Gulf Fishermens Ass'n v. Nat'l Marine Fisheries Serv.

968 F.3d 454

GULF FISHERMENS ASSOCIATION ; Gulf Restoration Network; Destin Charter Boat Association; Alabama Charter Fishing Association; Fish for America USA, Incorporated; Florida Wildlife Federation; Recirculating Farms Coalition ; Food & Water Watch, Incorporated; Center for Food Safety, Plaintiffs — Appellees,

v.NATIONAL MARINE FISHERIES SERVICE; Eileen Sobeck, in Her Official Capacity as Assistant Administrator for Fisheries; Doctor Roy Crabtree, in His Official Capacity as Regional Administrator, Southeast Region; National Oceanic & Atmospheric Administration; Doctor Kathryn Sullivan, in Her Official Capacity as Under Secretary of Commerce for Oceans and Atmosphere and Administrator for National Oceanic and Atmospheric Administration; Penny Pritzker, in Her Official Capacity as United States Secretary of Commerce, Defendants — Appellants.

No. 19-30006

United States Court of Appeals, Fifth Circuit.

FILED August 3, 2020

REVISED August 4, 2020

George Andreas Kimbrell, Amy Luisa Van Saun, Center for Food Safety, Portland, OR, Emily Henrion Posner, New Orleans, LA, Marianne Cufone, Loyola Law Clinic-New Orleans, New Orleans, LA, for Plaintiffs - Appellees.

Frederick Harter Turner, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Avi Kupfer, U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC, Katharine Paige O'Hale, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Defendants - Appellants.

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

We consider whether a federal agency may create an "aquaculture," or fish farming, regime in the Gulf of Mexico pursuant to the Magnuson-Stevens Fishery Conservation and Management Act of 1976 ("Magnuson-Stevens Act" or "Act"), 16 U.S.C. §§ 1801 – 83. The answer is no. The Act neither says nor suggests that the agency may regulate aquaculture. The agency interprets this silence as an invitation, but our precedent says the opposite: Congress does not delegate authority merely by not withholding it. See Texas v. United States , 809 F.3d 134, 186 (5th Cir. 2015), aff'd by equally divided Court , ––– U.S. ––––, 136 S. Ct. 2271, 195 L.Ed.2d 638 (2016). Undaunted, the agency seeks authority in the Act's definition of "fishing"—the "catching, taking, or harvesting of fish." 16 U.S.C. § 1802(16) (emphasis added). "Harvesting," we are told, implies gathering crops, and in aquaculture the fish are the crop. That is a slippery basis for empowering an agency to create an entire industry the statute does not even mention. We will not bite. If anyone is to expand the forty-year-old Magnuson-Stevens Act to reach aquaculture for the first time, it must be Congress.

We therefore AFFIRM the district court's ruling that the challenged aquaculture rule exceeds the agency's statutory authority. See 81 Fed. Reg. 1762 (Jan. 13, 2016), codified at 50 C.F.R. pts. 600 and 622.

I.

A.

The Magnuson-Stevens Act seeks to "conserve and manage the fishery resources found off the coasts of the United States." 16 U.S.C. § 1801(b)(1) ; see also Delta Commercial Fisheries Ass'n v. Gulf of Mexico Fishery Mgmt. Council , 364 F.3d 269, 271 (5th Cir. 2004) (the Act "aims to preserve fishery resources by preventing overfishing"). Congress passed the Act in 1976 after finding that aggressive fishing practices, especially by foreign trawlers, had imperiled important fish stocks and the coastal economies dependent on them.¹ See 16 U.S.C. § 1801(a)(2) (finding the economies of "[m]any coastal areas ... have been badly damaged by the overfishing of fishery resources," particularly by "[t]he activities of massive foreign fishing fleets"). Accordingly, the Act provides a framework for protecting and managing fishing and fishery resources in federal waters. See id. §§ 1801(b), (c) (stating Act's purposes and policies).

As relevant here, the Act creates eight Regional Fishery Management Councils and tasks them with drafting Fishery Management Plans ("FMPs"). Id . §§ 1801(b)(5), 1852–53. Each FMP must identify and describe the fishery to which it applies, id. § 1853(a)(2), and contain "conservation and management measures" that are "necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery," id. § 1853(a)(1)(A). In addition, each FMP must "be consistent with" ten "national standards." Id. § 1851(a). Among these standards are requirements to "prevent overfishing while achieving ... the optimum yield from each fishery." Id. § 1851(a)(1).²

Today, the Act is administered by the National Marine Fisheries Service ("NMFS" or the "agency"), a division of the National Oceanic and Atmospheric Administration, by delegation from the Secretary of Commerce. See id. §§ 1854, 1855. NMFS reviews each FMP for consistency with the Act and other applicable laws. If NMFS fails to act within a specified period of time after the council submits an FMP, the plan is approved. Id. § 1854(a)(3). Each plan is then implemented through separate regulations, which NMFS reviews, id. § 1853(c), and, upon approval, implements through final rules, id. § 1854(b).³

The concept of a "fishery" is central to the Act and to the issues we consider in this case. The Act defines "fishery" as follows:

(A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and

(B) any fishing for such stocks.

Id. § 1802(13). "Fishing," in turn, is defined as:

(A) the catching, taking, or harvesting of fish;

(B) the attempted catching, taking, or harvesting of fish; (C) any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or

(D) operations at sea in support of, or in preparation for any activity described in subparagraphs (A) through (C).

Id. § 1802(16). When passed, the Act made no reference to aquaculture or fish farming.⁴

B.

The Gulf of Mexico Fishery Management Council (the "Council") comprises Texas, Louisiana, Mississippi, Alabama, and Florida. Id. § 1852(a)(1)(E). The Council has "authority over the fisheries in the Gulf of Mexico seaward of" those five states. Id. In 2009, it became the first regional council to put forward a plan to regulate and permit aquaculture. In common terms, aquaculture means fish farming: it is "the cultivation of aquatic organisms (such as fish or shellfish) especially for food."⁵ The practice typically entails planting "broodstock," or wild-caught fish, to spawn the rest of the aquaculture stock, which are then harvested. Id.⁶ As NMFS explains, aquaculture "is essentially a farming operation, [in which] all animals cultured are intended for harvest." 81 Fed. Reg. 1762, 1770 (Jan. 13, 2016).

The Council developed a "Plan for Regulating Offshore Marine Aquaculture in the Gulf of Mexico" (the "Plan"). Under the Plan, the Council would approve five to twenty permits for aquaculture operations over a ten-year period. Permits would be conditioned on compliance with biological, environmental, recordkeeping, and reporting conditions. The Council submitted the Plan and a proposed implementing regulation to NMFS. After NMFS took no position on the Plan, it went into effect. In 2014, NMFS published a proposed Rule to implement the Plan, which became final in 2016.⁷

In its own words, the Rule "establishes a comprehensive regulatory program for managing the development of an environmentally sound and economically sustainable aquaculture fishery in Federal waters of the Gulf." 81 Fed. Reg. at 1762. Its purpose is "to increase the yield of Federal fisheries in the Gulf by supplementing the harvest of wild caught species with cultured product." Id. To that end, the Rule requires aquaculture facilities to obtain aquaculture permits. See id. at 1763 (describing requirements for permit applications). Applications are submitted to NMFS's Southeast Regional Administrator (the "RA") who may grant or deny the permit. The Rule provides for a 45-day notice-and-comment period upon an application's completion. Id. A permit is valid for ten years initially and must be renewed every five years thereafter. Id. at 1762. The Rule contains a number of "operational requirements, monitoring requirements, and restrictions" for permittees. Id. at 1763–64. Permittees must allow NMFS personnel and NMFS-designated third parties access to their facilities to "conduct inspections and determine compliance with applicable regulations." Id. at 1765. Finally, the Rule contains a plethora of reporting and recordkeeping requirements, id. at 1766, and requires permittees to comply with various regulations promulgated by other federal agencies, including the Environmental Protection Agency ("EPA"), id. at 1763, and the Department of Agriculture, id. at 1764.

The Rule is the first attempt by NMFS or any council to regulate aquaculture under the Act. It is no small attempt. The Rule allows for a maximum annual production of 64 million pounds of seafood in the Gulf. Id. That figure would equal the previous average annual yield "of all marine species in the Gulf[ ] except menhaden^{[8 ]} and shrimp." Id.

C.

A coalition of fishing and conservation organizations ("Plaintiffs"),⁹ concerned about the commercial and environmental impacts of the Rule's proposed regime,¹⁰ challenged the Rule in district court. They claimed the Rule was invalid because it fell outside the Council's authority to regulate "fisheries" under the Act. The parties cross-moved for summary judgment. Relying on the Act's text, structure, and history, the district court held the Act unambiguously forecloses NMFS's authority to regulate aquaculture. The court thus denied Chevron deference to...