US court finds fishery council unconstitutionally powerful, upholds catch limits

Key facts

• A federal appeals court determined the Gulf of Mexico Fishery Management Council held unconstitutional powers.
• The court found the council's law improperly granted it authority to block Commerce Secretary actions.
• The court upheld a rule that limits the annual catch of gag grouper by an estimated 86%.
• The court stated the council's improper veto powers were unrelated to the gag grouper rule.
• The ruling ordered a lower court to enter a judgment in favor of the government.

A federal appeals court has ruled that the Gulf of Mexico Fishery Management Council, established by Congress, exercised unconstitutional powers. The 11th U.S. Circuit Court of Appeals in Atlanta found that the law creating the council improperly granted it the authority to block actions by the U.S. Commerce Secretary, including the repeal of fishery management plans designed to prevent overfishing.

Despite this finding, the court rejected a challenge brought by two commercial fishermen, Dominick and James Russo, against a rule that limits the annual catch of gag grouper by an estimated 86%. The fishermen had argued the rule should be voided because council members were improperly appointed and wielded significant federal authority, violating the U.S. Constitution's Appointments Clause.

Circuit Judge Andrew Brasher, agreeing with other federal appeals courts that the council had too much power, stated that the "misallocation of authority" did not justify addressing the appointment of council members or vacating the gag grouper rule. He noted that "All agree that the veto powers had nothing to do with the rule," and that the Council made an advisory proposal which the Secretary independently adopted.

The ruling ordered a lower court judge to enter a judgment favoring the government. Michael Poon, a lawyer representing the Russos, stated that they are considering their next steps, emphasizing that actions taken by unconstitutionally appointed officials are void. The U.S. Department of Commerce and the National Marine Fisheries Service declined to comment.