Louisiana Record

Monday, September 16, 2019

Federal judge says National Marine Fisheries Service overstepped its authority in creating aquaculture zone


By Sandra Lane | Oct 4, 2018

NEW ORLEANS – A federal judge in Louisiana recently granted a motion for summary judgment filed by several fishing and wildlife associations and environmental groups to prevent the National Marine Fisheries Service (NMFS) from establishing an aquaculture zone in federal waters in the Gulf of Mexico. 

In a Sept. 24 ruling in the U.S. District Court for Eastern District of Louisiana, U.S. District Judge Jane Triche Milazzo not only granted that request but also ruled that the regulations establishing the aquaculture zone bee vacated. The judge also denied an NMFS motion for summary judgment.

On Jan. 13, 2016, defendant NMFS presented a plan to establish offshore aquaculture in the federal waters of the Gulf of Mexico Exclusive Economic Zone. court filings said. “Plaintiffs alleged that the adoption of the regulations was outside of the authority of the NMFS. They also alleged that these regulations would allow a permit holder to farm fish in most areas of the gulf without consideration of the environmental and socioeconomic impacts.”

Plaintiffs in the lawsuit included the Gulf Fishermen’s Association, Gulf Restoration Network, Destin Charter Boat Association, Alabama Charter Fishing Association, Fish For America USA Inc., Florida Wildlife Federation, Recirculating Farms Coalition, Food & Water Watch Inc. and the Center for Food Safety.  

Defendants included the NMFS; National Oceanic and Atmospheric Administration; Eileen Sobeck, assistant administrator for fisheries; Dr. Roy Crabtree, regional administrator for NMFS, Southeast Region; Kathryn Sullivan, undersecretary of commerce for oceans and atmosphere and administrator of NOAA; and Penny Pritzker,U.S. secretary of Commerce.

In addition to granting plaintiff’s motion for summary judgment, Milazzo said, “Because this court ultimately finds that the NMFS was without authority under the MSA (Magnuson-Stevens Act, which governs marine fisheries management in U.S. federal waters) to promulgate the regulations, it need not address plaintiffs’ other arguments.” 

Plaintiffs’ petition challenged the aquaculture regulations as invalid, alleging that such regulations were not under the jurisdiction of NMFS. In addition, plaintiffs said, “NMFS failed to properly consider a litany of environmental problems that would be presented by aquaculture in the Gulf of Mexico.” They also stated that aquaculture is not fishing.

Conversely, NMFS maintained that the term “harvesting” gave that agency authority to regulate aquaculture. They interpreted harvesting to mean the act or process of gathering a crop, as stated in the court documents. They also interpreted “crop” to mean “fish.”

In their petition, plaintiffs asked for “declaratory and equitable relief declaring that defendants violated the MSA, the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Administrative Procedures Act (APA) when they enacted regulations regarding offshore aquaculture.”

In her ruling, Milazzo said, “Congress was aware of aquaculture when it enacted the MSA, yet it did not explicitly include the management of aquaculture within the NMFS’s authority. Contrary to the NMFS’s position, this court does not view the incompatibility of the requirements of the MSA with aquaculture operations as an unfortunate happenstance, but rather as a clear indication that Congress did not intend for the MSA to grant NMFS the authority to regulate aquaculture.”

She continued, “Had Congress intended to give the NMFS the authority to create an entirely new regulatory permitting scheme for aquaculture operations, it would have said more than 'harvesting.' The MSA is a conservation statute, aimed at the conservation and management of natural resources. Fish farmed in aquaculture are neither 'found' off the coasts of the United States nor are they ‘natural resources.’  The NMFS acted outside of its statutory authority in shoehorning an entire regulatory scheme into a single unambiguous word. Because this court is obligated under the APA to hold unlawful and set aside agency action findings, and conclusions in excess of statutory authority, the regulations are vacated.”

In conclusion Judge Milazzo said, “For the foregoing reasons, plaintiffs’ motion is granted and defendants’ motion is denied. Plaintiffs are entitled to the entry of a judgment in their favor. Plaintiffs shall file a proposed judgment in light of this opinion within 10 days.”

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