Appeals Court Agrees with Decision to Prohibit Offshore Aquaculture in the Gulf of Mexico

On August 3, the 5th Circuit determined that Congress does not give power to an agency that which in statutory text it failed to explicitly prohibit. In a legal action brought by a group of environmental rights organizations against the National Marine Fisheries Service, the appellate panel held that the Magnuson Stevens Fishery Conservation and Management Act of 1976 failed to authorize the creation of aquaculture operations merely because the Act failed to explicitly prohibit it.

The Magnuson Act created eight agencies, Regional Fishery Management Councils, designed to create and implement plans to prevent overfishing. Councils are organized by geography with six to seven states falling under the jurisdiction of a single council.

The Gulf of Mexico Fishery Management Council contains all states bordering the Gulf of Mexico, including Texas, Louisiana, Mississippi, Alabama, and Florida. In 2009, the Gulf Council added an aquaculture layer to the regional plan which subsequently the plaintiffs challenged. The plan would be modified to allow the Council to approve 15-20 permits granting independent persons and companies the ability to create fish farms. The Council asserted that since the Act delegated the councils with the ability to control the “harvesting” of fish and did not explicitly ban aquaculture, the Gulf Council maintained the delegated power to proceed.

The court discussed a plethora of precedential cases to confirm two points: “Harvesting” is best defined as gathering fish and not farming fish as aquaculture intends and “the Act neither says nor suggests that the [councils] may regulate aquaculture. The [defendant] interprets the silence as an invitation, but our precedents say the opposite. Congress does not delegate authority merely by not withholding it.”

The court concluded by deciding to uphold the “district court’s ruling that the challenged aquaculture [plan] exceed[ed] the [council’s] statutory authority.” The court wrote that, “Harvesting…implies gathering crops…. 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…Act to reach aquaculture for the first time, it must be Congress.”