Active: Federal lawsuit challenges unaccountable, unconstitutional rulemaking

Karen Bell and William Copeland both have deep ties to the fishing industry in the Gulf of Mexico. Karen was born into a multi-generation fishing family and after graduating college in 1986, she joined A P Bell Fish Company, a Cortez, Florida, commercial fishing, processing, and distribution company started by her grandfather in 1940. Some 80 miles up Florida’s Gulf Coast in the city of Port Richey, William lives and works as a commercial fisherman.

Both William and A P Bell fish for greater amberjack. But a new regulation adopted by the Gulf of Mexico Fishery Management Council slashed—by nearly 80%—the number of greater amberjack that may be caught every year. The problem? The bureaucrats who imposed the limits don’t have the authority to adopt them.

Government regulators have long managed all ocean fisheries surrounding the country. Florida is responsible for regulating fisheries within a few miles of the shore, but the Magnuson-Stevens Fisheries Conservation and Management Act gives the federal government oversight of the Gulf of Mexico further offshore.

Magnuson-Stevens established regional policymaking councils to divvy up governance of federal waters and maximize fisheries’ long-term benefits. A P Bell and William are two of the many commercial fishing entities regulated by the Gulf of Mexico Fishery Management Council.

In 2022, the council slashed the total amount of greater amberjack that commercial fishing companies are allowed to catch by nearly 80%.

As a testament to the updated regulation’s harm to commercial fishermen, on June 16, just one day after Amendment 54’s enactment, the feds announced that the greater amberjack commercial fishing season would be shut down for the rest of the year; the 2023 seasonal catch already exceeded the new quota.

It’s tough enough to earn a living in the already heavily regulated commercial fishing industry. Amendment 54’s catch restrictions will further burden many commercial fishermen who face crushing compliance and other operational costs.

Despite exercising such vast power, no members of the Gulf of Mexico Fishery Management Council are nominated by the president or confirmed by the Senate, as the Constitution’s Appointments Clause requires.

The council’s 17 voting members instead include five bureaucrats from the council’s constituent states (Texas, Louisiana, Mississippi, Alabama, and Florida), 11 individuals who are nominated by these states’ governors, and a federal career employee.

This arrangement grants enormous power to bureaucrats who are not authorized to wield it. Under the Appointments Clause, only individuals who are appointed by the president may exercise significant federal power. This assures that those who exercise such power are accountable to the chief executive and, ultimately, the people who elected him.

Because the council was not constitutionally structured when its members adopted Amendment 54, the regulation itself is unconstitutional.

So Karen and Will are fighting back. Represented free of charge by Pacific Legal Foundation, they’re asking a federal court to restore their right to fish without further interference by an illegally formed agency and its equally unlawful regulation.

What’s At Stake?

  • The Constitution’s Appointments Clause requires that officials with rulemaking power are appointed by the president and confirmed by the Senate. Officials appointed in violation of this process were never lawfully given their powers, so any actions they take have no legal effect and should be set aside.
  • Gulf of Mexico fishermen should not see their livelihoods threatened by an unlawful federal agency and its equally unlawful regulations.

Case Timeline

March 18, 2024
Appellants' Opening Brief
United States Court of Appeals for the Fifth Circuit
June 30, 2023
U.S. District Court for the Southern District of Mississippi