US Court Rules Fishery Council Powers Unconstitutional, Upholds Gag Grouper Catch Limit

A federal appeals court has ruled that the Gulf of Mexico Fishery Management Council, created by Congress to assist the commerce secretary in managing US fisheries, holds unconstitutional powers. However, the court declined to strike down a rule limiting the catch of gag grouper in the Gulf.

The 11th US Circuit Court of Appeals in Atlanta, in a unanimous 3-0 decision, said the law establishing the council improperly gave it authority to block certain actions by the commerce secretary, including repeals of fishery management plans aimed at preventing overfishing and ensuring sustainability.

The ruling came in a lawsuit filed by commercial fishermen Dominick and James Russo, who challenged a rule that cut the annual gag grouper catch by an estimated 86%. They argued the rule should be voided because council members were improperly appointed and wielded significant federal authority, violating the Constitution's Appointments Clause.

Circuit Judge Andrew Brasher, writing for the court, agreed with two other federal appeals courts that the council had too much power. But he said the "misallocation of authority" did not justify addressing how council members were appointed or vacating the gag grouper rule.

"All agree that the veto powers had nothing to do with the rule," Brasher wrote. "Instead, the Council made an advisory proposal, which the Secretary independently adopted." He ordered a lower court to enter judgment in favor of the government.

Michael Poon, a lawyer from the Pacific Legal Foundation representing the Russos, said in a statement: "The law is clear that actions taken by unconstitutionally appointed officials are void. We are considering our next steps."

The US Department of Commerce did not immediately respond to requests for comment. The National Marine Fisheries Service, another defendant, declined to comment.