Two Florida fishermen are suing federal officials over a new regulation advanced by the National Marine Fisheries Service (NMFS) that cuts the catch limit for a species of reef fish, the gag grouper, by 80% in the Gulf of Mexico.
Dominick Russo of Sarasota and James Russo of Tampa filed the lawsuit last month in the Southern District of Alabama, arguing that the new rule, known as Amendment 56, has had a calamitous impact on the pair’s business, FCC Seafood.
The plaintiffs, who are represented by the Pacific Legal Foundation, argue in their legal complaint that the NMFS can only issue a final rule that has been properly approved by a policymaking panel called the Gulf of Mexico Fishery Management Council.
“The Gulf Council, however, has not lawfully approved the rule at issue,” the lawsuit states. “While individuals purporting to hold council seats voted in favor of the rule, they were never appointed to the council pursuant to the appointments clause of the Constitution, which is the exclusive method of filling council seats.”
In turn, those serving on the panel are illegitimately attempting to wield the council’s power, and their actions are void, according to the complaint..
“Without the council’s lawful approval, the National Marine Fisheries Service was not empowered to issue the regulation,” the lawsuit says.
A spokeswoman for the council stressed that federal law requires the council to establish catch limits for each federally managed species and that such limits are designed to prevent overfishing and to ensure sustainability and the future health of each species.
The federal Magnuson-Stevens Fishery Conservation and Management Act also mandates that the council use the “best scientific information available” and give its scientific advisers the ability to recommend catch limits, according to Emily Muehlstein, the council’s public information officer.
“In the case of (Amendment 56) … the most recent gag stock assessment estimated that gag is overfished and undergoing overfishing,” Muehlstein told the Florida Record in an email. “Based on that assessment, which is accepted as the ‘best scientific information available,’ the council’s Scientific and Statistical Committee made an acceptable biological catch recommendation that represents a significant decrease from previous catch-level recommendations.”
The rollout of such catch restrictions also means the council must develop a rebuilding plan, she said.
“As the stock rebuilds and landings (the part of the catch taken ashore) are constrained for all sectors, the rebuilding plan allows for modest increases in catch annually,” Muehlstein said.
The rule not only dramatically reduces the catch limits for the gag grouper in the Gulf but tends to favor recreational fishermen over commercial fisheries, according to the Pacific Legal Foundation.
“Amendment 56 has devastated our clients’ livelihoods and represents troubling overreach by unelected officials,” Michael Poon, an attorney at Pacific Legal Foundation, said in a prepared statement. “The Constitution requires the president to appoint key federal officials. Members of the regional fishery management councils are improperly appointed and unaccountable, rendering their actions, including this harmful regulation, unlawful.”
The lawsuit asks the court to declare the final rule void and conclude that council members were not appointed according to constitutional mandates. The plaintiffs are also seeking a permanent injunction to set aside the gag grouper rule.