Saving Seafood

America’s Supreme Court is inclined to clamp down on regulators

January 18, 2024 — A pair of spirited Supreme Court hearings on January 17th confronted a question at the heart of American democracy: what is the balance of power among the three branches of the federal government? The justices seemed inclined to shift that balance towards their own chambers.

The cases under review both involve fishermen objecting to a regulation requiring them to pay hefty fees for monitors who keep an eye on them as they troll for herring. The rule was issued in 2020 by the National Marine Fisheries Service, an agency of the executive branch. It was then blessed by two circuit courts of appeal as consonant with the Magnuson-Stevens Fishery Conservation and Management Act, a law passed by Congress in 1976.

Read the full article at the Economist 

Conservative Justices Appear Skeptical of Agencies’ Regulatory Power

January 18, 2024 — Members of the Supreme Court’s conservative majority seemed inclined on Wednesday to limit or even overturn a key precedent that has empowered executive agencies, threatening regulations in countless areas, including the environment, health care and consumer safety.

Each side warned of devastating consequences should it lose, underscoring how the court’s decision in a highly technical case could reverberate across wide swaths of American life.

Overruling the precedent, Solicitor General Elizabeth B. Prelogar told the justices, would be an “unwarranted shock to the legal system.”

But Justice Brett M. Kavanaugh responded that there were in fact “shocks to the system every four or eight years when a new administration comes in, whether it’s communications law or securities law or competition law or environmental law.”

Read the full article at The New York Times

US Supreme Court appears split over US agency powers in fishing dispute

January 17, 2024 — The U.S. Supreme Court on Wednesday appeared divided over a bid to further limit the regulatory powers of federal agencies in a dispute involving a government-run program to monitor for overfishing of herring off New England’s coast.

The justices heard arguments in appeals by two fishing companies of lower court rulings allowing the National Marine Fisheries Service to require commercial fishermen to help fund the program. The companies – led by New Jersey-based Loper Bright Enterprises and Rhode Island-based Relentless Inc – have argued that Congress did not authorize the agency, part of the U.S. Commerce Department, to establish the program.

The companies have asked the court, with its 6-3 conservative majority, to rein in or overturn a precedent established in 1984 that calls for judges to defer to federal agency interpretation of U.S. laws deemed to be ambiguous, a doctrine called “Chevron deference.”

The questions posed by the justices did not reveal a clear majority willing to overturn the precedent. Some of the conservative justices seemed skeptical of the doctrine’s continuing force. Others signaled hesitation about reversing it. The court’s liberal justices appeared ready to preserve the doctrine’s deference to the expertise of agencies.

Read the full article at Reuters 

Case brought to Supreme Court by herring fishermen may gut federal rulemaking power

January 17, 2024 –– The U.S. Supreme Court will hear a case today, brought by fishing interests who are friends of Saving Seafood, which could upend the Chevron doctrine. The Supreme Court will hear oral arguments in two cases, Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm. (22-451) and Relentless, Inc. v. Dept. of Commerce (22-1219).

From National Public Radio:

Judges are supposed to follow a two-step procedure. First, they’re supposed to ask whether the law is clear when someone challenges a federal rule. Then, if the law is not clear, if there’s an ambiguity, the court is supposed to defer to the agency interpretation if it’s reasonable.

In practice, that’s meant that courts often defer to people inside federal agencies who are experts on things like pollution, banking and food safety.

But all of it could be upended by a conservative supermajority on the court at the request of an unlikely set of plaintiffs: a group of herring fishermen based in Cape May, N.J.

One of them is Bill Bright, a first-generation fisherman whose family has followed him to the sea.

“My boys are working on the boats,” Bright said. “And my daughters, we have a shoreside business and they run that. So we’re all, the whole family is, in the seafood business 100%.”

Bright said he welcomes regulations to keep the herring population strong in the Northeastern United States. But he said the fisheries service went too far when the government mandated that vessel owners like him had to pay for observers on the boats to make sure they’re following the rules. 

Paul Clement, a former solicitor general in the George W. Bush administration, has argued more than 100 times before the Supreme Court. He represents the herring fishermen.

“Can’t think of a better way to mark the 40th anniversary of the Chevron decision than with an overruling,” Clement said. “In our view, this really has gotten out of control.”

He said the current system means Congress never has to weigh in and reach a compromise on the toughest policy questions, because one side or the other can just wait for a change in the executive branch every four or eight years, and the rules will swing back and forth based on the views of the political party in power.

“I think it’s really as simple as this: which is when the statute is ambiguous, and the tie has to go to someone, we think the tie should go to the citizen and not the government,” Clement added. “And one of the many problems with the Chevron rule is it basically says that when the statutory question is close, the tie goes to the government, and that just doesn’t make any sense to us.”

Read the full story at NPR

‘How do we know where the line is?’ Supreme Court considers ‘chevron’ principle in major case

January 17 2024 — The Supreme Court on Wednesday wrestled over whether to fiddle with − or even overturn − a 40-year-old precedent that has guided how federal agencies protect the environment, workers, consumers and more.

“How do we know where the line is?” Justice Clarence Thomas asked in opening more than three and a half hours of debate over how much deference courts should give federal agencies when the law is unclear.

While the cases before the court on Wednesday were brought by herring fishermen who objected to being forced to pay for federal inspections of their catch, the court’s decision could undo decades of rules and procedures involving land use, the stock market, and on-the-job safety.

Read the full article at USA Today

A little fish at the Supreme Court could take a big bite out of regulatory power

January 16, 2024 — Business and conservative interest groups that want to limit the power of federal regulators think they have a winner in the Atlantic herring and the boats that sweep the modest fish into their holds by the millions.

In a Supreme Court term increasingly dominated by cases related to former President Donald Trump, the justices are about to take up lower profile but vitally important cases that could rein in a wide range of government regulations affecting the environment, workplace standards, consumer protections and public health.

In cases being argued Wednesday, lawyers for the fishermen are asking the court to overturn a 40-year-old decision that is among the most frequently cited high court cases in support of regulatory power. Lower courts used the decision to uphold a 2020 National Marine Fisheries Service rule that herring fishermen pay for monitors who track their fish intake. A group of commercial fishermen appealed the decision to the Supreme Court.

Read the full article at the Associated Press

MASSACHUSETTS: Massachusetts Dam Removals to Allow Return of River Herring After 200 Years

August 3, 2023 — The following was released by NOAA Fisheries:

Below the Armstrong Dam in Braintree, Massachusetts, a desperate scene has played out for decades. “Currently, thousands of river herring are massed below the dam trying to come upriver to spawn,” says Eric Hutchins, a NOAA Fisheries restoration biologist. “But, after beating their heads against the dam for weeks, most females will just drop their eggs or reabsorb them.” Exhausted from this effort, they are unlikely to reproduce elsewhere.

But change is finally coming, with the injection of $2 million in funding from NOAA under the Bipartisan Infrastructure Law and Inflation Reduction Act. The Town of Braintree began moving equipment to remove the obsolete Armstrong and Ames Pond Dams (PDF, 111 pages) in July. Soon, river herring and other migratory fish will have access to 36 miles of high-quality spawning habitat along Monatiquot River for the first time in nearly 200 years.

Connecting rivers and streams to the sea is critical for the survival of both river herring and coastal species popular on dinner menus. “River herring are the potato chips of the ocean,” says Hutchins, “everything eats them.” Commercially and recreationally important fish like bluefish, cod, and striped bass rely on river herring as a key food source. “It is especially important to build the river herring population now as other forage species like Atlantic herring and mackerels are crashing,” Hutchins adds. Birds such as herons and osprey and mammals like otters and whales also eat river herring.

A Big Dam Problem

More than 3,000 dams block nearly every river in Massachusetts. Most serve no purpose. Remnants of the Industrial Revolution, the Bay State’s decrepit dams block migratory fish from reaching upstream habitat. They also collect layers of contaminated sludge in stagnant ponds, pose flood risks, and prevent local people from enjoying the river.

That’s certainly the case for the 12-foot-high, 92-foot-long Armstrong Dam. The surrounding area is densely populated, with a significant number of minority residents. In the event of a major storm, the Armstrong Dam contributes to upstream flooding; if the dam fails, the community would experience serious damage. Spray-painted and crumbling, the ugly industrial site sprawls across both sides of the river. “For at least the past 100 years, the public has been unable to access the Monatiquot River,” says Hutchins. “It’s all fenced off.”

Restoring the Monatiquot River for Fish and People

Taking down dams and restoring rivers to conditions where fish—and people—can thrive is a high priority for NOAA. But it isn’t easy. NOAA, the Town of Braintree, and its partners have been working on plans to eliminate the Armstrong and Ames Pond Dams for the last 15 years. In 2017, NOAA provided an initial investment of $100,000 to the Massachusetts Department of Environmental Restoration. It supported design and permitting work that was crucial for early project planning. This followed many years of feasibility studies and field work that were led by the Massachusetts Division of Marine Fisheries. Hutchins, who has worked on more than 50 dam removals, lends his experience to partners like the Town of Braintree to ensure success. “Most local proponents of a project may only work on one dam removal in their careers,” says Hutchins. “So, I help them through the entire complicated process including project design, community engagement, permitting, and implementation.”

This summer and fall, construction crews will demolish both dams, remove 6,800 cubic yards of contaminated sediment, and restore the river channel. River herring will once again be able to reach the calm inland ponds where juveniles have a better shot at survival. American eel, which are born in the ocean but spend most of their lives in freshwater, will also be able to return.

“I love seeing dams come down,” says Hutchins. “The most exciting part is standing in the water and watching the reformation of the river. I’ve been standing in the water right after a dam comes down and witnessed American eel swim past my feet.” Despite the passage of centuries, the instinct to return remains.

The community will also be invited back to the river. The Town of Braintree will restore wetlands around the dam site and build a boardwalk trail with wildlife viewing points and interpretive signs. “There is strong community support for this project,” says Kelly Phelan, Braintree’s Conservation Planner. “People are excited to see the fish return and to reconnect with the river.”

Project Partners

  • Fore River Watershed Association
  • Hollingsworth Pond, LLC
  • Massachusetts Division of Marine Fisheries
  • Massachusetts Division of Ecological Restoration
  • U.S. Fish and Wildlife Service

How NJ herring fishermen could upend federal laws, push power from White House to Congress

July 26, 2023 — Several New Jersey commercial herring fishermen say they don’t think it’s fair that a federal rule forces them to pay over 20% of their earnings to cover the salary of the government’s at-sea monitors who ride on their boats. And their case, now going before the U.S. Supreme Court, has a chance of upending the way federal laws are made and shifting power from the White House back to Congress.

The at-sea monitors collect scientific, management and regulatory compliance and economic data and report back to the government. They also focus on the discarded catch, or fish that are thrown back because they’re not the target species or are undersized, for example. The data is used for the management and monitoring of the annual catch limits.

The fishermen concede federal law allows the government to require at-sea monitors on their boats, but they argue Congress never gave the executive branch further authority to pass monitoring costs onto the herring fishermen. They contend that the National Oceanic and Atmospheric Administration, which manages the nation’s fisheries, has abused its power.

“It’s humbling that a few herring fishermen like us could bring such an important case to the nation’s highest court,” said Stefan Axelsson, one of the fishermen who brought the case. “If the government can do this to fishermen trying to make an honest living, they can do it to anyone.”

Read the full article at app.

Will a Supreme Court decision in fisheries case tie the hands of all government regulators?

May 23, 2023 — Fishing for Atlantic herring may seem worlds away from restrictions on power plant emissions or responses to the COVID-19 pandemic. But a case before the U.S. Supreme Court could affect all those activities and more by altering how federal agencies apply scientific expertise in carrying out their regulatory duties.

On 1 May the high court agreed to hear a case brought by four family-owned herring businesses. They argue that the National Marine Fisheries Service has no authority to require them to pay for onboard observers who would monitor their catch to help the agency protect declining fish stocks.

But legal scholars and environmentalists say much more than fishing is at stake in Loper Bright Enterprises v. Raimondo. When the high court rules, most likely in the spring of 2024, it may also take a step back from a long-standing legal doctrine, called the Chevron deference, used to determine whether government agencies have exceeded their authority. The doctrine has been applied for nearly 40 years to everything the government does, including regulations affecting businesses, schools, and the general population.

Read the full article at Science.org

Justices to consider case involving fishing boat monitor pay

May 1, 2023 — The U.S. Supreme Court will take up the subject of who pays for workers who gather valuable data aboard commercial fishing boats.

Justices announced Monday that they will take the case, which stems from a lawsuit by a group of fishermen who want to stop the federal government from making them pay for the workers. The workers are tasked with collecting data on board fishing vessels to help inform rules and regulations.

The fishermen involved in the lawsuit harvest Atlantic herring, which is a major fishery off the East Coast that supplies both food and bait. Lead plaintiff Loper Bright Enterprises of New Jersey and other fishing groups have said federal rules unfairly require them to pay hundreds of dollars per day to contractors.

“Our way of life is in the hands of these justices, and we hope they will keep our families and our community in mind as they weigh their decision,” said Bill Bright, a New Jersey fisherman and plaintiff in the case.

Read the full story at AP News