Mid-Atlantic Fishermen Fight Unconstitutional Regulations

July 10, 2024

Guest Author:

Pacific Legal Foundation

For commercial fishermen, it’s about making a living in an already heavily regulated industry. They likely won’t survive Amendment 22 because of compliance and other operating costs. Photo Shutterstock Media

Raymond Lofstad and Gus Lovgren are fourth-generation small-scale commercial fishermen in the Mid-Atlantic region. Raymond has been fishing Long Island for more than 45 years. Gus, who recently took over his father’s fishing boat, has been operating out of New Jersey for more than 20 years. Both have the necessary permits to fish for flounder, scup and black sea bass in federal waters off the Mid-Atlantic coast. However, a regulation passed by the Mid-Atlantic Fishery Management Council will reduce the amount of these fish that commercial fishermen can catch each year, reallocating the catch to recreational fishermen.

Raymond and Gus have supported countless American families throughout their long fishing careers. All the while, they have shared the ocean’s bounty with other commercial and recreational fishermen. Now, because of this change in regulations, they face the loss of tens of thousands of dollars in annual income. For Gus, the loss of income will also force him to spend more time at sea, losing valuable time with his family, including his two young daughters.

Whether it’s for food or fun, ocean fishing is under the watchful eye of government regulators. States manage the coastline, while the federal government, under the Magnuson-Stevens Fisheries Conservation and Management Act, manages waters from three to 200 nautical miles offshore.

Regional boards created under the Magnuson-Stevens Act are tasked with regulating federal waters to maximize long-term benefits from fishing. Raymond and Gus are two of many fishermen regulated by the Mid-Atlantic Fishery Management Council, which covers all federal waters off the Mid-Atlantic coast, from the tip of Long Island to the center of North Carolina.

In 2022, the council revised the allocations for summer flounder, scup and black sea bass for commercial and recreational fishermen. The National Marine Fisheries Service approved an updated regulation, known as Amendment 22. As a result, starting Jan. 1, 2023, commercial fishermen must reduce their annual total catch of three types of fish that make up a significant portion of their livelihoods so recreational fishermen can catch more.

The government says the revised allocations under Amendment 22 will “better reflect current knowledge of the historical proportions” of fish caught by both the commercial and recreational sectors.

But for Raymond, Gus and other commercial fishermen, it’s about making a living in an already heavily regulated industry. Many commercial fishermen, already struggling with crippling compliance and other operating costs, likely won’t survive the tightened fishing restrictions under Amendment 22.

There is hope for the fishermen, however. The Constitution prohibits bureaucrats from exercising significant federal powers unless they are under the control of the president, which means he appoints and removes them.

No member of the Mid-Atlantic Fishery Management Council is nominated by the president or confirmed by the Senate, as required by the Appointments Clause. The 21-member council is composed of 13 members nominated by the governors of New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, and North Carolina; seven state officials who are also appointed by the governors; and a low-level federal official.

This setup gives unauthorized bureaucrats enormous power over federal policy and individual livelihoods while sidestepping accountability. Because the council was not constitutionally organized when its members adopted Amendment 22, the ordinance itself is unconstitutional.

So Raymond and Gus are fighting back. Represented without pay by the Pacific Legal Foundation, they are asking a federal court to restore their right to earn an honest living without interference from an illegally created agency and its equally illegal regulation.