By Jonathan Stempel
Sept 3 (Reuters) - A federal appeals court said a council created by Congress to help the U.S. commerce secretary manage the nation's fisheries exercised unconstitutional powers, but refused to strike down a rule limiting the catch of a Gulf of Mexico fish.
• In a 3-0 decision on Thursday, the 11th U.S. Circuit Court of Appeals in Atlanta said the law creating the Gulf of Mexico Fishery Management Council improperly gave that body power to block various actions by the commerce secretary,
including repeals of fishery management plans designed to prevent overfishing and ensure sustainability.
• It nevertheless rejected a challenge by two commercial fishermen to a rule limiting the annual catch of gag grouper by an estimated 86%, saying the council's improper veto powers had nothing to do with that rule.
• The fishermen, Dominick and James Russo, said the rule should be voided because council members were improperly appointed and wielded significant federal authority, violating the U.S. Constitution's Appointments Clause.
• Many lawsuits, often seeking to limit U.S. regulatory power, have been filed over the years challenging the appointments of federal officials, including U.S. Securities and Exchange Commission administrative law judges and the U.S. Patent Trial and Appeal Board.
• While agreeing with two other federal appeals courts that the fisheries council had too much power, Circuit Judge Andrew Brasher said the "misallocation of authority" didn't justify addressing how council members were appointed, or vacating the gag grouper rule.
• "All agree that the veto powers had nothing to do with the rule," Brasher wrote. "Instead, the Council made an advisory proposal, which the [Commerce] Secretary independently adopted."
• Brasher ordered a lower court judge to enter a judgment favoring the government.
• "The law is clear that actions taken by unconstitutionally appointed officials are void," said Michael Poon, a lawyer from the libertarian Pacific Legal Foundation representing the Russos, in a statement. "We are considering our next steps.”
• The U.S. Department of Commerce did not immediately respond to requests for comment. Another defendant, the National Marine Fisheries Service, declined to comment.
(Reporting by Jonathan Stempel in New York; Editing by Cynthia Osterman and Stephen Coates)
