August 5, 2020 — NOAA Fisheries lacks the legal authority to regulate aquaculture in the Gulf of Mexico, a federal appellate court in Louisiana ruled yesterday, delivering a major blow to the Trump administration’s long push to allow industrial fish farms in federal waters.
In a 2-1 ruling, the 5th U.S. Circuit Court of Appeals in New Orleans rejected NOAA’s argument that it could issue aquaculture permits because of the 1976 Magnuson-Stevens Fishery Conservation and Management Act to regulate the “catching, taking or harvesting of fish.”
“‘Harvesting,’ we are told, implies gathering crops, and in aquaculture the fish are the crop,” the judges said in their decision. “That is a slippery basis for empowering an agency to create an entire industry the statute does not even mention. We will not bite.”
The appellate court affirmed a 2018 decision by U.S. District Judge Jane Triche Milazzo, who ruled that NOAA only had authority to regulate the “traditional fishing of wild fish” and that if Congress meant for the agency to oversee fish farming, lawmakers would have made that explicit in the nation’s primary fisheries law (Greenwire, Oct. 4, 2018).
“The act neither says nor suggests that the agency may regulate aquaculture,” the appellate judges wrote. “The agency interprets this silence as an invitation, but our precedent says the opposite: Congress does not delegate authority merely by not withholding it.”