Appeals court says NOAA can't make rules for offshore fish farms

By Janet McConnaughey
Associated Press

NEW ORLEANS (AP) — A federal appeals court in New Orleans has upheld a decision that throws out rules regulating fish farms in the Gulf of Mexico.

The law granting authority over fisheries to the National Oceanic and Atmospheric Administration does not also let the agency set rules for offshore fish farms, the 5th U.S. Circuit Court of Appeals said in its 2-1 decision on Monday.

The farms use enormous open-topped nets or submersible pens to raise huge numbers of fish, including tuna, salmon, seabass and cobia, out in open water.

The government says fish farming, including that on the open sea, is vital to seafood production and can both provide jobs and protect species and habitats. Opponents say huge numbers of fish confined in nets out in the ocean could hurt ocean health and native fish stocks, and the farms would drive down prices and devastate commercial fishing communities.

“I think this is the final nail in the coffin for industrial aquaculture in federal waters unless Congress gives authority,” said George Kimbrell, who represented opponents of the plan as legal director for the Center For Food Safety.

NOAA Fisheries is reviewing the decision, spokeswoman Kate Goggin said in an email. She did not respond to questions about whether NOAA plans to appeal the ruling or whether it is likely to affect plans to expand offshore aquaculture outside the Gulf.

It won’t stop anything — it just means one less permit is needed to set up shop, said Neil Anthony Sims, chief executive of Ocean Era, which ran two demonstration projects off of Hawaii raising Almaco jack, and plans a third in the Gulf of Mexico off of Sarasota, Florida.

The Coast Guard and state of Florida have approved permits, and Ocean Era has applied for permits from the Environmental Protection Agency and the Army Corps of Engineers, Sims said.

“But we don’t need any permit from NOAA for that project now,” he said.

Cufone and Kimbrell said NOAA and other offshore fish farming advocates went the regulation route after trying fruitlessly for a decade to get Congress to pass a law saying how the offshore fish farms should be governed.

Kimbrell said NOAA planned “to start in the Gulf of Mexico and expand in the Atlantic and Pacific. Now the court has rejected their entire authority for how they could do this.”

He acknowledged that the 5th Circuit ruling is controlling only in federal courts in Louisiana, Mississippi and Texas. “Certainly they can try other places but we can sue them and we will win,” he said.

It’s an important decision, especially in light of President Donald Trump’s executive order in May to streamline aquaculture permits, said Marianne Cufone, director of the Center for Environmental Law at Loyola University New Orleans.

She and Kimbrell were among attorneys for nine groups representing commercial and recreational fishing interests, food safety advocates and conservationists.

Monday’s ruling upholds a ruling in 2018 by Judge Jane Triche Milazzo.

The Magnuson-Stevens Act, which empowers NOAA to regulate fisheries in all U.S. waters, doesn’t mention aquaculture at all, Judge Stuart Kyle Duncan wrote for himself and Judge Patrick Higginbotham.

Attorneys for NOAA said the fact that the law doesn’t mention aquaculture is just a gap to be filled by the regulations, Duncan wrote.

“This nothing-equals-something argument is barred” by an earlier 5th Circuit ruling, he said.

Duncan said NOAA’s arguments hinged on the law’s definition of fishing as “catching, taking, or harvesting of fish.”

“’Harvesting,’ we are told, implies gathering crops, and in aquaculture the fish are the crop. That is a slippery basis for empowering an agency to create an entire industry the statute does not even mention,” he wrote.

“We will not bite.”

Judge Stephen Higginson dissented. He wrote that it’s reasonable to interpret the law as including aquaculture among “all fish and ... fishery resources” in federal waters.