Attempt to Fish for a New Aquaculture Regime Yields No Catch
Gulf Fishermens Ass'n v. Nat'l Marine Fisheries Serv., 968 F.3d 454 (5th Cir. 2020).
By: Spring Gaines
The Fifth Circuit considered an appeal brought by the National Marine Fisheries Service ("NMFS" or "agency") on whether the agency has the ability to regulate aquaculture because it falls under the definition of “fishery” within the Magnuson-Stevens Act (“Act”).
The purpose of the Act is to "conserve and manage the fishery resources off the coasts of the United States."[1] Central to the case at hand are the definitions for “fishery” and “fishing.” Within the Act, a fishery is defined as “one or more stocks of fish which can be treated as a unit for purposes of conservation and management….”[2] Additionally, fishing is considered the “catching, taking, or harvesting of fish.”[3] Nowhere within the Act is there mention of aquaculture or fish farming. However, in 2014, NMFS published a proposed Rule that would enable the agency to regulate aquaculture under this Act. The Plaintiffs, a coalition of fishing and conservation organizations, claimed the rule was invalid because “it fell outside the Council's authority to regulate ‘fisheries’ under the Act.”[4] The district court held that “the Act unambiguously forecloses NMFS's authority to regulate aquaculture.”[5] The agency appealed based upon the Act’s ambiguity as to whether it may encompass aquaculture.
The Fifth Circuit questioned whether the Act is indeed ambiguous as to the inclusion of aquaculture and decided that it is not. Under Chevron deference, it relied upon pure statutory text to make its judgment. However, rather than the actual text, it relied upon statutory silence. The circuit court saw parallels to Texas v. United States and Ethyl Corp. v. EPA in which the arguments were that legislative silence somehow equates to delegation of power because it was not explicitly excluded. Those arguments did not hold water then and the Fifth Circuit once again declined such argument.
The agency also attempted to argue that the breadth of the term “harvest” in the definition of “fishing” could encompass an aquaculture regime and that aquaculture in and of itself is a “fishery.” However, if the rule sought to equate an "aquaculture facility" with a "fishery" under the Act, there are certain demands on a fishery that cannot apply to an aquaculture facility. In its environmental impact statement for the rule, the agency admitted that "[m]any of the principles and concepts that guide wild stock management under the [Act] are either of little utility or not generally applicable to the management of aquaculture operations"[6] The court took this as clear implication that Congress did not intend for the Act to grant agency authority for aquaculture regulation and affirmed the district court’s decision to grant summary judgement for the Plaintiffs.
[1] 16 U.S.C. § 1801(b)(1) (2018).
[2] 16 USCS § 1802(13)(A)
[3] 16 USCS § 1802(16)(A)
[4] Gulf Fishermens Ass'n v. Nat'l Marine Fisheries Serv., 968 F.3d 454, 459 (5th Cir. 2020)
[5] Id.
[6] Id. at 468 (emphasis added).
