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State v. Gutierrez

April 7, 2009

THE STATE OF NEW YORK, ALEXANDER B. GRANNIS, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, AND THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PLAINTIFFS,
UNITED BOATMEN OF NEW YORK, INC., NEW YORK FISHING TACKLE TRADE ASSOCIATION, INC., AND THE FISHERMEN'S CONSERVATION ASSOCIATION, INTERVENOR-PLAINTIFFS
v.
CARLOS GUTIERREZ, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE, THE UNITED STATES DEPARTMENT OF COMMERCE, CONRAD C. LAUTENBACHER, IN HIS OFFICIAL CAPACITY AS UNDER SECRETARY OF COMMERCE AND AS ADMINISTRATOR FOR THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, JAMES W. BALSIGER, IN HIS OFFICIAL CAPACITY AS ACTING ASSISTANT ADMINISTRATOR FOR THE NATIONAL MARINE FISHERIES SERVICE, THE NATIONAL MARINE FISHERIES SERVICE, AND THE ATLANTIC STATES MARINE FISHERIES COMMISSION, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs the State of New York, Alexander B. Grannis as Commissioner of the New York State Department of Environmental Conservation, and the New York State Department of Environmental Conservation (together, "plaintiffs"), along with intervenor-plaintiffs United Boatmen of New York, Inc. ("UBNY"), New York Fishing Tackle Trade Association, Inc. ("NYFTTA"), and the Fishermen's Conservation Association ("FCA") (together, "intervenor-plaintiffs"), bring this action against defendants Carlos Gutierrez, in his official capacity as Secretary of the United States Department of Commerce, the United States Department of Commerce, Conrad C. Lautenbacher, in his official capacity as Under Secretary of Commerce and Administrator for the National Oceanic and Atmospheric Administration, the National Oceanic and Atmospheric Administration, James W. Balsiger, in his official capacity as the Acting Assistant Administrator for the National Marine Fisheries Service, and the Atlantic States Marine Fisheries Commission (the "ASMFC" or "Commission"). Plaintiffs claim that the final management rule for the 2008 recreational summer flounder fishery issued by the Department of Commerce (the "DOC"), through the National Marine Fisheries Service (the "NMFS"), pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, as amended in 1996 by the Sustainable Fisheries Act, 16 U.S.C. §§ 1801, et seq. (the "MSA"), violates the MSA as well as standards of decision making under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (the "APA"). In addition to these claims, intervenor-plaintiffs claim that that the final management rule for the 2008 recreational summer flounder fishery issued by the ASMFC violates the ASMFC Compact & Rules and Regulations, Pub. L. 77-539 (1942), as amended by Pub. L. 81-721 (1950) ("ASMFC Compact"), the Atlantic Coastal Fisheries Cooperative Management Act, Pub. L. 103-206, 16 U.S.C. §§ 5101-5108 (the "ACFCMA" or "Fisheries Act"), the ASMFC Interstate Fisheries Management Program Charter (hereinafter "ISFMP Charter," available at http://www.asmfc.org (last visited Apr. 7, 2009)), and the APA.

On March 9, 2009, I denied defendant ASMFC's motion to dismiss the claims asserted against it in the Complaint in Intervention. New York v. Gutierrez, No. 08-CV-2503, 2009 WL 605830 (E.D.N.Y. Mar. 9, 2009). Presently before this Court is defendant ASMFC's motion for reconsideration of that decision, or in the alternative, for certification of my order holding that the ASMFC's decisions are subject to review under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (the "APA"). For the reasons that follow, the motion for reconsideration is denied, and the request for certification of my order for interlocutory appeal is granted.

BACKGROUND

Familiarity with the factual background of this matter is presumed based on the record of proceedings before the undersigned. For a description of the facts of this case, see New York v. Gutierrez, No. 08-CV-2503, 2008 WL 5000493 (E.D.N.Y. Nov. 20, 2008).

DISCUSSION

I. Motion for Reconsideration

A. Standard for Reconsideration

Civil motions for reconsideration in this District are governed by Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3. U.S. v. James, No. 02 CV 0778, 2007 WL 914242, at *3 (E.D.N.Y. Mar. 21, 2007). While timely motions for reconsideration are permitted under Local Civil Rule 6.3, "[t]he standard for granting such . . . motions is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusions reached by the court." Shrader v. CSX Transp., 70 F.3d 255, 257 (2d. Cir. 1995). Reconsideration is also appropriate if there is an intervening change of controlling law, new evidence, or the need to correct a clear error or prevent manifest injustice. Doe v. New York City Dep't of Social Servs., 709 F.2d 782, 789 (2d Cir. 1983); Casino, LLC v. M/V Royal Empress, No. 98-CV-2333, 1998 WL 566772, at *1 (E.D.N.Y. Aug. 21, 1998).

Local Civil Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been fully considered. See Caleb & Co. v. E.I. Du Pont De Nemours & Co., 624 F.Supp. 747, 748 (S.D.N.Y. 1985). In deciding a Local Rule 6.3 motion, courts will not allow a party to use the motion as a substitute for an appeal from a final judgment. See Morser v. A.T. & T. Info. Sys., 715 F.Supp. 516, 517 (S.D.N.Y. 1989); Korwek v. Hunt, 649 F.Supp. 1547, 1548 (S.D.N.Y. 1986). Accordingly, a party in its motion for reconsideration "may not advance new facts, issues or arguments not previously presented to the court." Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., No. 86-CV-6447, 1989 WL 162315, at *3 (S.D.N.Y. Aug. 4, 1989).

B. Merits of Motion for Reconsideration

In its moving papers, ASMFC does not attempt to identify factual matters or controlling decisions I overlooked in my memorandum opinion denying its motion to dismiss. Nor does it submit new evidence, point to an intervening change in law, or allege that I committed clear error or that my decision resulted in manifest injustice. Instead, ASMFC simply reasserts arguments previously made during briefing of the underlying motion, including in particular: (1) that the absence of a statute conferring a private right of action against the Commission requires dismissal of all claims against the Commission, (2) that the APA's definition of "agency" does not include the Commission, and (3) that the doctrine of sovereign immunity shields the Commission from civil claims.*fn1 The second and third arguments were addressed in my memorandum opinion and order denying ASMFC's motion to dismiss, see New York v. Gutierrez, No. 08-CV-2503, 2009 WL 605830, at *3, 6-7 (E.D.N.Y. Mar. 9, 2009), and the first argument was addressed both in the March 9, 2009 decision, see id. at *3, and in my November 20, 2008 memorandum opinion and order permitting intervenor-plaintiffs to intervene and join ASMFC as a necessary party. New York v. Gutierrez, No. 08-CV-2503, 2008 WL 5000493, at *9-13 (E.D.N.Y. Nov. 20, 2008). The reassertion of arguments previously made and addressed by this Court does not constitute a ground upon which reconsideration may be granted. Accordingly, ASMFC's motion for reconsideration is denied.

II. Request for Certification

In the alternative, ASMFC requests that I certify for interlocutory appeal to the Court of Appeals my March 9, 2009 order holding that the Commission is subject ...


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