When Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act in 1976, it intended the Act to operate largely without the courts. Indeed, since the statute’s enactment, the National Oceanic and Atmospheric Administration (NOAA) and the regional Fisheries Management Councils have published over 1700 regulatory actions in the Federal Register, but cases challenging fisheries management have been relatively limited.
Given how much fisheries management “flies under the courts’ radar,” so to speak, it is worth asking what kinds of cases do end up in the courts. This article presents an initial quantitative assessment of federal fisheries litigation since 1976 to begin to assess the role of the courts in federal fisheries management. It concludes first that the 1996 and 2006 amendments to the Magnuson-Stevens Act, each of which added enforceable ecological requirements, both increased the amount of environmentally-minded litigation brought under that statute. Nevertheless, contrary to many perceptions, fishermen always have been the Act’s primary litigants, arguably confounding Congress’s original intent for fisheries management.