ELR Citation: ELR 20503
No(s). 91-5721 (11th Cir. Dec 29, 1992)

The court holds that it lacks sufficient factual findings to decide on appeal whether Florida's regulations on harvesting of Spanish mackerel are constitutional or are preempted by the Magnuson Fishery Conservation and Management Act. The court first finds that Congress established a federal fishery zone, the exclusive economic zone (EEZ), which runs from the outer limits of state territorial waters to 200 nautical miles seaward, provided states with an active role in managing the resources of the EEZ through their voting positions on a fishery management council, granted the ultimate responsibility for overseeing the program to the secretary of the Commerce Department, and left nothing pertaining to the EEZ for the states to regulate. These findings, combined with the legislative history of the Magnuson Act, support the position that Congress intended to occupy the entire field of fishery management in the EEZ. The court observes that the Act simply preserved a separation of authority established by the Fishery Management Act of 1966, which maintained a state's authority within its three-mile territorial seas held jointly with the federal government, and extended federal management of the fishery resources from nine miles to the newly created 200-mile zone. The court holds that the district court correctly held that a Florida landing law, which limits a fishing vessel registered and landing in Florida to a sliding scale catch of Spanish mackerel pounds per trip outside the state's territorial waters, conflicts with federal regulations. Under federal law, there is only an annual quota for total catch of Spanish mackerel, whereas the Florida law attempts to regulate fishery management activities in the EEZ by placing daily limits on the Florida vessels. Thus, it would be impossible for fishermen on a Florida vessel to land a catch approximating the federal quota in compliance with state law.

Counsel for Plaintiffs/Appellees
David P. Horan
Horan, Horan & Esquinaldo
608 Whitehead St., Key West FL 33040
(305) 294-4585

Counsel for Defendants/Appellants
Jonathan A. Glogau, Ass't Attorney General
Attorney General's Office
PL-01, The Capitol, Tallahassee FL 32399
(904) 487-1963

Counsel for Amicus Curiae
David C. Shilton, John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before TJOFLAT, Chief Judge, and FAY and COX, Circuit Judges.