Case: 19-30006 Document: 00515515221 Page: 1 Date Filed: 08/04/2020 REVISED August 4, 2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 3, 2020 No. 19-30006 Lyle W. Cayce Clerk Gulf Fishermens Association; Gulf Restoration Network; Destin Charter Boat Association; Alabama Charter Fishing Association; Fish for America USA, Incorporated; Florida Wildlife Federation; Recirculating Farms Coalition; Food & Water Watch, Incorporated; Center for Food Safety, Plaintiffs—Appellees, versus National Marine Fisheries Service; Eileen Sobeck, in her official capacity as Assistant Administrator for Fisheries; Doctor Roy Crabtree, in his official capacity as Regional Administrator, Southeast Region, National Oceanic and Atmospheric Administration; Doctor Kathryn Sullivan, in her official capacity as Under Secretary of Commerce for Oceans and Atmosphere and Administrator for National Oceanic and Atmospheric Administration; Wilbur Ross, in his official capacity as United States Secretary of Commerce, Defendants—Appellants. Case: 19-30006 Document: 00515515221 Page: 2 Date Filed: 08/04/2020 No. 19-30006 Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:16-CV-1271 Before Higginbotham, Higginson, and Duncan, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: We consider whether a federal agency may create an “aquaculture,” or fish farming, regime in the Gulf of Mexico pursuant to the Magnuson- Stevens Fishery Conservation and Management Act of 1976 (“Magnuson- Stevens Act” or “Act”), 16 U.S.C. §§ 1801–83. The answer is no. The Act neither says nor suggests that the agency may regulate aquaculture. The agency interprets this silence as an invitation, but our precedent says the opposite: Congress does not delegate authority merely by not withholding it. See Texas v. United States, 809 F.3d 134, 186 (5th Cir. 2015), aff’d by equally divided Court, 136 S. Ct. 2271 (2016). Undaunted, the agency seeks authority in the Act’s definition of “fishing”—the “catching, taking, or harvesting of fish.” 16 U.S.C. § 1802(16) (emphasis added). “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. We will not bite. If anyone is to expand the forty-year-old Magnuson-Stevens Act to reach aquaculture for the first time, it must be Congress. We therefore AFFIRM the district court’s ruling that the challenged aquaculture rule exceeds the agency’s statutory authority. See 81 Fed. Reg. 1762 (Jan. 13, 2016), codified at 50 C.F.R. pts. 600 and 622. 2 Case: 19-30006 Document: 00515515221 Page: 3 Date Filed: 08/04/2020 No. 19-30006 I. A. The Magnuson-Stevens Act seeks to “conserve and manage the fishery resources found off the coasts of the United States.” 16 U.S.C. § 1801(b)(1); see also Delta Commercial Fisheries Ass’n v. Gulf of Mexico Fishery Mgmt. Council, 364 F.3d 269, 271 (5th Cir. 2004) (the Act “aims to preserve fishery resources by preventing overfishing”). Congress passed the Act in 1976 after finding that aggressive fishing practices, especially by foreign trawlers, had imperiled important fish stocks and the coastal economies dependent on them.1 See 16 U.S.C. § 1801(a)(2) ...
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