A pair of fishermen from the U.S. state of Florida are suing the U.S. Department of Commerce, challenging the constitutionality of fishery management councils after the Gulf of Mexico Fishery Management Council (GMFMC) cut quotas for gag grouper by over 80 percent.
Dominick and James Russo, brothers who run FFC Seafood, filed the complaint in federal court in the Southern District of Alabama, claiming the new regulation issued by the National Marine Fisheries Service (NMFS) – managed by NOAA under the U.S. Commerce Department – was not approved through the correct process.
According to the complaint, the GMFMC did not lawfully approve the new rule, and the lawsuit is specifically targeting the GMFMC's Amendment 56, which modified the Gulf of Mexico gag grouper fishery in response to recent population assessments.
According to the final rule posted in the federal register, the most recent stock assessment, completed in 2021, found the gag grouper population is overfished. The amendment established an 18-year rebuilding plan for the species, which includes drastic cuts in allowable biological catch from 3.12 million pounds in 2023 to just 444,000 pounds in 2024 – an 85 percent decrease.
The new rule also shifted the allocations of gag grouper quota, which is distributed between commercial and recreational fishermen. Commercial fishermen went from possessing 39 percent of the quota to 35 percent of the quota, while recreational fishermen went from 61 percent to 65 percent.
The new regulations, which went into effect on 1 June 2024, have had severe impacts on FFC Seafood, according to a Pacific Legal Foundation press release. According to the Russos, gag grouper was one of the most profitable fish the company caught due to its popularity at local restaurants.
“With 80 percent fewer gag grouper available to them, Dominick and James have to catch more fish of other species – and spend longer at sea – to make up for losing their most profitable fish,” the release states. “They also have to fish in different areas: Some areas near them have so many gag grouper that they’d easily catch too many by accident and would be forced to throw them back.”
The complaint said because councilors are not appointed by president, the head of a regulatory department, or a court of law, the councilors technically do not meet the constitutional requirements in the Appointments Clause of the U.S. Constitution.
“The clause’s main purpose is to ensure that government officials wielding significant authority are accountable to the president and other democratically accountable officers,” the complaint said.
However, council members are typically appointed in a different manner. For the GMFMC, councilors are appointed in multiple ways. One is the regional director of NMFS; five are the principal state officers regarding marine fishery management of the respective states of the council – Texas, Louisiana, Mississippi, Alabama, and Florida; and the remaining 11 members are nominated by the governors of their respective states.
The lawsuit claims the current method for selecting and retaining council members violates the U.S. Constitution, as the councilors have ...
