Fourth Circuit Holds Catch-and-Release Fishing Not Regulated by Federal Clean Water Act

The “Major Questions Doctrine” (MQD) has been the breakout star of the last two terms at the US Supreme Court. Earlier this month, the Fourth Circuit used MQD in upholding the dismissal of a nongovernmental organization’s (NGO) Clean Water Act (CWA) claims that fish thrown back after being caught were unwittingly illegally discharged CWA “pollutants.”

We break down the decision and what it means for the regulated community below.

In North Carolina Coastal Fishing Reform Group v. Capt. Gaston LLC, the Fourth Circuit upheld the dismissal of an NGO complaint alleging that CWA precluded shrimp trawlers from throwing bycatch — fish and marine organisms which the shrimp fishermen are not legally permitted to keep — overboard and disturbing sediment with their trawl nets because returning bycatch to the ocean from whence it came is not discharging a “pollutant.” Similarly, disturbing sediment already present in the ocean similarly did not violate CWA.

The “bycatch” dispute centered on CWA’s definition of “biological materials” as “pollutants.” Because CWA included some undefined biological materials as “pollutants,” in the NGO’s view, throwing back bycatch violated CWA. To avoid this literal interpretation, the Fourth Circuit noted that various “background principles” like MQD cautioned against overbroad intrusions in the regulatory space outside of what was intended by Congress. MQD — or similar rules, like those precluding regulation when other, preexisting regulations might cover the alleged conduct — precluded the plaintiffs’ claims here. In this space, other preexisting regulations included the Environmental Protection Agency’s (EPA) historic deference to states in regulating fisheries and statutes like the Sustainable Fisheries Act, which authorizes the National Marine Fisheries Service and Regional Fishery Management Councils, not EPA, to regulate bycatch.

The court rejected the plaintiffs’ sediment-focused claims for similar reasons; sediment which was moved by nets came from the ocean, and thus was not a “pollutant.” While sediment caught in nets might look like “dredged spoil” (i.e. materials removed by dredging) which could fall under CWA, dredged spoil materials were the “accumulated result of some excavation or land-altering activity” unlike sediment caught in nets, where movement of soil was inadvertent. In essence, the court found that if Congress wanted to ban use of fishing nets which would inadvertently capture sediment with CWA, it would have done so directly.

The Major Questions Doctrine

MQD has played a major role in three Supreme Court decisions in the past two terms, most recently appearing in the Supreme Court’s student loan decision in Biden v. Nebraska, discussed here, which built on MQD precedent from the prior term. (See our discussion here.) In the case, a six-judge majority found that even though the US Secretary of Education may have formalistically complied with statutory requirements to enact a student loan forgiveness program, the Secretary nevertheless lacked authority because the program was so vast in scope — $430 billion in total, potentially affecting nearly all student loan borrowers — and Congress alone has the power to resolve such “major questions.”

MQD playing a major role in the Fourth Circuit case is somewhat of a surprise. Citizen suit litigation generally exists to allow private parties to step in to enforce laws, not change them. Here, what NGOs demanded from private parties appears to have differed dramatically from how relevant regulations had been constructed by regulators. A suit like this, unmoored from regulatory precedent, generally would not require a MQD analysis as this analysis usually focuses on separation of powers and the creation of regulations, not direct statutory enforcement by private parties. How MQD will factor into other citizen suits is an issue worth keeping an eye on.

Fish, Fishermen, and Regulatory Reform

Finally, we wanted to note that it is somewhat fishy how often fish-related cases have surfaced tricky issues of statutory interpretation. In addition to North Carolina Coastal Fishing Reform Group, other recent statutory decisions featuring fish include:

  • Loper Bright v. Raimondo, set to be heard by the Supreme Court this term, stems from a dispute over National Marine Fisheries Service regulations which require certain fishing boat operators to provide onboard space to federal observers to ensure compliance with various federal regulations. (See our discussion here.) The Court is using Loper Bright to evaluate whether it should overrule the Chevron doctrine granting deference to administrative agencies.
  • Last year’s California state court decision in Almond Alliance of California v. California Fish and Game Commission, discussed here, in which a California appellate court upheld a California regulatory determination that bumble bees were “fish” for the purposes of the California Endangered Species Act (ESA). Relying on grandfathering language in the ESA, the court found that past precedent classifying any invertebrate as fish had been in essence adopted by the California legislature and that California regulator’s extending the term “fish” to include birds was permissible.

Members of the firm’s EnvironmentalEnergy & Cleantech, and AgTech groups regularly monitor state and federal court decisions with broad implications to the regulated community. Contact us with questions about how these efforts or programs affect you.


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