The Gulf of Mexico Fishery Management Council was found to have exercised unconstitutional veto powers, according to a unanimous 11th Circuit ruling Thursday, though the panel declined to strike down a federal limit on gag grouper fishing that sparked the case.
In a 29-page decision, the court held that provisions in the Magnuson-Stevens Fishery Conservation and Management Act improperly allowed the Gulf of Mexico Fishery Management Council to overrule the U.S. secretary of commerce, violating the Constitution’s appointments clause. The judges concluded the council’s ability to block certain federal fisheries decisions placed final authority with council members who are not presidentially appointed or Senate confirmed.
Gulf of Mexico Fishery Management Council veto powers at issue
U.S. Circuit Judge Andrew Brasher wrote that the law permitted the council to stop the secretary from establishing limited-access fisheries, delegating management to states, or repealing a fishery management plan, and that the secretary had no way to override such a veto. That structure, the panel found, disrupted the federal chain of command.
The case began with a challenge by Florida fishermen Dominick and James Russo, owners of FFC Seafood in Sarasota, who sued the U.S. Department of Commerce and the National Marine Fisheries Service over Amendment 56. That 2024 rule reduced commercial gag grouper quotas by 85 percent. The agencies had approved and implemented the amendment.
Congress created eight regional fishery councils in 1976 to draft management plans and advise on catch limits in federal waters. Members are selected at the state level, and the statute granted councils limited veto authority over certain secretarial actions that change catch limits or reject council plans. The brothers argued that because council members exercise significant federal authority without presidential nomination or Senate confirmation, their veto power violates the appointments clause.
Panel narrows remedy, leaves grouper rule intact
A federal district judge previously declined to vacate Amendment 56 but barred the use of so-called pocket vetoes. Both sides appealed, and the 11th Circuit heard arguments in July. On Thursday, the appellate panel aligned with other circuits in finding the council’s structure unconstitutional as to veto provisions, but it stopped short of voiding the council’s appointments or undoing past actions.
Brasher wrote that the narrowest fix is to disregard any council acts taken under the invalid veto provisions, rather than require Senate confirmation for all council members. The panel noted that the gag grouper rule did not rely on the veto power. Instead, the council made an advisory recommendation that the secretary adopted independently. Because the rule did not stem from the unconstitutional portion of the statute, the court concluded that vacating it would be inappropriate.
Representatives for the Pacific Legal Foundation, which represented the fishermen, and for the National Marine Fisheries Service and the U.S. Department of Commerce did not respond to requests for comment.
