Litigating Authority of the

Regional Fishery Management Councils

T h e legislative history and general sta tu to ry fram ew ork o f the Fishery C onservation and 

M anagem ent A ct o f 1976 indicate that C ongress did not intend the Regional Fishery 

M anagem ent C ouncils to have litigating au th o rity independent o f the D epartm ent of 

Justice, so as to enable them to challenge in cou rt a decision by the S ecretary o f 

C om m erce taken under the F C M A and relating to the establishm ent o f the C ouncils 

and th eir functions.

T h e C ouncils have neither express sta tu to ry au th o rity nor that freedom from executive 

co n tro l that w ould give rise to som e inference supportive o f th eir having independent 

litigating authority.

T h e general rule against inter-agency and intra-agency law suits arises not only from a 

desire for centralized co n tro l o f litigation, but also from the constitutional principle that 

disputes betw een entities subject to the co n tro l o f the President should be resolved 

w ithin the executive branch.

September 17, 1980

' MEMORANDUM OPINION FOR TH E GENERAL COUNSEL, 

NATIONAL OCEANIC AND 

ATMOSPHERIC ADM INISTRATION

You have asked this Office whether Regional Fishery Management 

Councils (Councils), established by the Fishery Conservation and Management Act of 1976 (FCMA), 16 U.S.C. §§ 1801-82, may, on their 

own behalf, challenge in court a decision by the Secretary of Commerce (the Secretary) taken under the FCMA and relating to the 

establishment of the Councils and their functions.1 We have concluded 

that the Councils do not have independent litigating authority, and 

cannot, therefore, challenge the Secretary’s actions in court.

The FCMA “adopts a somewhat convoluted scheme to achieve its 

purposes of conservation and management of fishery resources.” Washington Trollers Ass'n v. Kreps, 466 F. Supp. 309, 311 (W.D. Wash. 1979). 

This is at least in part the result of Congress’ desire to effect a compromise between the need for federal control of the nation’s marine resources and the states’ desire for authority over “their” fish. See 122 

Cong. Rec. 115 (1976); H.R. Rep. No. 948, 94th Cong., 2d Sess. 50

(1976); H.R. Rep. No. 445, 94th Cong., 1st Sess. 61-62 (1975);

1 In your letter you raised tw o issues. T he first, concerning boundaries between adjoining Councils, 

was addressed in our memorandum to you o f Decem ber 14, 1979 [3 Op. O .L.C . 464 (1979)].

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50 C.F.R. §601.1 (1979). As originally drafted, this legislation provided 

that the Secretary and the Councils were to be coordinate authorities:

The regional Councils are, in concept, intended to be 

similar to a legislative branch of government. . . . The 

Secretary of Commerce is given authority under the bill 

to act as the “executive,” with ultimate authority to make 

decisions about management regulations for the entire 

nation. . . . Finally, section 204 establishes an appellate 

body, theoretically comparable to the judicial branch, the 

Fishery Management Review Board. . . . The concept of 

an administrative review board of this nature is not new 

(i.e., the National Labor Relations Board) and will hopefully provide an independent review process with the ease 

of access and speed of decision that will give confidence 

to the decisionmaking process.

S. Rep. No. 416, 94th Cong., 1st Sess. 29 (1975). The Board “would 

have [had] exclusive and original jurisdiction to hear appeals from 

actions of the Secretary relating to fishery management. The purpose of 

the Board [was] to provide an independent review procedure for the 

settlement of disputes arising from the administration of the Act.” Id. at 

38-39.

Two groups could appeal to it:

(1) Any person who is adversely affected or aggrieved by, 

or who suffers legal wrong through [a final rule, regulation or decision of the Secretary, and,] . . .

(2) Any Council whose recommended management regulations were determined by the Secretary to be nonconsistent with the national standards ....

Id. at 58 (proposed § 204(c)(1), (2)).

This provision was included because the Senate committee believed 

that:

It is inevitable that disputes will arise with respect to 

fishery management decisions. To meet the need for dispute settlement, the bill establishes a Fishery Management 

Review Board. The Board, an independent quasi-judicial 

administrative body, would review disputes between the 

Secretary and the Regional Councils, as well as other 

disputes relating to fishery management decisions.

Id. at 5. Appeals from the Board to the Court of Appeals could only be 

brought by a person “who is adversely affected or aggrieved by, or 

who suffers legal wrong through, a decision of the Board . . . ,” not

by a Council. Id. at 59 (proposed § 204(g)).

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The Board, however, did not become a part of the final version of 

FCMA. The House and Senate, having passed different versions of 

FCMA, deleted it in conference, stating:

The implementation process provisions follow comparable 

provisions in the House bill and the Senate amendment [S.

961], except that . . . (2) the provisions in the Senate 

amendment establishing a 5-member, President-appointed 

“Fishery Management Review Board” to determine appeals from regulations promulgated by the Secretary is 

not included in the conference substitute in favor of judicial review.

H.R. Rep. No. 948, 94th Cong., 2d Sess. 55 (1976). Judicial review 

under FCMA is in accordance with the Administrative Procedure Act 

(APA). 16 U.S.C. § 1855(d). Review under the APA is available to “[a] 

person suffering legal wrong because of agency action, or adversely 

affected or aggrieved by agency action. ...” 5 U.S.C. § 702. The 

legislative history, therefore, indicates that Congress decided not to 

permit the Councils to challenge the Secretary’s decision administratively.

Under the FCMA, the Councils’ staff and administrative expenses are 

funded by Congress, and the disbursement of funds is controlled by the 

Secretary. 16 U.S.C. § 1852(0(7). The Secretary appoints a majority of 

the voting members to their three-year terms. 16 U.S.C. § 1852(b)(3). 

He provides the guidelines for the fishery management plans, 50 C.F.R. 

§602.1 et seq., and has final responsibility for their development, 16 

U.S.C. §§ 1854, 1855, and enforcement, 16 U.S.C. §§ 1856(b), 1858, 

1861, and for promulgation of regulations. The Councils, on the other 

hand, have a purely advisory function under the statute. 16 U.S.C. 

§ 1852(h). The Secretary can, if he wishes, develop a plan or implement 

a set of regulations of which a Council disapproves. 16 U.S.C. 

§§ 1854(c)(1)(B), (c)(2), 1855(c).

Given this framework, we believe that the Councils lack independent 

litigating authority. The conduct of litigation involving the United 

States or one of its agencies 2 is broadly reserved to the Department of

2 Agencies include "any departm ent, independent establishment, commission, administration, authority, board or bureau of the United States. . . 28 U.S.C. §451. All of the opinions discussing the 

Councils' status under various statutes appear to place them in at least one o f these categories. See

M emorandum Opinion for the G eneral Counsel, U.S. D epartm ent o f Commerce, National O ceanic and 

Atm ospheric Administration (N O A A ) from Leon Ulman, D eputy Assistant A ttorney General, Office 

of Legal Counsel, O ctober 14, 1977 [I Op. O.L.C. 239] (independent establishment under the Federal 

Tort Claims Act); memorandum for the D eputy G eneral Counsel, D epartm ent o f C om m erce from the 

Assistant A ttorney General, Civil Division, July 12, 1977 (agencies under Federal T ort Claims Act); 

memorandum for the D eputy G eneral Counsel, N OAA, from a staff attorney, N ovem ber 30, 1976 

(agency under the Administrative Procedure Act); memorandum for the G eneral Counsel, Departm ent 

o f C om m erce from the G eneral Counsel, NOA A (same); memorandum for the A cting General 

Counsel, D epartm ent o f C om m erce from the G eneral Counsel, Office o f M anagement and Budget, 

M arch 22, 1977 (statutory advisory committee); memorandum for the G eneral Counsel, N O A A from 

the Assistant General Counsel, G eneral Services Administration, September 30, 1977 (independent

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Justice. 28 U.S.C. §516. Without express authorization, an agency or 

department risks having the court dismiss its suit. Interstate Commerce

Comm’n v. Southern Railway Co., 43 F.2d 534, 536-38 (5th Cir. 1976); 

Federal Trade Commission v. Guignon, 390 F.2d 323, 324 (8th Cir. 

1968); Securities & Exchange Commission v. Robert Collier & Co., 76 

F.2d 939, 940 (2d Cir. 1935); Sutherland v. International Insurance Co.,

43 F.2d 969, 970-71 (2d Cir.) (L. Hand, J.), cert, denied, 282 U.S. 890 

(1930).3 Under the FCMA itself, for example, the Secretary must refer 

civil penalty and forfeiture proceedings to the Attorney General for 

enforcement. 16 U.S.C. §§ 1858(c), 1860(b)(c). In enacting the FCMA, 

Congress considered—and rejected—a statutory scheme that would 

have permitted the Councils to challenge before an administrative body 

the Secretary’s final decision. Congress knows how to draft a statute 

that would allow an agency to challenge a final order of another 

agency.4 In the absence of any such express statutory authority, the 

Councils may not litigate against anyone, including the Secretary.5 This 

will certainly not prevent states or individual council members from 

challenging the Secretary so long as they have standing to do so. See,

State of Maine v. Kreps, 563 F.2d 1043, 1045 n.l (1st Cir. 1977). This 

reading of the Councils’ authority also is consistent with the general 

principle that statutes should be construed so as to avoid doubts regarding their constitutionality, see generally, Kent v. Dulles, 357 U.S. 116 

(1958). As discussed below, construing the Councils to have such authority would raise a substantial constitutional question.

This general rule against inter- and intra-agency lawsuits arises not 

only from a desire for centralized control of litigation but also from the

establishment); memorandum for the General Counsel, N O A A from the Solicitor o f Labor, O ctober 19, 1979 (wholly owned instrumentality of the United States under the Social Security A ct and 

Federal Employees* Compensation Act); memorandum for the Departm ent o f Com m erce from the 

Chief, Wage, Excise and Administrative Provisions Branch, Internal Revenue Service, N ovem ber 22, 

1977 (wholly owned instrumentality under Federal Insurance Contributions Act). But cf. memorandum 

for the Assistant Secretary for Administration, Departm ent o f Com m erce from the Acting G eneral 

Counsel, United States Civil Service Commission, August 3, 1976 (public members not federal 

employees).

3 See The Gray Jacket. 72 U.S. (5 Wall.) 370, 371 (1866); 5 U.S.C. §3106; Exec. O rder No. 12,146, 

§ 1-4, reprinted in 28 U.S.C. § 509 App. at 1162 (Supp. Ill 1979); Exec. O rder No. 6,166, § 5 (1933), 

reprinted in 5 U.S.C. §§ 124-32 App. at 159 (1964); P. Bator, P. Mishkin, D. Shapiro & H. W echsler, 

Hart & WechsJer’s The Federal C ourts & the Federal System 1315-20 (2d ed. 1973 8t 1977 Supp ).

4 Under the Federal Coal Mine Safety A ct o f 1952 (the Act), for example, Congress set up a Coal

Mine Safety Board of Review (the Board). 30 U.S.C. § 475 (1964). The Board could overrule decisions 

made by the D irector o f the United States Bureau o f Mines. 30 U.S.C. § 477(a) (1964). T he Act 

specifically provided, how ever, that the D irector could then challenge any final order o f the Board in 

the Court o f Appeals. 30 U.S.C. § 478(a) (1964) (“ upon the filing in such court o f a notice o f appeal by 

the D irector . . . .”) See Director, United States Bureau o f Mines v. Princess Elkhorn Coal Co., 226 F.2d 

570 (6th Cir. 1955); Director. United States Bureau o f Mines v. Three Fork Coal Co.. 222 F.2d 425 (4th 

Cir. 1955) (appeal dismissed as untimely). T he Board was eliminated under the Federal Coal Mine 

Health and Safety Act o f 1969. S. Rep. No. 411, 91st Cong., 1st Sess. 38 (1969). Instead, Congress 

substituted “traditional administrative and judicial procedures.*’ Id. at 37-38. See 30 U.S.C. § 8l6(aX l) 

(Supp. Ill 1979). See also Klaus, The Taft-Hartley Experiment in Separation o f N LR B Functions. 11 

Indus & Lab. Rel. Rev. 371 (1958).

6 See Lee v. Civil Aeronautics Board. 225 F.2d 950, 951-52 (D.C. Cir. 1955); Davis, Standing o f a

Public Official To Challenge Agency Decisions: A Unique Problem o f State Administrative Law. 16 Ad. L. 

Rev. 163, 167, 168 (1964).

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constitutional structure of our government. Disputes between parts of 

the executive branch, each of which is ultimately responsible to the 

President, should be resolved within the executive branch. See Executive Order No. 12,146, § 1-4, reprinted in 28 U.S.C. § 509 App. at 1162 

(Supp. Ill 1979). Independence of an agency from the executive’s 

supervisory control may overcome this presumption.6 The Councils, 

however, have neither express statutory authority nor that freedom 

from executive control that would give rise to some inference supportive of their having independent litigating authority. However independent the Councils may be in their day-to-day operations, ultimate authority over a majority of their membership,7 budgets,8 and their major 

area of concern—the fishery management plans—remains with the Secretary or other federal agencies. The Councils perform the basic research, hold hearings, draft the plan for their area, and propose regulations. 16 U.S.C. §§ 1852(h), 1853(c). It is the Secretary, however, to 

whom the drafts and proposals are submitted and it is the Secretary 

who either approves the management plan or amends it to his satisfaction. 16 U.S.C. § 1854. See State o f Maine v. Kreps, 563 F.2d 1052, 

1055-56 (1st Cir. 1977). It is also the Secretary who reviews the 

regulations to insure their legality and who implements them. 16 U.S.C. 

§ 1855(c). That the Department of Commerce has found it most efficient to allow the Councils maximum leeway, see 50 C.F.R §601.1 

(1979), does not change an analysis based on the statutory framework. 

The Councils are subordinate parts of the Department of Commerce. 

Any attempt on their part to sue the Secretary would therefore raise a 

substantial constitutional question. .

We believe that the Councils are a part of the Department-of Commerce and subject to its overall control. In the absence of specific 

contrary legislation, they must be represented in any court proceeding 

by the Secretary’s lawyer, the Attorney General. Since the Councils 

cannot go into court without the Attorney General, the Councils have

6 See United States v. Nixon, 418 U.S. 683, 694-95 (1974); Federal Maritime Board v. Isbrandtsen, 356 

U.S. 481 (1958); Secretary o f Agriculture v. United States, 347 U.S. 645 (1954); Chapman v. FPC,- 345 

U.S. 153 (1953); ICC v. Jersey City, 322 U.S. 503 (1944); United States v. ICC, 221 F. Supp. 584 

(D .D .C . 1963); Benson v. United States, 175 F. Supp. 265 (D .D .C . 1959); United States v. ICC, 142 F. 

Supp. 741 (D .D .C . 1956).

7 T he Secretary appoints a majority o f the voting members from lists submitted by each state's 

governor. 16 U.S.C. § 1852(b)(1)(B). The nonvoting members represent various federal agencies. 16 

U.S.C. f 1852(c). W hether the Secretary may freely rem ove the voting members whom he appoints, 

16 U.S.C. § 1852(bXlXC), need not be decided. It appears, how ever, that the Councils’ functions are 

primarily executive, not legislative or judicial. Wiener v. United States, 357 U.S. 349, 351-53 (1958); 

Lewis v. Carter, 436 F. Supp. 958, 961 (D .D .C . 1977).

* T h e Secretary pays for the Councils’ necessary staff and administration. 16 U.S.C. § 1852(0(7).

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no authority to bring suit on their own behalf to challenge a decision 

by the Secretary taken under FCMA and relating to the establishment 

of the Councils or their functions.

L a r r y L . Sim m s

Deputy Assistant Attorney General

Office of Legal Counsel

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