Federal Appeals Court Says “No” to NOAA Regulating Offshore Marine Aquaculture

Recently the US Court of Appeals for the Fifth Circuit denied the NOAA Fisheries effort to overturn a lower court decision that found the word “harvesting” within the Magnuson-Stevens Fishery Conservation and Management Act did not provide Congressional authority to regulate marine aquaculture in federal waters.

Information source: NAA media release

The Fifth Circuit wrote, in part, (internal citations omitted):

 “We consider whether a federal agency may create an ‘aquaculture,’ or fish farming, regime in the Gulf of Mexico pursuant to the Magnuson-Stevens Fishery Conservation and Management Act of 1976. The answer is no. The Act neither says nor suggests that the agency may regulate aquaculture. The agency interprets this silence as an invitation, but our precedent says the opposite: Congress does not delegate authority merely by not withholding it. Undaunted, the agency seeks authority in the Act’s definition of ‘fishing’—the ‘catching, taking, or harvesting of fish.’ (emphasis added). ‘Harvesting,’ we are told, implies gathering crops, and in aquaculture the fish are the crop. 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 forty-year-old Magnuson-Stevens Act to reach aquaculture for the first time, it must be Congress.”

To read or download the decision, please click here.

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