Ever since the
Fisheries Conservation and Management Act—the statute that we now know as the
Magnuson-Stevens Fishery Conservation and Management Act—was signed into law in
1976, United States fisheries have been managed by the Secretary of
Commerce, acting through the National Marine Fisheries Service, which in turn
is advised by eight regional fishery management councils.
The
law provides that each regional fishery management council shall
“for each fishery under its authority requiring conservation and
management, propose and submit to the Secretary [of Commerce] a fishery
management plan, and amendments to each such plan that are necessary from time
to time…; prepare comments on any application for foreign fishing transmitted
to it…; conduct public hearings…so as to allow all interested persons an
opportunity to be heard in the development of fishery management plans and
amendments to such plans…; submit to the Secretary such periodic reports as the
Council deems appropriate, and any other relevant report which may be requested
by the Secretary; review on a continuing basis, and revise as appropriate, the
assessments and specifications made…with respect to the optimum yield from, the
capacity and extent to which United States fish processors will process United
States harvested fish from, and the total allowable level of foreign fishing
in, each fishery…; develop annual catch limits for each of its managed
fisheries…; develop…multi-year research priorities for fisheries, fisheries
interactions, habitats, and other areas of research that are necessary for
management purposes..; and conduct any other activities which are required by,
or are provided for in, [Magnuson-Stevens] or which are necessary or appropriate
to the foregoing functions. [formatting omitted]”
It's a very broad mandate, but there is one thing that the
regional fishery management councils clearly can’t do. They can’t actually make regulations. Instead, they can only forward their fishery
management plans, plan amendments, and other management actions to the
Secretary of Commerce (or, in the real world, to folks at NMFS, who act in the
Secretary’s stead and with the Secretary’s approval), who shall then
“approve, disapprove, or partially approve a plan or
amendment within 30 days of the end of the [required] comment period…by written
notice to the Council…If the Secretary does not notify the Council within 30
days of the end of the comment period of the approval, disapproval, or partial
approval of a plan or amendment, then such plan or amendment shall take effect
as if approved.”
The Commerce Department, through NMFS, must then adopt final
regulations conforming to the approved management measures.
It’s a somewhat cumbersome system, and it took a while to
work out the kinks. For the first twenty
years after passage of the Fishery Conservation and Management Act, fishermen
sitting on the regional fishery management councils tended to vote in their immediaate self-interests, often using economic impacts as an excuse to overfish
stocks. The New England Fishery
Management Council oversaw the decline of New England groundfish during that
period for just that reason.
The
Sustainable Fisheries Act had a salutary impact on the health of fish stocks,
leading to sharply reduced overfishing and the complete rebuilding of more than
forty once-overfished stocks.
However, it also placed hard limits on fishermen’s landings, which led
to short-term economic discomfort and long-lasting discontent. Fishermen and fishermen’s organizations, representing
both the commercial and recreational sectors, have been trying to find ways
around the law’s conservation and management mandates ever since.
Most of those efforts have fallen flat. However, there is a current effort which, due
to the current political climate more than its inherent merits, threatens to
bring down the current fishery management system and, in doing so, bring chaos
to federal fisheries.
The threat comes in the form of a lawsuit filed in the Federal
District Court for the Southern District of Mississippi by George D. Arnesen
and Jeffrey Ryan Bradley, both commercial fishermen, against Commerce Secretary
Gina Raimondo, NMFS, the Gulf of Mexico Fishery Management Council and various
members of the latter two institutions.
The ostensible purpose of the lawsuit is to challenge
commercial amberjack regulations recently published by NMFS. However, the suit goes much farther than that,
ultimately challenging the constitutionality of the current federal fishery
management system. Early allegations made
in the complaint include language such as,
“In its zeal to regulate [fisheries], however, Congress
converted federal waters into Constitution-free zones, violating the Constitution
in multiple respects—violations that are increasingly drawing judicial scrutiny…A
well-intentioned attempt at rule by enlightened experts has devolved, as usual,
into a bureaucratic morass captured by narrow interests.”
The crux of the plaintiff’s argument is included in the next
paragraphs, where the complaint alleges,
“That dynamic is clear in this case, which confronts the
unconstitutional core of the [Magnuson-Stevens] Act’s regulatory
apparatus. At the heart of the Act are
eight Regional Fishery Management Councils: federal entities charged by
Congress with ‘exercise[ing] sound judgment in the stewardship of fishery
resources’ within multi-state zones…
“Congress ‘designated’ the Councils as ‘primary policy makers’
for federal fisheries, ‘vesting [them] with the authority to develop management
plans’ that ‘dictate the fundamental objectives and methods of managing a given
fishery’…This is clear from the Act’s text, which enshrines the Councils as the
first and last word on marine fishing policy…
“Given this broad authority to set, monitor, adjust, and
preserve federal policies…one would expect some degree of federal democratic
control over the Councils. But Congress
provided just the opposite, immunizing Council Members from meaningful control
by the President, his Commerce Secretary, and through them the American people…Congress
broke the Constitution’s promise of separated powers and executive accountability…
“To start, the Act makes no effort to hew to the Appointment
Clause [of the United States Constitution]…
“[The relevant] appointment methods and removal restrictions
are patently unconstitutional. Council
Members are officers of the United States subject to the Appointment
Clause. But they are not selected according
to its rules. Moreover, due to their
near-ironclad removal protections, the Councils exercise policymaking authority
beyond presidential control. That
insulation flouts the Constitution’s vesting of executive power in the President
and frustrate his obligation to faithfully execute the Nation’s laws… [internal
references omitted]”
The complaint contains other allegations challenging the authority
of various NMFS officials, etc., but little would be gained by repeating
them here.
Half a dozen years ago, such claims would have been seen as
little more than a nuisance, and quickly dismissed. Courts had recognized that regional fishery
management councils were not analogous to federal agencies, and that council
members were neither employees nor officers of the United States, but merely
advisors to NMFS and the Commerce Department.
“not conclude that the Mid-Atlantic [Fishery Management] Council
is an ‘agency’ within the meaning of the Administrative Procedure Act. Ultimately, it is not an ‘authority’ of the
U.S. Government because it has no ‘authority’ to do anything. It cannot promulgate the fishing quotas. It cannot issue rules affecting the
fishery. Its power is limited to ‘recommending’
the quotas [and, under other circumstances, other management measures] to the
Secretary…[A]t the end of the day, the Secretary does have the power to alter
the recommendations of the Mid-Atlantic Council, and he alone has the power to
promulgate the [regulations].”
Had Arnesen v. Raimondo been brought in 2016, it would have been
quickly defeated, probably without even drawing the attention of some
late-night host on Fox News.
That situation changed in 2017, when the
incoming Trump administration set about its efforts to alter the federal
courts, and shift federal jurisprudence sharply to the right. How that took place was described in detail
in a September 13, 2022 piece on National Public Radio, which reported that
“Shortly after Trump was elected, Mitch McConnell [then the Senate Majority Leader] gave some
advice to Don McGahn [a high-level attorney at the firm Jones Day, who had been
named White House counsel]. The advice
was that instead of relying on a committee at the White House to debate and
pick nominees for the Supreme Court and other federal courts, McConnell’s
advice was, ‘Look, you should get Trump’s permission to just do this by
yourself. You alone should have the power to pick the judges that Trump will
nominate.’”
The National Public Radio piece quotes journalist David
Enrich, who noted that
“One of the core tenets of McGahn’s judicial philosophy was
this real antipathy towards what he calls derisively ‘the administrative state.’ And one of the biggest results of that is
that it translates into judges [picked by McGahn] who no longer give nearly as
much deference to the rights and authority of federal agencies as had been the
norm.”
The piece goes on to note that McGahn has since returned to
Jones Day, and that the firm
“[is] now bringing cases through the Supreme Court and
through the lower courts that were basically made possible by this deluge of very
conservative judges that are now on the benches of many courts…
“And Jones Day, just reading the tea leaves and talking to
their lawyers now, it’s quite clear that they are plotting a wide range of
attacks on the power of the federal government to oversee private businesses
and private companies in a way that goes back to Don McGahn and his colleagues’
hatred of the so-called administrative state.
And they are now in a position to much more forcefully advocate those
positions and be successful in their advocacy—thanks to all of the judges that
Trump, at McGahn’s direction and with McConnell’s support, managed to get on to
virtually every federal court in the country.”
It's thus not surprising that Jones Day is representing the plaintiffs in Arnesen v.
Raimondo.
That means that the lawsuit’s potential threat to the
federal fishery management system needs to be taken seriously. In the past, if NMFS lost because a trial court
judge rendered a legally iffy decision, the agency could probably salvage the issue on
appeal. Today, the taint of the judges McGahn
selected extends throughout the appellate court system, and reaches the highest
court in the land.
That raises an important question. If the
regional fishery management councils lose their power to craft management
measures, what will take their place? In
theory, the regulatory function could be assumed within NMFS and the Commerce
Department, as the Arnesen complaint seems to suggest, but the agency is
far too thinly staffed to be able to handle the work now performed by the
members and staff of the regional fishery management councils.
Furthermore, because of the very explicit language of
Magnuson-Stevens with respect to the regional fishery management councils’
role, it’s not at all clear that actions taken by the agency, without council
input, wouldn’t themselves be vulnerable to legal challenges, as acts beyond agency
authority.
We probably couldn’t look to Congress to fix the problem,
as partisan bickering, and the inevitable conflict between one party’s focus on
conservation and management and the others’ drive to monetize natural resources, almost certainly assures that any so-called “fix” would not come close to
replacing the system that was lost.
That doesn’t bode well for our fisheries, should the
plaintiffs prevail.
In 1955, author
Robert Ruark released his first novel, Something of Value. According to the frontispiece of the book,
the title came from the advice,
“If a man does away with his traditional way of living and
throws away his good customs, he had better first make certain that he has
something of value to replace them.”
It is advice that plaintiffs Arnesen and Bradley would do well to heed.
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