Lofstad v. Raimondo, Government Accountability and Constitutional Fidelity

Commercial fishing is a tough way to make a living. The industry is highly competitive; revenues from year to year can be highly variable; the work is physically demanding and dangerous; and fishermen find themselves at the mercy of severe weather and choppy waters on a daily basis. But even those challenges are less taxing than going up against the federal administrative state.

But that’s exactly what two commercial fishermen did in Lofstad v. Raimondo. They won a decision in September from the Third Circuit that dealt a blow to a controversial fishing regulation promulgated by the Mid-Atlantic Fishery Management Council. I, with the Pacific Legal Foundation, represented the plaintiffs, and while the decision wasn’t everything we had hoped for, it was a step toward restoring constitutional accountability to executive branch administrative agencies. The case also offers a road map for litigators interested in challenging administrative overreach.

The plaintiffs, Raymond Lofstad of Long Island and Gus Lovgren of New Jersey, are small-business owners who make their living fishing off the northeast Atlantic Coast, as three generations of their forefathers did before them. But in 2022, both Lofstad and Lovgren found their businesses besieged by new catch regulations promulgated by the Mid-Atlantic Fishery Management Council (Mid-Atlantic Council) which is responsible for overseeing federal waters off the coast of the Mid-Atlantic region, from New York to North Carolina.

In 2022, the Mid-Atlantic Council issued Amendment 22 to the fishery’s regulatory code, which tightened limits for commercial fishermen on catch allocations for black sea bass, summer flounder, and fluke, while allocating larger percentages of the designated species to recreational fishermen. For Lofstad and Lovgren, the new regulations imposed a significant burden; they projected the changed allocations would reduce their revenues by tens of thousands of dollars each year. Facing such a serious blow to their businesses, they sued.

The Mid-Atlantic Council’s structure caught the challengers’ attention. Under the Magnuson-Stevens Fisheries Conservation and Management Act, the federal government regulates fishing in waters from three to 200 nautical miles offshore (waters within three miles of the shoreline are under the authority of the adjoining states). Directing that regulation are eight regional councils, including the Mid-Atlantic Council, empowered by Congress to oversee fishery management issues, including by developing conservation plans for fisheries and establishing catch limits for commercial and recreational fishermen. The Commerce Department promulgates these plans after determining that they are lawful. In addition, the councils hold powerful supervisory authority over the Secretary of Commerce, with the ability to force or forbid certain actions relating to emergency measures, state regulations of fisheries, foreign fishing, and more.

The Mid-Atlantic Council has 21 members, including:

• 13 members nominated by the governors of New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, and North Carolina and appointed by the Secretary of Commerce;
• seven members who are state employees designated by the governors; and
• one member who is a low-level federal bureaucrat.

Lofstad and Lovgren argued in their complaint—filed in the District of New Jersey—that the Mid-Atlantic Council’s structure violates the Appointments Clause of the U.S. Constitution and that its adoption of Amendment 22 was therefore void, such that the resulting regulation adopted by the Department of Commerce should be set aside. While the scope of the Appointments Clause is disputed at the margins, in general, it requires federal officials with significant authority to be appointed to their positions by the president and confirmed by the Senate; this process is meant to ensure that only those appointed by accountable, elected officials can wield significant federal power. Because the Mid-Atlantic Council’s members possess significant and unsupervised authority, the fishermen argued, they must be Senate-confirmed. The actual appointment structure, however, falls far short of this requirement and permits council members to escape accountability for their decisions that harmed commercial fishermen.

Though the District Court ruled against the fishermen, they appealed to the Third Circuit, which was more receptive to the serious constitutional concerns raised in the complaint.

In a September 2024 decision, the Third Circuit ruled that some powers exercised by members of the councils do indeed violate the Appointments Clause. “Executive officials who have significant authority must be properly appointed,” Judge Stephanos Bibas of the Third Circuit affirmed in the decision. And because some of the Mid-Atlantic Council’s powers are unsupervised, the court said, the council members must be Senate-confirmed. Thus, the Third Circuit decision made clear that the structure of the councils as enacted by Congress is unconstitutional.

When it came to remedying Lofstad and Lovgren’s injury, the Third Circuit severed the portions of the Magnuson-Stevens Act that permitted the councils to effectively override decisions made by the Secretary of Commerce and the National Marine Fisheries Service, ending the so-called “pocket veto” power held by the councils. The government declined to petition for certiorari by the February 2025 deadline, so the Third Circuit’s decision is now final.

While the circuit decision is a step in the right direction, it still leaves the councils with significant rulemaking authority that is disallowed under the Appointments Clause. So more work remains to be done to address the constitutional violation. Pacific Legal Foundation has two other cases that address the councils’ improper structure, Bell v. Raimondo in the Southern District of Mississippi and Russo v. Raimondo in the Southern District of Alabama.

For PLF’s clients and countless other commercial fishermen who ply their trade in the ocean waters off the mid-Atlantic coast, these questions are not simply arcane legal matters or constitutional niceties. They strike at the very heart of fishermen’s ability to make a living and support their families. Accountability is central to ensuring that government officials do not enact harmful policies like Amendment 22. Accountability is achieved by ensuring that only officials constitutionally appointed and confirmed under the Appointments Clause make federal policy. The Third Circuit’s decision is a step in the right direction, but other courts examining this issue should go further. Ultimately, though, it is up to Congress to ensure that the Magnuson-Stevens Act is consistent with the Constitution and preserves accountability in fisheries management.

This post originally appeared on the Federalist Society blog on February 26, 2025.