In 2002, the Fourth Circuit addressed preemption in the fisheries arena. The recent decision of the Ninth Circuit in Chinatown Neighborhood Assn v Kamala Harris 794 F.3d 1136, 2015 WL 4509284 (9th Cir. 2015) over California’s Shark Fin Law stands in contrast to the lessons highlighted below. The Supreme Court has been asked to address the Circuit split which resulted from the Chinatown case – it has not yet answered the Petition for Writ of Certiorari.
In City of Charleston v. A Fisherman’s Best, a divided Fourth Circuit Court of Appeals ruled that a City Resolution which targeted fishermen utilizing a specific gear type was preempted by duly adopted regulations of the federal government.
The City of Charleston desire to revitalize its waterfront and one of the major beneficiaries was to be a distressed local commercial fishing industry. Redevelopment of the Charleston Marine Center was to be a cornerstone of this revitalization effort. The City, through the Charleston County Park and Recreations Commission, accepted a proposal “to manage a full-scale commercial pier, sub-lease moorings to commercial shrimpers and fishing vessels, and operate related support facilities such as a retail/wholesale packing facility and fuel and ice”. A Fisherman’s Best was one of the parties whose proposal was accepted. The City, which initially supported the Center’s proposed use, had a change in heart. This resulted in terminating negotiations with the commercial fishing interest whose proposal had been accepted. The City Council of the City of Charleston enacted a Resolution which, in effect, closed off access to the Charleston Maritime Center (and its facilities) to vessels utilizing pelagic longline gear. The Resolution also barred commercial businesses from “purchasing, processing or unloading any fish from or caught by pelagic longline vessels.” It also contained a provision barring the sale, purchase, processing or unloading of any billfish or swordfish at its facilities.
Shortly after adopting the Resolution, the City brought suit seeking a declaratory judgment that the resolution did not violate the rights of the A Fisherman’s Best or the others who submitted the original proposal (collectively “Defendants”), and that operating the facility per the terms of the Resolution would not be forbidden under the Constitution of either the United States or the State of South Carolina, nor would it violate any federal or state law. Defendants raised numerous concerns about the Resolution. Most importantly, its implementation was preempted by federal law – namely 16 U.S.C. § 1801 et seq., the Magnuson-Stevens Fishery Conservation and Management Act.
The lower court granted summary judgment to the City on all claims; thus upholding the Resolution.
Whether the state action, the Resolution, interferes with or is contrary to the laws of Congress (here – The Magnuson-Stevens Fishery Conservation and Management Act (“MSA”)) made in pursuance of the Constitution?
The Resolution conflicts in numerous ways with federal laws and, therefore, is preempted.
Preemption – overview:
Preemption, at its simplest, asks whether state action conflicts with a valid federal law. A fishery management plan created pursuant to federal law may form the basis for preemption.
The first step in the preemption analysis is the intent of Congress. Federal and state law conflict when “the state law stands as an obstacle to the accomplishments of the full purposes and objectives of federal law.” Preemption comes in two forms:
Express preemption – where Congress has declared an intention to preclude state regulation in a given area.
Implied preemption – where Congress, through the structure or objectives of federal law, has implicitly precluded state regulation in the area. There are two ways in which implied preemption can be shown:
Conflict Preemption – where Congress did not necessarily intend preemption of state regulation in a given area; but the particular state law conflicts directly with federal law or stands as an obstacle to the accomplishment of federal objectives.
Field Preemption – when the federal scheme of regulation of a defined field is so pervasive that Congress must have intended to leave no room for the states to supplement it.
Federal fisheries laws involve a multitude of statutes and in a regulatory system that Congress intends to be national in character. While States have freedom to act upon their waters (or those certain fisheries which the Federal Government has delegated management to a State or States), this federal system is very tightly regulated. The Eleventh Circuit has said that the legislative history of the Magnuson Act preempts the entire field of fishery management of the EEZ.
Before reporting on the Court’s analysis, a little background on the management of the swordfish fishery off the east coast of the US. In 1996, Congress added significant provisions to the MSA – including §1855 which calls upon the Secretary of Commerce to publish allowable gear types for the various fisheries. In 1999, the Fishery Management Plan (“FMP”) for Atlantic Tuna, Swordfish and Sharks was approved and put into effect. Longline is an approved and authorized gear type for north Atlantic Swordfish within that FMP.
As noted above, the Court found “The conflicts between federal and state law are many”. Preemption is “evident” in the sense that the Resolution clearly conflicts with duly enacted regulations of an authorized federal agency.
1. The Resolution forbids access to vessels employing pelagic longline gear, except for the limited purpose of purchasing “fuel or ice or in case of a storm or other emergency.” Because the action targeted vessels employing a gear type specifically authorized to target swordfish within the US Exclusive Economic Zone, it directly conflicts with Federal regulations; and is therefore preempted.
2. The Court, looked beyond the direct conflict and examined the motive and/or purpose for the Resolution as those may be relevant in determining whether preemption applies. The record was replete with statements attributed to the mayor’s which show that actions by the City were intended to limit or terminate longline fishing for swordfish in the Charleston area. The Court chastised the mayor for succumbing to public pressure without considering how this “narrow, limited local issue” would play out. It would impact dock workers, South Carolina fishermen and fishermen from other states who would be unable to land or sell their catch in the Charleston Marine Center. “The City intended the resolution to be an obstacle. Utilization of longline tackle by a vessel was a means to deny access to the docks by longline vessels, and denial of access was a means to control or limit the swordfish industry in waters off South Carolina and to discourage non-local vessels from coming to fish in those waters. The City’s opposition was directed at the industry.”
The Court also pointed to a number of other conflicts between federal and state law that were less abrasive. These, for the most part, were based on how the Resolution conflicted with the reasons and purposes for the MSA and policies behind its enactment as stated by Congress. Because the Resolution attempted to impose standards for pelagic longline swordfish vessels and tackle, it conflicted with the above-cited Congressional determinations and therefore is preempted. The Court also pointed out how and where the language of the Resolution undermined specific provisions of the MSA related to management authority and the international aspect of north Atlantic swordfish management.
Arguments against preemption posed by the City:
1. Because the Resolution is not regulating fish there is no MSA preemption issue. While the Resolution did not directly regulate the taking of swordfish using pelagic longline gear, it did prohibit activities by vessels using that gear and the dock workers employed on at the Center.
2. As a matter of law, a state has exclusive jurisdiction its waters, and the Resolution is a restraint on only vessels in state waters, therefore there is no issue of federal preemption. While it is true that states have jurisdiction over their waters, that is not absolute. “When an FMP is in effect and a fisherman has harvested fish in federal waters and is headed for shore to land his cargo, the state cannot exercise its authority over state waters for the purpose or effect of preventing him from landing at an available facility. Federal and state authority is in conflict and the Supremacy Clause requires that the federal law prevails.”
3. The City attempted to rely on §1856(b) for the proposition that only the Secretary of Commerce can make this determination. As the Court pointed out, it was the City which instituted this court action seeking a declaration that its Resolution did not violate any laws. It would be illogical to now contend that the Court is incapable of making such a ruling and only the Secretary can do so.
4. The City seeks the protections of the “proprietary capacity exception.” This exception focuses on the role of the actor (the City here) and examines whether it is acting as an owner and not a regulator. The City contends, that as proprietor it is authorized to limit who can access its facilities or what can be done with its facilities. Because the MSA does not explicitly create a proprietary exemption nor is one to be implied, no such exemption exists.
The dissent found two flaws with the court’s holding:
1. First, it assumes the Resolution is government regulation (subject to preemption) rather than proprietary action of the municipality (which is not). The dissent would view the action in the latter capacity when it passed the Resolution.
2. Even if the Resolution constitutes regulation, the MSA Act does not preempt the resolution because this single jurisdiction’s limitation of docking privileges at this single dock does not actually interfere with longline fishing. The dissent points to the fact that there are other docks within Charleston Harbor which remain open to longline fishermen albeit docks without the necessary services for landing swordfish. The dissent would have been much more sympathetic to the preemption argument if the Resolution had made “unavailable all, or substantially all, dock space within the City’s jurisdiction that could be configured to allow longline fishermen to land their fish.” This would show the City actually prevented such landings.
The City appealed this to the United States Supreme Court; but the Court denied taking the appeal.
The recent decision in Chinatown Neighborhood Assn v Kamala Harris calls into question whether the holding of the Fourth Circuit would be supported in the Ninth Circuit. The Chinatown case has been appealed to the United States Supreme Court and as of the date of this publication, the Court hasn’t decided whether or not to accept the appeal. In Writ of Certiorari filed with the Court, this case is specifically mentioned, “On the issue of federal preemption of state laws affecting commercial fishing in federal waters, the Ninth Circuit’s opinion conflicts with the decisions of two other circuits, City of Charleston v. A Fisherman’s Best, Inc., 310 F.3d 155 (4th Cir. 2002), and Southeastern Fisheries Ass’n, Inc. v. Chiles, 979 F.2d 1504 (11th Cir. 1992).” If the Supreme Court decides to hear this case, it could have a profound impact on the preemption analysis in the fisheries context.
A RESOLUTION TO AUTHORIZE THE MAYOR OF THE CITY OF CHARLESTON TO ENTER INTO MONTH TO MONTH LEASES FOR THE USE OF THE CHARLESTON MARITIME CENTER AND ITS APPURTENANT FACILITIES; TO PROHIBIT THE USE OF THE SAID CENTER AND ITS FACILITIES BY FISHING VESSELS THAT UTILIZE PELAGIC LONGLINE TACKLE; AND TO PROHIBIT THE SALE, PURCHASE, PROCESSING OR UNLOADING OF ANY FISH FROM OR CAUGHT BY PELAGIC LONGLINE FISHING VESSELS INCLUDING BUT NOT LIMITED TO BILLFISH AND SWORDFISH.
WHEREAS, the City Council of the City of Charleston makes the following findings of fact:
- The waters of the City of Charleston are as much a part of its history and tradition as is its grand architecture. The geographic and economic growth of the City is, and has been, inextricably linked to its waterfront environment; and
- Over the course of the last thirty (30) years, the City has made concerted efforts to protect its waterfront areas from environmentally insensitive uses, and has been steadfast in assuring and preserving for the public, access to, and use and enjoyment of, its waterfront. These efforts have included the acquisition of a 5 acre park on the western bank of the Ashley River; the acquisition of a 51 acre nature preserve along the shores of Church Creek; the acquisition and development of Brittlebank Park on the eastern bank of the Ashley River; the maintenance and improvement of White Point Gardens; the development of the 13 acre passive Waterfront Park along the western bank of the Cooper River; the acquisition of a 5 acre waterfront site on the Cooper River; and the construction of the South Carolina Aquarium, also on the Cooper River. The City has also been very successful in its effort to acquire land or necessary easements toward the goal of providing an uninterrupted pedestrian path along the water’s edge from Brittlebank Park, to the Battery, to the Waterfront Park, to the South Carolina Aquarium, and
- These efforts on the part of the City have been pursued to assure to the public perpetual access to the natural environment, and all efforts of the City in the development of these accesses has been undertaken in a manner sensitive to the environment, and in recognition of the importance of these areas to the heritage of the City and its citizens; and
- As part of its continuing efforts to revitalize, preserve and make available to the public the water’s edge, the City has constructed a Maritime Center on a portion of a 5 acre site on the Cooper River, immediately south of the Dockside Condominiums and the South Carolina Aquarium. The City’s purpose in constructing the Maritime Center has been to provide a place for uses, both recreational and commercial, that are consistent with those traditionally and historically conducted on the City’s waterfront. To this end, the Maritime Center will include a pier devoted to recreational events and a pier, with supporting facilities, devoted to foster the shrimping and fishing industry that has, historically, been a part of the City’s water-front environs; and
- City Council has determined to solicit proposals for the operation of the portion of the Maritime Center that to serve this industry, and in doing so, finds it to be in the public interest, and in furtherance of its efforts to promote its waterfront, to require that this portion of the Maritime Center be operated and used in a manner traditional to such industry and to the City and consistent and compatible with the tenor of other City supported public uses along the waterfront, particularly the Aquarium to the north, and proposed Union Pier and the passive waterfront park to the south; and
- The City encourages and promotes creativity in the use and operation of the commercial portion of the Maritime Center, but finds that such proposals must, to advance the City’s goal, include elements that foster and enhance the public appeal, enhance the public understanding and appreciation of its delicate maritime resources, enhance the preservation of fisheries resources, discourage fish practices that result in wasteful loss of such resources, and include elements compatible and consistent with the educational and environmental mission of the South Carolina Aquarium and the waterfront park; and
- City Council further finds that there has been much public debate over the past few months over the depletion of the ocean’s fisheries, especially off the coast of South Carolina, and the effect the operation of the Maritime Center will have on these resources. City Council has followed the debate and is concerned that the operation of the Center furthers the goal of preservation of fisheries to the extent practicable, while also protecting the traditional shrimping and fishing industry in their traditional manner of gathering these resources. City Council further finds that pelagic longline fishing practices result in the loss of the great majority of fish caught, both to the consuming public and more importantly, to the fish population, and that such practices are the primary source of swordfish capture; and
- City Council further finds that all billfish, including swordfish, are the most threatened of species caught off the coast of South Carolina and that it would be incompatible with the goals of the City in establishing the Maritime Center to allow the processing or sale of such species; therefore, no billfish nor swordfish shall be processed or sold at the Maritime Center.
NOW, THEREFORE, BE IT RESOLVED that the Mayor of the City of Charleston is hereby authorized to enter into month to month leases for the use of the Charleston Maritime Center and its appurtenant facilities.
NOW, THEREFORE, BE IT FURTHER RESOLVED that the use of the Charleston Maritime Center and its appurtenant facilities is hereby prohibited to fishing vessels utilizing pelagic longline tackle, which shall be prohibited from docking or tying up at the Charleston Maritime Center and its appurtenant facilities for any purpose other than to purchase fuel or ice or in the case of a storm or other emergency.
NOW, THEREFORE, BE IT FURTHER RESOLVED that any Lessee or user of any part of the Charleston Maritime Center and its appurtenant facilities shall be prohibited from selling, purchasing, processing or unloading any fish from or caught by pelagic longline fishing vessels.
NOW, THEREFORE, BE IT FURTHER RESOLVED that no billfish or swordfish from any source of any kind shall be sold, purchased, processed or unloaded at the Charleston Maritime Center and its appurtenant facilities.
NOW, THEREFORE, BE IT FURTHER RESOLVED that a copy of this Resolution shall be entered into the official Journal of City Council.
IN WITNESS WHEREOF, THE CITY COUNCIL OF CHARLESTON has caused these presents to be executed in its name by Joseph P. Riley, Jr., its Mayor and by Vanessa Turner-Maybank, its Clerk of Council, and its corporate seal to be hereto affixed this 21st day of July, 1998.
CITY COUNCIL OF CHARLESTON:
(SEAL) /s/ Joseph P. Riley, Jr. Mayor ATTEST: /s/ ______ Vanessa Turner-Maybank Clerk of Council
 310 F.3d 155 (2002) cert. denied, 123 S.Ct. 2573 (2003).
 The Resolution is reproduced in Appendix A.
 The local commercial fishing industry in Charleston included shrimp and pelagic longline fishing for swordfish as two of its major components.
 A Fisherman’s Best owned a number of longline vessels that targeted swordfish.
 Note – future references to specific code sections are for 16 U.S.C unless otherwise noted. Code sections referenced are those that existed at the time this case was decided.
 §§1801 et seq. The act has been amended many times over the years. Two major sets of amendments to the law were the Sustainable Fisheries Act of 1996 and then 10 years later the Magnuson–Stevens Fishery Conservation and Management Reauthorization Act of 2006.
 Regulations of a federal agency, adopted pursuant to Congressional delegation, have the same preemptive effect as an act of Congress.
 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984).
 Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983).
 Southeastern Fisheries Ass’n., Inc. v. Chiles, 979 F.2d 1504, 1509 (11th Cir.1992).
 See 50 CFR §600.725(v) and 50 CFR §635.21(b) and (e)(4)
 Building & Construction Trades Council v. Associated Builders & Contractors of Massachusetts, 507 U.S. 218, 228-29, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993)
 §1856(b) does provide for an administrative agency hearing where the Secretary can authorize state action which would otherwise be preempted. 50 CFR §600.605 through §600.630 describe the procedures which the Secretary shall undertake in such a hearing
 cert. denied, 123 S.Ct. 2573 (2003)