A federal appeals court ruled that the Gulf of Mexico Fishery Management Council has powers it cannot constitutionally exercise under its current structure, but the decision will not overturn a rule that sharply reduced gag grouper catch limits.
The U.S. Court of Appeals for the 11th Circuit issued its unanimous decision Sept. 3 in a case brought by commercial fishermen Dominick and James Russo and their family business, FFC Seafood. The Russos challenged a federal rule that reduced annual gag grouper catch limits by approximately 86 percent.
The brothers have been in commercial fishing in the Gulf for about 30 years and argued that the reduction affected one of their most profitable fisheries.
Rather than challenging the biological basis for the catch limits, the Russos’ case centered on the structure and authority of the Gulf Council. They argued that council members exercise significant federal authority without being appointed in accordance with the Constitution’s Appointment Clause and are improperly insulated from removal.
Under the Magnuson-Stevens Fishery Conservation and Management Act, regional fishery management councils develop fishery management plans and amendments that are submitted to the Secretary of Commerce for review and approval.
The 11th Circuit found that certain provisions of the law give the Gulf Council powers it cannot constitutionally exercise, including the ability to block some actions by the Commerce secretary.
However, the court determined those powers played no role in establishing the gag grouper rule. Instead, the council made a recommendation that was independently adopted by the Commerce secretary.
“All agree that the veto powers had nothing to do with the rule,” Circuit Judge Andrew Brasher wrote. “Instead, the Council made an advisory proposal, which the Secretary independently adopted.”
Because those powers were not used in adopting the gag grouper limits, the court declined to overturn the rule. Pacific Legal Foundation, which represents the Russos, said it disagrees with that outcome and is considering its next steps.
“The Russos asked the court to protect their ability to make a living fishing in the Gulf, and unfortunately, the court left these restrictions in place,” PLF attorney Michael Poon said in a statement provided to National Fisherman.
The ruling leaves the roughly 86 percent reduction in gag grouper catch limits in place.
