When Congress passed the Atlantic Coastal Fisheries Cooperative Management Act in 1993, did it unconstitutionally expand the powers of the Atlantic States Marine Fisheries Commission (ASMFC), and could the Act be struck down under the Compact Clause or the Tenth Amendment?

Plain-English summary

The Atlantic States Marine Fisheries Compact was approved by Congress in 1942 and amended in 1950. North Carolina joined the Compact in 1949. The Compact established the Atlantic States Marine Fisheries Commission (ASMFC), an interstate body for the cooperative management of fisheries shared by the East Coast states. Under the Compact, the ASMFC's role was advisory. It could recommend regulations to the states, consult with state agencies, and, after the 1950 amendment, serve as a joint regulatory agency for any state that chose to designate it. The ASMFC had no authority over non-member states and no independent regulatory power.

In 1993, Congress enacted the Atlantic Coastal Fisheries Cooperative Management Act (16 U.S.C. §§ 5101 et seq.). The Act gave the ASMFC new powers that the original Compact had not authorized: the ASMFC could specify the conservation and management actions states had to take, identify each state required to implement a particular plan, determine annually whether each state was effectively implementing and enforcing the plan, and notify the Secretary of Commerce of non-compliance. The Secretary, on agreement that the measures were necessary, could declare a moratorium on fishing in the non-complying state's waters. The Act also expanded the ASMFC's jurisdiction from fisheries management to include conservation of the broader "marine environment." The ASMFC began invoking that jurisdiction to comment on Clean Water Act programs, coastal development permits, and Federal Power Act dam licensing.

The North Carolina Marine Fisheries Commission and the Division of Marine Fisheries asked the AG to evaluate the Act's constitutionality. Senior Deputy Attorney General Daniel C. Oakley and Special Deputy Attorney General Daniel F. McLawhorn issued a detailed opinion working through three constitutional questions.

The first question was whether the Act expanded the powers of the ASMFC beyond what the Compact authorized. The AG concluded yes. The original Compact made the ASMFC purely advisory. The 1950 amendment let consenting states designate the ASMFC as a joint regulatory agency, but did not give the ASMFC independent regulatory power. The 1993 Act, by contrast, gave the ASMFC binding regulatory authority over all states, including non-member states and dissenting member states. The character of the body had shifted from a creature of state consent to an agent of federal authority.

The second question was whether the Act altered the Compact's purposes. The AG also said yes. The Compact's original purpose was cooperative, voluntary fisheries management. The Act made the ASMFC the federal enforcement agent for migratory fish stocks along the Atlantic seaboard, exercising the sovereignty of the United States rather than the collective consent of the member states.

The third question was whether this congressional expansion violated the Compact Clause or the Tenth Amendment. Here the analysis is closer, and the AG was careful.

On the Compact Clause, the AG concluded a violation was unlikely. The Compact Clause provides that "No State shall, without the Consent of Congress, enter into any Agreement or Compact with another State, or with a foreign power." Congress can unilaterally enact statutes that affect the subject matter of compacts using its own Article I powers, even if those statutes amend or impair the compact in effect. Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. 421 (1855), and a line of subsequent cases confirm this. The Atlantic Coastal Act is most likely a valid exercise of Congress' Commerce Clause power. Under United States v. Lopez, 514 U.S. 549 (1995), the Commerce Clause reaches activity that is commercial in character or has a substantial effect on interstate commerce. Fishing for migratory stocks moving across state waters has both attributes. The Supreme Court has long recognized the Commerce Clause as the source of federal authority over interjurisdictional fishing. Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977); Manchester v. Massachusetts, 139 U.S. 240 (1890). The AG concluded the Atlantic Coastal Act would likely survive Commerce Clause scrutiny.

On the Tenth Amendment, the analysis was harder. The Tenth Amendment, in the Supreme Court's recent decision in New York v. United States, 505 U.S. 144 (1992), prohibits Congress from "commandeering" state governments to enact federal regulatory programs. The New York test the AG applied has three parts: does the statute regulate states as states; does the statute commandeer state governments to enact laws or rules; are the sanctions directed at the states or at their citizens?

The Atlantic Coastal Act meets the first two parts of the test cleanly. Only states are required to act in response to ASMFC dictates. The Act's purpose is to commandeer state agencies to implement a federal program created by the ASMFC as Congress's agent. The third part is where the AG saw an escape hatch for the federal government: the sanction is not against the state, but against fishermen in the state's waters (the Secretary closes the fishery in the state). However, the AG noted that the Ninth Circuit in Board of Natural Resources v. Brown, 992 F.2d 937 (9th Cir. 1993), had rejected the argument that absence of direct state sanctions automatically immunizes a statute from New York. Two New York concerns also pulled toward unconstitutionality: the Act transfers political accountability from federal officials (who chose the program) to state officials (who get blamed when the moratorium hits the local fishery), and the Act gives states no genuine opt-out, only the choice between compliance and a draconian fishery closure.

The AG closed by noting two pragmatic considerations that might cause a court to uphold the Act even under New York: the indisputable fact that migratory fisheries cannot be managed without a federally empowered coordinator, and the history showing the states themselves sought this regulatory framework rather than direct federal control.

The opinion thus offered a careful, lawyer's answer. Compact Clause: probably no violation. Tenth Amendment: closer, with serious commandeering concerns, but plausibly defensible.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The U.S. Supreme Court's anti-commandeering doctrine has been refined in Printz v. United States, 521 U.S. 898 (1997), Reno v. Condon, 528 U.S. 141 (2000), and Murphy v. NCAA, 584 U.S. 453 (2018). The Atlantic Coastal Fisheries Cooperative Management Act has been amended and reauthorized. The ASMFC continues to operate as the AG described, and federal courts have not, as far as the public record shows, struck the Act down. The constitutional framework the AG sketched is dated, but the basic structural concerns (commandeering, accountability transfer, lack of opt-out) remain live questions in federal-fisheries litigation.

Background and statutory framework

The Atlantic States Marine Fisheries Compact was one of the first interstate compacts in the modern era. The Atlantic coastal states (Maine through Florida) recognized in the late 1930s that their fisheries were interjurisdictional in ways that single-state regulation could not address. Congress approved the Compact in 1942, and the ASMFC began operating as an advisory body for cooperative state management.

By the early 1990s the Compact's voluntary framework was widely seen as inadequate. Major fish stocks (striped bass, weakfish, summer flounder, menhaden) were under heavy pressure. The ASMFC could recommend conservation plans, but a single non-cooperating state could undermine a coastwide effort. Striped bass, in particular, had nearly collapsed in the 1970s and 1980s; recovery had been accomplished only through coordinated harvest restrictions, and the ASMFC had to push hard to keep all states aligned.

The Atlantic Coastal Fisheries Cooperative Management Act of 1993 was Congress's response. The Act gave the ASMFC the binding authority that the Compact had withheld. A state that failed to implement an ASMFC plan would face a Secretary-of-Commerce moratorium closing its fishery. The Act also expanded the ASMFC's jurisdictional reach into broader marine-environment conservation, allowing the body to comment on permitting decisions for activities that affect fisheries (Clean Water Act, coastal development, hydroelectric dams under the Federal Power Act).

The constitutional questions the AG analyzed in 1996 had real practical stakes for North Carolina. A small but important slice of North Carolina's commercial fishing economy depends on stocks that the ASMFC was beginning to regulate aggressively. The Marine Fisheries Commission wanted to know whether it could push back against ASMFC plans on constitutional grounds.

The AG's careful answer essentially told the Commission that constitutional challenges were possible but not likely to succeed. The Compact Clause argument was weak. The Tenth Amendment argument was stronger but cut against the political reality that the states had asked for this framework. The opinion is a good example of an AG opinion that respects the legal complexity instead of overstating either side.

The expansion of the anti-commandeering doctrine in the years after 1996, especially in Printz and Murphy, has changed the constitutional landscape. Whether the Atlantic Coastal Act survives modern commandeering analysis is a question federal courts have not directly answered.

Common questions

What is the ASMFC?

The Atlantic States Marine Fisheries Commission is an interstate body created by the 1942 Atlantic States Marine Fisheries Compact. It coordinates fisheries management among the Atlantic coastal states. Before 1993 it was advisory; after the 1993 Atlantic Coastal Act, it has authority to require states to implement federal fishery management plans.

What changed in 1993?

Congress enacted the Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. §§ 5101 et seq. The Act gave the ASMFC binding regulatory authority over states, including the power to determine non-compliance and to recommend a Secretary-of-Commerce moratorium on fishing in a non-complying state's waters.

What is the Compact Clause concern?

The Compact Clause says states cannot enter into a compact without Congress's consent. The AG's question was whether Congress, having consented to the Compact, could unilaterally expand the powers of the body the Compact created. The AG concluded that congressional approval of a compact does not bar Congress from later using its other Article I powers (here the Commerce Clause) to legislate on the same subject.

What is the Tenth Amendment commandeering concern?

The Tenth Amendment reserves to the states all powers not delegated to the federal government. New York v. United States (1992) held that Congress cannot commandeer state governments to enact federal regulatory programs. The Atlantic Coastal Act looks a lot like commandeering: it requires states to enact and enforce ASMFC plans, and offers no real alternative. The AG saw this as the strongest constitutional challenge to the Act.

What did the AG ultimately conclude?

The AG concluded that the Act probably survives Compact Clause review because it is most likely valid under the Commerce Clause. The Tenth Amendment analysis was closer; the AG identified serious commandeering concerns but flagged two practical considerations that might lead a court to uphold the Act anyway. The AG did not say the Act was clearly constitutional or clearly unconstitutional, just that the constitutional ground was contested.

Source

• Landing page: https://ncdoj.gov/opinions/constituionality-of-the-atlantic-coastal-fisheries-cooperative-act/

Citations

• U.S. Const. art. I, § 8, cl. 3 (Commerce Clause)
• U.S. Const. art. I, § 10, cl. 3 (Compact Clause)
• U.S. Const. amend. X (Tenth Amendment)
• Atlantic States Marine Fisheries Compact (56 Stat. 267 (1942); amended 64 Stat. 467 (1950))
• 1949 N.C. Sess. Laws ch. 1086 (NC joined Compact)
• Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. §§ 5101-5108
• New York v. United States, 505 U.S. 144 (1992)
• United States v. Lopez, 514 U.S. 549 (1995)
• Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977)
• Manchester v. Massachusetts, 139 U.S. 240 (1890)
• Toomer v. Witsell, 334 U.S. 385 (1948)
• McCready v. Virginia, 94 U.S. 391 (1877)
• Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371 (1978)
• Tangier Sound Watermen's Assoc. v. Douglas, 541 F. Supp. 1287 (E.D. Va. 1982)
• Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. 421 (1855)
• Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264 (1981)
• FERC v. Mississippi, 456 U.S. 742 (1982)
• Board of Natural Resources v. Brown, 992 F.2d 937 (9th Cir. 1993)
• Mineo v. Port Authority of N.Y. and N.J., 779 F.2d 939 (3d Cir. 1985)
• Tobin v. United States, 306 F.2d 270 (D.C. Cir. 1962)
• Riverside Irrigation Dist. v. Andrews, 568 F. Supp. 583 (D. Colo. 1983)

Original opinion text

(March 26, 1996. The published page is structured as a Question-Reply opinion. The substance is reproduced here.)

Question 1: "Did the Atlantic Coastal Fisheries Cooperative Management Act expand the powers of the ASMFC as established in the interstate compact approved by the Congress in 56 Stat. 267 (1942) and by 64 Stat. 467 (1950)?"

Reply: Yes. The powers conferred on the ASMFC by the interstate compact approved by Congress were limited to making recommendations to the member states, unless the states expressly consented to ASMFC binding regulations. The Atlantic Coastal Act enacted by Congress in 1993 expanded the ASMFC's power to make its decisions binding on the states, as defined in the Act, without the consent of the states.

Question 2: "Did the Atlantic Coastal Fisheries Cooperative Management Act alter the purposes of the ASMFC as established in the interstate compact approved by the Congress?"

Reply: Yes. The original purpose of the ASMFC was to establish a cooperative, voluntary fisheries management program. Pursuant to Amendment No. 1 of the Compact approved by Congress in 1950, member states could choose to designate the ASMFC as a joint regulatory agency "for the regulation of the fishing operations of the citizens and vessels of such designation states with respect to specific fisheries in which such states have a common interest." The original purpose of establishing a means for the voluntary and cooperative regulation of fisheries by the member states was changed by Congress when it enacted the Atlantic Coastal Act. That Act empowered the ASMFC to make binding decisions, enforceable against the states through sanctions levied by the United States Secretary of Commerce, even when there has been no determination by the states to join in a particular regulatory program.

Question 3: "If Congress altered the powers and/or purposes of the ASMFC by adoption of the Atlantic Coastal Fisheries Cooperative Management Act, did adoption of the Act thereby violate limitations imposed by the U.S. Constitution on Congress in the adoption of statutes? In particular, did the adoption of the Act violate the Compact Clause or the Tenth Amendment?"

Reply: This question cannot be answered with certainty. The constitutional provisions at issue are complex and have been the subject of shifting interpretation by the U.S. Supreme Court.

(a) Compact Clause. If the Congress was authorized to adopt the Atlantic Coastal Act through the Commerce Clause, it is unlikely the Compact Clause was violated when Congress amended the powers and purposes of the ASMFC through adoption of the Atlantic Coastal Act without the consent of the member states. The Congress is not prohibited by its ratification of a compact from using its Commerce Clause power to adopt new statutes in areas covered by compacts and which affect members of compacts. The Atlantic Coastal Act would likely be held to be such a statute; it established the federal power to regulate migratory fish stocks and conferred the power on a pre-existing compact-created agency, the ASMFC. Regulating the harvesting of migrating stocks of fish is probably within Congress' power under the Commerce Clause.

(b) Tenth Amendment. In New York v. United States, 505 U.S. 144 (1992), the Supreme Court held that Congress cannot commandeer the states by compelling the adoption of laws or rules to carry out its policies, thereby avoiding the political consequences of its decisions. The Atlantic Coastal Act treads closely to that line. Because it treads so closely to the limits of the Tenth Amendment, it is possible the Court would apply its New York holding to find the Act was adopted in violation of the Tenth Amendment.

Two practical considerations might cause the courts not to apply the New York holding to the Atlantic Coastal Act. Experience has confirmed the interjurisdictional fisheries cannot be managed effectively without a federally empowered agency able to control the states, or fishermen licensed by states. The Congressional history of the Atlantic Coastal Act, as well as its "Findings and Purpose" section, make that fact indisputable. Additionally, the history of the Act shows the states sought this form of regulation instead of direct control by the traditional federal fisheries management agency, the Department of Commerce.

Analysis and Discussion

The Atlantic States Marine Fisheries Compact (hereinafter referred to as the Compact), which created the ASMFC, was approved by the Congress in 1942. North Carolina joined the Compact in 1949. 1949 N.C. Sess. Laws ch. 1086. The Congress approved the only amendment of the Compact in 1950.

The original Compact defined the role of the ASMFC as (1) the preparation and submission of recommendations to "the governors and legislatures of the various signatory state legislatures," (2) providing consultation and advice "to the pertinent administrative agencies in the states party hereto with regard to problems connected with the fisheries and recommend[ing] the adoption of such regulations as it deems advisable," and (3) "recommend[ing] to the states party hereto the stocking of the waters of such states with fish and fish eggs . . ." See Compact, Article V. No provision of the Compact made the actions of the ASMFC binding or enforceable against the states without their individual consent and affirmative action. By the Compact, the ASMFC had no power or authority over non-member states.

The 1950 amendment of the Compact allowed, but did not require, the states to designate the ASMFC as a joint regulatory agency for consenting states. In that capacity, the ASMFC exercises the regulatory authority of the consenting states. It, however, was granted no independent regulatory power by the amendment.

The Atlantic Coastal Act radically changed the powers of the ASMFC. These new powers are derived from the Act, and thus are powers of the United States conferred on the ASMFC by the Congress. They include, e.g., the power to "specif[y] conservation and management actions to be taken by the States [regardless of whether the state is a compact member]"; to "specify the requirements necessary for States to be in compliance with the [ASMFC] plan"; to "identify each State that is required to implement and enforce that plan"; to determine, at least annually, whether each "State is effectively implementing and enforcing each such plan"; to "determine that a State is not in compliance with the provision of a coastal fishery management plan"; and to notify the Secretary of Commerce that a State is not in compliance with a plan. 16 U.S.C. §§ 5104; 5105. The Atlantic Coastal Act also expands the jurisdiction of the ASMFC from the management of fishing activities to include conservation of the "marine environment, in order to assure the availability of coastal fisheries resources on a long-term basis." 16 U.S.C. § 5102(4). Recently, the ASMFC proposed to use this authority to regulate states in the implementation of the Clean Water Act program, coastal development permits, and the Federal Power Act for dams or water diversion.

A determination by the ASMFC of noncompliance by a state is reviewed by the U.S. Secretary of Commerce. If the Secretary concurs in the finding of noncompliance "and finds the measures not implemented" are necessary for the conservation of the fishery in question, "the Secretary shall declare a moratorium on fishing in the fishery in question within the waters of a noncomplying State." 16 U.S.C. § 5106(c). The Secretarial moratorium is implemented against persons fishing in the state's waters. 16 U.S.C. § 5106(d)-(h). There is no direct sanction, or punishment, of the state as a state.

Thus, we conclude that the powers of the ASMFC were expanded by the Atlantic Coastal Act and the purposes of the ASMFC were altered by the Act. The ASMFC has become the agency charged by the Congress with establishing and implementing fisheries management for migratory fish stocks in waters along the Atlantic seaboard that were historically state controlled. In the discharge of that power and duty, the ASMFC is exercising the sovereignty of the United States, rather than the collective power of the subscribing states. This is plain from the ASMFC's power to order management actions by non-member states and by dissenting member states.

Congress' amendment of the powers of the ASMFC by the Atlantic Coastal Act raises two constitutional questions. First, did Congress' unilateral amendment of the powers conferred on the ASMFC by the Compact violate the Compact Clause of the United States Constitution? Second, did Congress violate the Tenth Amendment to the United States Constitution when it enacted the Atlantic Coastal Act?

Violations of Compact Clause

Whether Congress' unilateral amendment of the powers of the ASMFC through enactment of the Atlantic Coastal Act violated the Compact Clause depends to a great extent on whether Congress had the power to enact the Atlantic Coastal Act under the Commerce Clause of the United States Constitution.

The Commerce Clause, Art. 1, § 8, clause 3 of the U.S. Constitution provides: "The Congress shall have Power. . . . To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes." The Supreme Court's interpretation of the clause was quixotic until the late 1930's. In 1937, the Court abandoned its previously applied limits on the powers of Congress to regulate commerce and appeared to "allow Congress to do anything it wants under the commerce power." Donald H. Regan, "How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez," 94 Michigan Law Review 554-614, 555 (1995). The first limit on the apparently limitless scope of the Commerce Clause power occurred in 1995. In United States v. Lopez, 115 S. Ct. 1624 (1995), the Gun-Free School Zone Act was held unconstitutional to the extent it made criminal the conduct of possessing a firearm at a school or within 1000 feet of a school. The Court held that enactment of the statute was not within the Commerce Clause power of the Congress because possession of a gun within a school zone was "in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at 1634. In their concurring opinion, Justices Kennedy and O'Connor focused on the absence of any commercial character in the action or the conduct and on the fact that "education is a traditional concern of the States." Id. at 1640. For them, the operative test for determining the limit on the Commerce Clause power of the Congress is whether the legislation (1) concerns "an area to which States lay claim by right of history and expertise" and (2) regulates "an activity beyond the realm of commerce in the ordinary and usual sense of that term." Id. at 1641.

The harvest of fish from the internal waters of the States and the territorial seas of the States is an area to which the States can lay claim by right of history and expertise. The right of the states to regulate fishing has long been recognized. Toomer v. Witsell, 334 U.S. 385, 393-94 (1948); The Vessel 'Abby Dodge' v. U.S., 223 U.S. 166, 173-74 (1912); McCready v. Virginia, 94 U.S. 391, 393-96 (1877). Despite that recognition of the traditional power of states, the Supreme Court has consistently recognized in dicta the power of the Congress to regulate within this field under the Commerce Clause. Manchester v. Massachusetts, 139 U.S. 240, 264-66 (1890) [menhaden fishing in the territorial sea]; Douglas v. Seacoast Products, Inc., 431 U.S. 265, 281-82 (1977) [menhaden fishing]; Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371, 393 (1978) [wildlife regulation]. Dictum in Douglas is specific to this question and likely would be applied to control the question:

While appellant may be correct in arguing that at earlier times in our history there was some doubt whether Congress had power under the Commerce Clause to regulate the taking of fish in state waters, there can be no question today that such power exists where there is some effect as interstate commerce. [citations omitted] The movement of vessels from one State to another in search of fish, and back again to processing plants, is certainly activity which Congress could conclude affects interstate commerce.

Douglas, 431 U.S. at 281-82. Another court, within the Fourth Circuit, reached the same conclusion regarding the harvest of blue crabs from Chesapeake Bay.

This dictum [from Douglas] clearly indicates that if Congress had chosen to regulate the crab industry it would have the power to do so under the Supreme Court's view of the Commerce clause, the language of McCready regarding the planting of corn notwithstanding.

Tangier Sound Watermen's Assoc. v. Douglas, 541 F. Supp. 1287, 1304 (E.D. Va. 1982).

Based on these cases, we conclude that under the Lopez test the Atlantic Coastal Act will likely be held to be an act adopted within the Commerce Clause power of the Congress.

The Compact Clause of Art. I, § 10, clause 3 of the U.S. Constitution provides: "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign power . . ." The Supreme Court has construed the clause on numerous occasions.

The enlarged powers and duties granted to the ASMFC under the Atlantic Coastal Act effectively amended the Compact by converting an advisory body with regulatory powers by consent into a regulatory body which required no consent to regulate the states. Our research discloses no case which determined the law concerning the power of the Congress to unilaterally amend a compact. However, three federal courts have discussed the question in dicta. From their discussion and our own analysis, we conclude that the Congress cannot unilaterally alter, amend, or repeal its approval of compacts after the fact. See Mineo v. Port Authority of N.Y. and N.J., 779 F.2d 939, 948 (3rd Cir. 1985), cert. denied, 478 U.S. 1005 (1986); Tobin v. United States, 306 F.2d 270, 272-73 (D.C. Cir.), cert. denied, 371 U.S. 902 (1962); Riverside Irrigation Dist. v. Andrews, 568 F. Supp. 583, 589-90 (D. Colo. 1983), aff'd, 758 F.2d 508 (10th Cir. 1985).

However, congressional approval of a compact does not bar the Congress from adopting laws that impair or impact the subject area of compacts. Riverside, 568 F. Supp. at 589. Compacts do not "operate as a restriction upon the power of congress under the constitution to regulate commerce among the several states." Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. 421, 433 (1855). A subsequent federal law of nationwide applicability is enforceable even if it affects a prior compact. Riverside, 568 F. Supp. at 590. Accordingly, the Congress likely did not violate the Compact Clause power when it enacted the Atlantic Coastal Act and enlarged the powers of the compact-created ASMFC so long as it acted to implement its powers under the Commerce Clause. Because we conclude that the Atlantic Coastal Act likely lies within Congress' power under the Commerce Clause, it is unlikely that a Compact Clause violation would be found by a reviewing court.

Tenth Amendment

The Tenth Amendment to the U.S. Constitution provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Like the Commerce Clause, the Tenth Amendment has had a mercurial history. After effectively declaring it dead in 1985, the Court revived it in 1992. In New York v. U.S., 505 U.S. 144 (1992), the Court applied the Tenth Amendment to strike down the "take title" provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985. In reaching that decision, the Court applied a three-part test: First, does the statute regulate states as states; second, does the statute "commandeer state governments into the service of federal regulatory purposes," in the place of the Congress by a requirement to enact laws or rules; third, are sanctions in the statute by which the state is commandeered directed at the state instead of its citizens as individuals.

The Atlantic Coastal Act clearly meets the first two criteria. The only entities required to act in response to ASMFC dictates are states. The purpose of the statute is to commandeer state regulatory agencies to implement by the adoption of laws or rules a federal program created by the ASMFC under authority of the Atlantic Coastal Act as the agent of the Congress. However, the sanction for fisheries management violation of the Act does not fall directly on the states. Instead, upon violation the Secretary promulgates regulations closing the state's waters to fishing if conservation is deemed necessary within the waters of the state. 16 U.S.C. § 5106(d). The regulations are directed at and control the harvest of fish, an activity by persons and not "the state." 16 U.S.C. § 5106(e)-(g).

In a 1993 opinion striking the Forest Resources Conservation and Shortage Relief Act, the Ninth Circuit Court of Appeals rejected arguments by the United States Department of Justice that the New York decision is always inapplicable when the statute provides for no sanction against the state. Board of Natural Resources v. Brown, 992 F.2d 937, 947 (9th Cir. 1993). Two factors suggest that the absence of direct sanctions against the states under the Atlantic Coastal Act may not insulate it from Tenth Amendment challenges. For that reason, New York and its subsequent interpretations must be examined to determine whether the absence of direct regulation of the states by states would defeat a Tenth Amendment claim.

First, the New York Court held that statutes should be rejected which have the effect of transferring political accountability, through public disapproval, from federal officials to state officials. The crux of the question becomes whether "the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision." New York, 505 U.S. at 169. Like the "take title" for hazardous waste provision at issue in the New York case, the sanction applicable under the Atlantic Coastal Act extends beyond the immediate community and affects the general welfare of the state. The prohibition on harvest will affect many more fishermen and citizens than those fishermen who would be regulated if the state implemented the federal policy. The likely result will be for the public to assign fault for the additional regulations to state, not federal, authorities. Should the Court so find, the Atlantic Coastal Act could be held unconstitutional under the New York decision.

Secondly, and more significantly, is the New York Court's discussion of the "variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests." New York, 505 U.S. at 166. Of the two means of incentives examined in New York, the second is relevant to this inquiry: "where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation." Id. at 167. In New York, Justice O'Connor distinguished two prior decisions involving statutes which gave states the option to adopt federal policies and implement them or allow the federal government to run the program. New York, 505 U.S. at 161, citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981) and FERC v. Mississippi, 456 U.S. 742, 761-62 (1982). No such option is presented by the Atlantic Coastal Act. There is no authority for any federal entity, including the ASMFC, to implement the recommendations of an ASMFC fisheries management plan. The sole implementing authorities are the states. Consequently, it appears that the Act does not contain the types of incentives previously found by the courts to be acceptable. The only "incentive" for the states to adopt laws or rules implementing federal fisheries management policies is to avoid the sanction of closure of the total fishery, regardless of whether such action is required to support the affected fishery. The Secretary is without the power to merely implement the recommended measures in the non-compliant state. The only option is the more draconian total moratorium. Under New York then, the principal question becomes whether Congress' method of holding out incentives (a possible fishing moratorium) to influence state fisheries management policies is valid. Under the Supreme Court's analysis in New York, the method of effectuating federal policy set out in the Atlantic Coastal Act appears to not be within the scope of previously recognized means whereby Congress may legitimately influence states to achieve federal policy goals. If New York is appropriately applicable in the present context, it appears the Atlantic Coastal Act will likely violate the Tenth Amendment.

However, we are concerned that two practical considerations might cause the courts not to apply the New York holding to the Atlantic Coastal Act. Experience has confirmed the interjurisdictional fisheries cannot be managed effectively without a federally empowered agency able to control the states, or fishermen licensed by states. The Congressional history of the Atlantic Coastal Act, as well as its "Findings and Purpose" section, make that fact indisputable as a matter of law. Additionally, the history of the Act shows the states sought this form of regulation instead of direct control by the traditional federal fisheries management agency, the Department of Commerce.

Daniel C. Oakley Senior Deputy Attorney General

Daniel F. McLawhorn Special Deputy Attorney General