March 26, 1996
Senator Charlie Albertson Representative Jonathan Robinson Co-Chairs, Legislative Research Commission Committee to Study Withdrawal from the Atlantic States Marine Fisheries Compact Legislative Office Building Raleigh, North Carolina
Re: Advisory Opinion; Constitutionality of the Atlantic Coastal Fisheries Cooperative Act; 16
U.S.C. §§ 5101 et seq.
Dear Co-Chairmen:
We have carefully reviewed the questions presented in your letter dated 22 February, 1996. In the course of our examination, we have also consulted with the Executive Director of the Atlantic States Marine Fisheries Commission (hereinafter ASMFC) and with Messrs. Berkley and Davis, the trial counsel for the North Carolina Fisheries Association, to obtain their respective opinions about the constitutionality of the Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. 5101 et seq. (hereinafter Atlantic Coastal Act). From our research, we offer the following Advisory Opinion in reply to the questions presented in your letter. The Advisory Opinion is divided into two parts. In the first section, we present summary answers to your questions. In the second part, we provide a detailed explanation of the reasoning and analysis leading to our reply.
Summary of Opinion
- "Did the Atlantic Coastal Fisheries Cooperative Management Act expand the powers of the ASMFC as established in the interstate compact approved by the Congress in 56 Stat. 267 (1942) and by 64 Stat. 467 (1950)?"
- Reply: Yes. The powers conferred on the ASMFC by the interstate compact approved by Congress were limited to making recommendations to the member states, unless the states expressly consented to ASMFC binding regulations. The Atlantic Coastal Act enacted by Congress in 1993 expanded the ASMFC’s power to make its decisions binding on the states, as defined in the Act, without the consent of the states.
- "Did the Atlantic Coastal Fisheries Cooperative Management Act alter the purposes of the ASMFC as established in the interstate compact approved by the Congress?"
Reply: Yes. The original purpose of the ASMFC was to establish a cooperative, voluntary fisheries management program. Pursuant to Amendment No. 1 of the Compact approved by Congress in 1950, member states could choose to designate the ASMFC as a joint regulatory agency "for the regulation of the fishing operations of the citizens and vessels of such designation states with respect to specific fisheries in which such states have a common interest." The original purpose of establishing a means for the voluntary and cooperative regulation of fisheries by the member states was changed by Congress when it enacted the Atlantic Coastal Act. That Act empowered the ASMFC to make binding decisions, enforceable against the states through sanctions levied by the United States Secretary of Commerce, even when there has been no determination by the states to join in a particular regulatory program.
3. "If Congress altered the powers and/or purposes of the ASMFC by adoption of the Atlantic Coastal Fisheries Cooperative Management Act, did adoption of the Act thereby violate limitations imposed by the U.S. Constitution on Congress in the adoption of statutes? In particular, did the adoption of the Act violate the Compact Clause or the Tenth Amendment?"
Reply: This question cannot be answered with certainty. The constitutional provisions at issue are complex and have been the subject of shifting interpretation by the U.S. Supreme Court.
- (a)
- Compact Clause. If the Congress was authorized to adopt the Atlantic Coastal Act through the Commerce Clause, it is unlikely the Compact Clause was violated when Congress amended the powers and purposes of the ASMFC through adoption of the Atlantic Coastal Act without the consent of the member states. The Congress is not prohibited by its ratification of a compact from using its Commerce Clause power to adopt new statutes in areas covered by compacts and which affect members of compacts. The Atlantic Coastal Act would likely be held to be such a statute; it established the federal power to regulate migratory fish stocks and conferred the power on a pre-existing compact-created agency, the ASMFC. Regulating the harvesting of migrating stocks of fish is probably within Congress’ power under the Commerce Clause.
- (b)
- Tenth Amendment. In New York v. United States, 505 U.S. 144 (1992), the Supreme Court held that Congress cannot commandeer the states by compelling the adoption of laws or rules to carry out its policies, thereby avoiding the political consequences of its decisions. The Atlantic Coastal Act treads closely to that line. Because it treads so closely to the limits of the Tenth Amendment, it is possible the Court would apply its New York holding to find the Act was adopted in violation of the Tenth Amendment.
Two practical considerations might cause the courts not to apply the New York holding to the Atlantic Coastal Act. Experience has confirmed the interjurisdictional fisheries cannot be managed effectively without a federally empowered agency able to control the states, or fishermen licensed by states. The Congressional history of the Atlantic Coastal Act, as well as its "Findings and Purpose" section, make that fact indisputable. Additionally, the history of the Act shows the states sought this form of regulation instead of direct control by the traditional federal fisheries management agency, the Department of Commerce.
Analysis and Discussion The Atlantic States Marine Fisheries Compact (hereinafter referred to as the Compact), which created the ASMFC, was approved by the Congress in 1942. North Carolina joined the Compact in 1949. 1949 N.C. Sess. Laws ch. 1086. The Congress approved the only amendment of the Compact in 1950.
The original Compact defined the role of the ASMFC as (1) the preparation and submission of recommendations to "the governors and legislatures of the various signatory state legislatures,"
(2) providing consultation and advice "to the pertinent administrative agencies in the states party hereto with regard to problems connected with the fisheries and recommend[ing] the adoption of such regulations as it deems advisable," and (3) "recommend[ing] to the states party hereto the stocking of the waters of such states with fish and fish eggs . . ." See Compact, Article V. No provision of the Compact made the actions of the ASMFC binding or enforceable against the states without their individual consent and affirmative action. By the Compact, the ASMFC had no power or authority over non-member states.
The 1950 amendment of the Compact allowed, but did not require, the states to designate the ASMFC as a joint regulatory agency for consenting states. In that capacity, the ASMFC exercises the regulatory authority of the consenting states. It, however, was granted no independent regulatory power by the amendment.
The Atlantic Coastal Act radically changed the powers of the ASMFC. These new powers are derived from the Act, and thus are powers of the United States conferred on the ASMFC by the Congress. They include, e.g., the power to "specif[y] conservation and management actions to be taken by the States [regardless of whether the state is a compact member]; to "specify the requirements necessary for States to be in compliance with the [ASMFC] plan"; to "identify each State that is required to implement and enforce that plan"; to determine, at least annually, whether each "State is effectively implementing and enforcing each such plan"; to "determine that a State is not in compliance with the provision of a coastal fishery management plan"; and to notify the Secretary of Commerce that a State is not in compliance with a plan. 16 U.S.C. §§ 5104; 5105. The Atlantic Coastal Act also expands the jurisdiction of the ASMFC from the management of fishing activities to include conservation of the "marine environment, in order to assure the availability of coastal fisheries resources on a long-term basis." 16 U.S.C. § 5102(4). Recently, the ASMFC proposed to use this authority to regulate states in the implementation of the Clean Water Act program, coastal development permits, and the Federal Power Act for dams or water diversion.
A determination by the ASMFC of noncompliance by a state is reviewed by the U.S. Secretary of Commerce. If the Secretary concurs in the finding of noncompliance "and finds the measures not implemented" are necessary for the conservation of the fishery in question, "the Secretary shall declare a moratorium on fishing in the fishery in question within the waters of a noncomplying State." 16 U.S.C. § 5106(c). The Secretarial moratorium is implemented against persons fishing in the state’s waters. 16 U.S.C. § 5106(d)-(h). There is no direct sanction, or punishment, of the state as a state.
Thus, we conclude that the powers of the ASMFC were expanded by the Atlantic Coastal Act and the purposes of the ASMFC were altered by the Act. The ASMFC has become the agency charged by the Congress with establishing and implementing fisheries management for migratory fish stocks in waters along the Atlantic seaboard that were historically state controlled. In the discharge of that power and duty, the ASMFC is exercising the sovereignty of the United States, rather than the collective power of the subscribing states. This is plain from the ASMFC’s power to order management actions by non-member states and by dissenting member states.
Congress’ amendment of the powers of the ASMFC by the Atlantic Coastal Act raises two constitutional questions. First, did Congress’ unilateral amendment of the powers conferred on the ASMFC by the Compact violate the Compact Clause of the United States Constitution? Second, did Congress violate the Tenth Amendment to the United States Constitution when it enacted the Atlantic Coastal Act?
Violations of Compact Clause Whether Congress’ unilateral amendment of the powers of the ASMFC through enactment of the Atlantic Coastal Act violated the Compact Clause depends to a great extent on whether Congress had the power to enact the Atlantic Coastal Act under the Commerce Clause of the United States Constitution.
The Commerce Clause, Art. 1, § 8, clause 3 of the U.S. Constitution provides: "The Congress shall have Power. . . . To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes." The Supreme Court’s interpretation of the clause was quixotic until the late 1930’s. In 1937, the Court abandoned its previously applied limits on the powers of Congress to regulate commerce and appeared to "allow Congress to do anything it wants under the commerce power." Donald H. Regan, "How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez," 94 Michigan Law Review 554-614, 555 (1995). The first limit on the apparently limitless scope of the Commerce Clause power occurred in 1995. In United States v. Lopez, 115 S. Ct. 1624 (1995), the Gun-Free School Zone Act was held unconstitutional to the extent it made criminal the conduct of possessing a firearm at a school or within 1000 feet of a school. The Court held that enactment of the statute was not within the Commerce Clause power of the Congress because possession of a gun within a school zone was "in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at 1634. In their concurring opinion, Justices Kennedy and O’Connor focused on the absence of any commercial character in the action or the conduct and on the fact that "education is a traditional concern of the States." Id. at 1640. For them, the operative test for determining the limit on the Commerce Clause power of the Congress is whether the legislation (1) concerns "an area to which States lay claim by right of history and expertise" and (2) regulates "an activity beyond the realm of commerce in the ordinary and usual sense of that term." Id. at 1641.
The harvest of fish from the internal waters of the States and the territorial seas of the States is an area to which the States can lay claim by right of history and expertise. The right of the states to regulate fishing has long been recognized. Toomer v. Witsell, 334 U.S. 385, 393-94 (1948); The Vessel `Abby Dodge’ v. U.S., 223 U.S. 166, 173-74 (1912); McCready v. Virginia, 94 U.S. 391, 393-96 (1877). Despite that recognition of the traditional power of states, the Supreme Court has consistently recognized in dicta the power of the Congress to regulate within this field under the Commerce Clause. Manchester v. Massachusetts, 139 U.S. 240, 264-66 (1890) [menhaden fishing in the territorial sea]; Douglas v. Seacoast Products, Inc., 431 U.S. 265, 28182 (1977) [menhaden fishing]; Baldwin v. Montana Fish and Game Comm’n, 436 U.S. 371, 393 (1978) [wildlife regulation]. Dictum in Douglas is specific to this question and likely would be applied to control the question:
While appellant may be correct in arguing that at earlier times in our history there was some doubt whether Congress had power under the Commerce Clause to regulate the taking of fish in state waters, there can be no question today that such power exists where there is some effect as interstate commerce. [citations omitted] The movement of vessels from one State to another in search of fish, and back again to processing plants, is certainly activity which Congress could conclude affects interstate commerce.
Douglas, 431 U.S. at 281-82. Another court, within the Fourth Circuit, reached the same conclusion regarding the harvest of blue crabs from Chesapeake Bay.
This dictum [from Douglas] clearly indicates that if Congress had chosen to regulate the crab industry it would have the power to do so under the Supreme Court’s view of the Commerce clause, the language of McCready regarding the planting of corn notwithstanding.
Tangier Sound Watermen’s Assoc. v. Douglas, 541 F. Supp. 1287, 1304 (E.D. Va. 1982).
Based on these cases, we conclude that under the Lopez test the Atlantic Coastal Act will likely be held to be an act adopted within the Commerce Clause power of the Congress.
The Compact Clause of Art. I, § 10, clause 3 of the U.S. Constitution provides: "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign power . . ." The Supreme Court has construed the clause on numerous occasions.
The enlarged powers and duties granted to the ASMFC under the Atlantic Coastal Act effectively amended the Compact by converting an advisory body with regulatory powers by consent into a regulatory body which required no consent to regulate the states. Our research discloses no case which determined the law concerning the power of the Congress to unilaterally amend a compact. However, three federal courts have discussed the question in dicta. From their discussion and our own analysis, we conclude that the Congress cannot unilaterally alter, amend, or repeal its approval of compacts after the fact. See Mineo v. Port Authority of N.Y. and N.J., 779 F.2d 939, 948 (3rd Cir. 1985), cert. denied, 478 U.S. 1005 (1986); Tobin v. United States, 306 F.2d 270, 272-73 (D.C. Cir.), cert. denied, 371 U.S. 902 (1962); Riverside Irrigation Dist. v. Andrews, 568 F. Supp. 583, 589-90 (D. Colo. 1983), aff’d, 758 F.2d 508 (10th Cir. 1985).
However, congressional approval of a compact does not bar the Congress from adopting laws that impair or impact the subject area of compacts. Riverside, 568 F. Supp. at 589. Compacts do not "operate as a restriction upon the power of congress under the constitution to regulate commerce among the several states." Pennsylvania v. Wheeling and Belmont Bridge Co., 59
U.S. 421, 433 (1855). A subsequent federal law of nationwide applicability is enforceable even if it affects a prior compact. Riverside, 568 F. Supp. at 590. Accordingly, the Congress likely did not violate the Compact Clause power when it enacted the Atlantic Coastal Act and enlarged the powers of the compact-created ASMFC so long as it acted to implement its powers under the Commerce Clause. Because we conclude that the Atlantic Coastal Act likely lies within Congress’ power under the Commerce Clause, it is unlikely that a Compact Clause violation would be found by a reviewing court.
Tenth Amendment The Tenth Amendment to the U.S. Constitution provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Like the Commerce Clause, the Tenth Amendment has had a mercurial history. After effectively declaring it dead in 1985, the Court revived it in 1992. In New York v. U.S., 505 U.S. 144 (1992), the Court applied the Tenth Amendment to strike down the "take title" provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985. In reaching that decision, the Court applied a three-part test: First, does the statute regulate states as states; second, does the statute "commandeer state governments into the service of federal regulatory purposes," in the place of the Congress by a requirement to enact laws or rules; third, are sanctions in the statute by which the state is commandeered directed at the state instead of its citizens as individuals.
The Atlantic Coastal Act clearly meets the first two criteria. The only entities required to act in response to ASMFC dictates are states. The purpose of the statute is to commandeer state regulatory agencies to implement by the adoption of laws or rules a federal program created by the ASMFC under authority of the Atlantic Coastal Act as the agent of the Congress. However, the sanction for fisheries management violation of the Act does not fall directly on the states. Instead, upon violation the Secretary promulgates regulations closing the state’s waters to fishing if conservation is deemed necessary within the waters of the state. 16 U.S.C. § 5106(d). The regulations are directed at and control the harvest of fish, an activity by persons and not "the state." 16 U.S.C. § 5106(e)-(g).
In a 1993 opinion striking the Forest Resources Conservation and Shortage Relief Act, the Ninth Circuit Court of Appeals rejected arguments by the United States Department of Justice that the New York decision is always inapplicable when the statute provides for no sanction against the state. Board of Natural Resources v. Brown, 992 F.2d 937, 947 (9th Cir. 1993). Two factors suggest that the absence of direct sanctions against the states under the Atlantic Coastal Act may not insulate it from Tenth Amendment challenges. For that reason, New York and its subsequent interpretations must be examined to determine whether the absence of direct regulation of the states by states would defeat a Tenth Amendment claim.
First, the New York Court held that statutes should be rejected which have the effect of transferring political accountability, through public disapproval, from federal officials to state officials. The crux of the question becomes whether "the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision." New York, 505 U.S. at 169. Like the "take title" for hazardous waste provision at issue in the New York case, the sanction applicable under the Atlantic Coastal Act extends beyond the immediate community and affects the general welfare of the state. The prohibition on harvest will affect many more fishermen and citizens than those fishermen who would be regulated if the state implemented the federal policy. The likely result will be for the public to assign fault for the additional regulations to state, not federal, authorities. Should the Court so find, the Atlantic Coastal Act could be held unconstitutional under the New York decision.
Secondly, and more significantly, is the New York Court’s discussion of the "variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests." New York, 505 U.S. at 166. Of the two means of incentives examined in New York, the second is relevant to this inquiry: "where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress’ power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation." Id. at 167. In New York, Justice O’Connor distinguished two prior decisions involving statutes which gave states the option to adopt federal policies and implement them or allow the federal government to run the program. New York, 505 U.S. at 161, citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981) and FERC v. Mississippi, 456 U.S. 742, 761-62 (1982). No such option is presented by the Atlantic Coastal Act. There is no authority for any federal entity, including the ASMFC, to implement the recommendations of an ASMFC fisheries management plan. The sole implementing authorities are the states. Consequently, it appears that the Act does not contain the types of incentives previously found by the courts to be acceptable. The only "incentive" for the states to adopt laws or rules implementing federal fisheries management policies is to avoid the sanction of closure of the total fishery, regardless of whether such action is required to support the affected fishery. The Secretary is without the power to merely implement the recommended measures in the non-compliant state. The only option is the more draconian total moratorium. Under New York then, the principal question becomes whether Congress’ method of holding out incentives (a possible fishing moratorium) to influence state fisheries management policies is valid. Under the Supreme Court’s analysis in New York, the method of effectuating federal policy set out in the Atlantic Coastal Act appears to not be within the scope of previously recognized means whereby Congress may legitimately influence states to achieve federal policy goals. If New York is appropriately applicable in the present context, it appears the Atlantic Coastal Act will likely violate the Tenth Amendment.
However, we are concerned that two practical considerations might cause the courts not to apply the New York holding to the Atlantic Coastal .Act. Experience has confirmed the interjurisdictional fisheries cannot be managed effectively without a federally empowered agency able to control the states, or fishermen licensed by states. The Congressional history of the Atlantic Coastal Act, as well as its "Findings and Purpose" section, make that fact indisputable as a matter of law. Additionally, the history of the Act shows the states sought this form of regulation instead of direct control by the traditional federal fisheries management agency, the Department of Commerce.
Daniel C. Oakley Senior Deputy Attorney General
Daniel F. McLawhorn
Special Deputy Attorney General