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Fishing regulators are violating the Constitution

“NEFSA says American people should control America’s fisheries"

Portland, ME -- The New England Fishermen’s Stewardship Association (NEFSA) has filed a lawsuit alleging that the regulatory bodies which control the fishing industry are unconstitutional.

America’s oceans have become Constitution free zones. A federal appeals court recently held that regulators cannot subject charter fishing vessels to round-the-clock GPS surveillance. Fishermen are also in the Supreme Court contesting federal power to place observers on fishing voyages while billing fishermen for the cost of the observers.

NEFSA’s lawsuit centers on yet another constitutional problem: the method of appointing members to fishery regulatory councils and the job protections council members enjoy—both of which are patently unconstitutional because they unlawfully shield council members from being accountable to the people.

“When I was a vessel captain, the New England Fishery Management Council controlled every facet of my business, from catch quotas to conservation measures,” said NEFSA CEO Jerry Leeman. “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.”

Commerce secretary Gina Raimondo, the National Marine Fisheries Service, and two senior regulators are named as defendants.

NEFSA filed its suit the U.S. District Court for the District of Maine. The case was assigned to U.S. District Judge John A. Woodcock. The PACER case number is 2:23-cv-00339-JAW.

Key points

· The 1976 Magnuson-Stevens Act establishes eight fishery management councils. Each council regulates marine resources in a particular area. The New England Fishery Management Council, has jurisdiction over the Gulf of Maine, Georges Bank, and waters south of New England.

· The councils are mini legislatures that have the final word on fishery policy. Councils determine how much of each species may be harvested, the manner in which they may be caught, and how the catch should be divided, among many other subjects.

· Council decisions are final. A federal agency reviews management decisions for legality, and the commerce secretary can give advice on developing regulations. But ultimately the councils are final arbiters on policy issues.

· Council members are selected by two different means. Some are state bureaucrats with ex officio membership (e.g., state environmental officials). The U.S. commerce secretary selects the remaining members off of a list of three options provided by state governors.

· Council members are virtually un-fireable. State-office members cannot be removed for any reason. Members from governor-curated lists can be removed only for breaking conflict of interest rules.

· The selection and removal criteria are patently unconstitutional.

· As the primary policy makers for U.S. fisheries, council members are “officers of the United States” who must be selected according to the procedures in the Constitution’s appointments clause.

· The Constitution’s appointments clause sets two methods for selecting officers: 1) Senate confirmation in the case of principal officers, and 2) presidential or secretarial appointment in the case of inferior officers.

· As to removal, the Supreme Court has made clear the president must have authority to fire officers. As the complaint explains: “The default rule is that the President must be able to remove Executive Branch officials at will.” Seila Law, 140 S. Ct. at 2191–92.

· These constitutional questions are practical and urgent – New England’s management council recently implemented an 80 percent reduction for authorized haddock catches, an economic body blow to NEFSA members.

Key excerpts

· “Despite the national importance of offshore fishing regulation, Congress has removed the issue from democratic control. Rather than make these decisions itself or vest them in executive agencies accountable to the elected President, Congress has assigned control of the nation’s fisheries to novel federal councils that violate the Constitution’s structural protections in multiple respects.” (p. 1)

· “Councils operate independently, free of administrative oversight. They cannot be removed at will, if they are removable at all. And their policy judgments cannot be overturned by any federal official that answers to the President—or even by the President himself.” (p. 35)

· “Councils have been captured by special interests, from foreign-funded seafood titans to well-connected recreational fishermen. The immediate casualties are working-class commercial fishermen, who face a campaign of exclusionary restrictions. Without the deep pockets or personal connections necessary to penetrate and persuade an insulated Council, these small businessmen face economic extinction.” (p. 6)

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