Saving Seafood

Why the Fishing Industry Fought: Inside the Battle Over Chevron

May 2, 2025 — Wayne Reichle – who’s been in the fishing business his whole life – had never heard of the Chevron doctrine. That’s the two-step legal test that courts used for the past 40 years to decide whether a federal agency had the authority to make a regulation.

“No idea,” said Reichle, president of New Jersey-based Lund’s Fisheries. “Myself, and many, many fellow fishermen had no idea what the Chevron doctrine was.”

That changed after a group of fishermen challenged a federal regulation requiring the herring industry to pay for onboard federal observers. “I think there’s quite a few that know what the Chevron doctrine is today,” Reichle said.

This season on UnCommon Law, we’re exploring the limits of agency power. To what extent are federal agencies authorized to create and implement regulations that aren’t explicitly mandated by Congress? And what happens when an agency goes too far? In this episode, the story of the fishermen who fought back.

Listen to the full story at Bloomberg Law

US seafood industry set for spike in court battles in the wake of Chevron’s overturning

March 19, 2025 — Last June, the U.S. Supreme Court overturned the longstanding Chevron deference – a legal precedent stemming from the 1980s that gave federal agencies wide latitude in interpreting congressional statutes.

That move, according to Robert Smith, a partner at Boston, Massachusetts, U.S.A.-based law firm K&L Gates, could turn the U.S. seafood industry into a more litigious environment in the near future.

Read the full article at SeafoodSource

DC Circuit tests Chevron’s impact in fisheries case

November 6, 2024 — The demise of the Chevron doctrine may not spell automatic doom for the federal fisheries rule that was at the center of the Supreme Court case that ended 40 years of precedent on agency deference.

During oral arguments Monday, judges of the U.S. Court of Appeals for the District of Columbia Circuit — who in 2022 upheld the NOAA Fisheries regulation on Chevron grounds — appeared to think that there is still statutory support to affirm requirements for herring vessels to pay the salaries of third-party onboard monitors.

The case, Loper Bright v. Raimondo, is back before the D.C. Circuit after the Supreme Court decided in June to overturn Chevron, which since 1984 had instructed federal judges to defer to agencies’ reasonable interpretations of ambiguous statutes. But the justices did not decide the fate of the NOAA Fisheries rule at the heart of the case.

Read the full article at E&E News

Court open to upholding US fishing monitor rule even without ‘Chevron’ doctrine

November 5, 2024 — A U.S. appeals court on Monday appeared open to upholding a federal rule requiring commercial fishermen to fund a program to monitor for overfishing of herring off New England’s coast even after the U.S. Supreme Court in that same case issued a landmark ruling curbing agencies’ regulatory power.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, during oral arguments, weighed the impact of the U.S. Supreme Court’s June decision to scrap a 40-year-old legal doctrine that had required courts to defer to agencies’ interpretations of ambiguous laws they administer.

The 6-3 conservative majority U.S. Supreme Court nixed the doctrine, known as “Chevron deference,” after taking up an appeal by several commercial fishing companies of the D.C. Circuit panel’s 2-1 ruling in August 2022 that had relied on the doctrine to uphold the fishing rule.

The justices sent the case back to the D.C. Circuit to reassess the rule’s validity post-Chevron using their own judgment and for further arguments by the fishing companies, led by New Jersey-based Loper Bright Enterprises.

Read the full article at Reuters

‘A post-Chevron world’: DC Circuit wrestles with agency authority in fishing boat spat

November 5, 2024 — A D.C. Circuit panel grappled Monday with the fallout from the Supreme Court’s recent decision to overturn a longstanding legal doctrine which allowed federal judges to defer to a government agency’s interpretation of a challenged statue.

The high court ruled 6-3 in Loper Bright Enterprises v. Raimondo that the doctrine, known as Chevron deference, should be overturned and that federal judges themselves should instead “exercise their independent judgment” when an agency oversteps its authority.

That case was originally argued before the D.C. Circuit in 2021, the appellate circuit that deals the most with challenges against federal agencies such as the Environmental Protection Agency and, in this case, the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service.

In its decision to overturn Chevron, the high court remanded the case to the three-judge panel to reassess claims by a coalition of fishing companies that the government was wrong to require they pay the wages of independent “at-sea monitors.”

Read the full article at Courthouse News Service

DOJ argues federal law allows NOAA to charge fishermen for monitors

September 19, 2024 — Out-of-pocket payments made by fishermen to federal monitors who accompany them at sea is comparable to the costs fishermen incur when they purchase new gear or equipment to comply with any other other regulations, government lawyers argue in a legal brief filed Wednesday in federal appeals court.

The brief in Loper Bright Enterprises v. Gina Raimondo, is the government’s latest volley in what has become a landmark case pitting NOAA Fisheries against a group of New Jersey herring fishermen after the Supreme Court in June rolled back a long-standing legal doctrine that gave deference to agencies like NOAA in disputes over a regulation’s interpretation.

The filing before the U.S. Court of Appeals for the District of Columbia Circuit argues that all NOAA Fisheries regulations require industry compliance and that sometimes compliance “imposes economic costs on vessels.”

Read the full article at E&E News

Fishermen ask court to spike NOAA onboard observer program

September 18, 2024 — Two New Jersey fishermen who convinced the Supreme Court in June to toss out the Chevron doctrine, which had long buttressed federal regulatory muscle are asking an appeals court to effectively get industry-paid NOAA Fisheries monitors off their boats.

In arguments set for Nov. 4, plaintiffs in Loper Bright Enterprises Inc. v. Gina Raimondo will ask the U.S. Court of Appeals for the District of Columbia Circuit to make a final ruling on the industry-funded monitoring program that was adopted by NOAA in 2020 and ceased in April 2023.

“I think we’re all hopeful that the circuit court will get to the right answer,” Ryan Mulvey, an attorney with the Americans for Prosperity Foundation and plaintiffs’ counsel, said in an interview Monday. “This entire case has been about fighting for our fishermen and small family businesses to get rid of what we thought was a really onerous regulation.”

Read the full article at E&E News

Fishermen look to kill NOAA at-sea monitoring rule following Supreme Court victory

September 9, 2024 — Following their Chevron deference victory at the U.S. Supreme Court earlier this year, commercial fishermen are seeking to finally kill a NOAA Fisheries rule requiring them to pay for at-sea monitors out of pocket.

The legal battle stems from a 2020 NOAA Fisheries requirement forcing some commercial fishermen to pay for at-sea monitors out of pocket, with costs rising higher than USD 700 (EUR 640) per day. The fishermen sued but were quickly stymied by the courts’ use of the Chevron deference, a 40-year-old legal precedent that instructs judges to defer to federal agencies – in this case NOAA Fisheries – in interpreting Congressional statutes.

Read the full article at SeafoodSource

Op-ed: How to rebalance responsible fisheries management post-Chevron

August 7, 2024 — Sam Grimley has served as the executive director of environmental nonprofit Sea Pact since 2022. Alexandra Golub is the sustainability manager at New York City-headquartered Acme Smoked Fish.

In June, the U.S. Supreme Court ruled in favor of New England herring harvesters who believed they were unfairly forced to bear the financial burden of independent at-sea monitors hired to observe their fishing operations.

Read the full article at SeafoodSource

The Supreme Court’s trawl bycatch decision casts a wide net

July 24, 2024 — A recent U.S. Supreme Court decision could have important implications for fisheries in Alaska.

Last month, the Supreme Court overturned a legal principle called Chevron deference, named after the case that established it. For 40 years, that principle gave federal agencies wide authority to interpret the gray area in laws passed by Congress. Now, more of that authority will go to judges.

The decision came after a legal battle over who should pay for bycatch monitors on trawl boats. The potential effects extend to all federally regulated industries — including fisheries.

Many trawl boats are required to have bycatch observers onboard. And in Alaska, the North Pacific Fisheries Management Council can have trawl boats pay for those observers. That’s the law. It’s spelled out in the Magnuson-Stevens Act, which governs commercial fishing.

But that act is not clear on who should pay for bycatch observers elsewhere. In the Atlantic, a federal agency created a similar funding program and a trawling business sued.

“And so (the National Marine Fisheries Service) used its agency authority to interpret the statute and fill in the gap and say, ‘Well, you know, we’re going to do what we do in the North Pacific region here in the Atlantic region.’ And the court said, ‘Nope, you can’t do that,’” said Anna Crary, an environmental lawyer at the firm Landye Bennett Blumstein LLP in Anchorage. She’s been watching that court case.

That Supreme Court decision, in a case known as Loper Bright, was a reversal of policy the Court formed in a 1984 environmental lawsuit called Chevron vs. Natural Resources Defense Council.

That doctrine said that when federal laws are vague, federal agencies should fill in the gaps, and courts should defer to the expertise of those agencies. Crary said that understanding of agency power has become a baseline assumption.

“Administrative law, unbeknownst to many people, really forms the backbone of what we perceive as our everyday life, as modern society. But the extent to which this decision destabilizes that, I think is quite profound,” Crary said.

Read the full article at Alaska Public Media