November 10, 2022 — Former U.S. Solicitor General Paul Clement today petitioned the U.S. Supreme Court to hear the case of several New Jersey fishermen challenging a federal mandate that forces herring fishermen to pay hundreds of dollars out of pocket to host at-sea monitors who observe the fishermen on fishing trips and report their activities to the federal government. The mandate forces herring fishermen to pay monitors as much as $700 per day, which can be more than some boat captains and crew members make on the same trips.

Paul Clement served as United States solicitor general from 2004 to 2008. Over the past three Supreme Court terms, attorneys with Clement & Murphy have argued 14 cases and prevailed in 12. Its team has successfully litigated both alongside and against the United States government, as well as federal agencies, and have successfully secured certiorari over the federal government’s opposition and successfully opposed certiorari when the federal government has sought it.

The following is an excerpt from a story originally published by the Associated Press:

A group of commercial fishermen is asking the U.S. Supreme Court to stop the federal government from making them pay for workers who gather data aboard fishing boats.

The fishermen harvest Atlantic herring off the East Coast and are opposed to a 2020 rule implemented by the National Oceanic and Atmospheric Administration that requires the industry-funded monitoring. The monitors are workers who collect data on board fishing vessels that are important for informing regulations.

The fishermen, led by main plaintiff Loper Bright Enterprises of New Jersey, have argued that the requirement forces them to pay more than $700 per day to third-party contractors, and that makes fishing financially unsustainable. They’ve lost in lower court rulings, and filed a petition with the high court on Thursday.

“Making these vessels pay to have the observer coverage on them just decreases hardworking fishermen’s wages and makes it less attractive for vessels to continue,” said Wayne Reichle, president of Lund’s Fisheries of New Jersey and an owner of two of the boats that are plaintiffs in the case. “In some cases, it prevents them from fishing.”

Read the full story from the Associated Press

November 10, 2022 — The following was released by Cause of Action Institute:

Former U.S. Solicitor General Paul Clement today petitioned the U.S. Supreme Court to hear the case of several New Jersey fishermen challenging an onerous and unlawful federal mandate. Central to the case is Chevron deference and the ability of federal courts to overrule executive branch actions that have no basis in law.

National Oceanic and Atmospheric Administration (NOAA) regulations force herring fishermen to pay hundreds of dollars out of pocket to host at-sea monitors who observe the fishermen on fishing trips and report their activities to the federal government. The mandate forces herring fishermen to pay monitors as much as $700 per day, which can be more than some boat captains and crew members make on the same trips.

“We are fighting for our livelihoods and a future that is being unfairly targeted by federal overreach,” said Stefan Axelsson, a third-generation fisherman and captain of one of the vessels in the lawsuit. “These rules could force hardworking fishermen to surrender a significant part of their earnings.”

Click here to view a video profile of the case.

Federal law authorizes the placement of at-sea monitors, but not passing the cost of monitors onto herring fishermen. When NOAA realized it would be unable to afford its desired herring monitoring program, the agency shifted the costs to fishermen instead of seeking additional funds from Congress.

Click here to read the petition.

Interestingly, Congress has already spoken to the issue of industry funding.  It gave NOAA explicit authority to require fishermen in certain fisheries to pay for at-sea monitors. But Congress considered and rejected granting that authority over the herring fishery at issue in this case.

“It is the duty of the judiciary to step in when any branch of government has abused its power,” said Paul Clement. “This case is about correcting one such abuse and reining in executive overreach that threatens the livelihoods of fishing families and the constitutional balance of power.”

Overturning Chevron Deference

The case, Loper Bright Enterprises v. Raimondo, has the potential to set a landmark precedent by overruling Chevron deference, a decades-old legal doctrine that has allowed Congress to outsource lawmaking to executive agency employees. That standard has all but guaranteed government victories in regulatory cases by giving unelected bureaucrats carte blanche for rulemaking without congressional approval.

There are indications the federal judiciary is prepared to revisit Chevron. The D.C. Circuit Court of Appeals upheld the at-sea monitor requirement based on Chevron in a 2-1 ruling. In a strong dissent, Judge Justin Walker derided NOAA’s attempt to circumvent Congress:

Congress can make profitable fishing even harder by forcing fishermen to spend a fifth of their revenue on the wages of federal monitors embedded by regulation onto their ships. But until Congress does that, the Fisheries Service cannot.

“Congress did not give NOAA the power to outsource the costs of at-sea monitors,” said Cause of Action Institute Counsel Ryan Mulvey. “It is time for the Supreme Court to do away with Chevron and return lawmaking to its rightful place in Congress and statutory interpretation to its rightful place: the judiciary, not the executive branch.”

The fishermen received legal assistance from Cause of Action Institute, a non-profit devoted to individual liberty.

The petition is available on Cause of Action Institute’s website. Background information, including the petition, motion, and lower court rulings, can be found here.