11th Circuit deems fishery council’s veto powers unconstitutional

The panel’s decision, however, does not vacate a limit on gag grouper fishing.ATLANTA (CN) — An 11th Circuit panel ruled Thursday that the veto powers exercised by the Gulf of Mexico Fishery Management Council are unconstitutional but declined to rescind a grouper limit rule that started the dispute.In a unanimous decision, the three-judge panel found the veto provisions given by the Magnuson-Stevens Fishery Conservation and Management Act gave the fishery council too much power over the federally appointed secretary of commerce and violated the appointments clause of the U.S. Constitution.“These provisions permit the council to block the secretary from establishing limited-access fisheries, delegating fisheries to the states, or repealing a fishery management plan,” wrote U.S. Circuit Judge Andrew Brasher in the 29-page decision. “The secretary cannot override the council’s veto. Because the veto gives the council—not the secretary—the final word, it thwarts the chain of command.”The case stems from a lawsuit filed by two Florida-based fishermen upset over a 2024 regulation limiting commercially caught gag grouper, who argued the Gulf of Mexico Fishery Management Council lacked the constitutional authority to implement the restrictions.Dominick and James Russo, who own FFC Seafood in Sarasota, Florida, sued the U.S. Department of Commerce and the National Marine Fisheries Service in U.S. District Court for the Southern District of Alabama over Amendment 56, which cut quotas for gag grouper by 85%. The federal agencies approved and promulgated the regulation.In 1976, Congress created eight regional fishery councils responsible for submitting management plans to the commerce secretary to set catch limits and prevent overfishing in federal waters. The statute gives the councils, made up of members appointed at the state level, the power to veto certain decisions by the secretary that change catch limits or reject the councils’ management plans.The brothers contend that despite exercising “significant” federal control of the fisheries, the council members are not appointed by the president or confirmed by the Senate, making their decisions unconstitutional under the appointments clause.Last year, a federal judge declined to vacate Amendment 56 but did rule the fisheries council cannot use “pocket vetoes,” which allow the council to reject certain federal fishing amendments and plans brought by the National Marine Fisheries Service. Both parties appealed, and the 11th Circuit heard arguments in July.On Thursday, the panel took the same position as two other appellate circuit courts, finding the fishery council’s structure violated the Constitution, but stopped short of voiding all the councilmembers’ appointments or actions, including the gag grouper rule.“Here, the narrowest constitutional remedy would be to ignore any of the council’s acts under its veto provisions, not to require every member of the council to be nominated by the president and confirmed by the Senate,” Brasher, a Donald Trump appointee, wrote. “We see no reason to believe that Congress would prefer a Senate-confirmed council without removal restrictions to a purely advisory council that balances regional and state interests in the way Congress clearly envisioned.”“But all agree that the veto powers had nothing to do with the rule at issue,” the judge continued. “Instead, the council made an advisory proposal, which the secretary independently adopted. This two-step process, as we have explained, does not involve the exercise of significant authority by the council. We therefore join our sister circuits and hold that, because the gag grouper rule was not affected by an unconstitutional part of the act, vacatur is inappropriate.”The Pacific Legal Foundation, which represented the Russos, did not respond to a request for comment. The National Marine Fisheries Service and the U.S. Department of Commerce also did not respond to inquiries.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads