The
Magnuson-Stevens Fishery Conservation and Management Act, since it first
became law in 1976 (when
it was merely titled the “Fishery Conservation and Management Act),
provided for the establishment of eight regional fishery management councils,
which were intended to
“exercise sound judgment in the
stewardship of fishery resources through the preparation, monitoring, and
revision of [fishery management] plans under circumstances (A) which will
enable the States, the fishing industry, consumer and environmental
organizations, and other interested persons to participate in, and advise on,
the establishment and administration of such plans, and (B) which take into
account the social and economic needs of the States.”
Magnuson-Stevens
provides that each council shall,
“(1) for each fishery under its authority
that requires conservation and management, prepare and submit to the Secretary [of
Commerce] (A) a fishery management plan, and (B) amendments to each such plan
that are necessary from time to time…
“(2) prepare comments on any application
for foreign fishing transmitted to it…
“(3) conduct public hearings, at
appropriate times and in appropriate locations in the geographical area
concerned, so as to allow all interested persons an opportunity to be heard in
the development of fishery management plans and amendments to such plans, and
with respect to the administration and implementation of provisions of this Act…
“(4) submit to the Secretary such periodic
reports as the Council deems appropriate, and any other relevant report which
may be requested by the Secretary,
“(5) 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…within its geographical
area of authority,
“(6) develop annual catch limits for each
of its managed fisheries that may not exceed the fishing level recommendations
of its scientific and statistical committee…
“(7) develop, in conjunction with the
scientific and statistical committee, multi-year research priorities…and
“(8) conduct any other activities which
are required by, or provided for in this Act or which are necessary and
appropriate to the foregoing functions.”
It’s important to note that one
of the responsibilities that a regional fishery management council does
not have is promulgating regulations that govern fisheries within its
jurisdiction. That authority lies solely
with the Secretary of Commerce, who may adopt regulations that accord, in whole
or in part, with a council’s advice, may opt to reject a council’s advice and
not adopt the requested regulations or, if a council fails to act within a
specified time, adopt needed regulations on his or her own authority.
For nearly 50 years, the federal
fishery management system has adhered to that process, with the councils
providing recommendations to the Secretary and the Secretary acting, or opting
not to act, in accord with councils’ advice.
The
process has generally served both the fish and the fishermen well, rebuilding
formerly overfished stocks and increasing the abundance of marine resources on
every coast of the United States.
Still, many fishermen have been
angered when a regional fishery management council voted to reduce commercial
quotas or recreational landings, or failed to increase such quota or landings
to a level that the fishermen deemed appropriate. And the National Marine Fisheries Service is
not immune from the political currents that flow through the nation, including
the current rhetoric to dismantle “the administrative state” and reduce the
power and influence of administrative agencies.
The rule reflected the agency’s
approval of the
Mid-Atlantic Fishery Management Council’s Summer Flounder, Scup, and Black
Sea Bass Commercial/Recreational Allocation Amendment, which became Amendment
22 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. Because the agency clearly complied with the
requirements of the Administrative Procedures Act when it adopted the rule, the
plaintiffs in Lofstad v. Raimondo chose not to attack the rule itself, but
instead attacked the Mid-Atlantic Council itself, arguing
“that the twenty-one members of the
Mid-Atlantic Council…exercise the power of, but were not properly appointed as,
‘Officers’ under the Appointments Clause of the United States
Constitution. Therefore, Plaintiffs
conclude, NMFS should not have promulgated the Challenged Rule and it must be
vacated and its enforcement against Plaintiffs enjoined.”
Plaintiffs
were represented by the Pacific Legal Foundation, which describes itself as
“a national public interest law firm that
defends Americans from government overreach and abuse. We sue the government when it violates your
constitutional rights—and we win.
“At PLF, we believe in individual liberty:
that when people are free to live peacefully and productively, without
interference by government, they improve themselves, their families, and their
communities.
“We represent hundreds of Americans free
of charge, giving them a day in court to protect their rights.”
The trial court, after hearing arguments made by both the plaintiffs and the federal agency, found for the agency, finding that members of the Mid-Atlantic Council were not “Officers” subject to the Appointments Clause because they lacked any “substantial authority,” since
“the Council’s proposed regulation binds
no third party.”
The proposed Amendment 22, once
approved by the Council, was forwarded to NMFS, and it was up to NMFS to
promulgate the final, binding rule.
In the end, that decision
didn’t do the plaintiffs much good.
The 3rd Circuit found
that the Council members were “Officers,” and that they exercise “substantial
authority,” because
“The Council can block the Secretary of
Commerce from acting in three situations.
The Secretary must get its approval before adopting a limited-access
fishery system, delegating fishery management to a state, or repealing a
[fishery management] plan…By withholding their assent, Council members can
pocket veto those actions…
”The Council’s pocket-veto power is
especially significant because it undermines the democratic chain of command. The Constitution trusts the President with
significant powers, like the veto, because he is elected and accountable to the
voters. Executive officers below the
President are not. So they must be ‘accountab[le]
to the public through a clear and effective chain of command down from the
President, on whom all people vote…
“The Council’s pocket-veto powers thwart
that chain of command. The Council need
not reflect the President’s views because it is an advisory body. But the Secretary of Commerce, who heads the
Department of Commerce, answers to the President and the people. And Council members can refuse to let her set
up limited-access fisheries, delegate to states, or repeal a plan. By blocking her actions, the Council wields
significant authority. And no one can
override the Council’s pocket veto…That is enough to make Council members
officers, not employees. [citations
omitted]”
Moreover, the court found that
Council members weren’t just “Officers,” but “Principal Officers,” who required
Presidential nomination and Senate confirmation before they could take their
posts. It stated that
“To decide whether an officer is principal
or inferior, courts often consider whether the officers have power to make
final decisions for the United States…Officers with unreviewable authority are
principal officers.
“Council members have unreviewable
authority. ‘[N]o principal officer at
any level within the Executive Branch directs and supervises’ Council members’
pocket vetoes…On the contrary, they exercise their pocket vetoes over a
principal officer: the Secretary of Commerce.
Thus, they are principal officers.
They should be appointed by the President and confirmed by the Senate,
but they are not. Their appointments are
unconstitutional. [citations omitted]"
The 3rd Circuit then
had to decide how the Council members’ status as federal officers impacted the
plaintiffs, and the structure created by Magnuson-Stevens. Although it had agreed with the plaintiff
fishermen’s positions up to that point, when it came time to craft a remedy,
the court took a judicially conservative stance, rejecting the plaintiffs’
request, and crafting one that did the least harm to the federal fishery management
system.
“The fishermen ask us to invalidate the
amendment. But we need not go so
far. When a statute is constitutionally
flawed, ‘we try to limit the solution to the problem, severing any problematic
portion while leaving the remainder intact…Even though this statute has no severability
clause, we can sever an unconstitutional provision unless Congress evidently
would not have passed the remaining parts without the invalid ones…
“Even if we knock out the pocket vetoes,
the statute remains ‘fully operative”…The Council’s ‘most significant
responsibility’ is drafting proposed plans; that duty remains untouched. What is more, the government conceded at
argument that these pocket-veto provisions are rarely used and that severing
them would not disrupt the statutory scheme.
So we will sever the pocket-veto powers…Those severances suffice to
remove the Council’s significant authority.
“Without those powers, the Council members
are mere employees who fall outside the Appointments Clause. They did not use their unconstitutional
powers to enact or tweak the amendment in this case. Their advisory role in proposing the
amendment plus its implementing regulation was proper.”
Thus, the fishermen technically won
their lawsuit, convincing the 3rd Circuit that the Council members
were unconstitutionally appointed, but as a practical matter, they lost the
fight, because the lowered commercial allocations remain in place, and the
Council’s ability to further reduce commercial quotas and/or recreational
landings remains intact.
Looking at the decision from the
agency’s side, NMFS lost, but it didn’t lose very much. It is rare that NMFS finds itself in a
situation (other than when it is managing highly migratory species) when it
takes action on its own initiative, and when it does, it is almost always in
response to a council’s inaction (its
recent decision to begin work on a Secretarial Amendment to address overfishing
in the South Atlantic red snapper fishery being a case in point). So as a practical matter, NMFS’ authority to conserve
and manage marine fisheries remains intact.
Given that the 5th Circuit is arguably the most judicially active federal appellate court in the country, which frequently issues extremely ideological opinions that diverge from other courts’ understanding of the law, it is very possible that, when the Arnesen matter returns to the appellate court, the result will be a decision invalidating the regional fishery management council system.
At that point, there will be two different
interpretations of the same law made by two different federal circuit courts, a
situation that would make the issue ripe for final determination by the Supreme
Court of the United States.
The Supreme Court might or might
not grant certiorari should it be asked to decide the issue.
But given the decisions that it has handed down in recent years, it would not be very surprising to see the
Supreme Court make a decision that casts the entire federal fisheries
management system into chaos.
Should that happen, it is
difficult to imagine the current, dysfunctional Congress, which treats the
legislative process more like a football game where the goal is to score “wins”
for your side, rather than as a deliberative process intended to score wins for
the nation, doing anything to rescue the system and put a workable management
process in place.
The resulting vacuum would be something to
fear.
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