Plaintiffs Sue National Marine Fisheries Service Over Constitutionality of New Rule

A suit was filed in the District of Alaska Tuesday by plaintiffs Wes Humbyrd, Robert Wolfe, and Dan Anderson against Gina Raimondo, Secretary of the Department of Commerce, Janet Coit, Assistant Administrator for the National Marine Fisheries Service, and the National Marine Fisheries Service itself over a new rule being implemented which the plaintiffs claim violates certain clauses of the Constitution.

The annual migrations of salmon in Alaska are the “principal source of income for a large portion of Alaska’s labor force.” The plaintiffs are a part of the population that is reliant on these migrations. The National Marine Fisheries Service, or NMFS, recently approved a rule that will close off Cook Inlet, where the plaintiffs fish, to any commercial salmon fishing. While waters are sometimes closed off due to overfishing or conservation, the plaintiffs explain that this is not the case with Cook Inlet. Rather, they claim that the rule is being implemented because “the government finds it too bothersome to coordinate with the State of Alaska in managing the fishery.”

Humbyrd, Wolfe, and Anderson assert that the rule is in violation of both the appointments and take care clause of the Constitution. The appointments clause reserves the exercise of “significant federal power” to the executive and his appointees, or Officers of the United States, while the take care clause requires Officers who exercise significant federal power to be removable by the President.

In this case, the policy decision was made by the North Pacific Fisheries Management Council but approved by the NMFS. The president does not appoint the council members of the North Pacific Fisheries Management Council, yet they make decisions that should be made by appointees of the president since they constitute an exercise of significant federal power, according to the complaint. The plaintiffs argue that the rule is unconstitutional since the policy decision, which was an exercise of significant federal power, was made by individuals who were not appointed by and cannot be removed by the President.

The complaint cites two claims for relief, including the “Exercise of Powers Reserved to Officers of the United States by Persons Not Appointed Consistent with the Appointments Clause,” and the “Exercise of Powers Reserved to Officers of the United States by Persons Not Properly Removable.” The plaintiffs are seeking favorable judgement on both counts, a permanent prohibitory injunction preventing the defendants from enforcing the rule, litigation fees, and any other relief deemed just by the court.

Humbyrd, Wolfe, and Anderson are represented by the Pacific Legal Foundation.