Florida fishermen challenge constitutionality of fishery management councils

When a new regulation makes life worse for commercial fishermen, those fishermen have little recourse—because fishing regulations come from a confusing, multi-layered combination of federal and state bureaucrats with little accountability to either voters or the president. 

That system is unconstitutional, and two Florida fishermen are challenging it in court. 

Dominick Russo and his brother James run FFC Seafood, a commercial fishing business, out of Sarasota, Florida. Their most profitable fish is gag grouper, which is popular at restaurants for its sweet flavor. 

But a new rule known as Amendment 56 slashed the number of gag grouper the Russos can legally catch by over 80 percent.  

Here’s what’s especially frustrating: Amendment 56 was issued by an assistant administrator at the National Marine Fisheries Service (a federal agency) under the direction of the Gulf of Mexico Fishery Management Council (one of eight regional councils made up of state bureaucrats).  

This is the multi-layered system of fishery regulation created by the Magnuson-Stevens Fishery Conservation and Management Act. The system has drawn criticism for years. Council members have enormous power over the fishing industry and yet are shielded from accountability: Despite their power, they are not appointed by federally accountable officials as required by the Appointments Clause of the United States Constitution. They are also almost impossible to fire. 

This frustrates fishermen like the Russos, whose business was dramatically affected after Amendment 56 went into effect June 1, 2024. Not only did it lower the number of gag grouper that can be caught per year, but it also shifted the allocation between commercial and recreational fishermen, cutting into commercial fishermen’s allotment.  

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. 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 Russos don’t run a big operation: It’s just the two brothers with two boats and a small, rotating crew. Dominick, now 31, has been working on fishing boats since he was 13, following in the footsteps of James and his other brothers. Being out on the water is “the only thing I enjoy,” he says. “I have no boss.” 

But now the unconstitutional rulemaking of the Gulf of Mexico Fishery Management Council is threatening the Russos’ business.  

This isn’t an isolated issue either. In 2022, the council slashed the total amount of greater amberjack that commercial fishing companies are allowed to catch by nearly 80 percent. In 2022, the Mid-Atlantic Fishery Management Council slashed the catch allocations of summer flounder, scup, and black sea bass off the coast of the Mid-Atlantic. In 2021, the North Pacific Fishery Management Council tried to close Cook Inlet in Alaska to commercial fishing—although it ultimately abandoned the plan.  

These regulations have devastated fishermen and the communities that depend on them. And all of them were created by bureaucrats who were never appointed as the Constitution requires.  

Dominick and James have filed a federal lawsuit challenging Amendment 56, arguing the members of the Gulf of Mexico Fishery Management Council were not properly appointed according to the Appointments Clause of the Constitution—rendering the gag grouper rule unlawful. Their lawsuit joins those filed by Karen Bell, Raymond Lofstad, and Wes Humbyrd, also represented by Pacific Legal Foundation, against the restrictive rules created by councils around the country.