A U.S. District Court judge has found the New England Fishery Management Council’s (NEFMC) member-appointment process violated the U.S. Constitution, marking a partial victory for the New England Fishermen’s Stewardship Association (NEFSA).
NEFSA challenged the constitutionality of U.S. fishery management councils in September 2023 in a lawsuit against the U.S. government and the National Marine Fisheries Service (NMFS). NEFSA claimed the appointment process for council members was unconstitutional and violated the Appointments Clause of the U.S. Constitution as it allowed undemocratically elected members of the council to make decisions.
“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 at the time. “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.”
The root of the lawsuit comes from Framework Adjustment 65 – a new 10-year cod rebuilding plan which also recently culminated in Framework Adjustment 69, which is a new management plan for cod and groundfish which fishermen protested, claiming it would torpedo the region’s fisheries.
In addition to big changes to cod, the NEFMC has also made huge cuts to the quota of haddock, prompting Leeman to warn fishermen were going to leave the region completely.
The lawsuit by NEFSA attacked part of how the Magnuson-Stevens Act (MSA) governs fisheries management in the U.S. Passed in 1976, the act established the current fishery management methods used by the U.S. – including fishery management plans and fishery management councils.
The MSA also established rules for how the council members would be appointed, and for the NEFMC, it established 18 voting members, including 12 appointed by the U.S. secretary of commerce.
The members are divided up into state representatives selected by the governor of the five member states, the regional director of the NMFS, and the members appointed by the secretary of commerce from a list sent by the governor of each constituent state. The list is itself based on a set of requirements, including possessing knowledge about the environment, having some knowledge about the commercial or recreational harvests in the region, or having scientific expertise of training in relevant areas.
U.S. District Court Judge John Woodcock determined some of the authority granted to those council members was violating the U.S. Constitution, specifically a portion of the MSA which meant the NFMS was unable to repeal certain fisheries management procedures without council approval. By refusing to assent to decisions made by the NFMS, the council could effectively “pocket veto” decisions made by federal authorities.
“The court concludes that the unreviewable pocket veto provisions of the MSA grant the councils the power to exercise significant authority,” Woodcock wrote.
While NEFSA won its argument about the constitutionality of some of NEFMC’s authority, Woodcock rejected some of the core contentions that would have led to overturning existing regulations.
Essentially, Woodcock found that the decision-making powers and authorities granted to the council are not great enough to fully invalidate its management functions.
In the end, Woodcock determined that the best course of action was to resolve the constitutionality by taking away certain portions of the council’s authority while maintaining the MSA.
“In severing these limited provisions, the Court addresses both the Appointments Clause and constitutional removal claims, as, without these provisions, the Council Members do not exercise any significant authority, and thus, do not constitute officers of the United States,” Woodcock wrote. “This resolves the constitutional issues presented without invalidating an entire statutory scheme that has effectively governed the United States for decades or a regulation that did not involve either of the constitutional provisions identified in the case at bar.”
While it won a partial victory, the ruling did little to resolve NEFSA’s issues with NEFMC and Framework Adjustment 65.
“NEFSA is pleased that the court agreed there are constitutional problems with the council,” Leeman said. “But, this is only a partial victory. The court rewrote the statute to salvage the regulations that are driving fishermen off the water and decimating our coastal communities. NEFSA is carefully considering an appeal.”
