Saving Seafood

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

MAINE: Maine leaders split on environmental regulation ruling by US Supreme Court

July 9, 2024 — A U.S. Supreme Court decision is weakening the power of federal agencies to approve new regulations, and some Maine fishermen are celebrating.

By a vote of 6-3, the Supreme Court overturned the Chevron v. Natural Resources Defense Council ruling from 1984.

Governor Janet Mills shared concerns that this decision could impact how federal agencies protect the health and safety of Americans. Maine House Minority Leader Billy Bob Faulkingham, also a lobster fisherman, says this could help in their fight against federal fishing regulations.

Read the full article at WGME

How the Supreme Court rescued my NJ fishing firm that bureaucrats almost sank

July 2, 2024 — Wayne Reichle is president and owner of Lund’s Fisheries in Cape May, New Jersey. He was one of the small business owners who sued the federal government in Loper Bright Enterprises v. Raimondo, which resulted in the Supreme Court overturning Chevron deference. Wayne is the third generation in the seafood business. His grandfather was a fishing vessel owner and operator in Cape May, and he was followed by Wayne’s father, Jeff Reichle, who had a vision for expanding the business and helped pioneer several fisheries through his investments in shoreside processing and distribution.

The following excerpt was published by the New York Post:

The Supreme Court just sided with my New Jersey-based, family-owned fishing business — and may have even saved it.

That’s the reality of the court’s June 28 decision in a case called Loper Bright Enterprises v. Raimondo, which overturned the “Chevron doctrine” that gave unchecked power to federal bureaucrats.

I was one of the small business owners who sued the federal government in this case.

I didn’t know my lawsuit would go all the way to the Supreme Court, or that the justices would tackle a huge question like bureaucratic accountability and how our laws should be read.

I just wanted to stop a federal agency that threatened my ability to keep my family business afloat.

In early 2020, the National Oceanic and Atmospheric Administration decided that herring boats like mine had to start paying for the federal monitors who sometimes ride along during fishing trips.

These monitors check to make sure we’re not catching more fish than we’re allowed to, and observe our fishing methods to confirm we’re following the rules.

I’m glad we have a federal law that empowered NOAA to create a monitoring program: That law helps keep fishing sustainable.

But nowhere in the law does it say that fishermen like me have to pay for the monitors.

It was long understood that the government should pay for them, since the government requires them.

Only the government can afford them, too: The monitors cost about $700 a day.

For our two fishing boats, this mandate could have forced us to pay for over 100 days of monitoring a year, totaling more than $70,000 — a huge expense for a small fishing business and the fishermen we work with.

What gives federal bureaucrats the right to rewrite federal law?

They say the law is “unclear,” which gives them authority to interpret it.

But common sense says that if the law doesn’t say it, the government can’t do it.

Read the full op-ed at the New York Post

Goethel: An optimistic fisherman’s view on the death of the Chevron Deference

July 2, 2024 — My name is David Goethel. I am a 55-year-plus commercial fisherman, research biologist, and former fishery manager. As the author of “Endangered Species/ Chronicles of A New England Fisherman,” I discuss these topics and a lawsuit I filed in 2015 with the legal group Cause of Action over the legal concept known as Chevron Deference.

Most people believe Congress writes laws, the Executive Branch carries out those laws, and the Judicial Branch interprets and clarifies whether aspects of those laws are Constitutional and correctly applied. It turns out that under a doctrine called “Chevron Deference,” the regulatory bureaucracy can deem a law unclear or ambiguous and create any regulation the agency decides it needs to carry out its bureaucratic function.

Read the full article at Seacoastonline

The Little Boats that Could: Supreme Court Rules for Fishermen in Observer Case

July 1, 2024 — William Bright, Wayne Reichle, and Stefan Axelsson manage commercial fishing businesses in New Jersey, targeting Atlantic herring. For many years, fishermen like Bill, Wayne, and Stefan have been required to carry federal observers on their vessels when venturing into the Atlantic to catch herring. These observers are mandated to ensure that the fishermen comply with legal catch limits, aiming to prevent overfishing.

However, in 2020, NOAA Fisheries overreached the authority granted to the agency by law, and decided that herring fishermen should directly pay the observers’ salaries, potentially costing them up to $700 per day. According to estimates, the cost of the observers could amount to over 20 percent of the revenue from their catch.

Consequently, Reichle, Bright, and Axelsson filed a lawsuit against the federal government in Loper Bright Enterprises v. Raimondo.

“From the beginning, the most important thing for us was the ability to continue fishing and continue operating the way we’ve operated for a number of years,” Wayne Reichle told Scripps News.

Meghan Lapp, fisheries liaison at Seafreeze Ltd. in Point Judith, Rhode Island, homeport of the fishing vessel Relentless, faced similar issues. Ms. Lapp noted that their complaints went through fisheries council meetings and NOAA officials, but to no avail.

“I was ignored the entirety of the time because the agency knew it would have deference if it ever got to court,” Ms. Lapp told National Fisherman. Thus, they filed Relentless, Inc. v. Department of Commerce.

The implications of these cases extend far beyond the shores of New Jersey and Rhode Island. 

Today, in its decision on Loper Bright and Relentless, the Supreme Court has overturned “Chevron deference,” a 40-year-old legal precedent. 

“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress,” Justice John Paul Stevens wrote for a 6-0 court in the 1984 Chevron opinion. But “if the statute is silent or ambiguous with respect to the specific issue,” the Chevron precedent dictated that courts should defer to interpretations by the agency charged with implementing the law.

Chevron has long been criticized by some, particularly conservatives, for granting excessive power to federal agencies and unelected officials. By this decision, the Court significantly limits the authority of agencies to interpret ambiguity in statutes, and use that ambiguity to create regulations that can affect extensive areas of American life and commerce. Writing for the majority, Chief Justice John Roberts stated, “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.

Sen. Dick Durbin of Illinois, the Senate’s No. 2 Democrat, expressed disappointment, telling the Wall Street Journal that “Federal agencies use the latest scientific analyses and expert opinions to implement widely popular programs that ensure safe food and medications, clean air and water, stable financial markets, fair working conditions, and more.”

If Federal agencies always used the latest science appropriately, never overstepped their bounds, and never allowed appointed or unelected career officials to enact their own agendas, Senator Durbin would be 100 percent correct. But that is not always the case. If James Madison were alive today, he might say, “If regulators were angels, no limit on judicial deference would be necessary.”

As the ramifications of this decision propagate through the lower courts and agencies, perhaps it will become increasingly incumbent upon Congress to do its job, and write clear, detailed legislation. It may be optimistic, but if this ruling diminishes the habit of our elected officials to pass last-minute ambiguous legislation that leaves important details to unelected officials in agencies, it will be a good thing.

Congratulations to the owners, operators, and crew of these “little boats that could,” and to the attorneys who believed in them, and the merits of their case.

The decision is being covered extensively in the press.  Here are links to some of that coverage.

CNN: Supreme Court overturns 1984 Chevron precedent, curbing power of federal government

Associated Press: The Supreme Court weakens federal regulators, overturning decades-old Chevron decision

Washington Post: Supreme Court curbs federal agency power, overturning Chevron precedent

Wall Street Journal: Supreme Court Pares Back Federal Regulatory Power

Justices Limit Power of Federal Agencies, Imperiling an Array of Regulations

July 1, 2024 — The Supreme Court on Friday reduced the power of executive agencies by sweeping aside a longstanding legal precedent, endangering countless regulations and transferring power from the executive branch to Congress and the courts.

The precedent, Chevron v. Natural Resources Defense Council, one of the most cited in American law, requires courts to defer to agencies’ reasonable interpretations of ambiguous statutes. There have been 70 Supreme Court decisions relying on Chevron, along with 17,000 in the lower courts.

The decision is all but certain to prompt challenges to the actions of an array of federal agencies, including those regulating the environment, health care and consumer safety.

The vote was 6 to 3, dividing along ideological lines.

“Chevron is overruled,” Chief Justice John G. Roberts Jr. wrote for the majority. “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

Read the full article at The New York Times

Supreme Court rules for fishermen in landmark ‘Chevron deference’ case

July 1, 2024 — Herring fishermen in New Jersey and Rhode Island who objected to paying fees for fishery observers scored a victory in the U.S Supreme Court Friday that could upend 40 years of federal rulemaking.

The court’s 6-3 decision in the twin cases will have profound effects across U.S. government and industry, setting new limits on how executive branch agencies regulate energy, transportation, food and drugs and other health, safety and environmental rules.

Lawyers with conservative legal activist groups brought the cases, Loper Bright v. Department of Commerce and Relentless v. Department of Commerce, on behalf of fishermen who challenged a National Marine Fisheries Service rule that required them to carry onboard observers to monitor fishing, and pay costs for the observers contracted by NMFS, at up to $700 a day.

The cases hinged on the so-called “Chevron deference,” a landmark ruling in federal administrative law dating back to a 1984 dispute between the oil giant and environmental activists of the Natural Resources Defense Council. In that earlier Supreme Court decision, justices ruled that the courts should “defer” to executive agencies’ reasonable interpretations of federal statutes.

Read the full article at the National Fisherman