                           Litigating Authority of the
                     Regional Fishery Management Councils

T h e leg islativ e h isto ry and g en eral s ta tu to ry fra m e w o rk o f th e F ish e ry C o n serv atio n and
   M a n ag em en t A c t o f 1976 in d icate th a t C o n g re ss d id n ot in ten d the R egional F ish ery
   M an ag em en t C o u n c ils to h av e litig atin g a u th o rity in d ep en d en t o f th e D e p a rtm e n t o f
   Ju stice, so as to en ab le them to c h a lle n g e in c o u rt a d ecision by th e S e c re ta ry o f
   C o m m e rc e taken u n d er the F C M A and relatin g to the establishm ent o f th e C o u n c ils
   and th e ir functions.

T h e C o u n c ils h a v e n e ith e r express s ta tu to ry a u th o rity n o r th at freed o m from ex ecu tiv e
   c o n tro l th at w o u ld g iv e rise to som e in feren c e su p p o rtiv e o f th e ir h av in g in d ep en d en t
   litig atin g a u th o rity .

T h e g en eral ru le against in te r-a g e n c y and in tra -ag en c y law suits arises n ot o n ly from a
   d esire fo r ce n tra liz e d c o n tro l o f litigation, but also from the co n stitu tio n al p rin cip le th at
   d isp u tes b etw een en tities su b ject to th e c o n tro l o f th e P re sid en t sh o u ld be reso lv ed
   w ith in th e e x e c u tiv e b ran ch .

                                                                                       September 17, 1980

' M EM ORANDUM OPIN IO N FOR T H E G E N ER A L COUNSEL,
              N A TIO N A L O CEAN IC AND
           ATM OSPHERIC AD M IN ISTRA TIO N

   You have asked this Office whether Regional Fishery Management
Councils (Councils), established by the Fishery Conservation and Man­
agement Act of 1976 (FCMA), 16 U.S.C. §§ 1801-82, may, on their
own behalf, challenge in court a decision by the Secretary of Com­
merce (the Secretary) taken under the FCMA and relating to the
establishment of the Councils and their functions.1 We have concluded
that the Councils do not have independent litigating authority, and
cannot, therefore, challenge the Secretary’s actions in court.
  The FCMA “adopts a somewhat convoluted scheme to achieve its
purposes of conservation and management of fishery resources.” Wash­
ington Trollers Ass'n v. Kreps, 466 F. Supp. 309, 311 (W.D. Wash. 1979).
This is at least in part the result of Congress’ desire to effect a compro­
mise between the need for federal control of the nation’s marine re­
sources and the states’ desire for authority over “their” fish. See 122
Cong. Rec. 115 (1976); H.R. Rep. No. 948, 94th Cong., 2d Sess. 50
(1976); H.R. Rep. No. 445, 94th Cong., 1st Sess. 61-62 (1975);

   1   In your letter you raised tw o issues. T h e first, concerning boundaries betw een adjoining Councils,
w as addressed in o u r m em orandum to you o f D ecem ber 14, 1979 [3 Op. O .L .C . 464 (1979)].


                                                        778
50 C.F.R. §601.1 (1979). As originally drafted, this legislation provided
that the Secretary and the Councils were to be coordinate authorities:
       The regional Councils are, in concept, intended to be
       similar to a legislative branch of government. . . . The
       Secretary of Commerce is given authority under the bill
       to act as the “executive,” with ultimate authority to make
       decisions about management regulations for the entire
       nation. . . . Finally, section 204 establishes an appellate
       body, theoretically comparable to the judicial branch, the
       Fishery Management Review Board. . . . The concept of
       an administrative review board of this nature is not new
       (i.e., the National Labor Relations Board) and will hope­
       fully provide an independent review process with the ease
       of access and speed of decision that will give confidence
       to the decisionmaking process.
S. Rep. No. 416, 94th Cong., 1st Sess. 29 (1975). The Board “would
have [had] exclusive and original jurisdiction to hear appeals from
actions of the Secretary relating to fishery management. The purpose of
the Board [was] to provide an independent review procedure for the
settlement of disputes arising from the administration of the A ct.” Id. at
38-39.
  Two groups could appeal to it:
       (1) Any person who is adversely affected or aggrieved by,
       or who suffers legal wrong through [a final rule, regula­
       tion or decision of the Secretary, and,] . . .
       (2) Any Council whose recommended management regu­
       lations were determined by the Secretary to be non-
       consistent with the national standards . . . .
Id. at 58 (proposed § 204(c)(1), (2)).
  This provision was included because the Senate committee believed
that:
      It is inevitable that disputes will arise with respect to
      fishery management decisions. To meet the need for dis­
      pute settlement, the bill establishes a Fishery Management
      Review Board. The Board, an independent quasi-judicial
      administrative body, would review disputes between the
      Secretary and the Regional Councils, as well as other
      disputes relating to fishery management decisions.
Id. at 5. Appeals from the Board to the Court of Appeals could only be
brought by a person “who is adversely affected or aggrieved by, or
who suffers legal wrong through, a decision of the Board . . . ,” not
by a Council. Id. at 59 (proposed § 204(g)).

                                     779
   The Board, however, did not become a part of the final version of
 FCMA. The House and Senate, having passed different versions of
 FCMA, deleted it in conference, stating:
       The implementation process provisions follow comparable
       provisions in the House bill and the Senate amendment [S.
       961], except that . . . (2) the provisions in the Senate
      amendment establishing a 5-member, President-appointed
       “Fishery Management Review Board” to determine ap­
      peals from regulations promulgated by the Secretary is
      not included in the conference substitute in favor of judi­
      cial review.
 H.R. Rep. No. 948, 94th Cong., 2d Sess. 55 (1976). Judicial review
 under FCMA is in accordance with the Administrative Procedure Act
(APA). 16 U.S.C. § 1855(d). Review under the APA is available to “[a]
person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action. . . . ” 5 U.S.C. § 702. The
legislative history, therefore, indicates that Congress decided not to
permit the Councils to challenge the Secretary’s decision administra­
tively.
    Under the FCMA, the Councils’ staff and administrative expenses are
funded by Congress, and the disbursement of funds is controlled by the
Secretary. 16 U.S.C. § 1852(0(7). The Secretary appoints a majority of
the voting members to their three-year terms. 16 U.S.C. § 1852(b)(3).
He provides the guidelines for the fishery management plans, 50 C.F.R.
§602.1 et seq., and has final responsibility for their development, 16
U.S.C. §§ 1854, 1855, and enforcement, 16 U.S.C. §§ 1856(b), 1858,
 1861, and for promulgation of regulations. The Councils, on the other
hand, have a purely advisory function under the statute. 16 U.S.C.
§ 1852(h). The Secretary can, if he wishes, develop a plan or implement
a set of regulations of which a Council disapproves. 16 U.S.C.
§§ 1854(c)(1)(B), (c)(2), 1855(c).
   Given this framework, we believe that the Councils lack independent
litigating authority. The conduct of litigation involving the United
States or one of its agencies 2 is broadly reserved to the Department of

    2   A gencies include "an y d epartm ent, independent establishm ent, commission, adm inistration, a u th o r­
ity, board o r bureau o f the U nited States. . .      28 U.S.C. §451. All o f the opinions discussing the
C ouncils' status under various statutes appear to place them in at least one o f these categories. See
M em orandum O pinion for the G eneral C ounsel, U.S. D epartm ent o f Com m erce, N ational O ceanic and
A tm ospheric A dm inistration (N O A A ) from Leon Ulman, D eputy Assistant A ttorney G eneral, O ffice
o f Legal Counsel, O cto b er 14, 1977 [I Op. O .L .C . 239] (independent establishm ent under the Federal
T ort Claims A ct); m em orandum for the D eputy G eneral Counsel, D epartm ent o f C om m erce from the
Assistant A tto rn ey G eneral, C ivil Division, Ju ly 12, 1977 (agencies under Federal T o rt Claims Act);
m em orandum for the D eputy G eneral Counsel, N O A A , from a staff attorney, N ovem ber 30, 1976
(agency under the A dm inistrative Procedure Act); m em orandum for the G eneral Counsel, D epartm ent
o f C om m erce from the G eneral C ounsel, N O A A (same); m em orandum for the A cting G eneral
Counsel, D epartm ent o f C om m erce from the G eneral Counsel, O ffice o f M anagem ent and Budget,
M arch 22, 1977 (statutory advisory com m ittee); m em orandum for the G eneral Counsel, N O A A from
the Assistant G eneral Counsel, G eneral Services A dm inistration, Septem ber 30, 1977 (independent



                                                     780
Justice. 28 U.S.C. §516. Without express authorization, an agency or
department risks having the court dismiss its suit. Interstate Commerce
Com m ’n v. Southern Railway Co., 43 F.2d 534, 536-38 (5th Cir. 1976);
Federal Trade Commission v. Guignon, 390 F.2d 323, 324 (8th Cir.
 1968); Securities & Exchange Commission v. Robert Collier & Co., 76
F.2d 939, 940 (2d Cir. 1935); Sutherland v. International Insurance Co.,
43 F.2d 969, 970-71 (2d Cir.) (L. Hand, J.), cert, denied, 282 U.S. 890
(1930).3 Under the FCMA itself, for example, the Secretary must refer
civil penalty and forfeiture proceedings to the Attorney General for
enforcement. 16 U.S.C. §§ 1858(c), 1860(b)(c). In enacting the FCMA,
Congress considered—and rejected—a statutory scheme that would
have permitted the Councils to challenge before an administrative body
the Secretary’s final decision. Congress knows how to draft a statute
that would allow an agency to challenge a final order of another
agency.4 In the absence of any such express statutory authority, the
Councils may not litigate against anyone, including the Secretary.5 This
will certainly not prevent states or individual council members from
challenging the Secretary so long as they have standing to do so. See,
State o f Maine v. Kreps, 563 F.2d 1043, 1045 n.l (1st Cir. 1977). This
reading of the Councils’ authority also is consistent with the general
principle that statutes should be construed so as to avoid doubts regard­
ing their constitutionality, see generally, Kent v. Dulles, 357 U.S. 116
(1958). As discussed below, construing the Councils to have such au­
thority would raise a substantial constitutional question.
   This general rule against inter- and intra-agency lawsuits arises not
only from a desire for centralized control of litigation but also from the

establishment); m em orandum for the G eneral Counsel, N O A A from the Solicitor o f Labor, O c to ­
ber 19, 1979 (w holly ow ned instrum entality o f the U nited States under the Social S ecurity A ct and
Federal Employees* C om pensation A ct); m em orandum for the D epartm ent o f C om m erce from the
Chief, W age, Excise and A dm inistrative Provisions Branch, Internal Revenue Service, N ovem ber 22,
 1977 (w holly ow ned instrum entality under Federal Insurance C ontributions A ct). But cf. m em orandum
for the Assistant Secretary for A dm inistration, D epartm ent o f C om m erce from the A cting G eneral
C ounsel, United States Civil Service Commission, A ugust 3, 1976 (public m embers not federal
employees).
   3 See The Gray Jacket. 72 U.S. (5 W all.) 370, 371 (1866); 5 U.S.C. §3106; Exec. O rd e r No. 12,146,
§ 1-4, reprinted in 28 U.S.C. § 509 A pp. at 1162 (Supp. Ill 1979); Exec. O rder No. 6,166, § 5 (1933),
reprinted in 5 U.S.C. §§ 124-32 A pp. at 159 (1964); P. Bator, P. M ishkin, D. S hapiro & H. W echsler,
H art & W echsJer’s T he Federal C ourts & the Federal System 1315-20 (2d ed. 1973 8t 1977 Supp ).
   4 U nder the Federal Coal M ine Safety A ct o f 1952 (the A ct), for exam ple, C ongress set up a Coal
Mine Safety Board o f R eview (the Board). 30 U.S.C. § 475 (1964). T h e Board could o verrule decisions
made by the D irecto r o f the United States Bureau o f Mines. 30 U.S.C. § 477(a) (1964). T h e A ct
specifically provided, how ever, that the D irecto r could then challenge any final o rd e r o f the Board in
the C ourt o f A ppeals. 30 U.S.C. § 478(a) (1964) (“ upon the filing in such court o f a notice o f appeal by
the D irecto r . . . .” ) See Director, United States Bureau o f Mines v. Princess Elkhorn Coal Co., 226 F.2d
570 (6th Cir. 1955); Director. United States Bureau o f Mines v. Three Fork Coal Co.. 222 F.2d 425 (4th
Cir. 1955) (appeal dismissed as untimely). T h e Board was elim inated under the Federal C oal Mine
Health and Safety A ct o f 1969. S. Rep. No. 411, 91st Cong., 1st Sess. 38 (1969). Instead, C ongress
substituted “ traditional adm inistrative and judicial procedures.*’ Id. at 37-38. See 30 U.S.C. § 8l6 (aX l)
(Supp. I ll 1979). See also Klaus, The Taft-Hartley Experiment in Separation o f N L R B Functions. 11
Indus & Lab. Rel. Rev. 371 (1958).
   6 See Lee v. Civil Aeronautics Board. 225 F.2d 950, 951-52 (D .C . Cir. 1955); D avis, Standing o f a
Public Official To Challenge Agency Decisions: A Unique Problem o f State Administrative Law. 16 A d. L.
Rev. 163, 167, 168 (1964).


                                                   781
constitutional structure of our government. Disputes between parts of
the executive branch, each of which is ultimately responsible to the
President, should be resolved within the executive branch. See Execu­
tive Order No. 12,146, § 1-4, reprinted in 28 U.S.C. § 509 App. at 1162
(Supp. Ill 1979). Independence of an agency from the executive’s
supervisory control may overcome this presumption.6 The Councils,
however, have neither express statutory authority nor that freedom
from executive control that would give rise to some inference support­
ive of their having independent litigating authority. However independ­
ent the Councils may be in their day-to-day operations, ultimate author­
ity over a majority of their membership,7 budgets,8 and their major
area of concern—the fishery management plans—remains with the Sec­
retary or other federal agencies. The Councils perform the basic re­
search, hold hearings, draft the plan for their area, and propose regula­
tions. 16 U.S.C. §§ 1852(h), 1853(c). It is the Secretary, however, to
whom the drafts and proposals are submitted and it is the Secretary
who either approves the management plan or amends it to his satisfac­
tion. 16 U.S.C. § 1854. See State o f Maine v. Kreps, 563 F.2d 1052,
1055-56 (1st Cir. 1977). It is also the Secretary who reviews the
regulations to insure their legality and who implements them. 16 U.S.C.
§ 1855(c). That the Department of Commerce has found it most effi­
cient to allow the Councils maximum leeway, see 50 C.F.R §601.1
(1979), does not change an analysis based on the statutory framework.
The Councils are subordinate parts of the Department of Commerce.
Any attempt on their part to sue the Secretary would therefore raise a
substantial constitutional question. .
   We believe that the Councils are a part of the Departm ent-of Com­
merce and subject to its overall control. In the absence of specific
contrary legislation, they must be represented in any court proceeding
by the Secretary’s lawyer, the Attorney General. Since the Councils
cannot go into court without the Attorney General, the Councils have




   6 See United States v. Nixon, 418 U.S. 683, 694-95 (1974); Federal Maritime Board v. Isbrandtsen, 356
U.S. 481 (1958); Secretary o f Agriculture v. United States, 347 U.S. 645 (1954); Chapman v. FPC,- 345
U.S. 153 (1953); IC C v. Jersey City, 322 U.S. 503 (1944); United States v. ICC, 221 F. Supp. 584
(D .D .C . 1963); Benson v. United States, 175 F. Supp. 265 (D .D .C . 1959); United States v. ICC, 142 F.
Supp. 741 (D .D .C . 1956).
   7 T h e S ecretary appoints a m ajority o f th e voting m em bers from lists subm itted by each state's
govern o r. 16 U.S.C. § 1852(b)(1)(B). T h e nonvoting m em bers represent various federal agencies. 16
U .S.C. f 1852(c). W h eth er th e Secretary m ay freely rem ove th e voting m em bers w hom he appoints,
16 U .S.C. § 1852(bXlXC), need not be decided. It appears, how ever, that the C ouncils’ functions are
prim arily executive, not legislative o r judicial. Wiener v. United States, 357 U.S. 349, 351-53 (1958);
Lewis v. Carter, 436 F. Supp. 958, 961 (D .D .C . 1977).
   * T h e Secretary pays for th e C ouncils’ necessary staff and adm inistration. 16 U .S.C. § 1852(0(7).


                                                  782
no authority to bring suit on their own behalf to challenge a decision
by the Secretary taken under FCMA and relating to the establishment
of the Councils or their functions.
                                       L a r r y L . S im m s
                               Deputy Assistant Attorney General
                                   Office o f Legal Counsel




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