Case: 19-30006 Document: 00515515221 Page: 1 Date Filed: 08/04/2020
REVISED August 4, 2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 3, 2020
No. 19-30006 Lyle W. Cayce
Clerk
Gulf Fishermens Association; Gulf Restoration
Network; Destin Charter Boat Association; Alabama
Charter Fishing Association; Fish for America USA,
Incorporated; Florida Wildlife Federation;
Recirculating Farms Coalition; Food & Water Watch,
Incorporated; Center for Food Safety,
Plaintiffs—Appellees,
versus
National Marine Fisheries Service; Eileen Sobeck, in
her official capacity as Assistant Administrator for
Fisheries; Doctor Roy Crabtree, in his official
capacity as Regional Administrator, Southeast Region,
National Oceanic and Atmospheric Administration;
Doctor Kathryn Sullivan, in her official capacity as
Under Secretary of Commerce for Oceans and
Atmosphere and Administrator for National Oceanic
and Atmospheric Administration; Wilbur Ross, in his
official capacity as United States Secretary of
Commerce,
Defendants—Appellants.
Case: 19-30006 Document: 00515515221 Page: 2 Date Filed: 08/04/2020
No. 19-30006
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CV-1271
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
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 (“Magnuson-
Stevens Act” or “Act”), 16 U.S.C. §§ 1801–83. 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.
See Texas v. United States, 809 F.3d 134, 186 (5th Cir. 2015), aff’d by equally
divided Court, 136 S. Ct. 2271 (2016). Undaunted, the agency seeks authority
in the Act’s definition of “fishing”—the “catching, taking, or harvesting of
fish.” 16 U.S.C. § 1802(16) (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.
We therefore AFFIRM the district court’s ruling that the challenged
aquaculture rule exceeds the agency’s statutory authority. See 81 Fed. Reg.
1762 (Jan. 13, 2016), codified at 50 C.F.R. pts. 600 and 622.
2
Case: 19-30006 Document: 00515515221 Page: 3 Date Filed: 08/04/2020
No. 19-30006
I.
A.
The Magnuson-Stevens Act seeks to “conserve and manage the
fishery resources found off the coasts of the United States.” 16 U.S.C.
§ 1801(b)(1); see also Delta Commercial Fisheries Ass’n v. Gulf of Mexico Fishery
Mgmt. Council, 364 F.3d 269, 271 (5th Cir. 2004) (the Act “aims to preserve
fishery resources by preventing overfishing”). Congress passed the Act in
1976 after finding that aggressive fishing practices, especially by foreign
trawlers, had imperiled important fish stocks and the coastal economies
dependent on them.1 See 16 U.S.C. § 1801(a)(2) (finding the economies of
“[m]any coastal areas . . . have been badly damaged by the overfishing of
fishery resources,” particularly by “[t]he activities of massive foreign fishing
fleets”). Accordingly, the Act provides a framework for protecting and
managing fishing and fishery resources in federal waters. See id. §§ 1801(b),
(c) (stating Act’s purposes and policies).
As relevant here, the Act creates eight Regional Fishery Management
Councils and tasks them with drafting Fishery Management Plans
(“FMPs”). Id. §§ 1801(b)(5), 1852–53. Each FMP must identify and
describe the fishery to which it applies, id. § 1853(a)(2), and contain
“conservation and management measures” that are “necessary and
appropriate for the conservation and management of the fishery, to prevent
overfishing and rebuild overfished stocks, and to protect, restore, and
promote the long-term health and stability of the fishery,” id.
§ 1853(a)(1)(A). In addition, each FMP must “be consistent with” ten
“national standards.” Id. § 1851(a). Among these standards are requirements
1
See Robert J. McManus, America’s Saltwater Fisheries: So Few Fish, So Many
Fisherman, 9 NAT. RESOURCES & ENV’T 13, 13 (Spring 1995).
3
Case: 19-30006 Document: 00515515221 Page: 4 Date Filed: 08/04/2020
No. 19-30006
to “prevent overfishing while achieving . . . the optimum yield from each
fishery.” Id. § 1851(a)(1).2
Today, the Act is administered by the National Marine Fisheries
Service (“NMFS” or the “agency”), a division of the National Oceanic and
Atmospheric Administration, by delegation from the Secretary of
2
These are the ten standards:
(1) Conservation and management measures shall prevent overfishing while
achieving, on a continuing basis, the optimum yield from each fishery for the
United States fishing industry.
(2) Conservation and management measures shall be based upon the best scientific
information available.
(3) To the extent practicable, an individual stock of fish shall be managed as a unit
throughout its range, and interrelated stocks of fish shall be managed as a unit or in
close coordination.
(4) Conservation and management measures shall not discriminate between
residents of different States. . . .
(5) Conservation and management measures shall, where practicable, consider
efficiency in the utilization of fishery resources; except that no such measure shall
have economic allocation as its sole purpose.
(6) Conservation and management measures shall take into account and allow for
variations among, and contingencies in, fisheries, fishery resources, and catches.
(7) Conservation and management measures shall, where practicable, minimize
costs and avoid unnecessary duplication.
(8) Conservation and management measures shall . . . take into account the
importance of fishery resources to fishing communities by utilizing economic and
social data that meet [certain] requirements . . . .
(9) Conservation and management measures shall, to the extent practicable,
(A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize
the mortality of such bycatch.
(10) Conservation and management measures shall, to the extent practicable,
promote the safety of human life at sea.
16 U.S.C. § 1851(a).
4
Case: 19-30006 Document: 00515515221 Page: 5 Date Filed: 08/04/2020
No. 19-30006
Commerce. See id. §§ 1854, 1855. NMFS reviews each FMP for consistency
with the Act and other applicable laws. If NMFS fails to act within a specified
period of time after the council submits an FMP, the plan is approved. Id.
§ 1854(a)(3). Each plan is then implemented through separate regulations,
which NMFS reviews, id. § 1853(c), and, upon approval, implements
through final rules, id. § 1854(b).3
The concept of a “fishery” is central to the Act and to the issues we
consider in this case. The Act defines “fishery” as follows:
(A) one or more stocks of fish which can be treated as a unit for
purposes of conservation and management and which are
identified on the basis of geographical, scientific, technical,
recreational, and economic characteristics; and
(B) any fishing for such stocks.
Id. § 1802(13). “Fishing,” in turn, is defined as:
(A) the catching, taking, or harvesting of fish;
(B) the attempted catching, taking, or harvesting of fish;
(C) any other activity which can reasonably be expected to
result in the catching, taking, or harvesting of fish; or
(D) operations at sea in support of, or in preparation for any
activity described in subparagraphs (A) through (C).
3
See generally Anglers Conserv. Network v. Pritzker, 809 F.3d 664, 667–68 (D.C. Cir.
2016) (discussing administration of the Act); Lovgren v. Locke, 701 F.3d 5, 13 (1st Cir. 2012)
(same); General Category Scallop Fishermen v. Sec’y, U.S. Dep’t of Commerce, 635 F.3d 106,
108–09 (3rd Cir. 2011) (same); Oregon Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1108 (9th
Cir. 2006) (same).
5
Case: 19-30006 Document: 00515515221 Page: 6 Date Filed: 08/04/2020
No. 19-30006
Id. § 1802(16). When passed, the Act made no reference to aquaculture or
fish farming.4
B.
The Gulf of Mexico Fishery Management Council (the “Council”)
comprises Texas, Louisiana, Mississippi, Alabama, and Florida. Id.
§ 1852(a)(1)(E). The Council has “authority over the fisheries in the Gulf of
Mexico seaward of” those five states. Id. In 2009, it became the first regional
council to put forward a plan to regulate and permit aquaculture. In common
terms, aquaculture means fish farming: it is “the cultivation of aquatic
organisms (such as fish or shellfish) especially for food.”5 The practice
typically entails planting “broodstock,” or wild-caught fish, to spawn the rest
of the aquaculture stock, which are then harvested. Id.6 As NMFS explains,
aquaculture “is essentially a farming operation, [in which] all animals
cultured are intended for harvest.” 81 Fed. Reg. 1762, 1770 (Jan. 13, 2016).
The Council developed a “Plan for Regulating Offshore Marine
Aquaculture in the Gulf of Mexico” (the “Plan”). Under the Plan, the
Council would approve five to twenty permits for aquaculture operations
over a ten-year period. Permits would be conditioned on compliance with
biological, environmental, recordkeeping, and reporting conditions. The
Council submitted the Plan and a proposed implementing regulation to
4
As the district court noted, later amendments contain “discrete and immaterial”
references to aquaculture. These post-enactment references, as we explain below, lend
further support to our decision.
5
Merriam-Webster Dictionary, Aquaculture (last visited June 23, 2020),
https://www.merriam-webster.com/dictionary/aquaculture.
6
NMFS defines “aquaculture,” somewhat circularly, as “all activities, including
the operation of an aquaculture facility, involved in the propagation or rearing, or attempted
propagation or rearing, of allowable aquaculture species in the Gulf [Exclusive Economic
Zone].” 50 C.F.R. § 622.2.
6
Case: 19-30006 Document: 00515515221 Page: 7 Date Filed: 08/04/2020
No. 19-30006
NMFS. After NMFS took no position on the Plan, it went into effect. In
2014, NMFS published a proposed Rule to implement the Plan, which
became final in 2016.7
In its own words, the Rule “establishes a comprehensive regulatory
program for managing the development of an environmentally sound and
economically sustainable aquaculture fishery in Federal waters of the Gulf.”
81 Fed. Reg. at 1762. Its purpose is “to increase the yield of Federal fisheries
in the Gulf by supplementing the harvest of wild caught species with cultured
product.” Id. To that end, the Rule requires aquaculture facilities to obtain
aquaculture permits. See id. at 1763 (describing requirements for permit
applications). Applications are submitted to NMFS’s Southeast Regional
Administrator (the “RA”) who may grant or deny the permit. The Rule
provides for a 45-day notice-and-comment period upon an application’s
completion. Id. A permit is valid for ten years initially and must be renewed
every five years thereafter. Id. at 1762. The Rule contains a number of
“operational requirements, monitoring requirements, and restrictions” for
permittees. Id. at 1763–64. Permittees must allow NMFS personnel and
NMFS-designated third parties access to their facilities to “conduct
inspections and determine compliance with applicable regulations.” Id. at
1765. Finally, the Rule contains a plethora of reporting and recordkeeping
requirements, id. at 1766, and requires permittees to comply with various
regulations promulgated by other federal agencies, including the
Environmental Protection Agency (“EPA”), id. at 1763, and the Department
of Agriculture, id. at 1764.
7
See Fisheries of the Caribbean, Gulf, and South Atlantic; Aquaculture, 79 Fed.
Reg. 51,424 (Aug. 28, 2014); Fisheries of the Caribbean, Gulf, and South Atlantic;
Aquaculture, 81 Fed. Reg. 1762 (Jan. 13, 2016), codified at 50 C.F.R. pts. 600 and 622.
7
Case: 19-30006 Document: 00515515221 Page: 8 Date Filed: 08/04/2020
No. 19-30006
The Rule is the first attempt by NMFS or any council to regulate
aquaculture under the Act. It is no small attempt. The Rule allows for a
maximum annual production of 64 million pounds of seafood in the Gulf. Id.
That figure would equal the previous average annual yield “of all marine
species in the Gulf[] except menhaden[8] and shrimp.” Id.
C.
A coalition of fishing and conservation organizations (“Plaintiffs”),9
concerned about the commercial and environmental impacts of the Rule’s
proposed regime,10 challenged the Rule in district court. They claimed the
Rule was invalid because it fell outside the Council’s authority to regulate
“fisheries” under the Act. The parties cross-moved for summary judgment.
Relying on the Act’s text, structure, and history, the district court held the
Act unambiguously forecloses NMFS’s authority to regulate aquaculture.
The court thus denied Chevron deference to the agency’s construction of the
Act and granted Plaintiffs summary judgment. See Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (courts will not defer
to agency interpretation of an “unambiguous[]” statute). The agency
8
Menhaden are prolific fish used for bait and fish oil. Merriam-Webster
Dictionary, Menhaden, https://www.merriam-webster.com/dictionary/menhaden
(last visited June 23, 2020).
9
The organizations (Appellees here) are Gulf Fishermens 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 Center for Food Safety. Defendants (Appellants
here) are NMFS, the National Oceanic and Atmospheric Administration, and three
officers charged with administering the Act. Where appropriate, “agency” and “NMFS”
refer to all Defendants.
10
Specifically, Plaintiffs worry that the Rule’s expansion of seafood production will
harm traditional fishing grounds, reduce prices of wild fish, subject wild fish to disease, and
pollute open waters with chemicals and artificial nutrients.
8
Case: 19-30006 Document: 00515515221 Page: 9 Date Filed: 08/04/2020
No. 19-30006
appealed. Before us, it argues the Act is ambiguous as to whether it
encompasses aquaculture. Because the Rule reasonably resolves this putative
ambiguity, the agency claims it earns Chevron deference. See id. at 844 (when
statute is ambiguous, “a court may not substitute its own construction . . . for
a reasonable interpretation made by the administrator of an agency”).
II.
“We review a summary judgment de novo.” Salinas v. R.A. Rogers,
Inc., 952 F.3d 680, 682 (5th Cir. 2020) (citation omitted). Summary
judgment is required when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
The Administrative Procedure Act requires setting aside agency
action that is “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). We review an agency’s
statutory interpretation—including one concerning the agency’s own
jurisdiction—under the two-step Chevron framework. See generally Sw. Elec.
Power Co. v. EPA, 920 F.3d 999, 1014 (5th Cir. 2019) (discussing Chevron);
see also City of Arlington, Tex. v. FCC, 569 U.S. 290, 306–07 (2013). At step
one, we ask “whether Congress has directly spoken to the precise question
at issue.” Chevron, 467 U.S. at 842. We answer that question by
“exhaust[ing] all the ‘traditional tools’ of construction,” including “text,
structure, history, and purpose.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019)
(quoting Chevron, 467 U.S. at 843 n.9; Pauley v. BethEnergy Mines, Inc., 501
U.S. 680, 707 (1991) (Scalia, J., dissenting)). Our interpretation “must
account for both the specific context in which language is used and the
broader context of the statute as a whole.” Util. Air Regulatory Grp. v. EPA,
573 U.S. 302, 321 (2014) (citation omitted) (cleaned up). We will not defer
to “an agency interpretation that is inconsistent with the design and structure
9
Case: 19-30006 Document: 00515515221 Page: 10 Date Filed: 08/04/2020
No. 19-30006
of the statute as a whole.” Id. (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 353 (2013)) (cleaned up). If that holistic reading of the statute
settles the matter, Chevron ends: we “must give effect to the unambiguously
expressed intent of Congress.” Chevron, 467 U.S. at 843. On the other hand,
if the statute is “truly ambiguous” on the question, Kisor, 139 S. Ct. at 2415,
we proceed to step two, “asking whether the agency’s construction is
‘permissible.’” Sw. Elec. Power Co., 920 F.3d at 1014 (quoting Chevron, 467
U.S. at 843). A permissible construction is one that “reasonabl[y]
accommodat[es] . . . conflicting policies that were committed to the agency’s
care by the statute.” Chevron, 467 U.S. at 845 (quoting United States v.
Shimer, 367 U.S. 374, 382 (1961)).
III.
We first ask whether the Magnuson-Stevens Act unambiguously
precludes the agency from creating an aquaculture regime. The answer is yes.
Chevron step one is thus the only step we need take to resolve this appeal.
A.
We usually start with the text, but more telling here is the Act’s lack
of text. As far as aquaculture, the Magnuson-Stevens Act is a textual dead
zone: the original Act does not mention aquaculture or fish farming at all.11
More to the point, the Act’s provisions defining the agency’s regulatory
power say nothing about creating or administering an aquaculture or fish
farming regime. Cf., e.g., 16 U.S.C. §§ 1802, 1854, 1855. The agency
concedes this but asks us to treat the chasm as a mere “gap” for it to fill. That
is, the agency argues it has power to regulate aquaculture because the Act
11
Later amendments contain a few references to aquaculture. We explain below
why those references actually support our holding.
10
Case: 19-30006 Document: 00515515221 Page: 11 Date Filed: 08/04/2020
No. 19-30006
“do[es] not unambiguously express Congress’s intent to prohibit the
regulation of aquaculture.”
This nothing-equals-something argument is barred by our precedent.
In Texas v. United States, we held the Immigration and Naturalization Act
(“INA”) unambiguously foreclosed the Department of Homeland
Security’s (“DHS”) Deferred Action for Parents of Americans and Lawful
Permanent Residents (“DAPA”). 809 F.3d 134, 186 (5th Cir. 2015), aff’d by
equally divided Court, 136 S. Ct. 2271 (2016). Acknowledging that many of
DAPA’s provisions were not expressly foreclosed by the INA, we still
rejected the argument that “congressional silence has conferred on DHS the
power to act.” Id. Chevron step two is not implicated, we said, merely because
“a statute does not expressly negate the existence of a claimed administrative
power.” Id. at 186 (quoting Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir.
1995)) (emphasis in original). “Were courts to presume a delegation of power
absent an express withholding of such power,” we explained, “agencies would
enjoy virtually limitless hegemony, a result plainly out of keeping with
Chevron and quite likely with the Constitution as well.” Id. (quoting Ethyl, 51
F.3d at 1060).12
Similarly, in Ethyl, on which we relied in Texas, the D.C. Circuit
rejected EPA’s construction of a provision of the Clean Air Act (“CAA”).
51 F.3d at 1054. The CAA prohibits fuel additives but directs EPA to waive
the prohibition for additives that do not interfere with a vehicle’s emissions-
control systems. Id. (citing 42 U.S.C. § 7545(f)(4)). EPA determined the
12
See also Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 269 (5th
Cir. 2015) (“[A]n administrative agency does not receive deference under Chevron merely
by demonstrating that ‘a statute does not expressly negate the existence of a claimed
administrative power . . . .’” (quoting Ry. Labor Executives’ Ass’n v. Nat’l Mediation Bd.,
29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (emphasis in original)).
11
Case: 19-30006 Document: 00515515221 Page: 12 Date Filed: 08/04/2020
No. 19-30006
petitioner had satisfied that criterion but denied waiver, imagining it could
“consider other factors” in its waiver decision, including public health. Id.
(citation omitted). The agency argued that because the emissions provision
did not mention public health, “Congress ha[d] not directly spoken on the
issue of whether [EPA] may consider the public health implications of fuel
additives before granting or denying a . . . waiver.” Id. The D.C. Circuit set
aside the decision, rejecting “the notion that if Congress has not mentioned
public health in [the additive provision], then Congress is ‘silent or
ambiguous’ as to that issue” for Chevron purposes. Id. at 1070 (quoting
Chevron, 467 U.S. at 843). The provision was not “ambiguously worded”
and did not “direct the Agency to adopt implementing regulations” to
determine its meaning. Id. “Rather, the statutory waiver provision
unambiguously expresse[d] Congress’s intent that the [EPA] consider a fuel
additive’s effects on vehicles meeting emission standards.” Id.13
Here, NMFS’s argument parallels DHS’s in Texas and EPA’s in
Ethyl. The agency claims, not that Act affirmatively empowers it to regulate
aquaculture, but that the Act fails to “express[] Congress’s unambiguous
intent to foreclose the regulation of aquaculture.” As Texas and Ethyl teach,
this argument gets Chevron backwards. “It is only legislative intent to delegate
such authority that entitles an agency to advance its own statutory
construction for review under the deferential second prong of Chevron.”
Ethyl, 51 F.3d at 1060 (quoting Nat. Res. Defense Council v. Reilly, 983 F.2d
259, 266 (D.C. Cir. 1993)) (cleaned up); see also Am. Bus Ass’n v. Slater, 231
F.3d 1, 9 (D.C. Cir. 2000) (Sentelle, J., concurring) (“In order for there to be
13
Accord Motion Picture Ass’n of Am., Inc. v. FCC, 309 F.3d 796, 805 (D.C. Cir.
2002) (rejecting as “entirely untenable” agency position that adopting certain rules “is
permissible because Congress did not expressly foreclose the possibility” (citing Ry. Labor
Executives’ Ass’n, 29 F.3d at 671)).
12
Case: 19-30006 Document: 00515515221 Page: 13 Date Filed: 08/04/2020
No. 19-30006
an ambiguous grant of power, there must be a grant of power in the first
instance.”). Instead of identifying any intent to delegate authority here, the
agency can claim only that Congress did not withhold the power the agency
now wishes to wield. Once again, this is the argument that presumes power
given if not excluded. We have resisted that siren song before, see Texas, 809
F.3d at 186, and we again decline to be seduced.
Fond of animal metaphors, courts like to say “Congress does not ‘hide
elephants in mouseholes.’” Chamber of Commerce v. U.S. Dep’t of Labor, 885
F.3d 360, 376 (5th Cir. 2018) (quoting Whitman v. Am. Trucking Ass’ns, Inc.,
531 U.S. 457, 468 (2001)). The agency’s argument here is all elephant and no
mousehole. It asks us to believe Congress authorized it to create and regulate
an elaborate industry the statute does not even mention. Because we cannot
suspend our disbelief that high, we reject the agency’s position.
B.
Unable to land support for its interpretation in the words of the Act,
the agency goes angling for ambiguity. It argues the Act’s text is sufficiently
open-ended to give it leeway to create an aquaculture regime. See, e.g., Cuozzo
Speed Technologies, LLC v. Lee, 136 S. Ct. 2131, 2142 (2016) (explaining,
“where a statute leaves a ‘gap’ or is ‘ambiguous,’ we typically interpret it as
granting the agency leeway” to regulate (quoting United States v. Mead Corp.,
533 U.S. 218, 229 (2001) (cleaned up)). The agency fixes on the word
“harvesting” in the definition of “fishing.” See 16 U.S.C. § 1802(16)
(“fishing” means “the catching, taking, or harvesting of fish”). Recall that
the Act empowers councils to regulate “fisheries,” id. § 1852(a)(1)(E),
whose definition includes “fishing” for stocks of fish, id. § 1802(13)(B). The
agency contends the word “harvesting” is roomy enough to include
13
Case: 19-30006 Document: 00515515221 Page: 14 Date Filed: 08/04/2020
No. 19-30006
aquaculture, because it may mean gathering or reaping a crop.14 The crop
reaped from an aquaculture “fishery,” we are told, would be the farmed fish.
The district court correctly rejected this argument.
To address the agency’s argument, we focus first on the words of the
definition itself—the “catching, taking, or harvesting of fish.” Infra
III(B)(1). We then situate that definition within the Act’s broader structure.
Infra III(B)(2). Through either lens, the agency’s implausible reading of the
definition of “fishing” to encompass aquaculture does not fall “within the
range of meanings that could be plausibly attributed to the relevant statutory
language.” Sw. Elec. Power Co., 920 F.3d at 1024 (quoting Richard J.
Pierce, Jr., Administrative Law Treatise § 3.6).
1.
First, the words. The agency puts far more weight on “harvesting” in
§ 1802(16) than it can bear. It argues that one meaning of the term
(“gathering a crop”) quietly opens the door to an elaborate regime of farming
fish for “harvest.”
That is not how to read statutes. As the district court reasoned, far
better to read “harvesting” as synonymous with the adjacent terms
“catching” and “taking.” See, e.g., United States v. Buluc, 930 F.3d 383, 390
(5th Cir. 2019) (discussing noscitur a sociis or “associated-words” canon
under which a “string of statutory terms . . . should be given related
meaning” (quoting S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370,
14
See, e.g., Oxford English Dictionary, harvest, v.,
https://tinyurl.com/y9ssjdo4 (last visited June 23, 2020) (defining “harvest” as “[t]o reap
and gather in” a “ripe crop”).
14
Case: 19-30006 Document: 00515515221 Page: 15 Date Filed: 08/04/2020
No. 19-30006
378 (2006))).15 “Catching” and “taking” both mean “seizing” or
“capturing” an organism—here, fish.16 As the district court put it, these
terms “more appropriately describe traditional fishing activities,” and so
“harvesting” more likely “refer[s] only to the traditional fishing of wild
fish.” One dictionary entry does not override a term’s surrounding context.
The reverse is true: a word with “many dictionary definitions . . . must draw
its meaning from its context.” Kucana v. Holder, 558 U.S. 233, 245 (2010)
(cleaned up).17 “Harvesting” may also mean “[t]o kill or remove wild
18
animals” from their habitat. Linking the term with “catching” and
“taking” in § 1802(16) points to that meaning rather than to “gathering a
crop.”
The agency objects to this use of the associated-words canon, arguing
the definition’s “structure” shows the three terms were not meant to have
similar meaning. The agency does not explain why this is so. All the canon
requires is an “association” or “gathering” of terms that “have some quality
15
See also Antonin Scalia & Bryan A. Garner, Reading Law 195
(2012) (the canon advises that “words grouped in a list should be given related meanings”
(quoting Third Nat’l Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322 (1977))).
16
See Webster’s Third New International Dictionary 351 (1986)
(defining “catching” as “to capture or seize”); id. at 2329 (defining “take” as “to seize or
capture physically”).
17
See also Kirtseang v. John Wiley & Sons, Inc., 568 U.S. 519, 531 (2013) (same);
Ardestani v. INS, 502 U.S. 129, 135 (1991) (same); see generally SCALIA & GARNER at 418
(whereas a dictionary definition “states the core meanings of a term,” it “cannot delineate
the periphery” and readers must “use the context in which a given word appears to
determine its aptest, most likely sense”).
18
Oxford English Dictionary, harvest, v., https://tinyurl.com/y9ssjdo4
(last visited June 23, 2020); see also Merriam-Webster Dictionary, harvest, v.,
https://tinyurl.com/yc7nkfa9 (last visited June 23, 2020) (defining “to harvest” as “to
gather, catch, hunt, or kill (salmon, oysters, deer, etc.) for human use, sport, or population
control”) (second definition).
15
Case: 19-30006 Document: 00515515221 Page: 16 Date Filed: 08/04/2020
No. 19-30006
in common.” See Buluc, 930 F.3d at 390–91 (quoting S.D. Warren Co., 547
U.S. at 379–80; Scalia & Garner at 196 (2012)). When referring to
“fish,” the terms have a common meaning.19 For instance, federal courts
often use the terms “catch,” “take,” and “harvest” interchangeably when
discussing fish. See, e.g., Washington v. Wash. State Commercial Passenger
Fishing Vessel Ass’n, 443 U.S. 658, 663, 664 (1979) (referring to migrating
salmon that would be “caught or ‘harvested,’” as well as “tak[en],” by
fishermen).20 Indeed, in other provisions Magnuson-Stevens itself uses the
term “harvest” as synonymous with a “catch” of fish.21
19
For that reason, the agency’s reliance on Graham County Soil & Water
Conservation District v. United States, 559 U.S. 280 (2010), is mistaken. Graham County
declined to apply the canon to make the phrase “congressional, administrative, or GAO”
in the False Claims Act mean “congressional, federal administrative, or GAO.” 559 U.S.
at 286 (quoting 31 U.S.C. § 3730(e)(4)(A)). In that case, however, the listed words—unlike
those before us—were “quite distinct from each other” and “too disparate” to trigger the
canon. Id. at 288, 289. The district court properly relied on Jarecki v. G.D. Searle & Co. for
the proposition that while the noscitur a sociis canon is not “inescapable,” it is “often wisely
applied where a word is capable of many meanings in order to avoid the giving of
unintended breadth to the Acts of Congress.” 367 U.S. 303, 307 (1961). This is just such a
situation: the canon saves the definition of “fishing” from a construction that would
drastically (and, as discussed in the next section, awkwardly) expand the Act.
20
See also Yates v. United States, 574 U.S. 528, 531 (2015) (plurality op.) (“John
Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf
of Mexico. To prevent federal authorities from confirming that he had harvested undersized
fish, Yates ordered a crew member to toss the suspect catch into the sea.”); Douglas v.
Seacoast Prods., Inc., 431 U.S. 265, 269 n.3 (1977) (discussing the U.S. menhaden “fishery”
and interchangeably using the terms “catch,” “harvest,” “taken,” and “caught”);
Trawler Diane Marie, Inc. v. Kantor, 91 F.3d 134 (4th Cir. 1996) (Table) (“With the
renouncement of its Alaskan registration, the MR. BIG . . . could harvest as many scallops
as it could catch and carry.”) (emphases added).
21
See, e.g., 16 U.S.C. § 1802(23) (defining “individual fishing quota” as a “limited
access system to harvest a quantity of fish, expressed by . . . a percentage of the total
allowable catch of a fishery” (emphases added)); id. § 1802(26) (same); id. § 1821(h)(2)(A)
(referring to “a situation where a fleet of harvesting vessels transfers its catch . . . to another
vessel” (emphases added)); id. § 1855(i)(1)(B)(i) (referring to “the annual percentage of
16
Case: 19-30006 Document: 00515515221 Page: 17 Date Filed: 08/04/2020
No. 19-30006
The agency also objects that the district court wrongly injected the
concept of “traditional fishing of wild fish” into the Act. That is a puzzling
objection, given one of the Act’s goals is to remedy the “overfishing of
fishery resources” caused by “[c]ommercial and recreational fishing,” as
well as “the activities of massive foreign fishing fleets.” 16 U.S.C.
§ 1801(3).22 To us, this sounds like concern over “traditional fishing of wild
fish.” In any event, the agency misunderstands the district court’s rationale.
The court used the phrase “traditional fishing of wild fish” merely to
contrast with “farming of fish.” Specifically, it reasoned that “catching” and
“taking” are terms that “describe traditional fishing activities and would be
awkward in reference to the farming of fish.” Just so, the term “harvesting
should be read similarly to refer only to the traditional fishing of wild fish.”
This is a straightforward—and correct—use of the associated-words canon
to pin down the most likely meaning of “harvesting.”23
the total allowable catch, guideline harvest level, or other annual catch limit” (emphases
added)); id. § 1881a(e)(2)(B) (Secretary may structure private fishery surveys “by
permitting the contractor to harvest on a subsequent voyage and retain for sale a portion of
the allowable catch of the surveyed fishery” (emphases added)); id. § 1881(a)(e)(2)(C)
(same).
22
The Act contains numerous provisions that unmistakably refer to matters
associated with the “traditional fishing of wild fish.” See, e.g., id. § 1853(a)(1) (requiring
FMP to be “applicable to foreign fishing and fishing by vessels of the United States”); id.
§ 1853(a)(2) (requiring FMP to “contain a description of the fishery, including . . . the
number of vessels involved, the type and quantity of fishing gear used, . . . any recreational
interests in the fishery, and the nature and extent of foreign fishing and Indian treaty fishing
rights”); id. § 1853(a)(13) (requiring FMP to “include a description of the commercial,
recreational, and charter fishing sectors which participate in the fishery”).
23
For similar reasons, we also disagree with the agency that the district court
incorrectly limited the Act’s scope to “wild fish.” Again, the court used “wild fish” merely
to contrast with “farmed fish,” not to address the specific kinds of fish covered by the Act.
No one contests that the Act defines “fish” broadly to embrace “all other forms of marine
17
Case: 19-30006 Document: 00515515221 Page: 18 Date Filed: 08/04/2020
No. 19-30006
The agency further argues that the district court’s interpretation
slights the term “harvesting,” making it redundant with “catching” and
“taking.” This invokes the anti-surplusage canon, which encourages courts
to give effect to “all of [a statute’s] provisions, so that no part will be
inoperative or superfluous, void or insignificant.” Latiolais v. Huntington
Ingalls, Inc., 951 F.3d 286, 294 (5th Cir. 2020) (en banc) (quoting Corley v.
United States, 556 U.S. 303, 314 (2009)). But that canon “yields to context,”
id. (citation omitted), and we have explained that, in context, the three terms
are synonymous. Sometimes Congress writes statutes this way, either due to
a “not uncommon sort of lawyerly iteration,” id. (quoting Freeman v. Quicken
Loans, Inc., 566 U.S. 624, 635 (2012)), or “out of an abundance of caution,”
Fort Stewart Sch. v. Fed. Labor Relations Auth., 495 U.S. 641, 646 (1990). And,
even on the agency’s reading, the term “harvesting” is no more superfluous
than “catching” and “taking” are to each other. The bottom line: “If the
meaning of a text is discernibly redundant, courts should not invent new
meaning to avoid superfluity at all costs.” Latiolais, 951 F.3d at 294. We
decline the agency’s invitation to do so here.24
animal and plant life other than marine mammals and birds.” Id. § 1802(12). That
definition, however, says nothing about whether the Act opens the door to aquaculture.
24
The agency relies on Babbitt v. Sweet Home Chapter of Communities for a Great
Oregon, which applied the anti-surplusage canon to “take” in the Endangered Species Act
(“ESA”). 515 U.S. 687, 690 (1995). The ESA penalizes “taking” an endangered species,
defining “take” as “harass, harm, pursue, wound, or kill.” Id. (cleaned up). The Secretary
of the Interior defined “harm” to include modifying a habitat. Id. The Court upheld that
reading, in part because it prevented “harm” from duplicating the other words in the
definition of “take”. Id. at 698. Similarly, it held the D.C. Circuit erred by using noscitur a
sociis to deny “harm” any “independent meaning.” Id. at 702. Sweet Home does not
support the agency’s position. As relevant here, Sweet Home rejected noscitur a sociis largely
because “[t]he statutory context of ‘harm’ suggest[ed] that Congress meant that term to
serve a particular function in the ESA, consistent with, but distinct from, the functions of
the other verbs used to define ‘take.’” Id. at 702. But here nothing suggests “harvesting”
in 16 U.S.C. § 1802(16) was meant to carry any more water than “catching” or “taking.”
18
Case: 19-30006 Document: 00515515221 Page: 19 Date Filed: 08/04/2020
No. 19-30006
The agency also relies on the breadth of some of the Act’s terms to
show an expansive meaning of “harvesting.” For example, it cites § 1855(d),
giving the agency “general responsibility to carry out any fishery
management plan” and empowering it to “promulgate such regulations . . .
as may be necessary to discharge such responsibility or to carry out any other
provision of this chapter.” It also cites language defining “fishery resources”
to include “any fishery” and “any stock of fish.” 16 U.S.C. § 1802(15)
(emphases added). We are unpersuaded. These provisions are like “the
broad grants of authority” DHS vainly relied on in Texas.25 We refused to
read such provisions to expand the agency’s power beyond the statute’s
terms. So too here. The grant of authority to promulgate “necessary”
regulations cannot expand the scope of the provisions the agency is tasked
with “carry[ing] out.” Id. § 1855(d). And the grant of authority over “any
fishery” and “any stock of fish,” id. § 1802(15), still depends on whether the
relevant stock is a “fishery,” which, in turn, turns on the definition of
“fishing.” As explained, nothing in the definition plausibly suggests the
agency has been given authority to regulate aquaculture.
Finally, we point out a more fundamental problem with the agency’s
position. In 1976, when Magnuson-Stevens was passed, Congress knew what
aquaculture was and how to confer authority to regulate it. Only four years
earlier, Congress had amended the Federal Water Pollution Control Act of
1948 to give EPA authority to regulate “aquaculture project[s].” An Act to
Amend the Federal Water Pollution Control Act, Pub. L. 92-500, § 318(a), 86
Stat. 816, 877 (1972), codified at 33 U.S.C. § 1328(a). Subsequently, in 1992
25
See 809 F.3d at 183 (citing 6 U.S.C. § 202(5) (providing DHS “shall be
responsible for . . . [e]stablishing national immigration enforcement policies and
priorities”), and 8 U.S.C. § 1103(a)(3) (providing Secretary “shall establish such
regulations . . . and perform such other acts as he deems necessary for carrying out his
authority under the provisions of this chapter”)).
19
Case: 19-30006 Document: 00515515221 Page: 20 Date Filed: 08/04/2020
No. 19-30006
and 2007, Congress even added three specific references in parts of
Magnuson-Stevens to “aquaculture” and “fish farms.”26 As the district
court concluded, while these “discrete and immaterial provisions” do not
purport to empower NFMS to regulate aquaculture, they do show that
Congress knows how to legislate on the subject when it wishes. See, e.g.,
Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in another, it is
presumed that Congress acts intentionally and purposely.” (cleaned up)).27
In light of that, the agency’s position appears all the more unfathomable.
From one word—“harvesting”—the agency would conjure up authority
over aquaculture that Congress knew how to give, but never gave. That does
not hold water.
2.
So far, we have seen that the definition of “fishing” in § 1802(16), on
its own terms, forecloses the agency’s interpretation. That result is
reinforced when we read the definition “in context and with reference to the
26
In 1992, Congress provided resources “to restore overfished New England
groundfish stocks through aquaculture or hatchery programs.” Pub. L. No. 102-567,
§ 902(a), 106 Stat. 4270, 4318 (1992), codified at 16 U.S.C. § 1863(a)(E). In 2007, Congress
established programs “to educate and inform consumers about the quality and
sustainability of wild fish or fish products farmed through responsible aquaculture.” Pub.
L. No. 109-479, § 109, 120 Stat. 3575, 3595 (2007), codified at 16 U.S.C. §§ 1855(j)(1)–(2).
The same amendment delineated the status of “an individual who owns or operates a fish
farm outside of the United States.” Id. § 103(j), 120 Stat. at 3583, codified at 16 U.S.C.
§ 1852(d)(2)(D)(iii).
27
The agency’s rejoinder is unpersuasive. It claims there is no evidence “that
Congress actually considered the question of NMFS’s regulating aquaculture” and
rejected that possibility. See Coastal Conservation Ass’n v. U.S. Dep’t of Commerce, 846 F.3d
99, 106 (5th Cir. 2017) (negative-implication canon does not apply “unless it is fair to
suppose that Congress considered the unnamed possibility and meant to say no to it”). But
the 1972 Federal Water Pollution Control Act amendment is precisely such evidence.
20
Case: 19-30006 Document: 00515515221 Page: 21 Date Filed: 08/04/2020
No. 19-30006
larger statutory scheme.” Sw. Elec. Power Co., 920 F.3d at 1024 (citing FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)).28 As the
district court pointed out, there are “various ways in which [the Act] is
nonsensical when applied to aquaculture.” That is correct. When
aquaculture is viewed as a “fishery,” some of the Act’s core requirements
stop making sense. We will not defer to an agency interpretation that is
“inconsistent with the design and structure of the statute as a whole.” Util.
Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014) (citation omitted).
The Rule’s innovation is to equate an “aquaculture facility” with a
“fishery” under the Act.29 But the Act makes demands on a fishery that
cannot apply to an aquaculture facility. Importantly, each fishery must have
a plan (the “FMP”) with measures designed “for the conservation and
management of the fishery, [and] to prevent overfishing and rebuild overfished
stocks.” 16 U.S.C. § 1853(a)(1)(A) (emphases added). Easy to see how this
applies to a typical fishery: the FMP must have measures, like annual catch
limits, that will prevent taking too many fish out of the relevant fishery.30 But
try applying this idea to aquaculture, and your line will become hopelessly
snarled. “Since aquaculture is essentially a farming operation,” the Rule tells
us, “all animals cultured are intended for harvest and cannot undergo
28
See also, e.g., United States v. Transocean Deepwater Drilling, Inc., 767 F.3d 485,
496 (5th Cir. 2014) (we interpret statutes by “looking at the full text of the statute, rather
than one isolated clause, along with the statute’s structure and its public safety purpose”).
29
See, e.g., 81 Fed. Reg. at 1762 (Rule establishes a program for managing an
“aquaculture facility” in the Gulf of Mexico); id. (“The aquaculture facility is managed
under the FMP.”); id. (Rule authorizes a “Gulf aquaculture permit” that “authorizes
operation of an offshore aquaculture facility in the Gulf EEZ”).
30
See, e.g., International Fisheries; Pacific Tuna Fisheries; 2019 and 2020
Commercial Fishing Restrictions for Pacific Bluefin Tuna in the Eastern Pacific Ocean, 84
Fed. Reg. 18,409 (May 1, 2019) (establishing annual catch limits on Pacific bluefin tuna),
codified at 50 C.F.R. pt. 300.
21
Case: 19-30006 Document: 00515515221 Page: 22 Date Filed: 08/04/2020
No. 19-30006
overfishing or become overfished.” 81 Fed. Reg. at 1771 (emphasis added).31
Other provisions of the Act are also geared to prevent “overfishing” a
fishery,32 including one of the national standards every FMP must honor.33
Equating a “fishery” with an aquaculture facility effectively erases these
provisions from the Act.34
The agency responds that aquaculture may help mitigate overfishing
with respect to “other stocks of fish”—that is, other fisheries. That is
mistaken. The Act specifies when an FMP must address the specific fishery
that is the subject of the plan. See generally 16 U.S.C. §§ 1853(a)(1)(A), (a)(2),
(3), (5)–(7), (10), (11), (13)–(15) (applying FMP requirements to “the
fishery” in question). As to overfishing, an FMP must “specify objective and
measurable criteria for identifying when the fishery to which the plan applies is
overfished,” and must “establish a mechanism for specifying annual catch
31
See also 81 Fed. Reg. at 1784 (stating “it is not possible to overharvest cultured
animals”).
32
See, e.g., 16 U.S.C. § 1853(a)(10) (plan must specify criteria “for identifying
when the fishery to which the plan applies is overfished,” and, “in the case of a fishery which
the Council or the Secretary has determined is approaching an overfished condition or is
overfished, contain conservation and management measures to prevent overfishing or end
overfishing and rebuild the fishery”); id. § 1853(a)(15) (plan must have a “mechanism for
specifying annual catch limits . . . at a level such that overfishing does not occur in the
fishery” (emphases added)).
33
See id. § 1851(a)(1) (requiring any FMP, “and any regulation promulgated to
implement such plan,” to be consistent with national standards including “[c]onservation
and management measures [that] shall prevent overfishing” (emphasis added)).
34
Same for the Act’s requiring an FMP to assess a fishery’s “maximum sustainable
yield and optimum yield.” See 16 U.S.C. §§ 1853(a)(3), 1851(a)(1). An aquaculture
facility’s “yield” is by definition 100% because—again, as the Rule itself states—“all
animals cultured are intended for harvest.” 81 Fed. Reg. at 1770 (emphasis added). So, it
makes no sense to talk about the “maximum sustainable yield” or “optimum yield” from
an aquaculture facility. Cf. 16 U.S.C. § 1802(33) (defining “optimum,” in part, as referring
to “an overfished industry”).
22
Case: 19-30006 Document: 00515515221 Page: 23 Date Filed: 08/04/2020
No. 19-30006
limits . . . at a level such that overfishing does not occur in the fishery.” Id.
§ 1853(a)(10), (15) (emphases added).35 Here, the regulated fishery includes
only aquaculture facilities, see 81 Fed. Reg. at 1762, and the overfishing
requirements apply to those “fisheries,” not others.36
The agency also invokes its general authority under the Act to
“prescribe such other measures, requirements, or conditions and restrictions
as are determined to be necessary and appropriate for the conservation and
management of the fishery.” 16 U.S.C. § 1853(b)(14). It claims regulating
aquaculture is “necessary and appropriate” to conserve fishing resources,
perhaps by diminishing demand on wild fisheries. But, as discussed already,
the Act’s pertinent conservation provisions apply to each FMP and per fishery.
In other words, the Act requires each management plan to employ
conservation techniques for the given fishery, not for all fisheries or the
ecosystem as a whole. Accordingly, the Act defines “fishery” as “one or
more stocks of fish which can be treated as a unit for purposes of conservation and
management.” Id. § 1802(13) (emphasis added). Here, the Rule conceives all
Gulf aquaculture as one “fishery,” 81 Fed. Reg. at 1762, such that the Act’s
35
When the Act requires an FMP to consider impacts on other fisheries, it says so.
See id. § 1853(a)(9)(B) (plan must include an impact statement analyzing likely effects on,
inter alia, “participants in the fisheries conducted in adjacent areas under the authority of
another Council”). Such references to other fisheries do not appear in the Act’s overfishing
measures discussed above.
36
The agency cites no textual basis showing that one fishery can be regulated to
prevent overfishing in another fishery. It quotes only the definition of “conservation and
management,” which refers to measures for “rebuilding, restoring, or maintaining[] any
fishery resource and the marine environment.” Id. § 1802(5)(A) (emphasis added). But the
word “any” merely confirms that conservation measures include all of the “fishery
resources” in § 1802(15). In any event, the agency does not explain how one word in the
definition of “conservation and management” overrides the Act’s express requirements
that overfishing measures apply to the specific regulated fishery. See, e.g., id. § 1802(a)(10)
(referring to overfishing criteria applicable to “the fishery to which the plan applies”).
23
Case: 19-30006 Document: 00515515221 Page: 24 Date Filed: 08/04/2020
No. 19-30006
required conservation techniques apply only to that “fishery,” not all Gulf
fishing or all fishing under the Act’s ambit.
Finally, we note the agency itself has conceded the Act fits poorly with
aquaculture. In the Rule’s environmental impact statement, NMFS candidly
stated that “[t]he [Act] was . . . not explicitly written for managing at sea fish
farming or aquaculture operations.” Accordingly, “[m]any of the principles
and concepts that guide wild stock management under the [Act] are either of
little utility or not generally applicable to the management of aquaculture
operations” (emphasis added).37 The agency thus admitted that “[m]any”
of the Act’s “legal requirements do not fit well or are difficult to satisfy with
respect to aquaculture, thereby making them seem less useful or even
unnecessary.” “Despite this lack of conceptual similarity,” the agency
nonetheless insisted that “offshore aquaculture falls within the realm of
activities subject to regulatory control under the [Act] and therefore must be
accommodated within the existing legal framework.” This was the district
court’s reaction, which we find apt:
Contrary to the NMFS’s position, this Court does not view the
incompatibility of the requirements of the [Magnuson-Stevens
Act] with aquaculture operations as an unfortunate
happenstance, but rather, as a clear indication that Congress
did not intend for the [Act] to grant NMFS the authority to
regulate aquaculture.38
***
37
Accord 81 Fed. Reg. at 1762 (“[M]any of the principles and concepts that guide
wild stock management are not generally applicable to the management of an aquaculture
fishery.”).
38
Given our conclusion that the Act’s text and structure foreclose the agency’s
interpretation, we need not reach the district court’s conclusion that the Act’s legislative
history also fails to support the agency’s position.
24
Case: 19-30006 Document: 00515515221 Page: 25 Date Filed: 08/04/2020
No. 19-30006
The judgment of the district court is AFFIRMED.
25
Case: 19-30006 Document: 00515515221 Page: 26 Date Filed: 08/04/2020
No. 19-30006
Stephen A. Higginson, Circuit Judge, dissenting:
Through the Magnuson-Stevens Fishery Conservation and
Management Act of 1976 (Magnuson Act) and its national standards, 16
U.S.C. §§ 1801–1882, Congress delegated to the Commerce Department
expansive authority to regulate, manage, and conserve fish in the exclusive
economic zone. Specifically, the Commerce Department’s National Marine
Fisheries Service (NMFS), in conjunction with eight independent regional
fishery management councils, “will exercise . . . exclusive fishery
management authority over all fish, and all Continental Shelf fishery resources,
within the exclusive economic zone.” § 1811(a) (emphasis added); see also §§
1851, 1854–55; see generally Oregon Trollers Ass’n v. Gutierrez, 452 F.3d 1104,
1008 (9th Cir. 2006); Kramer v. Mosbacher, 878 F.2d 134, 135 (4th Cir. 1989).
Congress provided that this expansive authority should be used to “conserve
and manage the fishery resources found off the coasts of the United States . .
. by . . . exploring, exploiting, conserving, and managing all fish,” “promote
domestic commercial and recreational fishing under sound conservation and
management principles,” and “encourage the development by the United
States fishing industry of fisheries which are currently underutilized or not
utilized by United States fishermen.” § 1801(b)(1), (3), (6) (emphasis
added).
In turn, the Gulf of Mexico Fishery Management Council, comprised
of members from the five Gulf states, eleven of whom are nominated by those
states’ governors, spent six years discussing offshore aquaculture before
adopting the Plan for Regulating Offshore Marine Aquaculture in the Gulf of
Mexico. That plan, which went into effect in 2009, regulates and permits
greatly enhanced takes of fish through the operation of offshore structures
26
Case: 19-30006 Document: 00515515221 Page: 27 Date Filed: 08/04/2020
No. 19-30006
and nets wherein fish are bred and from which fish are harvested.1
Thereafter, in 2014, NMFS published its Proposed Rule to implement the
plan; and, in January 2016, its Final Rule. See generally 81 Fed Reg. 1762 (Jan.
13, 2016).
I would uphold NMFS’s decision that it may regulate how fish are
reared and harvested in the exclusive economic zone because this authority
follows from Congress’s expansive grant of authority to conserve and manage
offshore “fishery resources,” without distinguishing between methods of
fishing or types of fish. See § 1802(15) (defining “fishery resource” as “any
fishery, any stock of fish, any species of fish, and any habitat of fish”
(emphasis added)).
As the majority notes, Congress’s statutory delegation to NMFS does
not delimit “aquaculture” as an industry distinct from other types of fishing.
I would say that is because fishing, from time immemorial, has involved
ingenious varieties of lines, pots, cages, nets and enclosures. The Magnuson
Act responsibility given to NMFS—to conserve, maintain, and manage
offshore fisheries—comprehends not just familiar mariculture methods like
mussel lines and lobster traps, see, e.g., Duckworth v. United States ex rel.
Locke, 705 F. Supp. 2d 30, 45–46 (D.D.C. 2010), fish hatcheries, see, e.g.,
Gutierrez, 452 F.3d at 1109, 1117–19, and towed mesh cages capable of
growing up to 2,000 fish, see Kahea v. NMFS, 2012 WL 1537442, at *8–*10
(D. Haw. 2012), affirmed in relevant part, 544 F. App’x 675 (9th Cir. 2013),
but also the more modern and enlarged methods contemplated by the Final
Rule.
1
The timing of the plan was not coincidental. The United States had become
deeply reliant on imported seafood to meet demand. Kristen L. Johns, Note, Farm Fishing
Holes: Gaps in Federal Regulation of Offshore Aquaculture, 86 S. CAL. L. REV. 681, 683 (2013)
(observing that, in 2011, the United States imported 91% of its seafood supply).
27
Case: 19-30006 Document: 00515515221 Page: 28 Date Filed: 08/04/2020
No. 19-30006
Regardless, even if the Magnuson Act’s capacious regulatory grant
does not unequivocally comprehend aquaculture, I would say it is at least
ambiguous.2 Indeed, to read out ambiguity, I would have to say either, as
appellees do, that fish farming is not “fishing,” or, as the district court did,
that “fishing” only means what it meant “traditionally” when the Magnuson
Act was passed in 1976, assertedly the capture of “wild” fish. But cf. Bostock
v. Clayton Cty., 140 S. Ct. 1731, 1745 (2020) (“[C]ontentions about what . . .
the law was meant to do, or should do, [do not] allow us to ignore the law as
it is.”).
Each of these understandings is plausible but neither is an
unambiguously correct interpretation of the statutory language. That is
because Congress provided an expansive definition of “fishing,” explicitly
including “any operations at sea in support of” “any other activity which can
reasonably be expected to result in the catching, taking, or harvesting of fish.”
§ 1802(16) (emphasis added).3 Spawning, raising, and then taking or
2
The majority classifies NMFS’s position as “nothing-equals-something.” But I
understand NMFS to be relying on the broad language in the statute and the broad purposes
of the statute to argue—I think convincingly—that it is at least ambiguous whether the
plain language of the statute encompasses aquaculture. See Envtl. Integrity Project v. EPA,
960 F.3d 236, 246–47 (5th Cir. 2020) (“Under Chevron, we defer to an agency’s
interpretation when it reasonably resolves a genuine statutory ambiguity.”). NMFS argues
separately against what it perceives to be “nothing-equals-something” analysis where
courts insert limiters like “wild” or “traditional” onto Congress’s “any/all” statutory
grant.
3
The majority applies the noscitur a sociis canon of statutory interpretation to
conclude that “harvesting” is “synonymous with” “catching” and “taking.” In applying
the noscitur a sociis canon, courts should focus on the “most general quality—the least
common denominator, so to speak—relevant to the context.” Antonin Scalia &
Bryan A. Garner, Reading Law 196 (2012). As I read the statute, the least
common denominator is extraction of “any fish” from the water. Both “harvest” and
“take” could be used to describe aquaculture, where fish are raised in offshore enclosures
28
Case: 19-30006 Document: 00515515221 Page: 29 Date Filed: 08/04/2020
No. 19-30006
harvesting fish from offshore nets, pens, or other enclosures are “operations
at sea” supporting “any . . . activity” that results in the taking or harvesting
of fish. See id.
In fact, ambiguity enters only when one considers the majority’s
points that other provisions of the Act, separate and distinct from NMFS’s
authorizing text, may be inapt when applied to modern methods of rearing
and harvesting fish in and from enclosed offshore waters. These points are
well taken,4 but do not unambiguously resolve the issue. See City of Dallas v.
F.C.C., 118 F.3d 393, 395 (5th Cir. 1997) (holding that a court must “defer to
the agency’s reasonable construction” of a statute if there is ambiguity after
applying all of the traditional tools of interpretation, including analysis of the
“design of the statute as a whole”).
Therefore, applying Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984), I would defer to the agency’s reasonable
interpretation. Envtl. Integrity Project v. EPA, 960 F.3d 236, 246–47 (5th Cir.
2020). Interpreting the Magnuson Act to permit regulation of aquaculture is
reasonable. Aquaculture fits within the Act’s broad definitions of “fishery
resources” and “fishing,” and regulating aquaculture fits within the Act’s
mandate to manage and conserve “all fish, and . . . fishery resources, within
the exclusive economic zone.” §§ 1802(15)–(16), 1811(a).
***
and then “harvested” or “taken” from those enclosures, so the noscitur a sociis canon—
in my view—does not limit the appropriate interpretation of “harvest” to wild fish.
4
See Read Porter & Rebecca Kihslinger, Federal Environmental Permitting of
Offshore Aquaculture: Coverage and Challenges, 45 ENVTL. L. REP. NEWS & ANALYSIS
10875, 10881 (2015).
29
Case: 19-30006 Document: 00515515221 Page: 30 Date Filed: 08/04/2020
No. 19-30006
Congress’s clear purpose to conserve and maintain our nation’s
offshore fisheries, coupled with its explicit and capacious grant of authority
over “all fish,” lead me to conclude that modern aquaculture methods of
fishing fit vitally in, not out of, the Magnuson Act regime.5 Alternatively, I
would find that the statutory grant of authority is at least open on that point,
obliging us to defer to the NMFS’s reasonable interpretation before
invalidating over a decade of state and federal officials’ efforts, along with
private experts, to draft a “fishery management” plan that reconciles myriad
commercial, environmental, and recreational interests.6
5
Multiple other federal agencies regulate aquaculture, including the Army Corps
of Engineers, the Environmental Protection Agency, the U.S. Fish and Wildlife Service,
and the Department of Agriculture. Scholars have noted, however, that “the [Magnuson
Act] is an important link in protecting the environment from the impacts of offshore
aquaculture because it authorizes NMFS to deploy management measure and permit
conditions . . . that are not adequately addressed by other regulatory programs.” Porter &
Kihslinger, supra note 4, at 10882.
6
Notably, these interests include conservation and management of wild fish, which
no one disputes as a fundamental purpose of the Magnuson Act. See Porter & Kihslinger,
supra note 4, at 10882, 10892–93. It would be puzzling if the broad authority to manage and
conserve wild fish under the Magnuson Act in no way permitted regulation of fish reared
in, harvested from, and impacting the same waters.
30