11th Circuit: Fishery Council Veto Unconstitutional Under Appointments Clause

• The 11th Circuit Court of Appeals ruled that the veto powers of the Gulf of Mexico Fishery Management Council are unconstitutional.
• The court found these veto provisions violated the Appointments Clause by granting the council excessive authority over the Secretary of Commerce.
• The ruling did not vacate the challenged 2024 gag grouper limit, as it was adopted through an advisory process, not the unconstitutional veto power.
• The decision aligns with two other appellate circuits, affirming that regional fishery councils cannot exercise independent veto authority over federal fishery management plans.
• This judgment redefines the scope of federal fishery management powers, emphasizing the Secretary of Commerce's ultimate authority.

This ruling, while not overturning existing regulations like the gag grouper limit, significantly curtails the independent veto power of regional fishery councils, shifting final authority more definitively to the Secretary of Commerce in federal fishery management.

The 11th Circuit Court of Appeals recently issued a unanimous decision, declaring that the veto powers exercised by the Gulf of Mexico Fishery Management Council are unconstitutional. This significant ruling, penned by U.S. Circuit Judge Andrew Brasher, found that provisions within the Magnuson-Stevens Fishery Conservation and Management Act granted the council excessive authority over the federally appointed Secretary of Commerce, thereby violating the Appointments Clause of the U.S. Constitution.

The court specifically highlighted that these provisions allowed the council to obstruct the Secretary from establishing limited-access fisheries, delegating fisheries to individual states, or even repealing an existing fishery management plan. Crucially, the Secretary lacked the power to override the council's veto, a mechanism the court determined effectively subverted the established chain of command by giving the council, rather than the Secretary, the ultimate say.

Despite this finding, the three-judge panel declined to vacate a 2024 regulation that imposed limits on commercially caught gag grouper, which was the initial catalyst for the legal challenge. The decision underscores a fundamental reevaluation of the balance of power within federal fishery management, particularly concerning the independent authority of regional councils.

The case, known as *Russo v. Department of Commerce*, originated from a lawsuit filed by two Florida-based fishermen, Dominick and James Russo, who own FFC Seafood in Sarasota. They challenged a 2024 regulation, Amendment 56, which drastically cut quotas for gag grouper by 85%. The fishermen contended that the Gulf of Mexico Fishery Management Council lacked the constitutional authority to implement such restrictions.

The Russos initiated their legal action against the U.S. Department of Commerce and the National Marine Fisheries Service in the U.S. District Court for the Southern District of Alabama. Their central argument revolved around the Appointments Clause, asserting that council members, despite exercising substantial federal control over fisheries, were not appointed by the President or confirmed by the Senate, rendering their decisions unconstitutional.

Congress established eight regional fishery councils in 1976 under the Magnuson-Stevens Act, tasking them with submitting management plans to the commerce secretary to regulate catch limits and prevent overfishing in federal waters. These councils are composed of members appointed at the state level. The statute historically endowed these councils with the power to veto certain decisions made by the Secretary, particularly those altering catch limits or rejecting the councils' proposed management plans.

The core of the constitutional challenge lay in this structure: while council members are state-appointed, they wield significant federal authority. The plaintiffs argued that this arrangement violated the Appointments Clause, which dictates how federal officers exercising significant authority must be appointed. Last year, a federal judge had already ruled that the councils could not employ "pocket vetoes" to reject federal fishing amendments or plans proposed by the National Marine Fisheries Service, though Amendment 56 itself was not vacated at that time. Both parties subsequently appealed, leading to the 11th Circuit hearing arguments in July.

The 11th Circuit's decision aligns with positions taken by two other appellate circuit courts, affirming that the fishery council's structure, specifically its veto powers, violates the Constitution. However, the court stopped short of voiding all actions or appointments of council members, including the specific gag grouper limit challenged in the case. Judge Brasher explained that the "narrowest constitutional remedy" was to disregard any acts performed under the unconstitutional veto provisions, rather than demanding presidential nomination and Senate confirmation for every council member.

The court clarified that the gag grouper rule was not a product of the unconstitutional veto powers. Instead, the council had made an advisory proposal, which the Secretary of Commerce then independently adopted. This "two-step process," as the court described it, did not involve the exercise of significant authority by the council through its veto mechanism. Consequently, the court found that vacating the gag grouper rule was inappropriate because it was not affected by the unconstitutional part of the act. This ruling, while not overturning existing regulations like the gag grouper limit, significantly curtails the independent veto power of regional fishery councils, shifting final authority more definitively to the Secretary of Commerce in federal fishery management.

Lawyers advising clients in the fishing industry, particularly in the Gulf of Mexico, should note this ruling significantly curtails the independent veto power of regional fishery councils, shifting final authority more definitively to the Secretary of Commerce. While not vacating existing rules like the gag grouper limit, it establishes a precedent that could impact future challenges to fishery management plans based on constitutional appointments clause arguments.

Source: Original reporting via Courthouse News Service