontation and society's interest in adjudicatory reliability". State v. P.H., 178 N.J. 378, 390 (2004). "That balancing must take into account the need for a fair trial of the accused, the nature of the alleged crime, and the overall difficulty involved in prosecution of a case in which the victim is a child and the offense occurs in private." Ibid. Therefore, "[w]hile statements about the sexual assault must be reasonably contemporaneous, that requirement has been given a flexible application when the victim is a minor." Pillar, supra, 359 N.J. Super. at 281.
Courts allow flexibility in applying the FCR standard to cases involving young victims because of their "special vulnerability to being cajoled and coerced into remaining silent by their abusers". State v. Bethune, 121 N.J. 137, 143 (1990). Another reason is that children "may be too frightened and embarrassed to talk about sexual abuse". Id. at 144. A minor victim's complaint may be admitted even where a substantial period of time has elapsed between the assault and the complaint, if the delay is "satisfactorily explainable by the age of the victim and the circumstances surrounding the making of the complaint." Pillar, supra, 359 N.J. Super. at 281-82. Accordingly, when the State seeks to admit a substantially delayed complaint under the FCR, the question is whether there is a plausible explanation for the delay in voicing the complaint. Ibid.
The issue has been addressed in the following cases: P.H., supra, 178 N.J. at 378 (upholding the admission of fresh complaint evidence when a female victim sexually assaulted by her father between the ages of six and twelve waited six years to voice a complaint, and where the State presented expert CSAAS*fn3 testimony explaining why many sexually abused children delay in reporting the acts of abuse); Hill, supra, 121 N.J. at 150 (upholding the admission of a complaint voiced by the victim forty-one days after being raped where the defendant threatened the victim not to tell anyone of the assault); State v. L.P., 352 N.J. Super. 369 (App. Div.) (affirming the admission of the victim's complaint voiced approximately twelve to fourteen months after the last act of sexual abuse, when the victim had been: (1) warned by defendant that he would kill her if she told anyone about the abuse; (2) previously struck by defendant; and (3) removed from defendant's residence and placed in the same home as the defendant's daughter who had also engaged in various acts of physical violence against the victim), certif. denied, 174 N.J. 546 (2002); and State v. Hummel, 132 N.J. Super. 412 (App. Div.) (affirming the admission of a complaint voiced by the victim four to six weeks after the last sexual assault, following the victim's removal from the defendant's home, determining that a fifteen-year-old girl who had been abused and threatened for approximately three years would require several weeks to overcome her residual fears), certif. denied, 67 N.J. 102 (1975).*fn4
Here, contrary to P.H., Hill, L.P., and Hummel, the State did not present a plausible explanation as to why M.P. did not voice her complaint until two years after the last incident. The record is devoid of any evidence that defendant had threatened M.P. not to tell anyone of the alleged assaults, that defendant coerced or intimidated M.P. by displays of violence against his wife or children, or that M.P. resided with defendant for a continuous period of time. Additionally, the record fails to disclose any reasonable explanation why M.P. could not have earlier confided in her mother after returning home from the overnight sleepovers at defendant's residence, or to her father with whom she maintained a good relationship. Nor did the State present testimony from a CSAAS expert.
The State argues that the length of a victim's delay in voicing a complaint to a third party "is merely a factor that the jury may consider relevant with respect to the weight to be given to the fresh complaint under all of the accompanying circumstances" surrounding the sexual assault. We agree with that principle when the State has proffered a plausible explanation for the delay in the victim's complaint, but not as a blanket principle prohibiting the court from exercising its gatekeeper role in the first instance.
As noted by the State, there are cases that indicate the length of the delay goes to the weight to be accorded the evidence, rather than its competency. See State v. Balles, 47 N.J. 331, 341 (1966) (rejecting a defendant's argument that it was for the trial court rather than the jury to determine whether a reasonable time had elapsed between the incident complained of and the victim's complaint), cert. denied, 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed. 2d 1321 (1967); State v. Bethune, 232 N.J. Super. 532, 537 (App. Div. 1989) (holding that "[t]he timeliness of the complaint and any circumstances explaining the delay are treated as questions for the jury"), aff'd, 121 N.J. 137 (1990); Hummel, supra, 132 N.J. Super. at 423 (stating that "[t]he nearness of the complaint to the occurrence or the remoteness therefrom cannot affect its competency, but only its probative value").
However, the facts in Balles, Bethune and Hummel greatly differ from this case. Balles only involved a several hour delay between the assault and the complaint, supra, 47 N.J. at 334-35; Bethune involved a two-week delay in the victim's voicing of the complaint, supra, 232 N.J. Super. at 544; and Hummel involved a delay of four to six weeks with the court determining that there was a reasonable explanation for the delay caused by the victim's residual fears, supra, 132 N.J. Super. at 423. Here, M.P. did not tell A.R. until two years after the last incident complained of.
We conclude that, as in this case, when there is such a lengthy delay between the last assault and the victim's complaint to a third party, the trial court in the first instance should exercise its gatekeeper function and conduct a N.J.R.E. 104(a) evidentiary hearing. The purpose of the hearing is to determine whether the proponent of the fresh complaint evidence also possesses evidence reasonably explaining why the victim delayed in voicing the complaint. On satisfying itself that sufficient reasons will be presented explaining the delay, the court should then admit the evidence and instruct the jury:
In determining whether a complaint was in fact made, you may consider all the relevant factors in evidence . . . . In this context, you may consider the timeliness of the complaint and the likelihood that [the victim] would complain under the circumstances described. If there was a delay in making the complaint, you may consider whether any circumstances existed which would explain the delay. [(Model Jury Charge (Criminal), "Fresh Complaint" (2007)).]
See also Bethune, supra, 121 N.J. at 145 (leaving it to the trial court to determine in the first instance when questioning of a young victim has crossed the line to where the complaint is no longer spontaneous or voluntary).
Here, in denying defendant's pretrial motion, the trial court found that M.P. "may have" kept silent because of family dynamics, explaining that M.P. testified that she was afraid of defendant's "'tough guy'" reputation; she believed he had a "'strong hand' and did not feel pain"; and "that she saw him put his hand through a glass window in the garage, or at least that was what she perceived to have happened." The trial court's findings are not supported by the record. The dynamics of the family were that during the time of the assaults, and for the years that followed, M.P. maintained a good relationship with her mother and father. M.P.'s mother also had a good relationship with her sister, defendant's wife, to where M.P. was permitted to sleep at defendant's home when visiting her cousins. After the sleepovers, M.P. returned home, but never voiced any complaints to her mother or father during the three years in which the assaults occurred or for two years thereafter. We find no plausible explanation in the record as to why M.P. never complained to A.R., her mother, or her father within a more reasonable period of time following the last alleged assault.
As to the trial court's reference to M.P.'s testimony that she was afraid of defendant's "'tough guy' reputation," the record does not contain that statement. We assume the statement merely references the trial judge's recollection of M.P.'s testimony from the first trial. However, that statement, as well as M.P.'s statements that she believed defendant had put his hand through the garage door window and that he had lost feeling in one of his hands from a prior accident, does not explain why M.P. remained silent for two years after the last alleged assault.
We determine that A.R.'s testimony pertaining to M.P.'s 2003 complaint should not have been admitted at trial because it did not satisfy the second prong of Hill. We also agree that the jury should not have been left to assume that, merely because M.P. did not make the complaint for two years, the charges against defendant were untrue. Bethune, supra, 121 N.J. at 148. However, this could have been remedied by a straightforward instruction to the jury that it was not to consider M.P.'s silence following the alleged assaults as "evidence weighing against the credibility of [M.P.], because silence is one of the many ways a child may respond to sexual abuse." Ibid.
We add the following comments for the purpose of retrial. Although we determine on the limited record before us that the State did not proffer a reasonable explanation for M.P.'s two-year delay in voicing her complaint to A.R., the State is not barred from presenting such plausible explanation if one exists. Accordingly, if the State has additional evidence to present on the issue, the trial court should conduct a N.J.R.E. 104(a) hearing and make a preliminary determination as to whether a reasonable explanation exists for the two-year delay. If the court finds that a satisfactory explanation exists, then the matter should be presented to the jury in accordance with the Model Jury Charge instruction.
If the court determines that the fresh complaint evidence is not admissible, the court should instruct the jury that it is not to draw an adverse inference against M.P. if the State requests the curative instruction or if "defense counsel or a witness attempts to shed doubt on [M.P's] credibility." Ibid. Lastly, if defendant uses M.P.'s delay in voicing her complaint, or lack thereof, to attack her credibility at trial, then A.R.'s testimony may be admitted to rehabilitate M.P.'s testimony by showing that the complaint was consistent with her trial testimony. Pillar, supra, 359 N.J. Super. at 281. Because we reverse on defendant's first argument, we do not address the remaining argument.
Reversed and remanded to the trial court for a new trial.
Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
LRC, Inc. About Us


text:
World No.1 Novak Djokovic had a sad yet happy day. The sad part is that his grandfather passed away, but the happy part is that he won his third round match against Ukrainian Alexandr Dolgopolov in Monte Carlo.
The Serb started the match wiping away a tear before his first serve. This was because earlier in the morning, he had found out that his grandfather and his hero, Vladimir, had passed away at age 83. Djokovic had said that his grandfather was the one who ""always told me to fight."
Djokovic ended the match with a score of 2-6, 6-1, 6-4.
My condolences to Novak and his family, and best of luck in the Monte Carlo Masters.

subset: commoncrawl


text:
Move Your Ass Slots
Key Features:
- 5 Reels 25 Paylines
- Prize Pick & Match and Win Features
- Free Spins Round with Free Games
Dance away with your donkey on this silly slot game, Move your Ass Slots! Who will be the best donkey dancer to prance away with the golden prize? It could be you!
Move your Ass Slots is a 5 reel, 25 payline slot game packed with special bonus modes. There's a Match and Win feature, a Prize Pick Feature, plus free games and free spins to be won!
Three or more scattered Judges symbols triggers the Prize Pick Feature. Each pick will multiply the triggering bet, with the chance to win up to 100 times your wager! The Match and Win Feature is triggered with three or more Host symbols. You then select from a grid of 16 until a matching pair is revealed.
Prizes are doubled when the Logo symbol substitutes in a winning combination, and during the Free Spins round all Judges, Hosts, Donkeys and Phone symbols are replaced by Free Game Stars!
So come dance across the stage to win loads of cash prizes when you spin to win on Move your Ass Slots!
Move Your Ass Slots Screenshot
Move Your Ass Slots Video


text: Has anyone seen the app Problem Halved? It was invented by a trash collector from England. He has been featured on the bbc, cnn and Macworld? It's a great story behind the app. The app helps you solve any problems who may have and fellow users of the app post answers to the problems. Rob Shoesmith the trash collector behind this app is aiming to make a million from it. I say fair play to him. Is well worth downloading. You can follow him on twitter at shoesmith81


text:
Smoking cessation strategiesBMJ 2012; 344 doi: http://dx.doi.org/10.1136/bmj.e1732 (Published 23 March 2012) Cite this as: BMJ 2012;344:e1732
You do not have access to the full text of this article, the first page of the PDF of this article appears below.
Sign in
Log in using your username and password
Log in through your institution
Free trial
Register for a free trial to thebmj.com to receive unlimited access to all content on thebmj.com for 14 days.
Sign up for a free trial
Article Access
Article access for 1 day
The PDF version can be downloaded as your personal record
* prices do not include VAT


text:
× View Today's Deals
You missed it This great deal for Shamrock Salon is over. But don't despair, we've got more great deals every day.
Related Deals That You May Like
Avedis Salon & Photography Studio
Haircut and Style with Optional Color
Columbus, OH$65$34.99
Miin Salon at The Blowout Boutique
Haircut and Deep Conditioning Package
Columbus, OH$110$55
TLC Laser Eye Centers
$1,000 to Spend Toward Lasik Eye Surgery
Columbus, OH$1,000$100
Touch Therapy Medical Massage
60- or 90-Minute Couple's Massage
Columbus, OH$165$81.99
Shamrock Salon
Haircut Package with Partial or Full Highlights
- Save 55%
- 62 purchased
deal over
deal over!
86% recommendedin LivingSocial customer ratings
Four-leaf clovers may be lucky -- but as far as we're concerned, the best way to ensure a great day is to rock a fantastic head of hair. Turn every day into a good hair day with this deal:
• $45 ($100 value) for a haircut, partial highlights, deep conditioning, and style
• $55 ($120 value) for a haircut, full highlights, deep conditioning, and style
• Call to schedule an appointment with these Dublin hair experts
PAID VALUE EXPIRES ON December 5, 2021
PROMOTIONAL VALUE EXPIRES ON June 8, 2014


text:
Nature Center Holiday Hours:
December 23rd: 9am-12pm
December 24th: CLOSED
December 25th: CLOSED
December 30th: 9am-12pm
December 31st: 9am-12pm
January 1st: Building CLOSED; Hike @10am
December 2016
Tuesday Dec 27- Thursday Dec. 29 10:00 am-2pm
For children from 5 to 11 years old who love the outdoors and wildlife, these popular classes will not only be educational but also a chance to explore the 156 acres the park offers. We will visit a variety of habitats such as the park's wetlands, fields, and woodlands. Registration deadline is December 16
TUITION: 3 days, $105
Click HERE to download the Nature Days Registration Form!
What We Do
The mission of the Ansonia Nature and Recreation Center is to foster an ethic of environmental stewardship that will connect our communities to the natural world of the Lower Naugatuck River Valley, and balance the demand for recreation with the need for conservation.
Once an active small dairy farm, the park is laced with over 2 miles of nature trails in typical southern New England habitats. The unique visitor center, also know as the Schumacher Pavilion, was constructed in 1977 from Connecticut stone and glass. Entrance to the vistor center is FREE!
Nature-oriented classes are provided to school-age children on weekdays. The staff makes learning fun by providing lively, age-appropriate topics tied to the Connecticut Core Science Curriculum Framework and NGSS.
Nature Camp runs during ALL school breaks: spring, summer, AND winter!
We also offer scout programs, call to talk to an instructor!
We offer evening and weekend programs for adults and their families.
Check our seasonal Calendar of Events for upcoming activities
If you'd like to receive a free copy in the mail, just provide us with your name and address by calling 203-736-1053.
Hiking Trails
Our land is a typical Connecticut landscape that encompasses 150 acres of wooded hills, grassy fields, streams, and a two acre pond of which provides sanctuary to many species of New England flora & fauna.
Join us for a guided hike every Sunday at 1:00. Click here for a copy of our TRAIL MAP
Connecting Children with Nature
Visit us on Saturdays at noon for our popular free Creature Feature program with our resident animals or every Sunday for a Guided Hike at 1:00.
10 Deerfield Lane, Ansonia, CT 06401
Route 243, coming from New Haven on Fountain Street to Ansonia Road: After Warsaw Park, turn right onto Benz Street to 2nd stop. Turn right and quick left back onto Benz Street and take next right onto Milan Street to Deerfield Lane which will take you to the Ansonia Nature Center.
Route 34, coming from New Haven: Follow Rt. 34 to Orange, Turn right onto Racebrook Road (Rt. 114). Turn left at Rt. 243 (Ansonia Road) and follow directions above.
Route 8 North, coming from Bridgeport: Take Exit 16 (Pershing Dr.) At 2nd traffic light turn right onto Division St. Go over Naugatuck River to traffic light intersection (Shell gas station left) Go straight onto Elm St. Stay right of the small green (in front of Ansonia Police Dept.) onto Platt, then follow uphill to Prindle Ave. (Do Not bear right onto Derby section of Prindle Ave.) At stop sign continue straight on Prindle Ave. (past Emmet O'Brien Tech. School on left) follow to next stop. (church on left) Take a right onto Benz St. and follow to 2nd stop. Turn left onto Milan St. to Deerfield Ln. which both dead end in the park.
Route 8 South, coming from Waterbury: Take exit 17 (Seymour Ave.). Take the left fork of the exit, go straight through the light onto Atwater Ave. At next traffic light turn right onto Division St. See above directions to continue.
Please fill out a Friends Membership/Donation form and send it with your tax deductible check made out to the Friends of the Ansonia Nature Center, Inc. (FANCI) to 10 Deerfield Lane, Ansonia, CT 06401. Thank you!
We are looking for volunteers for a variety of different projects and programs. Please call us to find out how you can help. Download a copy of our Volunteer Form


text:
Changes related to "Locale"
From ArchWiki
← Locale
This is a list of changes made recently to pages linked from a specified page (or to members of a specified category). Pages on your watchlist are bold.
4 December 2016
|List of applications/Utilities (diff | hist) . . (+323) . . Michalzuber (Talk | contribs) (Added collectl)


text:
Short Breaks at New Lanark Mill Hotel in 2016 & 2017
New Lanark Health & Fitness - 2 for £70 Spa Day Christmas Special
Christmas Shopping Break
It's beginning to look a lot like Christmas so why not escape the hussle and bussle of the busy shopping centres and enjoy a relaxing Christmas Shop at New Lanark instead?. Our Mill Shop offers a range of contemporary gifts, books, wool and textiles plus ladies and gents fashion. There's also a stunning selection of Christmas gifts. Choosing to stay at New Lanark Mill Hotel on this break gives you a 15% discount from your purchase (excluding Brookes menswear) in the Mill Shop. You will also enjoy a delicious 3 course dinner on each night and breakfast each morning.
November & December ~ 1 night £47.50pp or 2 nights £95.00pp
Owen's Heritage Break
With this break a complimentary ticket to New Lanark Visitor Centre is included. This gives you free access to all of the buildings within New Lanark World Visitor Centre including the stunning rooftop garden. There's so much to see and do on this break
October ~ 2 nights £109pp or 3 nights £139pp
November & December ~ 2 nights £95pp or 3 nights £129pp
January & February ~ 2 nights £89pp or 3 nights £119pp
March ~ 2 nights £109pp or 3 nights £139pp
April & May ~ 2 nights £119pp or 3 nights £149pp
Romance Stay
Who needs Valentines to impress?! This romantic getaway includes a glass of bubbly on arrival, strawberries with dipping chocolate and bathrobe
October ~ 1 night £65pp or 2 nights £125pp
November, December, January, February ~ 1 night £49pp or 2 nights £109pp
March, Aril & May ~ 1 night £65pp or 2 nights £125pp
Spa Break
Feel your stresses melt away with a Spa Sational Break. Included in your stay is a choice of mini spa treatments
October & November ~ 1 night £89pp or 2 nights £129pp
December & January ~ 1 night £79pp or 2 nights £129pp
February, March & April ~ 1 night £89pp or 2 nights £139pp
All prices are based on two people sharing a Standard double or twin room.
A supplement of £6 per person applies to bookings on a Friday & Saturday.
Upgrade to one of our Deluxe rooms for only £10 per person.


text:
My 20 years old ex girlfriend shaved pussy (BEST PUSSY I SAW !!!)
Torrent Description
The torrent has 2 files, total 29.0MB, created at Mar. 07, 2015.
Torrent Tags
Happy? Share it!
Download Link
Download Infomation
The torrent has been downloaded 172 times, the speed is bad.
Torrent Contents ( 2 files)
READ THIS FIRST.htm1.0KB
You May Be Interested In:


text:
Overnight Developments
- E-mini S&Ps this morning are up 10.50 points (+0.80%) on the surprise Chinese rate cut and on the successful Spanish bond auction. Commodity prices are mixed with crude oil up 0.78% and agricultural prices mostly higher but with metals prices trading lower. T-notes are slightly higher by +0.5 tick. The dollar index is down -0.195 points (-0.24%).
- The Euro Stoxx 50 is up 0.93% this morning on the Chinese rate cut and on Chancellor Merkel's comments in favor of fiscal union and the successful Spanish bond auction. Asian stocks today closed mostly higher: Japan +1.24%, Hong Kong +0.85%, China -0.60%, Taiwan +0.34%, Australia +1.31%, Singapore -0.06%, South Korea +2.81%, India +1.18%, Turkey +0.93%.
- China cut its lending rate by 25 bp to 6.31% from 6.56%, in a surprise move that will be welcome around the world.
- Chancellor Merkel today said that "We need more Europe, we need not only a monetary union, but we also need a so-called fiscal union, in other words more joint budget policy. And we need most of all a political union, that means we need to gradually give competencies to Europe and give Europe control."
- The Bank of England today left its base rate at 0.50% and held its bond purchase ceiling unchanged at 325 billion pounds, which was in line with consensus market expectations.
- Spain today successfully met its target of selling 2 billion worth of bonds at auction. The Spanish Treasury received 3.29 times as many bids as its accepted for the 10-year bond auction that yielded 6.044%. The government sold 611 million euros worth of 10-year bonds and another 1.46 million of 2 and 4 year securities, bringing the total to 2.07 billion euros. The sale was a big relief considering that Spain's finance minister earlier this week fretted that the bond markets were closed to the Spanish government. Market Comments
- June E-mini S&Ps this morning are trading +10.50 (+0.80%) on the Chinese rate cut and the successful Spanish bond auction. The US stock market on Wednesday rallied sharply: S&P 500 +2.30%, Dow Jones +2.37%, Nasdaq 100 +2.36%. Bullish factors included (1) hopes that European policymakers may be in the process of putting together a bailout package for Spain, (2) ECB President Draghi's statement that the ECB is ready to act and that some ECB members favored a rate cut although the ECB left its refinancing rate unchanged at 1.00% at its meeting on Wednesday, (3) hopes that the Federal Reserve will extend its Operation Twist program at its meeting on June 19-20 given yesterday's report that Fed chairman Bernanke and Treasury Secretary Geithner are very worried about European banks, (4) the Beige Book report saying that the U.S. economy "expanded at a moderate pace" and that hiring was "steady or increased slightly," (5) short-covering after the recent sharp sell-off, and (6) some value buying with valuations at very cheap levels.
- Sep 10-year T-notes this morning are trading +0.5 tick, stabilizing after Wednesday's sharp decline. June 10-year T-note prices on Wednesday closed sharply lower: TYU2 -20.5, FVU2 -9.75. The main bearish factor was reduced safe-haven demand with the sharp rally in US and European stocks. The S&P 500 index on Wednesday closed +2.37% and the Euro Stoxx 50 closed +2.42%. The T-note market is looking ahead to today's testimony by Fed Chairman Bernanke before a Congressional panel to gauge whether the Fed will extend its Operation Twist program.
- The dollar index this morning is down -0.195 (-0.24%) on reduced safe-haven demand. EUR/USD is little changed while USD/JPY is up +0.18 (+0.23%). The dollar index on Wednesday closed with a fairly sharp loss: Dollar Index -0.504 (-0.61%), EUR/USD +0.0130 (+1.04%), USD/JPY +0.44 (+0.56%). The dollar index was undercut by reduced safe-haven demand with the sharp rally in stocks. Meanwhile, the euro was boosted by short-covering and by hopes that policy-makers are putting together a bailout package for Spain.
- July WTI crude oil prices this morning are up 0.66 (+0.78%) while gasoline is down -0.0007 (-0.03%). Crude oil and gasoline prices on Wednesday closed moderately higher: CLN2 +0.73 (+0.87%), RBN2 +0.0056 (+0.21%). The main bullish factor was the sharp rally in the stock market and the sell-off in the dollar index. However, crude oil and gasoline prices were held back by the bearish weekly DOE report. The DOE report showed that U.S. oil inventories fell slightly by 111,000 barrels, which was a smaller decline than expectations of -1 million barrels. Meanwhile, gasoline inventories rose sharply by 3.346 million (versus expectations of +1 million barrels), and distillate inventories rose by 2.253 million barrels (versus expectations of +1 million barrels). The refinery utilization rate rose sharply by 1.9 points to 91.0%, which was larger than expectations of +0.5 points and left the rate 2.9 points above the 5-year seasonal average. Refineries are now operating in high gear and that should allow oil inventories to start to consistently drop and allow product inventories to consistently rise.
- For the complete subscription version of this daily report (plus a 13-page big-picture weekly report), along with the earliest possible delivery in the morning, please visit http://www.barchart.com/register/crbfms_usmc.php Today's U.S. Earnings Reports
Earnings reports (sorted by mkt cap): LULU-Lululemon (consensus $0.30), SJM-JM Smucker (0.99), COO-Cooper (1.20).
Global Financial Calendar
Thursday 6/7/12 United States 0545 ET Fed's Rosengren speaks about global risk in Copenhagen. 0830 ET Weekly initial unemployment claims expected +3,000 to 380,000, previous +10,000 to 383,000. Weekly continuing claims expected -2,000 to 3.240 mln, previous -18,000 to 3.242 mln. 0830 ET USDA weekly exports. 1000 ET Fed Chairman Bernanke testifies to Congressional Joint Economic Committee on the U.S. economic outlook. n/a ICSC May chain store sales, Apr +0.6% y/y. 1030 ET DOE natural gas storage. 1210 ET Fed's Lockhart speaks on U.S. economy in Georgia. 1315 ET Fed's Kocherlakota speaks in Minneapolis. 1500 ET Apr consumer credit expected +$10.6 bln, Mar +$21.355 bln. 1530 ET Fed's Fisher speaks on renminbi at La Jolla, CA. 1630 ET Weekly money supply report and Fed balance sheet. n/a Treasury announces 3-year, 10-year , and 30-year auctions for June 12-14. Japan 0100 ET Japan Apr coincident index, Mar 96.7. Apr leading index, Mar 96.4. 1950 ET Japan Q1 final GDP, last +1.0% q/q and +4.1% q/q annualized. Q1 deflator -1.2% y/y. 1950 ET Japan Apr current account (sa) expected 538. bln yen, Mar 785.5 bln yen. Apr trade balance (BOP basis) expected -425 bln yen, Mar 4.2 bln yen. 1950 ET Japan May bank lending ex-trusts, Apr +0.4% y/y. May bank lending including trusts, Apr +0.3% y/y. United Kingdom 0430 ET UK May PMI services expected 52.8, Apr 53.3. 0700 ET Bank of England meeting concludes with policy announcement. Base rate expected unchanged at 0.50% and asset purchase target expected unchanged at 325 billion pounds.
Barchart.com provides Financial Quotes, Charts and Technical Analysis for Stock and Commodity Traders.


text:
Climate change was a wealth redistribution scam from the start.
Scientific data has not shown the earth warming for the past two decades, despite every publication claiming this year, no this year, no this year is the hottest on record.
Say either of those two things to a Democrat and watch their head explode.
What 45th President Donald Trump has planned for NASA will send the left through the roof!
Instead of focusing on global warming, he wants them to worry about space exploration.
What a concept.
From Washington Examiner:
President-elect Trump will take NASA out of the climate change business and refocus it on space exploration, a Trump team adviser said.
"We see NASA in an exploration role, in deep space research," Bob Walker, a senior Trump adviser, told the Guardian newspaper. "Earth-centric science is better placed at other agencies where it is their prime mission."
NASA has increased its role in monitoring the effects of global warming and climate change, turning its satellites back at the Earth during the Obama administration to track pollution, sea-level rise and rising carbon dioxide levels. The space agency's climate focus has been a key issue raised by Republicans on the House Science, Space and Technology Committee that overseas the agency's policy priorities.
Trump's team appears to be taking lessons from the science committee, which wants NASA's budget to be directed at space exploration and not combating global warming. Many scientists blame greenhouse gas emissions from the burning of fossil fuels for warming the Earth's temperature, leading to more catastrophic weather.
Is Trump out of his mind?
He's going to force NASA to do what they were originally intended to do and focus on space?
This guy is out of control!
Ha. Classic.
From YC.


text:
The official repository/archive for student learning outcome (SLO) data is the TracDat system. Unfortunately, faculty access to TracDat is ordinarily limited to department chairs only. To make SLO data for VC mathematics courses more easily accessible to instructors, the TracDat data have been replicated below. However, because it is not the official SLO repository, the information on this page may be outdated; to give an indication of the data's "freshness," the date of the most recent update for each course is also shown below. If it is vital for your SLO data to be current (in particular, if the information for your course was updated more than a year or so ago), please contact the mathematics department chair (Alex Kolesnik) or the lead instructor for your course. If you discover that the data provided on this page are out of date, please provide updated information to the Webmaster so that other instructors may benefit.
If a similar phrase is not already incorporated in the wording of each outcome, it is implied that the stated wording of each SLO includes the prefatory phrase
Upon successful completion of the course, students will be able to…
Index: Math V01 :: V01A :: V01B :: V01C :: V01D :: V01E :: V02 :: V03 :: V03A :: V03B :: V03C :: V03D :: V03E :: V04 :: V05 :: V06 :: V09 :: V09A :: V09B :: V09C :: V10 :: V10A :: V10B :: V10C :: V11A :: V11B :: V12 :: V13A :: V13B :: V20 :: V21A :: V21B :: V21C :: V22 :: V23 :: V24 :: V38 :: V40 :: V44 :: V45 :: V46 :: V52 :: V88 :: V89 :: V90
Return to the Mathematics Department Start Page
If you have any questions or comments,
please contact the Webmaster
Last updated Thursday 20 October 2016 07:21:42
4667 Telegraph Road
Ventura, California 93003
☎ 805.289.6000


text:
20 mile radius
Please introduce a postcode to use this feature
You will also gain real work experience which will give you the practical skills and knowledge to form a successful career in your chosen industry.
Excellent staff, and excellent course structure. Really focused on the practical...more
The computer games industry has become one of the fastest growing forms of media entertainment. This work-related qualification is ideal for those interested in games technology and development. It will...more
Duration: 2 years
Full time
Other regulated/accredited qualification
This course is offered in partnership with a Microsoft Silver Learning Partner twinned with a Microsoft IT Academy partner. This three-day MTA Training course helps you prepare for Microsoft Technology...more
Duration: Variable
Different times are available for this course
Professional Qualification
We've all seen cartoons on the TV, watched films at the cinema or played games on a console – but how many of us think about how those products get produced? In one way or another, these will have all used some kind of animation to get them onto...
When you think of the most expensive films in the world, your mind instantly wanders to the likes of King Kong and The Titanic. Yet, some of Hollywood's biggest budgets are, in fact, animation. As the likes of Disney, Pixar and DreamWorks pay a...


text:
Home /
Our Sources / About Us
/ FAQs /
Advanced Search
Not what you're
looking for? Try an advanced search.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
United States District Court, D. Columbia.
September 30, 2014
ANGLERS CONSERVATION NETWORK, et al. Plaintiffs,v.PENNY PRITZKER, et al., Defendants
Page 428
[Copyrighted Material Omitted]
Page 429
For Anglers Conservation Network, Paul Eidman, Paul Eidman, Gateway Striper Club, Inc., Philip Lofgren, Plaintiffs: Erica A. Fuller, PRO HAC VICE, Ipswich, MA USA; Roger M. Fleming, PRO HAC VICE, EARTHJUSTICE, Hallowell, ME USA; Stephen Elston Roady , EARTHJUSTICE, Washington, DC USA.
For Penny Sue Pritzker, National Oceanic And Atmospheric Administration, National Marine Fisheries Service, Defendants: Travis James Annatoyn, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Environmental & Natural Resources Division, Washington, DC USA; John S. Most, DEPARTMENT OF JUSTICE, Land & Natural Resources Div., Washington, DC USA.
Page 430
Gladys Kessler, United States District Judge.
Plaintiffs, Anglers Conservation Network, Gateway Striper Club, Inc., Paul Eidman, and Philip Lofgren (collectively, " Plaintiffs" ), bring this case against the Secretary of the Department of Commerce (" the Secretary" ), the National Oceanic and Atmospheric Administration (" NOAA" ), and the National Marine Fisheries Service (" NMFS" ) (collectively, " Defendants" ) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (" MSA" ), 16 U.S.C. § § 1801 et seq.; the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321 et seq.; and the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701 et seq.
This matter is before the Court on Defendants' Motion to Dismiss [Dkt. No. 17]. Upon consideration of the Motion, Opposition [Dkt. No. 28], and Reply [Dkt. No. 29], and the entire record herein, including the arguments presented at the Motion Hearing on September 30, 2014, and for the reasons set forth below, Defendants' Motion shall be granted.
A. The Magnuson-Stevens Act
Congress first enacted the MSA in 1976 " to take immediate action to conserve and manage the fishery resources found off the coasts of the United States[.]" 16 U.S.C. § 1801(b)(1). The Act establishes a federal-regional framework " for the conservation and management of the fishery resources of the United States" in order to " prevent overfishing," " rebuild overfished stocks," " [e]nsure conservation," and " facilitate long-term protection of essential fish habitats." Id. § 1801(a)(6); see also Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 749, 341 U.S.App.D.C. 119 (D.C. Cir. 2000). Regulation of fisheries is accomplished through fishery management plans (" FMPs" ) that are developed and prepared by independent regional fishery management councils and approved, implemented and enforced by NMFS, a division within the Department of Commerce.[1] See 16 U.S.C. § § 1853-1854.
Page 431
The MSA divides the United States into eight regions, each of which is represented by an independent fishery management council. See id. § 1852(a)(1). Councils are composed primarily of members who represent the interests of the states included in their region and who are appointed by the Secretary from a list of individuals submitted by the governor of each constituent state. Id. § 1852(b)(1), (2); see also C & W Fish Co. v. Fox, Jr., 931 F.2d 1556, 1557-58, 289 U.S.App.D.C. 323 (D.C. Cir. 1991). The remaining voting members of each council consist of the principal marine fishery management officials from each constituent state and the regional director of NMFS for the related geographic area. 16 U.S.C. § 1852(b)(1)(A), (B).
Each council is required to prepare and submit to the Secretary (acting through NMFS) a fishery management plan and any necessary amendments to such plan, " for each fishery under its authority that requires conservation and management[.]" Id. § 1852(h)(1). The term " fishery" is defined in the Act as " one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and [ ] any fishing for such stocks." Id. § 1802(13). A fishery management plan must describe the species of fish involved in the fishery and specify the " conservation and management measures" that are " necessary and appropriate" to " prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery[.]" Id. § 1853(a)(1)(A), (2).
After a council prepares and approves a fishery management plan or amendment, it is sent to NMFS, which reviews it for consistency with the MSA and other applicable law and publishes it in the Federal Register for notice and comment. Id. § 1854(a)(1). After a 60-day notice and comment period, NMFS must " approve, disapprove, or partially approve a plan or amendment[,]" taking into account the views and comments of interested persons. Id. § 1854(a)(2), (3).
If NMFS approves a plan or amendment, or does not expressly disapprove it within 30 days, it becomes effective. Id. § 1854(a)(3). If NMFS disapproves or partially approves the plan or amendment, NMFS must thereafter notify the council of " the applicable law with which the plan or amendment is inconsistent" ; the " nature of such inconsistencies" ; and specific " actions that could be taken by the Council to conform such plan or amendment to the requirements of applicable law." Id. § 1854(a)(3). The council " may" thereafter " submit a revised plan or amendment to the Secretary for review[.]" Id. § 1854(a)(4).
With limited exceptions not relevant here, there are only two situations in which the Secretary is permitted to develop an FMP or amendment herself: (1) where, " after a reasonable period of time," the appropriate council has failed to make any recommendation regarding an FMP or necessary amendment; and (2) where the council has failed to submit a revised (or further revised) plan after the Secretary has disapproved or partially approved an FMP plan, amendment, or revision. Id. § 1854(c)(1)(A), (B). In these circumstances, the Secretary " may" promulgate a
Page 432
plan or amendment herself after inviting consideration and comment from the council and other interested parties and a 60-day notice and comment period. Id. § 1854(c)(1), (3), (4).
B. Factual Background[2]
Plaintiffs are fishing organizations based in New York and New Jersey; the owner of an eco-tours and fishing business in Tinton Falls, New Jersey; and the " assistant herring warden" for the Town of Weymouth, Massachusetts. Compl. ¶ ¶ 8-11. Their Complaint pertains to the Atlantic Mackerel, Squid and Butterfish fishery (" MSB" or " mackerel" fishery), which is managed by the Mid-Atlantic Fishery Management Council (" Mid-Atlantic Council" or " Council" ). The Mid-Atlantic Council represents the states of New York, New Jersey, Delaware, Pennsylvania, Maryland, Virginia, and North Carolina. 16 U.S.C. § 1852(a)(1)(B).
1. The MSB Fishery
The MSB fishery is " a directed fishery dominated by midwater trawl vessels," which catch fish by " dragging large nets behind their vessels." Compl. ¶ 57. These nets snare large numbers of other fish and marine wildlife at the same time as they catch their target fish. Of particular concern to Plaintiffs are four species of fish, which shall be referred to simply as the " river herring" and " shad," which are often caught incidentally with Atlantic mackerel.[3] River herring and shad provide essential forage for large fish, marine mammals, and sea birds, including striped bass, weakfish, blue fish, blue fish tuna, marlin, sharks, ospreys, loons, herons, bald eagles, egrets, whales, and river otters. Compl. ¶ 47.
The FMP for the mackerel fishery, which was promulgated in 1983, recommends conservation and management measures for the Atlantic mackerel, longfin squid, Illex squid, and butterfish. Compl. ¶ 56. It does not, however, currently include any protections for the river herring and the shad because they are not designated as " stocks" in the MSB fishery.[4]
Plaintiffs allege that the incidental catch of river herring and shad by trawls in the MSB fishery " contributes significantly" to the total known mortality of these species. Id. ¶ 59. They allege that " river herring and shad populations have declined to historic lows in recent decades as a result of overfishing, habitat loss, and other factors." Compl. ¶ 48. They claim, for example, that 23 out of 24 stocks of river herring are " depleted" and that stocks of shad are " at all-time lows and [do] not appear to be recovering to sustainable levels." Id. ¶ 49.
2. Amendment 14 to the MSB Plan
The Mid-Atlantic Council is aware of the depleted state of the river herring and shad in federal waters. In 2010, it began development of Amendment 14 to the MSB
Page 433
plan, with one of the stated purposes being to " consider [measures] that would bring [the river herring and shad] into the . . . plan as a managed stock[.]" Compl. ¶ 70. Plaintiffs allege that, " at the last minute," NMFS advised the Council that its analysis of Amendment 14 was insufficient to add river herring and shad to the MSB fishery as managed stocks and " recommended initiation of a new amendment to fully analyze the issue." Id. ¶ 72.
In response, the Council decided not to add the river herring and shad to the FMP by way of Amendment 14 and opted instead " to develop a separate amendment, Amendment 15 to the MSB FMP, that would fully analyze the necessity of managing these stocks under the Magnuson-Stevens Act, the interjurisdictional issues related to management of these stocks, as well as the required and discretionary FMP provisions that would apply to these stocks if added to the fishery." Id. ¶ 73 (citing Amendment 14 FEIS, at 111).[5]
3. Amendment 15 to the MSB Plan
In the fall of 2012, the Council released a Draft Scoping Document and Action Plan for Amendment 15 and announced its intent to prepare an environmental impact statement regarding the proposed Amendment. Id. ¶ ¶ 75, 76. The Council also formed several technical committees and a fishery management action team (" FMAT" ) to consider direct management of the river herring and shad in the MSB fishery. Id. ¶ 76.
In June of 2013, the NMFS's Regional Administrator for the Mid-Atlantic Region, John Bullard, who is also a voting member of the Mid-Atlantic Council, sent a Guidance Memorandum to the Executive Director of the Council, Dr. Christopher Moore, " outlining how to make the determination whether or not to include river herring and shad as stocks to be managed in the MSB fishery[.]" Id. ¶ 77; see also Ex. 3 to Pls.' Opp'n (Mem. from Regional Administrator Bullard to Dr. Moore, dated June 6, 2013) (" Bullard's Guidance Memorandum" ) [Dkt. No. 28-4]. Plaintiffs claim that this Memorandum was flawed because it " did not recommend reliance on the statutory process outlined in the Magnuson-Stevens Act" or the " statutory definition of 'conservation and management.'" Compl. ¶ 77.
In response to Bullard's Guidance Memorandum, the Council prepared a white paper analyzing whether " additional management" of the river herring and shad was required. Compl. ¶ ¶ 78-79; see also Ex. 5 to Pls.' Opp'n (Mem. from Jason Didden to the Mackerel, Squid, and Butterfish (MSB) Committee/Council, dated September 30, 2013) (" White Paper" ) [Dkt. No. 28-6]. Plaintiffs contend that this White Paper " strongly suggest[ed]" that the decision whether to add the river herring and shad to the MSB plan should be based on certain " National Standards" prepared by NMFS and " their (non-binding) guidelines," which Plaintiffs contend " unlawfully introduce[d] a 'cost-benefit' analysis into the decision[.]" Compl. ¶ 79.
On October 8, 2013, the Council met to consider Amendment 15. Id. ¶ 81. Although " 37,000 comments were received in favor of adding river herring and shad to the MSB FMP, and only one (1) comment opposed it[,]" the Council voted, in a 9 to 10 vote, against a motion to move forward with the continued development of Amendment 15. Id. ¶ ¶ 81, 83.[6] Plaintiffs allege
Page 434
that " NMFS Regional Administrator Bullard cast the deciding vote to terminate Amendment 15," and " advocated strongly against adding river herring and shad to the MSB FMP [.]" Id. ¶ ¶ 82, 84.
After declining to proceed with immediate development of Amendment 15, the Council decided to revisit the issue of the river herring and shad in three years and, in the interim, approved the creation of an " ad hoc interagency working group" to study the issue. Id. ¶ ¶ 85, 86.
C. Procedural Background
On November 7, 2013, one month after the Council's vote of October 8, 2013, Plaintiffs filed this case challenging what they referred to as " NMFS's decision to terminate Amendment 15 and to not include river herring and shad as stocks in the mackerel fishery[.]" Compl. ¶ 101.
On January 24, 2014, Defendants filed the instant Motion to Dismiss, arguing that the Complaint fails to state a claim because the decision not to proceed with Amendment 15 was taken by the Mid-Atlantic Council, which is " not an agency of the federal government for purposes of the APA, [or] a division of the Department of Commerce[.]" Defs.' Mot. to Dismiss at 1 [Dkt. No. 17].
Plaintiffs did not immediately respond to Defendants' Motion to Dismiss. Instead, on March 26, 2014, they filed a new case based on Defendants' publication of a final rule for Amendment 14 to the MSB plan. See generally Anglers Conservation Network v. Pritzker, No. 14-509 (GK) (D.D.C. Mar. 26, 2014). The same day, they filed a Motion to Supplement their Complaint in this case to add allegations related to Amendment 14 and to stay briefing on the instant Motion until Defendants responded to the proposed supplemental claims.
On April 28, 2014, the Court denied Plaintiffs' Motion to Supplement, observing that the original and supplemental claims " challenge two discrete decisions taken by two different decision-makers and involve two separate administrative records, each of which must be compiled and evaluated separately." Mem. Order of April 28, 2014, at 4 [Dkt. No. 27].[7] The Court did, however, grant Plaintiffs' request for an extension of time to file their Opposition to the instant Motion.
Thereafter, in accordance with the Court's Order of April 28, 2014, on June 2, 2014, Plaintiffs filed their Opposition to the Defendants' Motion to Dismiss [Dkt. No. 28], and on June 16, 2014, Defendants filed their Reply [Dkt. No. 29].
To survive a motion to dismiss brought under Rule 12(b)(6), a complaint must contain sufficient factual matter " to state a claim to relief that is plausible on its face" and to " nudge[ ] [the plaintiff's] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
In applying this standard, the court " must assume all the allegations in the complaint are true (even if doubtful in fact)" and give the plaintiff " the benefit of all reasonable inferences derived from the facts alleged."
Aktieselskabet AF 21 November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17, 381 U.S.App.D.C. 76
Page 435
(D.C. Cir. 2008) (internal quotation marks and citations omitted). The court does not, however, accept as true " legal conclusions or inferences that are unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315, 411 U.S.App.D.C. 105 (D.C. Cir. 2014) (citation omitted). Furthermore, a complaint which " tenders 'naked assertion[s]' devoid of 'further factual enhancement'" will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557).
As set forth above, the MSA establishes a carefully calibrated scheme under which the Secretary reviews the work of the regional councils, and her decision is appealable to the courts. Plaintiffs seek to circumvent this framework by asking the Court to review an intermediate decision of the Mid-Atlantic Council, which was never presented to the Secretary for review, has not been published for notice and comment, and was never formally approved or disapproved by the Secretary. Because neither the MSA, nor the APA, nor NEPA provide any authority for this request, the Motion to Dismiss must be granted.
A. Count 1: Violation of the MSA
In Count 1, Plaintiffs challenge, under both the MSA and the APA, what they refer to as " NMFS's decision to terminate Amendment 15 and to not include river herring and shad as stocks in the mackerel fishery[.]" Compl. ¶ 101.
1. There Is no Basis for Judicial Review under the MSA
Plaintiffs first contend that their claim in Count 1 is directly reviewable under the MSA, which provides for judicial review of " actions that are taken by the Secretary under regulations which implement a fishery management plan" so long as the " petition for such review is filed within 30 days after . . . the action is published in the Federal Register[.]" 16 U.S.C. § 1855(f)(1)-(2).[8]
The lengthy and detailed factual allegations in the Complaint make abundantly clear that the decision to postpone any further development of Amendment 15 was not an " action . . . taken by the Secretary" within the meaning of Section 1855(f), but a non-final decision of the independent Mid-Atlantic Council. Plaintiffs do not purport to challenge the Council's decision, and concede they purposefully did not name it as a defendant in this case. Pls.' Opp'n at 26. In fact, Plaintiffs acknowledge that " the Council itself has no power" to create legally binding rules or obligations. Id. at 27.
The Secretary, who does have the power to take legally binding action and whose sole actions are reviewable under Section 1855(f), never had occasion to act on Amendment 15 because it was never approved " by majority vote of the voting members" of the Council or " transmit[ted] by the Council to [her]." 16 U.S.C. § § 1852(e)(1), 1854(a)(1).
Plaintiffs do not allege otherwise. They suggest, instead, that Regional Administrator John Bullard's June 2013 provision of guidance and advice to the Council regarding Amendment 15 and participation in the October 8, 2013, vote either themselves
Page 436
constituted " actions . . . taken by the Secretary" or transformed the decision of the Council into an action of the Secretary.
This theory is not consistent with the entire structure of the MSA. The MSA encourages and requires collaboration and information-sharing between the councils and NMFS (including by requiring a NMFS Regional Administrator, such as Bullard, to sit on each council). See 16 U.S.C. § § 1852(b)(1)(B), (c)(1)(A)-(D), (e)(4), (f)(2), (f)(5), (g)(1)(C), (h)(2), (h)(4). Nevertheless, it clearly establishes separate decisionmaking roles for councils and the Secretary and, importantly, only authorizes judicial review over " actions . . . taken by the Secretary." 16 U.S.C. § 1855(f) (emphasis added). Therefore, the mere fact that Bullard fulfilled his statutory duty by participating in the development and consideration of Amendment 15 clearly cannot transform a vote of the independent Council into one " taken by the Secretary."
This conclusion is reinforced by the fact that Section 1855(f) directly authorizes judicial review of only secretarial " actions" that are " published in the Federal Register" (emphasis added). 16 U.S.C. § 1855(f)(1). Amendment 15 was never published in the Federal Register, nor could it have been having never been approved by the Council.[9]
Finally, to the extent Plaintiffs rely on the MSA to challenge NMFS's independent failure to add the river herring and shad to the MSB plan, see Pls.' Opp'n at 26, this Court has previously held that " the clear text of the MSA" fails to provide any authority for judicial review of such " 'inaction.'" Gulf Restoration Network, Inc. v. Nat'l Marine Fisheries, Serv., 730 F.Supp.2d 157, 172 (D.D.C. 2010). Consequently, Plaintiffs' " inaction" theory also fails to state a claim under the MSA.[10]
For these reasons, Plaintiffs have not stated a claim directly under the MSA.
2. There is No Basis for Judicial Review under the APA
Lacking a basis for judicial review under the MSA, Plaintiffs also seek judicial review under the APA. Courts have recognized that the APA provides an alternative basis for judicial review of the Secretary's actions that exists in addition to Section 1855(f).
See, e.g., Guindon, 2014 WL 1274076, at *16-17 (applying the APA to claims under the MSA); Hawaii Longline
Ass'n v. Nat'l Marine Fisheries Serv., No. 01-765,
Page 437
2002 WL 732363, at *4 (D.D.C. Apr. 25, 2002) (same).
The APA, however, limits judicial review to " final agency action[s] for which there is no other adequate remedy in a court[.]" 5 U.S.C. § 704. " A final agency action is one that marks the consummation of the agency's decisionmaking process and that establishes rights and obligations or creates binding legal consequences." ' Nat'l Res. Def. Council v. EPA, 559 F.3d 561, 564, 385 U.S.App.D.C. 132 (D.C. Cir. 2009) (citing DRG Funding Corp. v. Sec'y of Hous. & Urban Dev., 76 F.3d 1212, 1214, 316 U.S.App.D.C. 159 (D.C. Cir. 1996)); see also Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
An action by the Mid-Atlantic Council does not qualify as an " agency action" under the APA because, as Plaintiffs appear to concede, Pls.' Opp'n at 26-27, a fishery management council is " not itself an 'agency'" subject to judicial review. Gen. Category Scallop Fishermen v. Sec'y, U.S. Dep't of Commerce, 635 F.3d 106, 112 n.15 (3d Cir. 2011) (citation omitted); see also (J.H. Miles & Co. v. Brown, 910 F.Supp. 1138, 1159 (E.D. Va. 1995) (holding that the Mid-Atlantic Council is not an " agency within the meaning of the [APA] . . . because it has no 'authority' to do anything" ); Gulf Restoration Network, Inc., 730 F.Supp.2d at 172-74 (council's passage of FMP was not final agency action because FMP had no legal effect until promulgation of Secretary's implementing regulations).[11]
Plaintiffs advance several theories as to how the events surrounding the development of Amendment 15 nevertheless constitute " final agency action" reviewable under the APA. None, however, are persuasive.
a. Federal Involvement in the Development of Amendment 15
First, Plaintiffs again argue that the involvement of Regional Administrator Bullard and other federal employees in the development of Amendment 15 transformed the Council's consideration of the Amendment into an action by the Secretary. As discussed earlier, however, the MSA specifically contemplates and requires the collaboration of federal employe-es and regional councils in developing conservation and management measures; the mere fact of such collaboration, therefore, cannot transform the Council's actions into final " agency action" under the APA.
Moreover, Bullard's Guidance Memorandum to the Council Staff, which Plaintiffs have incorporated by reference in their Complaint, merely sets forth his opinion as to the required legal framework for deciding whether to move forward with Amendment 15. See Ex. 3 to Pls.' Opp'n (Bullard's Guidance Memorandum) at 1-3 [Dkt. No. 28-4]. That guidance, influential as it may have been, certainly did not constitute the " consummation" of NMFS's decisionmaking process on Amendment 15 (no such Amendment having yet been approved
Page 438
by the Council or submitted to NMFS for review).
Nor was it a decision from which " rights or obligations" were determined or " legal consequences" flowed. See Bennett, 520 U.S. at 178 (noting that " tentative recommendation[s]" and recommendations that are " purely advisory" do not constitute " final" actions for purposes of the APA); Sprint Nextel Corp. v. F.C.C., 508 F.3d 1129, 1132, 378 U.S.App.D.C. 432 (D.C. Cir. 2007) (holding that statements of individual commissioners are net " institutional Commission actions" because they " do not represent the Commission's views" ). Thus, Regional Administrator Bullard's Guidance Memorandum in June 2013 was not a final agency action.
Plaintiffs also appear to rely on NMFS's guidance to the Council regarding Amendment 14 and the fact that NMFS and NOAA employees served on the fishery management action team (FMAT) for Amendment 15. See Pls.' Opp'n at 16-20. As with the guidance provided by Bullard, however, the mere fact that NMFS and NOAA employees played an advisory role in the development of Amendments 14 and 15 does not transform the Council's actions on Amendment 15 into a final action of the Secretary. To the contrary, Section 1852(g) expressly requires councils to establish committees and advisory panels composed of " Federal employees, State employees, academicians, or independent experts," but states that any " [d]ecisions and recommendations made by [such] committees and panels . . . shall be considered to be advisory in nature." 16 U.S.C. § 1852(g)(5) (emphasis added).
Therefore, neither Bullard's guidance memorandum nor the collaboration and feedback between federal employees and the Council in developing Amendments 14 and 15 constitute " final" action of the Secretary subject to judicial review under the APA.
b. Bullard's Participation in the October 8, 2013 Vote
Next, Plaintiffs suggest that Bullard's participation in the Council's October 8, 2013, vote was either itself a final action of the Secretary, or transformed the Council's vote into a final action of the Secretary. Pls.' Opp'n at 29-30. The Complaint is clear, however, that Bullard participated in that vote in accordance with his statutory role as a voting member of the Council, not as a final decision-maker of NMFS. See Compl. ¶ 84; see also 16 U.S.C. § 1852(b)(1)(B) ( voting members of each Council shall include " [t]he regional director of the National Marine Fisheries Service for the geographic area concerned" ).
Moreover, Bullard's vote was simply one of nineteen equally weighted Couneil member votes regarding further development of Amendment 15. Taken by itself, it had no conclusive affect and, therefore, cannot even be characterized as an " action" of the Council, much less one of the Secretary. See Sprint Nextel Corp., 508 F.3d at 1131-32 (holding that " votes were actions of the individual Commissioners, not the Commission" and citing the " 'almost universally accepted common-law rule' that only a 'majority of a collective body is empowered to act for the body'" ) (citations omitted).
Plaintiffs make much of the fact that, in an October 28, 2013, email to NOAA official Daniel Morris, Bullard characterized his vote at the October 8 meeting as the " deciding vote" on Amendment 15. See Pls.' Opp'n at 30, 31, 34, 36, 38. They do not, however, allege that there was anything special about his vote as a Regional Administrator of NMFS that set it apart from the other nine votes cast against the continued development of Amendment 15. Furthermore, although they question Bullard's
Page 439
authority to be present at the October 8 meeting because it occurred during a Government furlough, they fail to cite any authority to support their suggestion that Bullard's participation in the Council's vote constituted final agency action simply because Bullard arguably lacked the authority to appear at the meeting.[12]
In sum, Regional Administrator Bullard's participation in the October 8, 2013, vote also did not constitute final agency action under the APA.
c. NMFS's Failure to Add the River Herring and Shad to the MSB FMP
Third, Plaintiffs argue that NMFS had a " mandatory duty" under the MSA to establish conservation and management measures for the river herring and shad, which it failed to fulfill, thereby giving rise to what they assert is a cognizable claim under 5 U.S.C. § 706(1). See, e.g., Pls.' Opp'n at 25-28.
It should be noted that Plaintiffs' Complaint focuses entirely on the Council's activities in developing and considering Amendments 14 and 15, and the affirmative involvement in those activities of various NMFS officials. It nowhere alleges any independent failure by NMFS to take action to protect the river herring and shad. Nor does it include any factual allegations that would support consideration of such a theory, such as the length of time the river herring and shad stocks have been declining, the results of scientific studies suggesting such declines are directly attributable to fishing in the MSB fishery, and/or any efforts of NMFS and NOAA to address the issue to date and why those efforts are inadequate under the MSA.
Even if, however, the Complaint could be read to challenge NMFS's inaction under 5 U.S.C. § 706(1), Plaintiffs still have not identified any such inaction that would qualify for judicial review.
Section 706(1) authorizes a court to " compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). The Supreme Court has clearly warned, however, that an agency's failures to act are only " sometimes remediable under [Section 706(1)], but not always." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). More specifically, such a claim is cognizable " only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Id. at 64 (emphasis in original).
Plaintiffs rely on 16 U.S.C. § 1854(c) as the source of the Secretary's purportedly mandatory duty to add the river herring and shad to the MSB FMP. See Pls.' Opp'n at 34 & n.25. The only part of that provision relevant to this case, however, is Section 1854(c)(1)(A), which states that the Secretary " may" develop a " necessary amendment" to an FMP without waiting for action by the Council if, " after a reasonable period of time," the council fails to develop and submit such an amendment to her. 16 U.S.C. § 1854(c)(1)(A);
see also Hawaii Longline Ass'n., 281 F.Supp.2d at 3.
While Section 1854(c)(1)(A) clearly provides that the Secretary herself " may" develop a " necessary amendment," it does not mandate that she " shall" or " must" do so. By contrast, Section 1852(h) states
Page 440
that each council " shall" prepare fishery management plans and any necessary amendments, and Section 1854(a) provides that the Secretary " shall" review such plans or amendments, " shall" publish them for notice and comment, and " shall" thereafter approve, disapprove, or partially approve them. 16 U.S.C. § 1854(a)(1), (3).
As our Court of Appeals has held, " when a statute 'uses both 'may' and 'shall,' the normal inference is that each is used in its usual sense -- the one act being permissive, the other mandatory.'" Sierra Club v. Jackson, 648 F.3d 848, 856, 396 U.S.App.D.C. 297 (D.C. Cir. 2011) (citations omitted); see also Lopez v. Davis, 531 U.S. 230, 241, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001) (" Congress' use of the permissive 'may' . . . contrasts with the legislators' use of a mandatory 'shall' . . . to impose discretionless obligations[.]" ).
Therefore, Section 1854(c)(1)(A) permits but does not require the Secretary to develop a necessary amendment in the absence of action by a council. See, e.g., Sea Hawk Seafoods, Inc. v. Locke, 568 F.3d 757, 767 (9th Cir. 2009) (" Because the word 'may' [in the American Fisheries Act] implies discretion, there is no legally required action imposed on [NMFS]" ) (emphasis in original); Martha's Vineyard/Dukes Cnty. Fishermen's Ass'n v. Locke, 811 F.Supp.2d 302, 308 n.7 (D.D.C. 2011) (noting that NMFS is " in no way required to promulgate plaintiffs' requested regulations" under several sections of the MSA, including 16 U.S.C. § 1854(c)(1)) (emphasis in original).[13]
Plaintiffs also argue that this Court and others have held that the MSA " plainly gives NMFS the final responsibility for ensuring that any FMP is consistent with the MSA's National Standards, and 'the overall objectives' of the Act," including " Section 1852(h)'s requirement that the Council prepare an FMP or amendment for any stock of fish that 'requires conservation and management[.]'" See Pls.' Opp'n at 24-25; see also Flaherty v. Bryson, 850 F.Supp.2d 38, 54-66 (D.D.C. 2012).
But each of the cases on which Plaintiffs rely challenged final actions of the Secretary and therefore did not rely on the Secretary's inaction under Section 706(1). Instead, they fell squarely within the provisions of 5 U.S.C. § 706(2), providing for judicial review of affirmative agency actions. See Flaherty, 850 F.Supp.2d at 51 (considering challenge to final FMP amendment promulgated by NMFS and published in Federal Register);
Guindon, 2014 WL 1274076, at *7-10 (considering challenge to two final rules and one temporary rule promulgated by NMFS, each of which were published in the Federal Register); Oceana, Inc. v. Pritzker, No. 11-1896, 24 F.Supp.3d 49, 2014 WL 912364, at *3-4 (D.D.C. Mar. 10, 2014) (considering challenge to final FMP amendment promulgated by NMFS and published in Federal Register). Plaintiffs, by contrast, seek to challenge a non-final action of the Mid-Atlantic Council, which was never published for notice and comment or approved by the Secretary. There would, quite simply, be nothing for this Court to review and " set aside" under Section 706(2) in this case.
Plaintiffs also suggest that Defendants failed to comply with their duty under 16 U.S.C. § 1854(e), to identify overfished
Page 441
populations. Under Section 1854(e), the Secretary must " report annually to the Congress and the Councils on the status of fisheries within each Council's geographic area of authority and identify those fisheries that are overfished or are approaching a condition of bring overfished." 16 U.S.C. § 1854(e)(1). The Act defines " overfished" as a " rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis." 16 U.S.C. § 1802(34).
As in Norton, however, while these provisions collectively require the Secretary to assess and report whether any fisheries are being fished at an unsustainable level, there is no specific statutory requirement that she designate the river herring and shad in the MSB fishery as overfished. The Act leaves it to the agency's sound discretion to apply the definition in Section 1802(34) and determine whether any fisheries are being overfished.
See Norton, 542 U.S. at 65 (" [W]hen an agency is compelled by law to act . . . but the manner of its action is left to the agency's discretion, a court can compel the agency to act, but has no power to specify what the action must be." ).
In sum, Section 1854(e) does not impose a " discrete" statutory requirement to identify the river herring and shad as overfished.
Finally, Plaintiffs also cite Massachusetts v. EPA, 549 U.S. 497, 527-28, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) and Am. Elec. Power Co. v. Conn., 131 S.Ct. 2527, 2539, 180 L.Ed.2d 435 (2011) for the proposition that " [t]he refusal to issue a rule (e.g., by denying a petition for rulemaking) constitutes a 'denial' [under] 5 U.S.C. § 551(13), and is subject to review." Pls.' Opp'n at 33. While Plaintiffs are correct that an agency's final denial of a rulemaking petition under 5 U.S.C. § 553(e) is final agency action reviewable under the APA, they have not alleged anywhere in their Complaint that they ever petitioned NMFS for a rulemaking pursuant to 5 U.S.C. § 553(e), much less that NMFS issued a final decision denying such a petition.[14]
For all of the foregoing reasons, Plaintiffs have failed to state a claim under the MSA and the APA in Count 1. Consequently, that claim shall be dismissed.
B. Count 2: Violation of NEPA
In Count 2, Plaintiffs allege that Defendants failed to prepare an environmental impact statement and to " take a hard look at associated environmental impacts" in connection with the termination of Amendment 15. See Compl. ¶ ¶ 103-110. They claim that this failure violated NEPA, 42 U.S.C. § 4332(2)(C), which requires federal agencies implementing " major Federal actions significantly affecting the quality of the human environment" to examine the environmental effects of such action by preparing an environmental impact statement (" EIS" ). 42 U.S.C. § 4332(2)(C).
As our Court of Appeals has held, " because NEPA creates no private right of action, challenges to agency compliance with the statute must be brought pursuant
Page 442
to the [APA], which requires 'final agency action for which there is no other adequate remedy in a court[.]'"
Karst Envtl. Educ. & Prot., Inc. v. E.P.A., 475 F.3d 1291, 1295, 374 U.S.App.D.C. 420 (D.C. Cir. 2007) (citations omitted). " [T]he 'final agency action' required by the APA must also be a 'major federal action' under NEPA." Id. (citation omitted).
Agency decisions that " maintain[] the substantive status quo" do not constitute " major federal actions" under NEPA. See Fund for Animals, Inc. v. Thomas, 127 F.3d 80, 83-84, 326 U.S.App.D.C. 412 (D.C. Cir. 1997) (citing Comm. for Auto Responsibility v. Solomon, 603 F.2d 992, 1002-03, 195 U.S.App.D.C. 410 (D.C. Cir. 1979) (" The duty to prepare an EIS normally is triggered when there is a proposal to change the status quo." )). Furthermore, NEPA applies only to " major Federal actions," even where, as here, it is alleged that " the environmental consequences of inaction may be greater than the consequences of action[.]" Defenders of
Wildlife v. Andrus, 627 F.2d 1238, 1243-44, 201 U.S.App.D.C. 252 (D.C. Cir. 1980).
Finally, even where an agency does contemplate taking affirmative action, an EIS is not required until the agency " reaches the critical stage of a decision which will result in 'irreversible and irretrievable commitments of resources' to an action that will affect the environment." Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 49, 334 U.S.App.D.C. 98 (D.C. Cir. 1999) (citation omitted).
As discussed at length above, Plaintiffs have not identified any final agency action under the APA. They cite Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996) for the proposition that NMFS's inaction can support a claim under NEPA. Pls.' Opp'n at 41-42. But the inaction at issue in Ramsey was that NMFS's failure to disapprove plans prepared by a regional council resulted in the plans at issue attaining the force of law.
See Ramsey, 96 F.3d at 445. See also 16 U.S.C. § 1854(a)(3).
In this case, by contrast, NMFS's failure to act did not result in any proposals or plans attaining the force of law. Consequently, an EIS under NEPA is not required. See, e.g., Int'l Ctr. for Tech. Assessment v. Thompson, 421 F.Supp.2d 1, 9 (D.D.C. 2006) (finding NEPA inapplicable because " [t]he FDA's decision not to regulate GloFish is not an agency action, but rather, an agency inaction" to which " no resources are being committed" ).
In sum, Plaintiffs have failed to state a claim under NEPA because Defendants have not taken any final agency action that alters the substantive status quo or constitutes an " irreversible and irretrievable commitment of resources' to an action that will affect the environment." Wyoming Outdoor Council, 165 F.3d at 49.
For the foregoing reasons, Defendants' Motion to Dismiss shall be granted. An Order shall accompany this Memorandum Opinion.
Plaintiffs, Anglers Conservation Network, Gateway Striper Club, Inc., Paul Eidman, and Philip Lofgren (collectively, " Plaintiffs" ), bring this case against the Secretary of the Department of Commerce (" the Secretary" ), the National Oceanic and Atmospheric Administration (" NOAA" ), and the National Marine Fisheries Service ( " NMFS" ) ( collectively, " Defendants" ) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (" MSA" ), 16 U.S.C. § § 1801 et seq.; the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321 et seq.; and the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701 et seq.
This matter is before the Court on Defendants' Motion to Dismiss [Dkt. No. 17]. Upon consideration of the Motion, Opposition IDkt. No. 28], and Reply [Dkt. No. 29], and the entire record herein, including oral argument, and for the reasons set forth in the accompanying Memorandum Opinion, it is hereby
ORDERED, that Defendants' Motion is granted.
Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
LRC, Inc. About Us


text:
Skip to Content
The World's Greatest Music
Email the show or Text 61812
Simply the most stunning, moving images of how music can change the world – this is the power of music. In the face of adversity and in the toughest of circumstances, music can lift the human spirit and bring people together like no other force on the planet.
Picture 9 of 27
An accordionist sits on a pile of rubble in the Yarmuk refugee camp in Damascus. Photo: Getty
Powered by Facebook


text:
scroll to top
Stuck on your essay?
Get ideas from this essay and see how your work stacks up
2 Pages
An Analysis of The Gods Must Be Crazy Movie
Already a member? Login here
Pages: 2
Word Count: 1,109
Category: Arts and Humanities
Word Count: 1,109
Pages: 2
The Gods Must Be Crazy Movie Analysis The film The Gods Must Be Crazy raises a great number of points which are relevant to the fundamental concepts relating to Society and Culture The points raised are all used through comparison of the Kalahari Tribes society and that of The Civilized White Society The Kalahari Bushmen live in small family groups in complete isolation from the rest of the world and this has led to the belief that they are the only humans on earth As they live off the land the bushmen has no concept of ownership anger violence or guilt as the land supplies them with everything they desire and they have never had the need for such harsh emotions They have no concept of law punishment or rulers and live in harmony with both themselves and the land They have strong belief in their gods and when anything unexplainable happens for example a plane in the sky they believe it is just gods up in the sky The film starkly contrasts the peaceful harmony of the Kalahari Bushmen with the rushed needlessly organized erratic way of life of White Society The film states that while the Kalahari Bushmen adapt to their environment and live successfully because of it White society has found the need to adapt the environment to themselves As each generation has different needs the environment is constantly changed until it has come to the point that the adolescence of White Society has to take exams just to learn to survive in this created environment White Society too has religion like the Kalahari Bushmen but unlike the unquestioning Bushmen whites have questioned their religion almost to destruction Unlike the trusting Bushmen whites have to have an explanation for everything which has resulted in suspicion of the unexplained Because of the stresses of living in such an environment the movie suggests that White Society has lost contact with the simplicity
@Kibin is a lifesaver for my essay right now!!
- Sandra Slivka, student @ UC Berkeley
Wow, this is the best essay help I've ever received!
- Camvu Pham, student @ U of M
If I'd known about @Kibin in college, I would have gotten much more sleep
- Jen Soust, alumni @ UCLA


text:
This information will be included in ALL email inquiries that you send related to this Vacation. You will be able to include questions specific to each listing before sending your email inquiries.
This contemporary home in the Town Neck Beach area of Sandwich has been completely renovated inside and outside. From the brand new appliances in the kitchen, to the split a/c units in the bedrooms and great room, this home offers all the comforts of home while you're on Cape Cod.
Loft in great room offers additional sleeping. Full bath with shower located on first floor. Views of the ocean from this property that is about a 1/2 mile walk away. Grab the beach chairs and sunscreen and head on down to the water. This is vacationing at its best!
Bedroom 1-Queen, Bedroom 2, 2 Twins, Loft- 1 daybed (Twin)
Front of House
Back Yard w/ Shed
Living Room
Open Kitchen and Living
Bedroom 1 w/ Queen
Bedroom 2 w/ 2 twins
Full Bath w/ Laundry
Peeks of Cape Cod Bay
Town Neck Beach just 1/2 walk away
Calendar Last Updated: April 28, 2016
Additional availability info:
This is a Saturday to Saturday vacation rental.
Additional pricing info: $75 processing fee and a $300 refundable security deposit applies
Nearest beach: 1/2 Mile to Town Neck Beach
Sandwich Vacation Planner
Sandwich Info
This property does not currently have any guest reviews.
Have you stayed at this property? Be the first to write a review
View larger map


text:
Got a question for us? Want to see something new or different on WinDrawWin? Found an error?
Got a great new strategy you have used for years you want to share? Know of some great sportsbooks we have not listed or rated? Drop us a line! Email us at email@example.com
WinDrawWin.com is a trading name of Web Analysis Solutions Limited (a company registered in England and Wales - Company Number 08039713)
Registered Office - Chiltern House Business Centre, 45 Station Road, Henley-On-Thames, Oxfordshire, RG9 1AT


text: 2553263 comment Comment How much did it cost to figure this out? (Score 1) 766 by papercut2a on Tuesday April 03, 2007 @04:33PM (#18595083) Attached to: Daylight Saving Change Saved No Power *I* could have told them it didn't save energy. I felt much more tired after the time change. :-P


text:
Pranksters flood Univ. of Florida counseling hotline with Halloween hoax calls
It all started with a Fox Sports radio journalist.
It all started with a Fox Sports radio journalist.
The right college values the physical development of its players as well as their career preparation.
Strong writing and critical thinking skills are important for a criminology student.
Qualified for a federal work-study position? Read this first.
Oakland University: 1. Students: 0.
Play ball — and graduate from a school tailored to you
School's expensive, but following these tips in high school could help you make it less so.
Mailing Address:
Uloop Inc.
43155 Main Street
Suite 2300E
Novi, MI 48375
Telephone Support:
Email Support:
Post your own housing listing on Uloop and have students reach out to you!
By clicking "Submit" I agree to the USA Today College Terms of Use.