Fifth Circuit Hears Oral Arguments on Aquaculture Regulations in the Gulf of Mexico

In September 2018, Judge Jane Milazzo of the federal Eastern District of Louisiana handed down a ruling that held the National Marine Fisheries Service (NMFS) overstepped its statutory authority by promulgating rules that would have permitted finish aquaculture operations in the Gulf of Mexico. Although the complainants—a coalition of fishing and public interest groups represented by the Center for Food Safety (CFS)—challenged NMFS’s actions on several grounds, Judge Milazzo’s decision rested solely on the determination that Congress intended the Magnuson-Stevens Act (MSA) to grant NMFS the authority to regulate only traditional fishing, not aquaculture.

NMFS appealed Judge Milazzo’s ruling to the US Court of Appeals for the Fifth Circuit, which has appellate jurisdiction over the federal district courts in Texas, Louisiana, and Mississippi. On January 6, 2020, a three-judge panel consisting of the Hons. Stephen A. Higginson, Patrick Higginbotham, and Stuart Kyle Duncan heard oral arguments from NOAA attorney Frederick Turner, representing NMFS, and CFS attorney George Kimbrell, who argued on behalf of the fishing and public interest coalition. The forty-minute sparring session was predominated by whether NMFS was reasonable in interpreting the MSA, which has traditionally applied only to wild fisheries, as bestowing the Service with the requisite authority to regulate marine aquaculture in the absence of a clear Congressional mandate.

As the appellant, Mr. Turner had the first opportunity to argue before the bench. He contended that the MSA is a broad delegation of power to NMFS over fish species in federal waters, emphasizing that the statute’s explicit inclusion of the word “harvesting” reflects Congress’ recognition of marine aquaculture and the MSA’s applicability thereto. All three judges expressed skepticism almost immediately, wondering aloud if NMFS’s sudden pivot fundamentally enlarged both the statute’s scope and its own authority without underlying support from Congress or the MSA’s text. Mr. Turner parried by asserting that one of the mandates plainly provided to NMFS under the MSA is the management of wild fisheries, and marine aquaculture would be a valid component of management schemes for species that are overfished in the wild. Notably, however, Mr. Turner was unable to identify anything in the MSA’s legislative history that specifically anticipates aquaculture as a management tool for wild fisheries. The bench likewise struggled to imagine how certain requirements under the MSA, such as preventing overfishing and bycatch, can apply to and be enforced for marine aquaculture operations.

Arguing on behalf of the fishermen and public interest coalition, Mr. Kimbrel of CFS opened his arguments with a canon of statutory interpretation: “Congress does not hide elephants in mouse holes”—i.e., here, Congress did not intend for a statute that has traditionally been interpreted and applied only to wild fisheries to regulate entire activities or industries that are not explicitly identified in that legislation. Mr. Kimbrel observed that farming fish is different than wild capture, contending that this difference is akin to that between hunting and gathering. Specifically, per Mr. Kimbrel’s contention, the act of discovery has important implications on the proprietary interests at stake. Like his counterpart, Mr. Kimbrel was unable to cite precedent for a regulatory distinction between wild fish and farmed fish when prompted, but proffered that Congress had declined previous efforts to explicitly recognize NMFS’ authority over marine aquaculture. The bench pushed back, observing that both parties had tried and failed to convince Congress to adopt legislation that would support the parties’ respective interpretations of the MSA and broader regulatory objectives. Mr. Kimbrel closed his arguments by reiterating that the plain meaning and statutory scheme of the MSA indicated Congress’ intent for the statute to apply only to wild fisheries, thus rendering NMFS’ interpretation of the statute a violation of the MSA and the discretion that the agency is afforded under the Administrative Procedures Act.

The bench congratulated both parties on a well-argued session when questions were finally exhausted but, in addition to the parties’ arguments, the outcome of the appeal will also be affected by the deference that the Fifth Circuit must afford to Judge Milazzo’s findings from the trial court proceedings. The timeline for the Fifth Circuit’s decision is unknown. The National Sea Grant Law Center will continue to monitor this case closely and share any significant updates on our social media and blog.