NEW ENGLAND GROUNDFISH SURVIVE CHALLENGE TO COUNCILS' CONSTITUTIONALITY

 

Last Thursday, I provided a fewpredictions on what the big fisheries issues of 2025 might be.  Just one day later, I was already behind the times, as one issue that I failed to consider cropped up as the first big fisheries news of the year:  A legal challenge to the constitutionality of the regional fishery management councils.

We’ve seen such challenges before, one originating in Mississippi and one in New Jersey, with both resulting in findings that some aspects of the regional fishery management councils and the process used to appoint council members was unconstitutional, but neither having a material impact on the councils or the federal fisheries management process. 

Despite the constitutional defects cited by the courts, neither lawsuit provided the plaintiffs the relief they were seeking, which involved invalidating one or more aspects of federal fishery management plans.

The latest court decision, handed down by the United States District Court for the District of Maine, followed the same now-established pattern.

The plaintiff in New England Fishermen’s Stewardship Association v. Raimondo, like those in the earlier cases, alleged that members of regional fishery management councils were “principal officers” of the United States, which the Constitution requires be appointed by the President and confirmed by the United States Senate.  Plaintiff argued that, because appointees to the New England Fishery Management Council did not follow such appointment process, their appointments were unconstitutional, and thus their actions, most particularly Framework Adjustment 65 to the Northeast Multispecies Fishery Management Plan, which substantially reduced the annual catch limits for haddock and some other stocks, were invalid.

The plaintiff also made the novel argument that Framework 65 was invalid because Samuel Rauch, the Deputy Assistant Administrator for Regulatory Programs at the National Marine Fisheries Service, signed the Final Rule implementing such framework, as well as the memorandum that certified that such rule was consistent with all applicable laws.  In plaintiff’s view, because Mr. Rauch belonged to a category of “Senior Executive Service” employees who could not be removed from their jobs in the absence of good and statutorily-specified cause, his ability to approve such framework and other regulations was unconstitutional because it “impede[s] the President’s prerogative to remove ‘those who disobey his commands’ or to remove such persons for other reasons.

The trial court’s logic in deciding the case closely parallelled that of the Court of Appeals’ decision in Lofstad v. Raimondo, which saw plaintiffs make similar constitutional challenges to the regional fishery management councils’ appointments process.  Like the 3^rd Circuit in Lofstad, the trial court in the New England Fishermen’s Stewardship Association case found that regional fishery management council members were principal officers of the United States, because their three-year terms constitute a “continuing” position and because they exercise “significant authority” since, acting in concert, they have the ability to block certain federal actions, as the Magnuson-Stevens Fishery Conservation and Management Act gives such councils the power to block the Secretary of Commerce from repealing an existing fishery management plan, and to prevent the Secretary from adopting

“a provision establishing a limited access system, including any limited access privilege program, unless such system is first approved by a majority of the voting members, present and voting, of each appropriate Council,”

with the Secretary having no way to appeal or override a council’s decision to do so.

Given that finding, the District Court in Maine, like the 3^rd Circuit, determined that the appointment process used to fill regional fishery management council seats did not comply with the Constitution’s requirements.

And like the 3^rd Circuit, the District Court decided that the most appropriate remedy was to sever the unconstitutional provisions from the rest of Magnuson-Stevens, and to reject the plaintiff’s request to vacate Framework Adjustment 65 and enjoin its enforcement.

In taking that position, the District Court relied on a standard established by the United States Supreme Court in an earlier matter, whether

“the law’s ‘surviving provisions [are] capable of functioning independently,’ and second, if Congress would have passed it without its ‘invalid components’ in light of the law’s ‘text [and] historical context.’”

The District Court also cited a 1^st Circuit decision which found that

“Under the general rules concerning severability, the otherwise valid portion of a statute can stand if it is fully operative and there is no showing that the legislators would not have enacted the valid provisions independently,”

and stated that

“The Court finds this solution [to sever the offending provisions from the remainder of Magnuson-Stevens] comports with the Supreme Court’s directive to ‘use a scalpel rather than a bulldozer’ to cure constitutional defects.  Removing the ability of the Council to pocket veto the Secretary’s desired adoption of a limited access system or to repeal [a fishery management plan] does not interfere with the primary responsibility of the Councils as policy developers and advisors, nor does it reallocate the truly binding legal authority of the statute, issuing regulations, from the Secretary.  Moreover, in severing these limited provisions, the Court addresses both the Appointments Clause and the constitutional removals claims, as, without these provisions, the Council Members do not exercise any significant authority, and thus, do not constitute officers of the United States. This resolves the constitutional issues presented without invalidating an entire statutory scheme that has effectively governed the United States for decades or a regulation that did not involve either of the constitutional provisions identified in the case at bar.  [citation omitted]”

The claims regarding Samuel Rauch were more quickly dismissed, with the District Court noting that

“The Administrative Record unequivocally demonstrated that Assistant Administrator Coit [who was appointed by the President and confirmed by the Senate, and is Mr. Rauch’s superior] expressly approved both the proposed an final versions of the Framework Adjustment 65 before Defendant Rauch signed either version for publication in the Federal Register.  Without exercising significant federal authority, Defendant Rauch is not subject to the constitutional strictures on appointment and removal, and thus the Plaintiff’s constitutional claim fails.  [citation omitted]”

The plaintiff tried to put the best possible face on the court’s decision, issuing a press release that began,

“A federal court gave hardworking fisherman a partial victory against rogue bureaucrats this week, declaring that a key regulatory body is unconstitutional in critical respects.”

And while that is technically true, as the court did find that the process used to appoint regional fishery management council members is unconstitutional, the press release later admitted that if plaintiffs scored any sort of victory, it was a very small one, saying

“…However, the court then ‘severed’ the override power, protecting the council and its suffocating regulations.

“’NEFSA is pleased that the court agreed there are constitutional problems with the council,’ said NEFSA CEO Jerry Leeman.  ‘But this is only a partial victory.  The court rewrote the statute to salvage the regulations that are driving fishermen from the water and decimating our coastal communities.  NEFSA is carefully considering an appeal.’”

It’s probably notable that plaintiffs admit that they are “carefully considering” the possibility of appeal from the district court’s decision, and that care is justified, for the 3^rd Circuit’s decision in Lofstad was well-reasoned, was heavily cited in the Maine district court’s decision, and is very likely to have a significant influence on the 1^st Circuit tribunal should an appeal be taken.

In the end, the New England Fishermen’s Stewardship Association won a mere token victory, which saw two seldom-used provisions of Magnuson-Stevens invalidated, but did not change the way council members are appointed and did nothing to prevent the implementation of Framework Adjustment 65.  So far, no other challenge to the appointment process has done any better.

Although we will probably see more such challenges in the future, we can hope and can probably expect that none will attain greater success, and that the fishery management structure envisioned when the Fishery Conservation and Management Act of 1976 will continue to weather such attacks.  Although in light of the anti-regulatory agency sentiment that seems so popular these days, we might want to start asking ourselves what will have to be done should any of the attacks be improbably successful.