Industrial fish farming interests saw a way to set up shop in federal waters through one little word in an existing law. That one little word was “harvesting.” It would also turn out to be the one little word that we leveraged legally to stop them in their tracks.
The National Marine Fisheries Service (NMFS) and its regional Gulf Council tried to create regulations that would ease the way for permits to be acquired by big factory fish farms (known as aquaculture). Aquaculture corporations set up infrastructure in “open-ocean” areas, creating a huge risk to the marine ecosystem around it. By claiming space where small fisheries operate, it also would have pummeled local fishermen and women with a blow to their livelihoods that would be hard to recover from.
Food & Water Watch had been fighting against open-ocean aquaculture schemes for the past decade when our organization joined a lawsuit headed by Center for Food Safety, and as plaintiffs we joined forces with: the Gulf Fishermen’s Association; Gulf Restoration Network; Charter Fishermen’s Association; Destin Charter Boat Association; Alabama Charter Fishing Association; Fish for America, USA, Inc.; Florida Wildlife Federation; and Recirculating Farms Coalition.
What's So Key About The Word "Harvesting?"
After numerous failed attempts to get Congress to pass controversial legislation allowing fish farms in federal water, NMFS suddenly changed its song. It claimed that it actually had this authority all along in a separate federal law governing traditional fishing in federal water from 1976.
They relied on the word “harvesting,” from this blurb about what constitutes “fishing” in the Magnuson-Stevens Fishery Conservation and Management Act (MSA) that gives them their powers:
(A) the catching, taking, or harvesting of fish;
(B) the attempted catching, taking, or harvesting of fish;
(C) any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or
(D) any operations at sea in support of, or in preparation for, any activity described in subparagraphs (A) through (C).
The short story: in 2016, NMFS created the regulatory scheme under the pretense that the word “harvesting” was ambiguous enough to cover factory fish farming — essentially saying that open-ocean aquaculture counts as a type of fishing.
We said a lot of technical stuff that equated to “hell no, it does not” and our legal team, along with CFS and our co-plaintiffs, worked hard to build a solid legal case proving the word “harvesting” could not be interpreted in that way, and therefore, the power to create these regulations was outside of the NMFS’s jurisdiction. It took a long time, but in the end, the judge agreed with us, and ruled that the regulations created by the federal agencies had to be vacated — or in other words, back to the drawing board for the factory fish farms looking for a way to take over those open-ocean areas.
“All of us that depend on the Gulf for our communities and livelihood are profoundly grateful that the Court has struck down this dangerous scheme that would have polluted our waters and damaged our way of life,” said Gulf fisherman and Gulf Fishermen’s Association counsel William Ward. “Today is a great day.”
“Today’s decision reaffirms that Congress never intended for the federal government to allow massive factory fish farms in federal waters,” said Wenonah Hauter, our Executive Director of Food & Water Watch. “The Court recognized that this irresponsible plan was an overreach by the federal government that would give away our public resources to another polluting industry.”
What Happens Now?
Food & Water Watch’s legal counsel, Zach Corrigan, warns that the special interests behind the scheme in the first place aren’t likely to take no for an answer, and that the agency itself is likely not happy about having its powers limited. “We are girding for a potential administration appeal, no matter how frivolous, and we are girding for the possibility that the agency will try to use this defeat as a way to leverage Congress.” If they can’t use the language that already exists to give themselves these powers to open the waters to big factory fish farms, they just might ask Congress, even though this has failed in the past.
As always, Food & Water Watch and its allies stand ready to fight back when these polluting industries regroup and try again. Chip in to our defense fund to help keep oceans and small fishing businesses protected!