The Magnuson Stevens Fishery Conservation and Management Act of 1976 was passed to conserve and manage the fishery resources found off the coasts of the United States.
The Gulf of Mexico Fishery Management Council, a body set up by the law, is responsible for, well, the Gulf of Mexico. And the Gulf of Mexico Council began setting up aquaculture permits in the Gulf. Proper administrative rulemaking policy was followed, and lo, in 2016, it happened.
A bunch of people didn’t like this - principally fishermen - and they filed a lawsuit to stop it. (The merits of aquaculture are probably best left for another post, but anyway it’s reasonably divisive. Note only that for many folks, fish is the only wild-caught thing they’ll ever eat.)
So the question is this: Does the Magnuson Stevens Fishery Conservation and Management Act of 1976 cover aquaculture? Let’s go to the text: It defines a fishery as follows:
(A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and (B) any fishing for such stocks. Id. § 1802(13).
It defines “fishing” as:
(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) operations at sea in support of, or in preparation for any activity described in subparagraphs (A) through (C).
Is aquaculture fishing? The Fifth Circuit says “no,” affirming the district judge (Milazzo). The act applies to fishing, not to aquaculture.
But wait, says the government: it doesn’t apply, but we get to fill in the gap. Tough argument to win, and they lose it.
But wait again, isn’t aquaculture “any other activity which can be reasonably expected to result in the catching, taking, or harvesting of fish?”
No again, says the Fifth Circuit. But here there’s a dissent, arguing that come on, of course aquaculture is “the harvesting of fish.”
Which is right? Well, on the one hand, two votes are right, and for practical purposes, barring en banc or Supreme Court review, this is the law. But from an analytic perspective, this brings us to Title VII, and whether a 1964 law banning discrimination on the basis of sex applies to sexual orientation, because the question is basically the same. Do you look at the words up-close to figure out what they mean, or do you take a little step back and ask yourself what the drafters were trying to accomplish? And here, it is pretty obvious the fisheries act was not meant to establish an aquaculture regime, so that’s the answer. If you instead look at it up close, you can see how hard the panel works to say that aquaculture is not “harvesting fish.”