Fifth Circuit: Federal Government Can’t Regulate Aquaculture Under Magnuson-Stevens

On August 3, 2020, the Fifth Circuit Court of Appeals issued its much-awaited decision in Gulf Fishermens Association v. National Marine Fisheries Service. The litigation concerned the authority of the National Marine Fisheries Service (NMFS) to regulate aquaculture under the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens” or “the Act”), which has been the primary federal mechanism for regulating wild fisheries since 1976. Although one member of the three-judge panel that heard the case dissented, the court ultimately affirmed the district court's ruling that a NMFS rule purporting to regulate offshore aquaculture in the Gulf of Mexico exceeded the agency’s statutory authority.

Appealed to the Fifth Circuit from the U.S. District Court for the Eastern District of Louisiana, Gulf Fishermens Association arose as a challenge to a “Plan for Regulating Offshore Marine Aquaculture in the Gulf of Mexico” (the Plan) that was initially put forward by the Gulf of Mexico Fishery Management Council (GMFMC) in 2009 and finalized through a rulemaking by NMFS in 2014. The Plan and implementing regulations set forth a framework for permitting aquaculture projects in federal waters of the Gulf of Mexico. Under the terms of Magnuson-Stevens, eight Regional Fishery Management Councils are tasked with drafting Fishery Management Plans (FMPs) that must contain measures to prevent overfishing and promote the long-term health of fisheries. 16 U.S.C. §§ 1801(b)(5), 1852–53. The Act never explicitly mentions aquaculture or fish farming, but it defines “fishing” as, “the catching, taking, or harvesting of fish,” as well as attempts and any other activity which can reasonably be expected to result in a catch, take, or harvest. Id. § 1802(16). NMFS asserted that aquaculture falls under the scope of this definition, giving the agency and GMFMC the authority to develop an aquaculture FMP for the Gulf.

The Fifth Circuit rejected this argument on several grounds. First, the court found that the context of the term “harvesting” demonstrate that it should be read as synonymous with “catching” and “taking” for purposes of the Act. Second, the court noted legislative history dating back to 1948 demonstrating Congress’s familiarity with aquaculture, including references to aquaculture that were introduced to Magnuson-Stevens in 1992 and 2007 that did not purport to confer NMFS the authority to regulate aquaculture. Especially in light of the oft-repeated tenet of statutory interpretation that “Congress does not hide elephants in mouseholes,” the court declined to read NMFS’ authority to regulate aquaculture into the phrase “harvesting of fish.”

Furthermore, the Plan equated an aquaculture facility with a fishery under Magnuson-Stevens. However, as the court’s opinion notes, the Act makes demands on fisheries that cannot apply to aquaculture facilities. NMFS conceded as much in its environmental impact statement for its rule implementing the Plan, stating that many of Magnuson-Steven’s principles and concepts for fisheries management are either of little utility or not generally applicable to aquaculture operations. The court concluded its opinion by quoting the district court’s reaction to this concession: “[T]his Court does not view the incompatibility of the requirements of the [Magnuson-Stevens Act] with aquaculture operations as an unfortunate happenstance, but rather, as a clear indication that Congress did not intend for the [Act] to grant NMFS the authority to regulate aquaculture.” Gulf Fishermens Ass'n v. Nat'l Marine Fisheries Serv., 341 F. Supp. 3d 632, 640 (E.D. La. 2018).

Nevertheless, one of the Fifth Circuit panel’s three judges wrote a dissent that would have upheld NMFS’ regulation of aquaculture under Magnuson-Stevens. First, the dissent pointed out that offshore aquaculture appeared to fall within the Act’s broad delegation to NMFS of the management authority over “all fish, and all Continental Shelf fishery resources, within the exclusive economic zone.” 16 U.S.C. § 1811(a). The dissent also asserted that, even if the Act does not specifically delimit “aquaculture,” it may still apply to fish farming in the Gulf because fishing techniques have incorporated lines, pots, cages, nets, and other types of enclosures since time immemorial. Finally, the dissent suggested that Magnuson-Stevens and its relevant terminology are sufficiently ambiguous that the court should have deferred to NMFS’ interpretation thereof.

Either NMFS or a judge sitting on the Fifth Circuit may now request that the case be reheard en banc by a larger panel of Fifth Circuit judges. NMFS can also appeal the three-judge panel’s decision to the U.S. Supreme Court but, even if the agency makes such a request, the Court exercises strict discretion over its docket and may choose to leave Fifth Circuit’s decision undisturbed. NMFS’ strategy for further pursuing this litigation, or whether it intends to do so at all, is currently unknown.