Document Type

Case Note


The Fishery Conservation and Management Act of 1976 (Magnuson Act or Act) was enacted by Congress to conserve U.S. coastal fishery resources and to maximize the economic and social utility of those resources for U.S. citizens. The Act has a fisheries management goal of providing the "optimum yield" of all managed species, a concept which is based on the statistically derived quantity of "maximum sustainable yield" as modified "by any relevant economic, social, or ecological factor." The mandatory consideration of these three factors, coupled with the inherent uncertainty of fish stock assessment techniques, effectively places broad discretionary power in the Secretary of Commerce (Secretary) when promulgating yearly catch quotas. Considerable controversy has developed over the scope of this discretion. Consequently the question of whether the Secretary may protect the long-term viability of fish stocks to the economic detriment of commercial fishers has been examined by several federal courts. In one recent decision, Fishermen's Dock Cooperative, Inc. v. Brown, the Court of Appeals for the Fourth Circuit joined the weight of judicial authority by deferring to the technical expertise of the Mid- Atlantic Fishery Management Council (Council) in setting the annual fishery quota for the summer flounder fishery. Relying on a strong line of case law favoring broad agency discretion with regard to technical matters, the court of appeals unanimously upheld the Secretary's acceptance of the Council's recommendations, ruling that the quota determination was not arbitrary and capricious. In its ruling upholding the conservative quota, the court acknowledged the Secretary's mandated duty to protect the long-term viability of coastal fisheries resources. Moreover, the court recognized the discretionary power vested in the Council to determine which scientific methods meet the statutory standard of "best scientific information." By extending judicial approval to methods which tend to conserve resources rather than maximize short-term economic gains, the court recognized a functional approach for arriving at optimum yield where data and analyses suggest a heavily pressured and possibly overexploited fishery. This Note argues that such discretionary judgments should always favor the long-term conservation of fisheries, by employing methods and judgments which are risk-averse rather than risk-prone.



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