United States v. Saunders

• Decision Date: 05 July 2016
• Docket Number: No. 15–4505,No. 15–4498, No. 15–4501, No. 15–4506,15–4498
• Parties: United States of America, Plaintiff–Appellant, v. Gaston L. Saunders, Defendant–Appellee. Atlantic States Marine Fisheries Commission, Amicus Supporting Appellant. United States of America, Plaintiff–Appellant, v. Bryan H. Daniels, Defendant–Appellee. Atlantic States Marine Fisheries Commission, Amicus Supporting Appellant. United States of America, Plaintiff-Appellant, v. Michael Potter, Defendant-Appellee. Atlantic States Marine Fisheries Commission, Amicus Supporting Appellant. United States of America, Plaintiff-Appellant, v. Stephen Daniels, Defendant-Appellee. Atlantic States Marine Fisheries Commission, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

828 F.3d 198

United States of America, Plaintiff–Appellant

v.Gaston L. Saunders, Defendant–Appellee.

Atlantic States Marine Fisheries Commission, Amicus Supporting Appellant.

United States of America, Plaintiff–Appellant

v.Bryan H. Daniels, Defendant–Appellee.

Atlantic States Marine Fisheries Commission, Amicus Supporting Appellant.

United States of America, Plaintiff-Appellant

v.Michael Potter, Defendant-Appellee.

Atlantic States Marine Fisheries Commission, Amicus Supporting Appellant.

United States of America, Plaintiff-Appellant

v.Stephen Daniels, Defendant-Appellee.

Atlantic States Marine Fisheries Commission, Amicus Supporting Appellant.

No. 15–4498

No. 15–4501

No. 15–4505

No. 15–4506

United States Court of Appeals, Fourth Circuit.

Argued: May 12, 2016

Decided: July 5, 2016

ARGUED: Brian C. Toth, United States Department of Justice, Washington, D.C., for Appellant. Joseph Edward Zeszotarski, Jr., Gammon, Howard, Zeszotarski, PLLC, Raleigh, North Carolina, for Appellees. ON BRIEF: John C. Cruden, Assistant Attorney General, Environment & Natural Resources Division, United States Department Of Justice, Washington, D.C.; Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellant. John P. O'Hale, Narron, O'Hale & Whittington, PA, Smithfield, North Carolina, for Appellees. Sean H. Donahue, Donahue & Goldberg, LLP, Washington, D.C., for Amicus Curiae.

Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and Norman K. MOON, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Reversed and remanded by published per curiam opinion

PER CURIAM:

Four commercial boat captains were charged with violating the Lacey Act after they caught Atlantic striped bass in federal waters and later sold them. The Lacey Act, through its incorporation of a federal regulation, criminalizes the taking and selling of Atlantic striped bass from federal waters. The Act, however, exempts from prosecution fishing that is “regulated by a fishery management plan in effect” under the Magnuson–Stevens Fishery Conservation and Management Act (“Magnuson–Stevens Act”). 16 U.S.C. § 3377(a)

. Citing that exception, the captains moved to dismiss the indictments.

The district court granted the motions based on two premises. It first found that a fishery management plan created by the Atlantic States Marine Fisheries Commission (“Commission”) and referenced in the Atlantic Striped Bass Conservation Act (“Bass Act”) must be treated as a plan in effect under the Magnuson–Stevens Act.¹

Next, the district court reasoned that the Commission's plan regulated the boat captains' activity in federal waters. Thus, the district court found that the exception applied.

We conclude, however, that the text of the plan created by the Commission and referenced by the Bass Act in fact regulates only state coastal waters, and accordingly does not regulate fishing in federal waters. The only possible hook to federal waters in the Commission's plan is the general statement that the Secretary of Commerce has authority to regulate bass fishing in federal waters. Even if this statement was enough to say that the plan regulated federal waters (which it is not), the provision would be invalid, because the Commission—a collection of state representatives—has no authority to delegate power over federal waters to the Secretary of Commerce.

Accordingly, we remand these cases to the district court with instructions to reinstate the indictments.

I. THE INDICTMENTS

The Appellees Gaston Saunders, Bryan Daniels, Michael Potter, and Stephen Daniels (hereinafter referred to as “Captains”) are the captains of commercial fishing vessels. During 2009 and 2010, the captains each harvested several tons of bass from federal waters (known as the “exclusive economic zone,” or EEZ² ), which they subsequently transported and sold to commercial seafood dealers.³

Based on these actions, on January 15, 2015, the Government brought separate indictments containing multiple Lacey Act counts against each captain. The Government now appeals the district court's dismissal of the indictments against Captains Potter and Stephen Daniel in full and against Captains Saunders and Bryan Daniels in part.⁴ We consolidated the four cases.

II. THE REGULATORY FRAMEWORK

A. The Lacey Act

The Lacey Act makes it a crime to take wildlife in violation of some other federal law. Specifically, it is illegal to, inter alia , transport, acquire, or sell any fish “taken possessed, transported, or sold in violation of any law, treaty, or regulation of the United States ....” 16 U.S.C. § 3372(a)(1)

. If one does so “by knowingly engaging in conduct that involves” the sale of such ill-gotten fish having a market value over $350, then he may be imprisoned, fined, or both. Id. § 3373(d)(1)(B).

Because the Bass Act, described below, forbids anyone from harvesting, retaining, possessing, or fishing for bass in the EEZ, the captains allegedly violated the Lacey Act when they caught several tons of bass in the EEZ during 2009 and 2010.

B. The Bass Act and the Commission

Congress has found that Atlantic striped bass are commercially, economically, and recreationally important. 16 U.S.C. § 5151(a)(1)

. Due to their migratory nature, “[n]o single government entity has full management authority” over bass. Id. § 5151(a)(2). Congress enacted the Bass Act “to support and encourage the development, implementation, and enforcement of effective interstate action regarding the conservation and management of the Atlantic striped bass.” Id. § 5151(b). To accomplish this goal, the Bass Act divides regulatory authority over Atlantic striped bass into two distinct, but interrelated, schemes: (1) federal waters and (2) state coastal waters.

First, Congress outlined the regulation of bass in federal waters. 16 U.S.C. § 5158

; see id. §§ 5152(6), 1802(11) ; supra footnote 2. Section 5158(a) commands the Secretary of Commerce to “promulgate regulations governing fishing for Atlantic striped bass in the exclusive economic zone ....” The Secretary of Commerce must “consult” with, among others, the Commission when preparing her rules. Id. § 5158(b). In addition to other standards, her regulations must be “compatible with the Plan and each Federal moratorium in effect on fishing for Atlantic striped bass within the coastal waters of a coastal State.” Id. § 5158(a)(2) (emphasis added).

A state coastal waters “plan” under the Bass Act is a plan (or amendment to such plan) for managing bass “that is prepared and adopted by the Commission.” 16 U.S.C. §§ 5152(5)

, 5152(10). The Bass Act instructs the Commission to annually determine whether its member-States have adopted measures for their “coastal waters” (i.e. , zero to three miles offshore) that fully implement and satisfactorily enforce the Commission's plan. Id. § 5153(a); see id. § 5152(3). The Commission then notifies both the Secretary of Commerce and Secretary of Interior (“Secretaries”) of each such “negative determination.” Id. § 5153(c); see id. § 5152(3). At that point, the Secretaries jointly determine whether the particular State is, in fact, in compliance with the Commission's plan. If not, the Secretaries “declare jointly a moratorium on fishing for Atlantic striped bass within the coastal waters of that coastal State,” violation of which is punishable civilly. Id. §§ 5154(a), (c). The prospect of this federally-imposed moratorium therefore acts as an enforcement mechanism against recalcitrant States that refuse to abide by the Commission's plan governing state coastal waters.⁵

A brief comment on the Commission's history further illuminates the genesis and structure of the Bass Act. States cannot enter into any agreement or compact without the consent of Congress. U.S. Const. art. I, § 10, cl. 3

. In 1941, Congress approved the interstate compact that created the Commission and endeavored to better manage fish populations on the Atlantic seaboard. Pub. L. No. 77–539, 56 Stat. 267 (May 4, 1942); see also Pub. L. No. 81–721, 64 Stat. 467 (Aug. 19, 1950) (approving addition of new States and repealing limitation on the life of the compact); New York v. Atl. States Marine Fisheries Comm'n , 609 F.3d 524, 528 (2d Cir. 2010)

; Rhode Island Fishermen's All., Inc. v. Rhode Island Dep't of Envtl. Mgmt. , 585 F.3d 42, 46 (1st Cir. 2009). Under the compact, each State appoints members to the Commission, which is charged with investigating conservation measures, offering suggestions for coordination of the States' police powers, and presenting recommended legislation to the member-States. 56 Stat. 267-68; New York , 609 F.3d at 528.

Exercising these powers, the Commission in 1981 issued its first plan for Atlantic striped bass fishing in state coastal waters. Atlantic States Marine Fisheries Commission, Fisheries Mgmt. Rep. No. 1: Interstate Fisheries Mgmt. Plan of the Striped Bass (Oct. 1981) (“1981 Plan”). Faced with declining bass populations, the 1981 Plan put forth several “recommended management measures.” Id. at 1–1 & 1–4. But “attempts at implementing the plan failed due to [the Commission's] lack of direct regulatory authority over the individual Atlantic states.” Note, Thomas Rapone, The EEZ Solution to Striper Management: Why the Federal Government Should Ban the Commercial Harvest of Striped Bass Once and for All , 44 Suffolk U. L. Rev. 567, 569 (2011)

; see id. at 577 (observing that as the product of “a mere interstate compact, the [Commission] still lacked the regulatory authority to force individual states to comply”); New York , 609 F.3d at 528 ; see also Atlantic States Marine Fisheries Commission, Fishery Mgmt. Rep. No. 41, Amend. 6 to the Interstate Fishery Mgmt. Plan for Atl. Striped Bass , at p.39 § 5.0 (Feb. 2003) (“Amendment 6”) (observing that “Commission does not have the authority to directly compel state/jurisdictional implementation of the measures” propo...