U.S. Fishery Management Council Power to Veto Severed
April 3rd, 2025 — by Steven Young — Category: Fisheries
The Third Circuit Court of Appeal's recent decision in Lofstad v. Raimondo represents a significant shift in the legal framework governing U.S. Fishery Management Councils with broad implications. Lofstad, 117 F. 4th 493 (3rd Cir. 2024). The court held that the Fishery Management Councils wield significant authority and are unlawfully Officers of the United States.
In two separate lawsuits, commercial herring fishermen have challenged a rule promulgated under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) requiring them to pay for at-sea monitors, also known as “fishery observers.” The U.S. District Court for the District of Columbia rejected a challenge to the rule from several New Jersey fishermen in June, and the U.S. District Court for the District of Rhode Island likewise rejected a separate challenge from several New England fishermen earlier this month. In both cases, the court concluded that the MSA allows industry-funded fishery observers.
The National Marine Fisheries Service (NMFS) recently announced its intent to withdraw a rule that would have suspended the drift gillnet swordfish fishery in California and Oregon if the fishery were to exceed a limit (or “hard cap”) on deaths and injuries caused to certain turtles and marine mammals over a two-year period. This action is in response to a decision handed down by a federal district court last month.
On his first day in office, President Biden issued an Executive Order broadly resetting environmental policy at the federal level in the United States. Executive Order 13,990 creates a policy to restore and expand national monuments, and also directs the Secretary of Interior to review monument boundaries and Presidential Proclamations affecting national monuments.
On November 26, 2020, the European Union approved a deal with the United States that eliminates tariffs on all U.S. lobsters for the next five years, with the possibility of permanent elimination in the future.
This fall, tensions have escalated between tribal fishermen and non-tribal fishermen in Canada. After tribal fishermen began lobster fishing in September, Canadian news outlets reported instances of vandalism and physical intimidation by non-tribal fishermen.
American Samoa Loses Fishing Rights Decision in Ninth Circuit
October 21st, 2020 — by Blake Tims — Category: Fisheries
The Ninth Circuit Court of Appeals ruled against American Samoa in a recent ruling, reversing a lower court’s decision that would have blocked large fishing vessels from fishing in a zone around the islands of American Samoa.
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.
On June 11th, Representative Jared Golden of Maine and Representative Garret Graves of Louisiana proposed bipartisan legislation that would provide fishermen with additional funds from the COVID-19 disaster relief efforts. The proposal seeks to amend the Magnuson–Stevens Fishery Conservation and Management Act (MSA), the principle law governing marine fisheries in the United States.
On June 5th, while on a visit to Maine, President Trump signed a proclamation that opens the Northeastern Canyons and Seamounts Marine National Monument to commercial fishing. This proclamation was made in hopes of helping the fishing industry bounce back after the nation's economic crisis, but it may lead to more legal battles before achieving this goal.
In the summer of 2019, both the state of Maine and the federal government became embroiled in a struggle between commercial fishermen and environmentalists over endangered North Atlantic right whale populations. As increasing numbers of right whales were found deceased in the waters in and around Maine, the National Oceanic and Atmospheric Administration (NOAA) began contemplating how to best protect the endangered whales.
The offshore wind energy industry on the Outer Continental Shelf (OCS) adjacent to the New England and Mid-Atlantic regions is on the verge of dramatic expansion. Currently, a single wind farm consisting of five turbines located three miles southeast of Block Island, Rhode Island is the only operational wind farm on the United States Atlantic coast.
On March 28, Maine’s Supreme Judicial Court ruled in Ross v. Acadian Seaplants (No. Was-17-142, 2019 ME 45, WL 1388499), holding that rockweed—a variety of brown algae that many in the state harvest for both personal and commercial use—is private property. As a result, rockweed harvesters must now gain permission from shorefront property owners before they can collect rockweed from the intertidal zone (the area of wet sand that falls between the high- and low-tide marks) in front of the owners’ property.
On New Year’s Eve, President Trump signed the “Modernizing Recreational Fisheries Management Act of 2018” (Modern Fish Act) into law. The Act amends the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to address the management of federal recreational fisheries. The bill, introduced in 2017 by Senator Roger Wicker and Congressman Garret Graves, had more than a dozen cosponsors in both the House and Senate.
