Case: 19-30006 Document: 00515512593 Page: 1 Date Filed: 08/03/2020
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 19-30006
`
`
`GULF FISHERMENS ASSOCIATION; GULF RESTORATION
`NETWORK; DESTIN CHARTER BOAT ASSOCIATION; ALABAMA
`CHARTER FISHING ASSOCIATION; FISH FOR AMERICA USA,
`INCORPORATED; FLORIDA WILDLIFE FEDERATION;
`RECIRCULATING FARMS COALITION; FOOD & WATER WATCH,
`INCORPORATED; CENTER FOR FOOD SAFETY,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`August 3, 2020
`
`Lyle W. Cayce
`Clerk
`
`Plaintiffs — Appellees,
`
`
`
`versus
`
`
`NATIONAL MARINE FISHERIES SERVICE; EILEEN SOBECK, IN HER
`OFFICIAL CAPACITY AS ASSISTANT ADMINISTRATOR FOR
`FISHERIES; DOCTOR ROY CRABTREE, IN HIS OFFICIAL CAPACITY
`AS REGIONAL ADMINISTRATOR, SOUTHEAST REGION; NATIONAL
`OCEANIC & ATMOSPHERIC ADMINISTRATION; DOCTOR KATHRYN
`SULLIVAN, IN HER OFFICIAL CAPACITY AS UNDER SECRETARY OF
`COMMERCE FOR OCEANS AND ATMOSPHERE AND ADMINISTRATOR
`FOR NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION;
`PENNY PRITZKER, IN HER OFFICIAL CAPACITY AS UNITED STATES
`SECRETARY OF COMMERCE,
`
`
`Defendants — Appellants.
`
`
`
`
`
`
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 2 Date Filed: 08/03/2020
`
`No. 19-30006
`
`
`
`Appeal from the United States District Court
`for the Eastern District of Louisiana
`USDC No. 2:16-CV-1271
`
`
`
`Before HIGGINBOTHAM, HIGGINSON, and DUNCAN, Circuit Judges.
`STUART KYLE DUNCAN, Circuit Judge:
`
`We consider whether a federal agency may create an “aquaculture,”
`or fish farming, regime in the Gulf of Mexico pursuant to the Magnuson-
`Stevens Fishery Conservation and Management Act of 1976 (“Magnuson-
`Stevens Act” or “Act”), 16 U.S.C. §§ 1801–83. The answer is no. The Act
`neither says nor suggests that the agency may regulate aquaculture. The
`agency interprets this silence as an invitation, but our precedent says the
`opposite: Congress does not delegate authority merely by not withholding it.
`See Texas v. United States, 809 F.3d 134, 186 (5th Cir. 2015), aff’d by equally
`divided Court, 136 S. Ct. 2271 (2016). Undaunted, the agency seeks authority
`in the Act’s definition of “fishing”—the “catching, taking, or harvesting of
`fish.” 16 U.S.C. § 1802(16) (emphasis added). “Harvesting,” we are told,
`implies gathering crops, and in aquaculture the fish are the crop. That is a
`slippery basis for empowering an agency to create an entire industry the
`statute does not even mention. We will not bite. If anyone is to expand the
`forty-year-old Magnuson-Stevens Act to reach aquaculture for the first time,
`it must be Congress.
`
`We therefore AFFIRM the district court’s ruling that the challenged
`aquaculture rule exceeds the agency’s statutory authority. See 81 Fed. Reg.
`1762 (Jan. 13, 2016), codified at 50 C.F.R. pts. 600 and 622.
`
`
`
`
`2
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 3 Date Filed: 08/03/2020
`
`No. 19-30006
`
`I.
`
`A.
`
`The Magnuson-Stevens Act seeks to “conserve and manage the
`
`fishery resources found off the coasts of the United States.” Id. § 1801(b)(1);
`see also Delta Commercial Fisheries Ass’n v. Gulf of Mexico Fishery Mgmt.
`Council, 364 F.3d 269, 271 (5th Cir. 2004) (the Act “aims to preserve fishery
`resources by preventing overfishing”). Congress passed the Act in 1976 after
`finding that aggressive fishing practices, especially by foreign trawlers, had
`imperiled important fish stocks and the coastal economies dependent on
`them.1 See 16 U.S.C. § 1801(a)(2) (finding the economies of “[m]any coastal
`areas . . . have been badly damaged by the overfishing of fishery resources,”
`particularly by “[t]he activities of massive foreign fishing fleets”).
`Accordingly, the Act provides a framework for protecting and managing
`fishing and fishery resources in federal waters. See id. §§ 1801(b), (c) (stating
`Act’s purposes and policies).
`
`As relevant here, the Act creates eight Regional Fishery Management
`Councils and tasks them with drafting Fishery Management Plans
`(“FMPs”). 16 U.S.C. §§ 1801(b)(5), 1852–53. Each FMP must identify and
`describe the fishery to which it applies, id. § 1853(a)(2), and contain
`“conservation and management measures” that are “necessary and
`appropriate for the conservation and management of the fishery, to prevent
`overfishing and rebuild overfished stocks, and to protect, restore, and
`long-term health and stability of the fishery,” id. §
`promote the
`1853(a)(1)(A). In addition, each FMP must “be consistent with” ten
`“national standards.” Id. § 1851(a). Among these standards are requirements
`
`
`
`1 See Robert J. McManus, America’s Saltwater Fisheries: So Few Fish, So Many
`Fisherman, 9 Nat. Resources & Env’t 13, 13 (Spring 1995).
`
`3
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 4 Date Filed: 08/03/2020
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`No. 19-30006
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`to “prevent overfishing while achieving . . . the optimum yield from each
`fishery.” Id. § 1851(a)(1).2
`
`Today, the Act is administered by the National Marine Fisheries
`Service (“NMFS” or the “agency”), a division of the National Oceanic and
`Atmospheric Administration, by delegation
`from the Secretary of
`
`
`
`2 These are the ten standards:
`(1) Conservation and management measures shall prevent overfishing while
`achieving, on a continuing basis, the optimum yield from each fishery for the
`United States fishing industry.
`(2) Conservation and management measures shall be based upon the best scientific
`information available.
`(3) To the extent practicable, an individual stock of fish shall be managed as a unit
`throughout its range, and interrelated stocks of fish shall be managed as a unit or in
`close coordination.
`(4) Conservation and management measures shall not discriminate between
`residents of different States. . . .
`(5) Conservation and management measures shall, where practicable, consider
`efficiency in the utilization of fishery resources; except that no such measure shall
`have economic allocation as its sole purpose.
`(6) Conservation and management measures shall take into account and allow for
`variations among, and contingencies in, fisheries, fishery resources, and catches.
`(7) Conservation and management measures shall, where practicable, minimize
`costs and avoid unnecessary duplication.
`(8) Conservation and management measures shall . . . take into account the
`importance of fishery resources to fishing communities by utilizing economic and
`social data that meet [certain] requirements . . . .
`(9) Conservation and management measures shall, to the extent practicable, (A)
`minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the
`mortality of such bycatch.
`(10) Conservation and management measures shall, to the extent practicable,
`promote the safety of human life at sea.
`16 U.S.C. § 1851(a).
`
`4
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 5 Date Filed: 08/03/2020
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`No. 19-30006
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`Commerce. See id. §§ 1854, 1855. NMFS reviews each FMP for consistency
`with the Act and other applicable laws. If NMFS fails to act within a specified
`period of time after the council submits an FMP, the plan is approved. Id. §
`1854(a)(3). Each plan is then implemented through separate regulations,
`which NMFS reviews, id. § 1853(c), and, upon approval, implements
`through final rules, id. § 1854(b).3
`
`The concept of a “fishery” is central to the Act and to the issues we
`consider in this case. The Act defines “fishery” as follows:
`
`(A) one or more stocks of fish which can be treated as a unit for
`purposes of conservation and management and which are
`identified on the basis of geographical, scientific, technical,
`recreational, and economic characteristics; and
`(B) any fishing for such stocks.
`
`Id. § 1802(13). “Fishing,” in turn, is defined as:
`
`(A) the catching, taking, or harvesting of fish;
`
`(B) the attempted catching, taking, or harvesting of fish;
`
`(C) any other activity which can reasonably be expected to
`result in the catching, taking, or harvesting of fish; or
`(D) operations at sea in support of, or in preparation for any
`activity described in subparagraphs (A) through (C).
`
`
`
`3 See generally Anglers Conserv. Network v. Pritzker, 809 F.3d 664, 667–68 (D.C.
`Cir. 2016) (discussing administration of the Act); Lovgren v. Locke, 701 F.3d 5, 13 (1st Cir.
`2012) (same); General Category Scallop Fishermen v. Sec’y, U.S. Dep’t of Commerce,
`635 F.3d 106, 108–09 (3rd Cir. 2011) (same); Oregon Trollers Ass’n v. Gutierrez, 452 F.3d
`1104, 1108 (9th Cir. 2006) (same).
`
`5
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 6 Date Filed: 08/03/2020
`
`No. 19-30006
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`Id. § 1802(16). When passed, the Act made no reference to aquaculture or
`fish farming.4
`
`B.
`
`The Gulf of Mexico Fishery Management Council (the “Council”)
`
`comprises Texas, Louisiana, Mississippi, Alabama, and Florida. Id.
`§ 1852(a)(1)(E). The Council has “authority over the fisheries in the Gulf of
`Mexico seaward of” those five states. Id. In 2009, it became the first regional
`council to put forward a plan to regulate and permit aquaculture. In common
`terms, aquaculture means fish farming: it is “the cultivation of aquatic
`organisms (such as fish or shellfish) especially for food.”5 The practice
`typically entails planting “broodstock,” or wild-caught fish, to spawn the rest
`of the aquaculture stock, which are then harvested. Id.6 As NMFS explains,
`aquaculture “is essentially a farming operation, [in which] all animals
`cultured are intended for harvest.” 81 Fed. Reg. 1762, 1770 (Jan. 13, 2016).
`
`The Council developed a “Plan for Regulating Offshore Marine
`Aquaculture in the Gulf of Mexico” (the “Plan”). Under the Plan, the
`Council would approve five to twenty permits for aquaculture operations
`over a ten-year period. Permits would be conditioned on compliance with
`biological, environmental, recordkeeping, and reporting conditions. The
`Council submitted the Plan and a proposed implementing regulation to
`
`
`4 As the district court noted, later amendments contain “discrete and immaterial”
`references to aquaculture. These post-enactment references, as we explain below, lend
`further support to our decision.
`5 Merriam-Webster Dictionary, Aquaculture (last visited June 23, 2020),
`https://www.merriam-webster.com/dictionary/aquaculture.
`6 NMFS defines “aquaculture,” somewhat circularly, as “all activities, including
`the operation of an aquaculture facility, involved in the propagation or rearing, or attempted
`propagation or rearing, of allowable aquaculture species in the Gulf [Exclusive Economic
`Zone].” 50 C.F.R. § 622.2.
`
`6
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 7 Date Filed: 08/03/2020
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`No. 19-30006
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`NMFS. After NMFS took no position on the Plan, it went into effect. In
`2014, NMFS published a proposed Rule to implement the Plan, which
`became final in 2016.7
`
`In its own words, the Rule “establishes a comprehensive regulatory
`
`program for managing the development of an environmentally sound and
`economically sustainable aquaculture fishery in Federal waters of the Gulf.”
`81 Fed. Reg. at 1762. Its purpose is “to increase the yield of Federal fisheries
`in the Gulf by supplementing the harvest of wild caught species with cultured
`product.” Id. To that end, the Rule requires aquaculture facilities to obtain
`aquaculture permits. See id. at 1763 (describing requirements for permit
`applications). Applications are submitted to NMFS’s Southeast Regional
`Administrator (the “RA”) who may grant or deny the permit. The Rule
`provides for a 45-day notice-and-comment period upon an application’s
`completion. Id. A permit is valid for ten years initially and must be renewed
`every five years thereafter. Id. at 1762. The Rule contains a number of
`“operational requirements, monitoring requirements, and restrictions” for
`permittees. Id. at 1763–64. Permittees must allow NMFS personnel and
`NMFS-designated third parties access to their facilities to “conduct
`inspections and determine compliance with applicable regulations.” Id. at
`1765. Finally, the Rule contains a plethora of reporting and recordkeeping
`requirements, id. at 1766, and requires permittees to comply with various
`regulations promulgated by other
`federal agencies,
`including
`the
`Environmental Protection Agency (“EPA”), id. at 1763, and the Department
`of Agriculture, id. at 1764.
`
`
`
`7 See Fisheries of the Caribbean, Gulf, and South Atlantic; Aquaculture, 79 Fed.
`Reg. 51,424 (Aug. 28, 2014); Fisheries of the Caribbean, Gulf, and South Atlantic;
`Aquaculture, 81 Fed. Reg. 1762 (Jan. 13, 2016), codified at 50 C.F.R. pts. 600 and 622.
`
`7
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 8 Date Filed: 08/03/2020
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`No. 19-30006
`
`The Rule is the first attempt by NMFS or any council to regulate
`
`aquaculture under the Act. It is no small attempt. The Rule allows for a
`maximum annual production of 64 million pounds of seafood in the Gulf. Id.
`That figure would equal the previous average annual yield “of all marine
`species in the Gulf[] except menhaden[8] and shrimp.” Id.
`
`C.
`
`A coalition of fishing and conservation organizations (“Plaintiffs”), 9
`
`concerned about the commercial and environmental impacts of the Rule’s
`proposed regime,10 challenged the Rule in district court. They claimed the
`Rule was invalid because it fell outside the Council’s authority to regulate
`“fisheries” under the Act. The parties cross-moved for summary judgment.
`Relying on the Act’s text, structure, and history, the district court held the
`Act unambiguously forecloses NMFS’s authority to regulate aquaculture.
`The court thus denied Chevron deference to the agency’s construction of the
`Act and granted Plaintiffs summary judgment. See Chevron, U.S.A., Inc. v.
`Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (courts will not defer
`to agency interpretation of an “unambiguous[]” statute). The agency
`
`
`
`8 Menhaden are prolific fish used for bait and fish oil. Merriam-Webster
`Dictionary, Menhaden, https://www.merriam-webster.com/dictionary/menhaden
`(last visited June 23, 2020).
`9 The organizations (Appellees here) are Gulf Fishermens Association, Gulf
`Restoration Network, Destin Charter Boat Association, Alabama Charter Fishing
`Association, Fish for America USA, Inc., Florida Wildlife Federation, Recirculating Farms
`Coalition, Food & Water Watch, Inc., and Center for Food Safety. Defendants (Appellants
`here) are NMFS, the National Oceanic and Atmospheric Administration, and three
`officers charged with administering the Act. Where appropriate, “agency” and “NMFS”
`refer to all Defendants.
`10 Specifically, Plaintiffs worry that the Rule’s expansion of seafood production will
`harm traditional fishing grounds, reduce prices of wild fish, subject wild fish to disease, and
`pollute open waters with chemicals and artificial nutrients.
`
`8
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 9 Date Filed: 08/03/2020
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`No. 19-30006
`
`appealed. Before us, it argues the Act is ambiguous as to whether it
`encompasses aquaculture. Because the Rule reasonably resolves this putative
`ambiguity, the agency claims it earns Chevron deference. See id. at 844 (when
`statute is ambiguous, “a court may not substitute its own construction . . . for
`a reasonable interpretation made by the administrator of an agency”).
`
`II.
`
`“We review a summary judgment de novo.” Salinas v. R.A. Rogers,
`
`Inc., 952 F.3d 680, 682 (5th Cir. 2020) (citation omitted). Summary
`judgment is required when “there is no genuine dispute as to any material
`fact and the movant is entitled to judgment as a matter of law.” Fed. R.
`Civ. P. 56(a).
`
`The Administrative Procedure Act requires setting aside agency
`action that is “arbitrary, capricious, an abuse of discretion, or otherwise not
`in accordance with law.” 5 U.S.C. § 706(2)(A). We review an agency’s
`statutory interpretation—including one concerning the agency’s own
`jurisdiction—under the two-step Chevron framework. See generally Sw. Elec.
`Power Co. v. EPA, 920 F.3d 999, 1014 (5th Cir. 2019) (discussing Chevron);
`see also City of Arlington, Tex. v. FCC, 569 U.S. 290, 306–07 (2013). At step
`one, we ask “whether Congress has directly spoken to the precise question
`at issue.” Chevron, 467 U.S. at 842. We answer that question by
`“exhaust[ing] all the ‘traditional tools’ of construction,” including “text,
`structure, history, and purpose.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019)
`(quoting Chevron, 467 U.S. at 843 n.9; Pauley v. BethEnergy Mines, Inc., 501
`U.S. 680, 707 (1991) (Scalia, J., dissenting)). Our interpretation “must
`account for both the specific context in which language is used and the
`broader context of the statute as a whole.” Util. Air Regulatory Grp. v. EPA,
`573 U.S. 302, 321 (2014) (citation omitted) (cleaned up). We will not defer
`to “an agency interpretation that is inconsistent with the design and structure
`
`9
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 10 Date Filed: 08/03/2020
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`No. 19-30006
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`of the statute as a whole.” Id. (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar,
`570 U.S. 338, 353 (2013)) (cleaned up). If that holistic reading of the statute
`settles the matter, Chevron ends: we “must give effect to the unambiguously
`expressed intent of Congress.” Chevron, 467 U.S. at 843. On the other hand,
`if the statute is “truly ambiguous” on the question, Kisor, 139 S. Ct. at 2415,
`we proceed to step two, “asking whether the agency’s construction is
`‘permissible.’” Sw. Elec. Power Co., 920 F.3d at 1014 (quoting Chevron, 467
`U.S. at 843). A permissible construction is one that “reasonabl[y]
`accommodat[es] . . . conflicting policies that were committed to the agency’s
`care by the statute.” Chevron, 467 U.S. at 845 (quoting United States v.
`Shimer, 367 U.S. 374, 382 (1961)).
`
`III.
`
`We first ask whether the Magnuson-Stevens Act unambiguously
`precludes the agency from creating an aquaculture regime. The answer is yes.
`Chevron step one is thus the only step we need take to resolve this appeal.
`
`A.
`
`We usually start with the text, but more telling here is the Act’s lack
`of text. As far as aquaculture, the Magnuson-Stevens Act is a textual dead
`zone: the original Act does not mention aquaculture or fish farming at all.11
`More to the point, the Act’s provisions defining the agency’s regulatory
`power say nothing about creating or administering an aquaculture or fish
`farming regime. Cf., e.g., 16 U.S.C. §§ 1802, 1854, 1855. The agency
`concedes this but asks us to treat the chasm as a mere “gap” for it to fill. That
`is, the agency argues it has power to regulate aquaculture because the Act
`
`
`
`11 Later amendments contain a few references to aquaculture. We explain below
`why those references actually support our holding.
`
`10
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 11 Date Filed: 08/03/2020
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`No. 19-30006
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`“do[es] not unambiguously express Congress’s intent to prohibit the
`regulation of aquaculture.”
`
`This nothing-equals-something argument is barred by our precedent.
`In Texas v. United States, we held the Immigration and Naturalization Act
`(“INA”) unambiguously
`foreclosed
`the Department of Homeland
`Security’s (“DHS”) Deferred Action for Parents of Americans and Lawful
`Permanent Residents (“DAPA”). 809 F.3d 134, 186 (5th Cir. 2015), aff’d by
`equally divided Court, 136 S. Ct. 2271 (2016). Acknowledging that many of
`DAPA’s provisions were not expressly foreclosed by the INA, we still
`rejected the argument that “congressional silence has conferred on DHS the
`power to act.” Id. Chevron step two is not implicated, we said, merely because
`“a statute does not expressly negate the existence of a claimed administrative
`power.” Id. at 186 (quoting Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir.
`1995)) (emphasis in original). “Were courts to presume a delegation of power
`absent an express withholding of such power,” we explained, “agencies would
`enjoy virtually limitless hegemony, a result plainly out of keeping with
`Chevron and quite likely with the Constitution as well.” Id. (quoting Ethyl, 51
`F.3d at 1060).12
`
`Similarly, in Ethyl, on which we relied in Texas, the D.C. Circuit
`
`rejected EPA’s construction of a provision of the Clean Air Act (“CAA”).
`51 F.3d at 1054. The CAA prohibits fuel additives but directs EPA to waive
`the prohibition for additives that do not interfere with a vehicle’s emissions-
`control systems. Id. (citing 42 U.S.C. § 7545(f)(4)). EPA determined the
`
`
`
`12 See also Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 269 (5th
`Cir. 2015) (“[A]n administrative agency does not receive deference under Chevron merely
`by demonstrating that ‘a statute does not expressly negate the existence of a claimed
`administrative power . . . .’” (quoting Ry. Labor Executives’ Ass’n v. Nat’l Mediation Bd.,
`29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (emphasis in the original)).
`
`11
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 12 Date Filed: 08/03/2020
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`No. 19-30006
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`petitioner had satisfied that criterion but denied waiver, imagining it could
`“consider other factors” in its waiver decision, including public health. Id.
`(citation omitted). The agency argued that because the emissions provision
`did not mention public health, “Congress ha[d] not directly spoken on the
`issue of whether [EPA] may consider the public health implications of fuel
`additives before granting or denying a . . . waiver.” Id. The D.C. Circuit set
`aside the decision, rejecting “the notion that if Congress has not mentioned
`public health in [the additive provision], then Congress is ‘silent or
`ambiguous’ as to that issue” for Chevron purposes. Id. at 1070 (quoting
`Chevron, 467 U.S. at 843). The provision was not “ambiguously worded”
`and did not “direct the Agency to adopt implementing regulations” to
`determine its meaning. Id. “Rather, the statutory waiver provision
`unambiguously expresse[d] Congress’s intent that the [EPA] consider a fuel
`additive’s effects on vehicles meeting emission standards.” Id.13
`
`Here, NMFS’s argument parallels DHS’s in Texas and EPA’s in
`Ethyl. The agency claims, not that Act affirmatively empowers it to regulate
`aquaculture, but that the Act fails to “express[] Congress’s unambiguous
`intent to foreclose the regulation of aquaculture.” As Texas and Ethyl teach,
`this argument gets Chevron backwards. “It is only legislative intent to delegate
`such authority that entitles an agency to advance its own statutory
`construction for review under the deferential second prong of Chevron.”
`Ethyl, 51 F.3d at 1060 (quoting Nat. Res. Defense Council v. Reilly, 983 F.2d
`259, 266 (D.C. Cir. 1993)) (cleaned up); see also Am. Bus Ass’n v. Slater, 231
`F.3d 1, 9 (D.C. Cir. 2000) (Sentelle, J., concurring) (“In order for there to be
`
`
`
`13 Accord Motion Picture Ass’n of Am., Inc. v. FCC, 309 F.3d 796, 805 (D.C. Cir.
`2002) (rejecting as “entirely untenable” agency position that adopting certain rules “is
`permissible because Congress did not expressly foreclose the possibility” (citing Ry. Labor
`Executives’ Ass’n, 29 F.3d at 671)).
`
`12
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 13 Date Filed: 08/03/2020
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`No. 19-30006
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`an ambiguous grant of power, there must be a grant of power in the first
`instance.”). Instead of identifying any intent to delegate authority here, the
`agency can claim only that Congress did not withhold the power the agency
`now wishes to wield. Once again, this is the argument that presumes power
`given if not excluded. We have resisted that siren song before, see Texas, 809
`F.3d at 186, and we again decline to be seduced.
`
`Fond of animal metaphors, courts like to say “Congress does not ‘hide
`elephants in mouseholes.’” Chamber of Commerce v. U.S. Dep’t of Labor, 885
`F.3d 360, 376 (5th Cir. 2018) (quoting Whitman v. Am. Trucking Ass’ns, Inc.,
`531 U.S. 457, 468 (2001)). The agency’s argument here is all elephant and no
`mousehole. It asks us to believe Congress authorized it to create and regulate
`an elaborate industry the statute does not even mention. Because we cannot
`suspend our disbelief that high, we reject the agency’s position.
`
`B.
`
`Unable to land support for its interpretation in the words of the Act,
`the agency goes angling for ambiguity. It argues the Act’s text is sufficiently
`open-ended to give it leeway to create an aquaculture regime. See, e.g., Cuozzo
`Speed Technologies, LLC v. Lee, 136 S. Ct. 2131, 2142 (2016) (explaining,
`“where a statute leaves a ‘gap’ or is ‘ambiguous,’ we typically interpret it as
`granting the agency leeway” to regulate (quoting United States v. Mead Corp.,
`533 U.S. 218, 229 (2001) (cleaned up)). The agency fixes on the word
`“harvesting” in the definition of “fishing.” See 16 U.S.C. § 1802(16)
`(“fishing” means “the catching, taking, or harvesting of fish”). Recall that
`the Act empowers councils to regulate “fisheries,” id. § 1852(a)(1)(E),
`whose definition includes “fishing” for stocks of fish, id. § 1802(13)(B). The
`agency contends the word “harvesting” is roomy enough to include
`
`13
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 14 Date Filed: 08/03/2020
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`No. 19-30006
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`aquaculture, because it may mean gathering or reaping a crop.14 The crop
`reaped from an aquaculture “fishery,” we are told, would be the farmed fish.
`The district court correctly rejected this argument.
`
`To address the agency’s argument, we focus first on the words of the
`definition itself—the “catching, taking, or harvesting of fish.” Infra
`III(B)(1). We then situate that definition within the Act’s broader structure.
`Infra III(B)(2). Through either lens, the agency’s implausible reading of the
`definition of “fishing” to encompass aquaculture does not fall “within the
`range of meanings that could be plausibly attributed to the relevant statutory
`language.” Sw. Elec. Power Co., 920 F.3d at 1024 (quoting Richard J.
`Pierce, Jr., Administrative Law Treatise § 3.6).
`
`1.
`
`First, the words. The agency puts far more weight on “harvesting” in
`
`§ 1802(16) than it can bear. It argues that one meaning of the term
`(“gathering a crop”) quietly opens the door to an elaborate regime of farming
`fish for “harvest.”
`
`That is not how to read statutes. As the district court reasoned, far
`better to read “harvesting” as synonymous with the adjacent terms
`“catching” and “taking.” See, e.g., United States v. Buluc, 930 F.3d 383, 390
`(5th Cir. 2019) (discussing noscitur a sociis or “associated-words” canon
`under which a “string of statutory terms . . . should be given related
`meaning” (quoting S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370,
`
`
`
`14
`v.,
`harvest,
`e.g., Oxford English Dictionary,
`See,
`https://tinyurl.com/y9ssjdo4 (last visited June 23, 2020) (defining “harvest” as “[t]o reap
`and gather in” a “ripe crop”).
`
`14
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 15 Date Filed: 08/03/2020
`
`No. 19-30006
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`378 (2006))).15 “Catching” and “taking” both mean “seizing” or
`“capturing” an organism—here, fish.16 As the district court put it, these
`terms “more appropriately describe traditional fishing activities,” and so
`“harvesting” more likely “refer[s] only to the traditional fishing of wild
`fish.” One dictionary entry does not override a term’s surrounding context.
`The reverse is true: a word with “many dictionary definitions . . . must draw
`its meaning from its context.” Kucana v. Holder, 558 U.S. 233, 245 (2010)
`(cleaned up).17 “Harvesting” may also mean “[t]o kill or remove wild
`animals” from their habitat. 18 Linking the term with “catching” and
`“taking” in § 1802(16) points to that meaning rather than to “gathering a
`crop.”
`
`The agency objects to this use of the associated-words canon, arguing
`the definition’s “structure” shows the three terms were not meant to have
`similar meaning. The agency does not explain why this is so. All the canon
`requires is an “association” or “gathering” of terms that “have some quality
`
`
`
`15 See also Antonin Scalia & Bryan A. Garner, Reading Law 195
`(2012) (the canon advises that “words grouped in a list should be given related meanings”
`(quoting Third Nat’l Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322 (1977))).
`16 See Webster’s Third New International Dictionary 351 (1986)
`(defining “catching” as “to capture or seize”); id. at 2329 (defining “take” as “to seize or
`capture physically”).
`17 See also Kirtseang v. John Wiley & Sons, Inc., 568 U.S. 519, 531 (2013) (same);
`Ardestani v. INS, 502 U.S. 129, 135 (1991) (same); see generally SCALIA & GARNER at 418
`(whereas a dictionary definition “states the core meanings of a term,” it “cannot delineate
`the periphery” and readers must “use the context in which a given word appears to
`determine its aptest, most likely sense”).
`18 Oxford English Dictionary, harvest, v., https://tinyurl.com/y9ssjdo4
`(last visited June 23, 2020); see also Merriam-Webster Dictionary, harvest, v.,
`https://tinyurl.com/yc7nkfa9 (last visited June 23, 2020) (defining “to harvest” as “to
`gather, catch, hunt, or kill (salmon, oysters, deer, etc.) for human use, sport, or population
`control”) (second definition).
`
`15
`
`

`

` Case: 19-30006 Document: 00515512593 Page: 16 Date Filed: 08/03/2020
`
`No. 19-30006
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`in common.” See Buluc, 930 F.3d at 390–91 (quoting S.D. Warren Co., 547
`U.S. at 379–80; Scalia & Garner at 196 (2012)). When referring to
`“fish,” the terms have a common meaning.19 For instance, federal courts
`often use the terms “catch,” “take,” and “harvest” interchangeably when
`discussing fish. See, e.g., Washington v. Wash. State Commercial Passenger
`Fishing Vessel Ass’n, 443 U.S. 658, 663, 664 (1979) (referring to migrating
`salmon that would be “caught or ‘harvested,’” as well as “tak[en],” by
`fishermen).20 Indeed, in other provisions Magnuson-Stevens itself uses the
`term “harvest” as synonymous with a “catch” of fish.21
`
`
`
`19 For that reason, the agency’s reliance on Graham County Soil & Water
`Conservation District v. United States, 559 U.S. 280 (2010), is mistaken. Graham County
`declined to apply the canon to make the phrase “congressional, administrative, or GAO”
`in the False Claims Act mean “congressional, federal administrative, or GAO.” 559 U.S.
`at 286 (quoting 31 U.S.C. § 3730(e)(4)(A)). In that case, however, the listed words—unlike
`those before us—were “quite distinct from each other” and “too disparate” to trigger the
`canon. Id. at 288, 289. The district court properly relied on Jarecki v. G.D. Searle & Co. for
`the proposition that while the noscitur a sociis canon is not “inescapable,” it is “often wisely
`applied where a word is capable of many meanings in order to avoid the giving of
`unintended breadth to the Acts of Congress.” 367 U.S. 303, 307 (1961). This is just such a
`situation: the canon saves the definition of “fishing” from a construction that would
`drastically (and, as discussed in the next section, awkwardly) expand the Act.
`20 See also Yates v. United States, 574 U.S. 528, 531 (2015) (plurality op.) (“John
`Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf
`of Mexico. To prevent federal authorities from confirming that he had harvested undersized
`fish, Yates ordered a crew member to toss the suspect catch into the sea.”); Douglas v.
`Seacoast Prods., Inc., 431 U.S. 265, 269 n.3 (1977) (discussing the U.S. menhaden “fishery”
`and interchangeably using the terms “catch,” “harvest,” “taken,” and “caught”);
`Trawler Diane Marie, Inc. v. Kantor, 91 F.3d 134 (4th Cir. 1996) (Table) (“With the
`renouncement of its Alaskan registration, the MR. BIG . . . could harvest as many scallops
`as it could catch and carry.”) (emphases added).
`21 See, e.g., 16 U.S.C. § 1802(23) (defining “individual fishing quota” as a “limited
`access system to harvest a quantity of fish, expressed by . . . a percentage of the total
`allowable catch of a fishery” (emphases added)); id. § 1802(26) (same); id. § 1821(h)(2)(A)
`(referring to “a situation where a fleet of harvesting vessels transfers its catch . . . to another
`vessel” (emphases added)); id. § 1855(i)(1)(B)(i) (referring to “the annual percentage of
`
`16
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` Case: 19-30006 Document: 00515512593 Page: 17 Date Filed: 08/03/2020
`
`No. 19-30006
`
` The agency also objects that the district court wrongly injected the
`concept of “traditional fishing of wild fish” into the Act. That is a puzzling
`objection, given one of the Act’s goals is to