NOT TAKING THE BAIT: THE FIFTH CIRCUIT'S INTERPRETATION OF THE MAGNUSON-STEVENS FISHERY MANAGEMENT AND CONSERVATION ACT.

• Author: Bertrand, Caleb L.

1. Introduction 44 II. Background 44 A. A Brief History of Fishing 44 B. The Magnuson-Stevens Fishery Conservation and Management Act 48 1. The Purpose of the Act 48 2. Territories and Zones Distinguished within the Act 48 3. Implementing the Act 52 a. Regional Fishery Management Councils 52 b. Fishery Management Plans 53 C. A Plan to Create and Manage Aquaculture Regimes in the Gulf of Mexico 54 III. Challenging the Creation and Regulation of Aquaculture Regimes under the Act 55 IV. Denying the Agency Chevron Deference 56 A. Congressional Silence does not Equate to Congressional Authorization 56 B. The Language of the Act does not Support the Appellant's Interpretation 60 1. Harvesting Should be Read as Synonymous with Catching and Taking 61 2. Appellant's Interpretation would not fit within the Structure of the Act 62 V. A Dissenting Opinion 65 VI. Conclusions 67 I. Introduction

   Throughout history, man has utilized the waters of the world for transportation, food, and fun. Fueling the ever-growing human population has promoted the exploration and expansion of our territories to discover new and diverse resources. The seas and various waters of the Earth are no exception. However, as the human population continues to grow, we put a greater strain on once plentiful resources. If left unchecked, these resources may become overwhelmed and overharvested, resulting in irreversible harm and, quite possibly, complete depletion. Congress, in a preemptive effort to protect and sustain the fishery resources within the waters adjacent to the coastal states, has enacted the Magnuson-Stevens Fishery Conservation and Management Act (the Act) to ensure that future generations will be able to enjoy and use these vastly depleted resources. (1)

2. Background

   1. A Brief History of Fishing

      Water is the essence of life. Not only do all known living organisms need it to survive, but mankind has constantly looked to it for the bountiful resources contained therein. Although it may be difficult to pinpoint when man first began exploiting the resources of the Earth's waters, "findings of remains such as fish bones, spines in tools, [and] mollusk shells...attest to the significance of fish in prehistoric culture[s]." (2) Archeologists in various parts of the world have similar findings that indicate that mankind's universal reliance upon both coastal and inland fisheries is not an isolated occurrence unique to only a few cultures. (3) Historically, cultures have utilized fisheries for various reasons, such as for gathering food, harvesting building materials, acquiring tools and decorations, and various for various other purposes. (4)

      Fishing, as defined within the Act, is the attempt or act of "catching, taking, or harvesting...fish; any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or any operations at sea in support of, or in preparation for, any activity [previously] described." (5) The general concepts and techniques of fishing, excluding those that require combustible engines, have remained widely unchanged throughout recorded history. (6) However, steam-powered vessels revolutionized the fishing industry. (7)

      Steam and combustion engines brought about a surge in the use of the "trawling" technique. (8) Stronger engines permitted larger nets to be hauled behind the boats for greater periods of time permitting the ensnarement of larger quantities of fish. (9) While trawling, the nets may either be pulled through the water at the surface, in the midwater, or may be weighted and drug along the bed of the body of water. (10) The ensnared aquatic life is then hauled aboard the vessel, sorted, stored, and transported to land for sale. (11) A few common commercial fishing techniques, including trawling, are depicted in the following pictures.

      Historically, wars drive creativity and invention. The fishing industry is no exception. The industry significantly benefited from the technological advancements made during World War II. (13) Post-World War II shipbuilding production costs drastically decreased. (14) Both diesel and gasoline internal combustion engines became far more affordable to install and operate. (15) The standard fishing vessel design underwent significant alterations. During the 1950's, cheaper steel and fuel prices combined with cheaper and more proficient propulsion systems permitting shipbuilders to modify the classic driven lines styled vessels that were necessary for sail propelled ships. (16) Ships were being designed with "fuller hull profiles [that] had the advantage of providing more storage and working space." (17)

      However, it was not just the vessel's designs that underwent upgrades. Fishing vessels were outfitted with echo sounding technology, which was initially used to locate submarines and mines. (18) Following the initial improvements, shipbuilders had to contend with a new problem: how to store their increase in fish? (19) Enter, the refrigerator. (20) It permitted the catch to stay fresh for longer periods, extending both the duration of the fishing trip and range of the vessels. (21)

      These technological advancements combined with decreases in production and fuel costs permitted the exploitation of previously unfishable waters, also known as "fisheries." (22) A fishery is defined in the Act as "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 any fishing for such stocks." (23) Record catches resulted from longer excursions out to sea. (24) However, these once common occurrences are now a thing of the past. "[C]atches have peaked and declined. Almost half the known stocks of fish are classified as over-fished or have collapsed...." (25)

      The commercial fishing industry remains one of the largest industries in the world despite the knowledge of dwindling fish populations. "In 2019, U.S. commercial fishermen [alone] landed 9.3 billion pounds of seafood valued at $5.5 billion." (26) However, the 2019 catch was down by approximately 1.0 percent compared to the 2018 catch. (27) Profits decreased by approximately 2.0 percent from 2018 to 2019. (28) Profits remain significantly high for an industry with limited resources. A possible economic rationale is that demand continues to be high for this diminishing resource, which effectively drives the market price higher and thus creates significant profits. (29) The top producing species harvested in 2018 were salmon, lobster, crabs, scallops, and shrimp. (30)

      Importantly, these record fish hauls occurred because fishing vessels were now capable of exploiting the previously unreachable fisheries that were beyond the means of earlier fishermen. (31) Today, "[m]ore than 55 percent of [the] ocean surface is covered by industrial fishing...." (32) The geographical area of these fishing grounds is four times greater than that covered by land based agriculture. (33) Catches have peaked and began to decline as fishermen are now running out of new territory to exploit.

      However, this trend drove many countries and businesses to seek alternative and more sustainable methods of harvesting fish and shellfish to satisfy the ever-growing demand. An example of such techniques is one that has been used in the Orient for many years, known as "aquaculture." (34) In essence, aquaculture is "fish farming" where wild caught fish are made to spawn and produce stock that is cultivated and gathered at a later date. (35) The technique is not limited to just fish and shellfish, but may also include aquatic plant life and crustations as well. (36) Currently, aquaculture production accounts for "more than 50percent of all seafood produced for human consumption...." (37)

      Aquaculture production has surged in recent years, with global production outperforming traditional fishing methods by more than 18.32 million tonnes of landed catch. (38) "Total reported fish production was 53.4 million tonnes in 2017, with fish production growing at an average annual rate of 5.7% per year [from 2000 through 2017.]" (39) However, the majority of this production occurred within inland freshwater facilities and fish farms. (40) Although fish farms do alleviate some of shortage, the ever growing concern for conserving the natural resources of the coastal waters of the United States ultimately led Congress to enact the Magnuson-Stevens Fishery Conservation and Management Act. (41)

   2. The Magnuson-Stevens Fishery Conservation and Management Act

      1. The Purpose of the Act

         Congress passed the Act in 1976 to combat the rampant overfishing of aquatic species off the coasts of the United States. Specifically, the act is intended to deter the "aggressive fishing practices, especially by foreign trawlers, [that] had imperiled important fish stocks and the coastal economies dependent upon them." (42) The Act, via delegation from the Secretary of Commerce under the Commerce Clause, is administered by the National Marine Fisheries Service (NMFS or the Agency). (43) NMFS is a division within the National Oceanic and Atmospheric Administration

         (NOAA). (44)

         The Act was implemented by Congress in light of international fishing agreements currently in place, but which Congress deemed inadequate to "prevent or terminate the overfishing of valuable fishery resources." (45) The desired effect of the Act would be the rehabilitation of the dwindling endangered and domestic aquatic species of the coastal waters, and to promote optimal and sustainable yields for future generations. (46) Interestingly, this broached an age old question: what waters fall within the jurisdiction of a State?

      2. Territories and Zones Distinguished within the Act

         Coastal States have strongly contested just how far their reach out to sea extends for centuries. (47) As countries continued to push to expand their global...