Gulf Fishermens Association v. National Marine Fisheries Service, No. 19-30006 (5th Cir. Aug. 3, 2020) (Higginbotham, Costa) (Higginson, dissenting)

Chevron isn't silent about silence. The Court held that when a "statute is silent or ambiguous with respect to the specific issue," courts must defer to an agency's interpretation as long as it is  permissible. As you might expect, agencies have relied on statutory silence to support their claimed authority to regulate in various ways ever since. This case is the latest example.

Relevant Law

The Magnuson-Stevens Act establishes a framework for protecting and managing fishing and fishery resources in federal waters. 16 U.S.C. §§ 1801-83. It creates eight Regional Fishing Management Councils and tasks them with drafting Fishing Management Plans. These Plans must contain conservation measures necessary and appropriate for the conservation and management of a particular fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the fishery's long-term health and stability.

The NMFS reviews each Fishing Management Plan for consistency with the Act and other applicable laws. If NMFS fails to act within a specified time, the Plan is approved. Each Plan is then implemented through separate NMFS-approved regulations.

Procedural History

This case is about a 2009 Plan proposed by the Gulf of Mexico Fishing Management Council--the first such Plan in the Act's forty-plus year history to propose an aquaculture permitting scheme. What's aquaculture, you ask? Simply put, it's fish farming.

The Council submitted the Plan and a proposed implementing regulation to NMFS. After NMFS took no position on the Plan, it went into effect. Then, in 2014, NMFS published a proposed Rule to implement the Plan, which became final in 2016.

A coalition of fishing and conservation organizations concerned about the commercial and environmental impacts of the Rule’s proposed regime, challenged it in district court. They claimed the Rule was invalid because it fell outside the Council’s authority to regulate “fisheries” under the Act. The district court agreed and refused to defer to NMFS's construction of the Act under Chevron. The agency appealed.

The Fifth Circuit's Opinion

Judge Duncan's Opinion for the Panel Majority

Judge Duncan, joined by Judge Higginbotham, agreed with the district court that the aquaculture rule "exceeds the agency's statutory authority." NMFS's argument to the contrary, the majority explained, boiled down to a claim to the authority to regulate fish farming merely because the Act "do[es] not unambiguously express Congress's intent to prohibit [its] regulation." (quoting agency's brief). Judge Duncan described that position as a "nothing-equals-something argument ... barred by [Fifth Circuit] precedent."

In support of his point, Judge Duncan relied primarily on the "DAPA" case, where the Court held the Immigration and Naturalization Act unambiguously foreclosed DHS's Deferred Action for Parents and Lawful Permanent Residents. See Texas v. United States, 809 F.3d 134, 186 (5th Cir. 2015), aff'd by an equally divided Court, 136 S. Ct. 2771 (2016). Although the INA didn't "expressly foreclose[]" DAPA's provisions, he emphasized, "we still rejected the argument that “congressional silence has conferred on DHS the power to act.” (quoting Texas v. United States, 809 F.3d at 186). "Were courts to presume a delegation of power absent an express withholding of such power," he continued, "agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.” (quoting Texas v. United States, 809 F.3d at 186).

Judge Duncan ended this portion of the majority opinion with an important and thought-provoking discussion of Chevron's theoretical foundations:

One quick aside: those of you keeping score at home will have noticed the special emphasis on Judge Sentelle's concurring opinion in American Bus Association v. Slater, 231 F.3d 1, 9 (D.C. Cir. 2009). I'm a big fan of all three judges I clerked for, Judge Sentelle included, so I'm happy to see that references to his many classic opinions are quickly becoming a fixture of Fifth Circuit administrative-law jurisprudence. See, e.g., Shrimpers & Fishermen of RGV v. Texas Comm'n on Envtl. Quality, No. 19-60558 (5th Cir. July 31, 2020) (citing the opinion of "Sentelle, J." in Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C. Cir. 2005));  Dish Network Corp. v. Nat'l Labor Relations Bd., 953 F.3d 370, 378 (5th Cir. Mar. 20, 2020), as revised (Mar. 24, 2020) ("As Judge Sentelle once put it, '"You never know" is no substitute for substantial evidence.'" (quoting Erie Brush & Mfg. Corp. v. NLRB, 700 F.3d 17, 23 (D.C. Cir. 2012)); Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, 937 F.3d 533, 543 (5th Cir. 2019) ("Judge Sentelle explained the rule in the canonical procedural-rights case ....") (quoting Fla. Audobon Soc'y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc) at length); id. at 546 ("As Judge Sentelle put it many years ago: 'The federal judiciary is not a back-seat Congress nor some sort of super-agency.'" (quoting Fla. Audubon Soc’y, 94 F.3d at 672)).

Judge Duncan's majority opinion proceeds to address the agency's other arguments, describing them as "angling for ambiguity" before dismantling them one at a time. While I won't go through the blow-by-blow here, the discussion is worth a read if you're so inclined.

Judge Higginson's Dissent

Unlike the majority, Judge Higginson didn't view Congress's silence regarding aquaculture as an unambiguous signal of intent to foreclose the agency's attempt to regulate fish farming. In his view Congress's silence regarding aquaculture reflected Congress's awareness that "fishing, from time immemorial, has involved ingenious varieties of lines, pots, cages, nets and enclosures." In light of that reality, Congress delegated authority to the agency "to conserve, maintain, and manage offshore fisheries" in terms broad enough to "comprehend[] not just familiar mariculture methods like mussel lines and lobster traps ... but also the more modern and enlarged methods contemplated by the Final Rule."

In other words, NMFS's claim to authority to regulate aquaculture didn't rest on "nothing" as the majority contended but instead on the statute's "broad language ... and broad purposes."  Given "Congress’s clear purpose to conserve and maintain our nation’s offshore fisheries" and its "its explicit and capacious grant of authority over 'all fish,'" Judge Higginson would have "conclude[d] that modern aquaculture methods of fishing fit vitally in, not out of, the Magnuson Act regime." Accordingly, he would have approved the agency's interpretation at Chevron step one.

Alternatively, he would have found "that the statutory grant of authority is at least open on that point, obliging [the Court] to defer to the NMFS’s reasonable interpretation before invalidating over a decade of state and federal officials’ efforts, along with private experts, to draft a 'fishery management' plan that reconciles myriad commercial, environmental, and recreational interests."

Some Thoughts

The Sound of Silence. You'll recall that I opened this post by emphasizing that Chevron wasn't silent about statutory silences. Instead, the Supreme Court directed courts confronted with a statute that is "silent or ambiguous" with respect to the specific question at issue to defer to the agency's interpretation so long as it's permissible. In this case, however, the panel majority treats Congress's silence regarding aquaculture in the Magnuson-Stevens Act as unequivocal proof that Congress meant to prohibit NMFS from regulating fish farming. So, what gives? Did Judge Duncan simply ignore the Supreme Court's express instructions in Chevron itself? I don't think so.

The issue is complicated and important, and a summary of a single case isn't the right place for me to attempt to get to the bottom of it. Instead, I'll direct the interested reader's attention to the work of a couple of scholars who have thought carefully about the subject. A good starting point is Jonathan H. Adler and Nathan A. Sales's 2009 article The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L. Rev. 1497. I've excerpted some of the relevant bits below.

The article is great, but it is only a starting point for understanding this issue. Real understanding would also require, for example, deep consideration of the Supreme Court's decision in City of Arlington v. FCC, 563 U.S. 290 (2013). There, in an opinion by Justice Scalia, the Court held that courts must defer under Chevron to an agency's interpretation of a statutory ambiguity that concerns the scope of the agency's jurisdiction. Adler and Sales's article was cited in that case, which is part of the reason it is essential reading on this topic. The main reason, however, is that it was cited by Chief Justice Roberts in dissent:

The Chief Justice's City of Arlington dissent is one of my very favorite opinions of all time, and if I had more time to spend on the question, I would argue that there may be five votes for his position on the current Court. Unfortunately, I can't make that argument here. Instead, I encourage you to look into the matter for yourself and let me know what you think in the comments.

Gulf Fishermens Association v. National Marine Fisheries Service, No. 19-30006 (5th Cir. Aug. 3, 2020)
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