New England fishermen challenge constitutionality of US fishery management councils

The New England Fishermen’s Stewardship Association (NEFSA) has sued the U.S government, alleging that the regional fisheries management councils used by NOAA Fisheries are unconstitutional.

NEFSA claims that the way council members are appointed and the job protections they enjoy are both “patently unconstitutional because they unlawfully shield council members from being accountable to the people.” U.S. Commerce Department Secretary Gina Raimondo and NOAA Fisheries are named as defendants in the case, which was filed in the U.S. District Court for the District of Maine.

“When I was a vessel captain, the New England Fishery Management Council controlled every facet of my business, from catch quotas to conservation measures,” NEFSA CEO Jerry Leeman said. “Despite the significant power council members exercise, they are shielded from democratic control and political accountability. We live in a democracy and our fishery is a public resource. The public needs to be able to participate in its management and care.”

NEFSA joins a growing chorus of commercial fishermen and industry groups challenging the constitutionality of the federal government’s fisheries management system. In June 2023, a pair of commercial fishermen from the Gulf of Mexico – George Arnesen and Ryan Bradley – sued the federal government and the Gulf of Mexico Fishery Management Council, claiming the regional fishery management councils are an “unconstitutional regime.” Like in the NEFSA lawsuit, the fishermen claim that the management councils effectively remove democratic control from fisheries regulation.

“A well-intentioned attempt at rule by enlightened experts has devolved, as usual, into a bureaucratic morass captured by narrow interests,” the fishermen allege in the suit.

NOAA Fisheries has responded to the pair’s claims by arguing that the management councils are advisory bodies only.

“Federal courts have held that fishery management councils are not considered federal agencies for the purposes of the Administrative Procedure Act and that council members are not federal ‘officers’ under the U.S. Constitution as suggested by the commenters,” the agency said.

Commercial fishermen have seen some recent success in pushing back against federal regulators through the courts.

In February 2023, the U.S. Court of Appeals for the Fifth Circuit overturned NOAA Fisheries regulations requiring 24/7 GPS-monitoring of vessels and electronic reporting of every trip, ruling the agency could not use ambiguous language in the Magnuson-Stevens Act in lieu of direct congressional instructions to authorize the regulations.

Commercial fisherman are also battling the New England Fishery Management Council (NEFMC) at the U.S. Supreme Court over regulations requiring Atlantic herring fishermen to pay for at-sea monitors on their vessels. The lawsuit – Loper Bright Enterprises v. Raimondo – could have major ramifications for how much regulatory authority regional fishery management councils can exercise without direction from Congress.

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