Saving Seafood

Supreme Court move could spell doom for power of federal regulators

May 1, 2023 — A legal doctrine long despised by conservatives for giving federal regulators wide-ranging power is making yet another march to the gallows at the Supreme Court.

The high court announced Monday that it is taking up a case squarely aimed at killing off the nearly-four-decade-old precedent that has come to be known as Chevron deference: the principle that courts should defer to reasonable agency interpretations of ambiguous provisions in congressional statutes and judges should refrain from crafting their own reading of the laws.

Overturning the doctrine would have major implications for the Biden administration’s climate agenda. It would complicate the administration’s efforts to tackle major issues such as climate change via regulation, including possibly derailing the Environmental Protection Agency’s push to mitigate carbon emissions from the electricity and transportation sectors — the two highest polluting industries in the United States.

The Chevron doctrine has “been in a coma for a while, so we’ll see whether they want to revive it or take it off life support,” said David Doniger, who in 1984 argued that case before the Supreme Court for the NRDC.

Read the full story at Politico

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

Supreme Court Takes Up Case That Could Curtail Agency Power to Regulate Business

May 1, 2023 — The Supreme Court agreed on Monday to take up a case that could make it easier to curtail the power of administrative agencies, a long-running goal of the conservative legal movement that could have far-reaching implications for how American society imposes rules on businesses.

In a terse order, the court said it would hear a case that seeks to limit or overturn a unanimous 1984 precedent, Chevron v. Natural Resources Defense Council. According to the decision, if part of the law Congress wrote empowering a regulatory agency is ambiguous but the agency’s interpretation is reasonable, judges should defer to it.

At issue in the case, Loper Bright Enterprises v. Raimondo, is a law that requires fishing vessels to pay for monitors who ensure that they comply with regulations meant to prevent overfishing. The National Marine Fisheries Service established the rule, and a group of companies has challenged whether the agency had the authority to do so.

When the Supreme Court decides on the case, most likely in its next term, the outcome could have implications that go beyond fisheries.

Read the full story at the New York Times

N.C. decides not to appeal to Supreme Court for review in lawsuit over marine fisheries regulations

October 14, 2022 — Glenn Skinner, executive director of the N.C. Fisheries Association, a trade and lobbying group for North Carolina commercial fishermen, said Thursday he was “surprised and a little confused” by the state’s decision this week not to appeal to the state Supreme Court to reverse a September Appeals Court ruling that allows the state to be sued for alleged failure to protect North Carolina’s fisheries.

“We don’t what we’re going to do right now,” Skinner said. “We’re sort of sitting here scratching our heads.”

The N.C. Court of Appeals ruled unanimously in September that the state chapter of the Coastal Conservation Association, a recreational fishermen’s group that bills itself as an advocate for “sound management of public trust marine and estuarine resources,” could sue the state, rejecting the state’s claim of sovereign immunity.

Read the full article at Carteret County News-Times

Supreme Court won’t hear fishermen case against ocean monument

March 23, 2021 — The Supreme Court on Monday rejected an appeal from a fishing group that challenged the creation of a large federally protected area in the Atlantic Ocean.

The group sued to try to get rid of the Northeast Canyons and Seamounts Marine National Monument, which became the first national ocean monument in the Atlantic when President Barack Obama created it in 2016. The area consists of 5,000 square miles off New England, and it is home to fragile deep-sea corals.

The fishermen sued in federal court saying the establishment of a protected zone where they have historically fished for lobsters and crabs could hurt their livelihoods. Federal district and appellate courts ruled that the monument was created appropriately by Obama, who used the Antiquities Act to establish it.

The high court denied a request to take a look at the case. Chief Justice John Roberts wrote that the creation of a national monument was “of no small consequence,” but the petitioners did not meet the criteria to bring it before the Supreme Court.

Roberts also wrote that the court has never considered how such a large monument can be justified under the Antiquities Act, which President Theodore Roosevelt created more than a century ago to preserve artifacts such as Native American ruins. Roberts wrote it’s possible the court could be presented a better opportunity to consider that issue in the future.

Read the full story at the Associated Press

US Supreme Court turns down marine monuments challenge, for now

March 23, 2021 — Conservationists earned a victory on Monday, 22 March, when the U.S. Supreme Court opted against taking a case that questioned the establishment of national marine monuments. However, Chief Justice John Roberts strongly hinted the court may welcome future challenges of a similar ilk.

The Massachusetts Lobstermen’s Association had asked the nation’s top court to consider its case against the federal government and its use of the Antiquities Act to establish marine monuments, which then-President Barack Obama used to create the Northeast Canyons and Seamounts Marine National Monument in 2016. While the court decided that the lobstermen’s case did not warrant consideration, Roberts took an unusual step in issuing a statement raising issues about the scope of the monuments.

Read the full story at Seafood Source

Supreme Court denies fishing industry challenge to marine monument, while opening the door to future challenges

March 23, 2021 — In a ruling that could be a Pyrrhic victory for conservation groups in New England, the Supreme Court on Monday rejected a lawsuit brought by Massachusetts fishermen that challenged president Barack Obama’s creation of a vast marine monument in the Atlantic Ocean, the first of its kind off the East Coast.

Yet Chief Justice John Roberts in a concurring opinion raised significant concerns about the size of the Northeast Canyons and Seamounts Marine National Monument, a controversial, Connecticut-sized sanctuary that lies about 130 miles southeast of Provincetown.

Indeed, his sharply worded opinion provided a potential roadmap for a legal challenge against the monument and seemed to signal that the court would be willing to consider truncating or invalidating the 5,000 square miles of federally protected waters.

Roberts criticized Obama’s decision to use the 1906 Antiquities Act to designate the monument, which he described as “part of a trend of ever-expanding antiquities” that have become national monuments.

“A statute permitting the president in his sole discretion to designate as monuments ‘landmarks,’ ‘structures,’ and ‘objects’ — along with the smallest area of land compatible with their management — has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea,” Roberts wrote.

Read the full story at The Boston Globe

Roberts Harangues Marine Monument as Appeal Runs Aground

March 22, 2021 — The U.S. Supreme Court nixed a challenge Monday to a fishing ban in a massive swath of the Atlantic Ocean that the federal government enshrined as the first-of-its-kind marine monument.

That the court is selective about what cases it hears is widely known — dozens of cases are summarily rejected every week, and today’s order list proved no exception. Singling out this case for attention, however, Chief Justice John Roberts took the unusual step this morning of essentially calling it open season for challenges of the marine monument.

“A statute permitting the president in his sole discretion to designate as monuments ‘landmarks,’ ‘structures,’ and ‘objects’ — along with the smallest area of land compatible with their management — has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea,” Roberts wrote in a statement about the case.

The statute to which Roberts is referring is the federal Antiquities Act, invoked in 2016 by former President Barack Obama to designate a Connecticut-sized area of commercial fishing zone as the Northeast Canyons and Seamounts Marine National Monument.

“The monument contains three underwater canyons and four undersea volcanoes. The ‘objects’ to be ‘protected’ are the ‘canyons and seamounts themselves,’ along with ‘the natural resources and ecosystems in and around them,’” Roberts added. “We have never considered how a monument of these proportions — 3.2 million acres of submerged land — can be justified under the Antiquities Act.”

Considering that national parks can be established only by an act of Congress, the Antiquities Act gives the president a fair amount of flexibility to protect land and sea. It does specify, however, that any parcels of land granted protection must “be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

Read the full story at the Courthouse News Service

Chief Justice Roberts Expresses Concerns Over Atlantic Monument Designation

March 22, 2021 — In a decision released this morning declining to review the case the Massachusetts Lobstermen’s Association brought against the federal government, Chief Justice John Roberts indicated he has grave reservations regarding the creation and formulation of the Northeast Canyons and Seamounts Marine National Monument. While he rejected the legal arguments made by the plaintiff’s attorneys as to why the Supreme Court should take the case, the Chief Justice was clear in expressing his concerns about the monument’s designation and scope.

“The Antiquities Act originated as a response to widespread defacement of Pueblo ruins in the American Southwest… A statute permitting the President in his sole discretion to designate as monuments “landmarks,” “structures,” and “objects”—along with the smallest area of land compatible with their management—has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea. The Northeast Canyons and Seamounts Marine National Monument at issue in this case demonstrates how far we have come from indigenous pottery.”

He also suggested that the Supreme Court could take action on this monument and others, noting that several cases that could soon come before the court may raise issues that could truncate or invalidate monuments created using the Antiquities Act.

Statement of Chief Justice Roberts respecting the denial of certiorari:

Which of the following is not like the others: (a) a monument, (b) an antiquity (defined as a “relic or monument of ancient times,” Webster’s International Dictionary of the English Language 66 (1902)), or (c) 5,000 square miles of land beneath the ocean? If you answered (c), you are not only correct but also a speaker of ordinary English.  In this case, however, the Government has relied on the Antiquities Act of 1906 to designate an area of submerged land about the size of Connecticut as a monument—the Northeast Canyons and Seamounts Marine National Monument.

The creation of a national monument is of no small consequence. As part of managing the Northeast Canyons and Seamounts Marine National Monument, for example, President Obama banned almost all commercial fishing in the area with a complete ban to follow within seven years.  Presidential Proclamation No. 9496, 3 CFR 262, 266–267 (2016). According to petitioners—several commercial fishing associations—the fishing restrictions would not only devastate their industry but also put severe pressure on the environment as fishing would greatly expand in nearby areas outside the Monument.  Although the restrictions were lifted during this litigation, Presidential Proclamation No. 10049, 85 Fed. Reg. 35793 (2020), that decision is set to be reconsidered and the ban may be reinstated, Exec. Order No. 13990, 86 Fed. Reg. 7037, 7039 (2021). Either way, the Monument remains part of a trend of ever-expanding antiquities. Since 2006, Presidents have established five marine monuments alone whose total area exceeds that of all other American monuments combined. Pet. for Cert. 7–8.

The Antiquities Act originated as a response to widespread defacement of Pueblo ruins in the American Southwest. Because there was “scarcely an ancient dwelling site” in the area that had not been “vandalized by pottery diggers for personal gain,” the Act provided a mechanism for the “preservation of prehistoric antiquities in the United States.” Dept. of Interior, Nat. Park Serv., R. Lee, The Antiquities Act of 1906, pp. 33, 48 (1970) (internal quotation marks omitted).  The Act vests significant discretion in the President, who may unilaterally “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”  54 U. S. C. §320301(a). The President may also reserve “parcels of land as a part of the national monuments,” but those parcels must “be confined to the smallest area compatible with the proper care and management of the objects to be protected.” §320301(b).

The broad authority that the Antiquities Act vests in the President stands in marked contrast to other, more restrictive means by which the Executive Branch may preserve portions of land and sea. Under the National Marine Sanctuaries Act, for example, the Secretary of Commerce can designate an area of the marine environment as a marine sanctuary, but only after satisfying rigorous consultation requirements and issuing findings on 12 statutory criteria.  See 16 U. S. C. §1433(b).  The President is even more constrained when it comes to National Parks, which may be established only by an Act of Congress. See 54 U. S. C. §100101 et seq.

While the Executive enjoys far greater flexibility in setting aside a monument under the Antiquities Act, that flexibility, as mentioned, carries with it a unique constraint: Any land reserved under the Act must be limited to the smallest area compatible with the care and management of the objects to be protected. See §320301(b). Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint. A statute permitting the President in his sole discretion to designate as monuments “landmarks,” “structures,” and “objects”—along with the smallest area of land compatible with their management—has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea.

The Northeast Canyons and Seamounts Marine National Monument at issue in this case demonstrates how far we have come from indigenous pottery. The Monument contains three underwater canyons and four undersea volcanoes. The “objects” to be “protected” are the “canyons and seamounts themselves,” along with “the natural resources and ecosystems in and around them.” Presidential Proclamation No. 9496, 3 CFR 262.

We have never considered how a monument of these proportions—3.2 million acres of submerged land—can be justified under the Antiquities Act. And while we have suggested that an “ecosystem” and “submerged lands” can, under some circumstances, be protected under the Act, see Alaska v. United States, 545 U. S. 75, 103 (2005), we have not explained how the Act’s corresponding “smallest area compatible” limitation interacts with the protection of such an imprecisely demarcated concept as an ecosystem.  The scope of the objects that can be designated under the Act, and how to measure the area necessary for their proper care and management, may warrant consideration—especially given the myriad restrictions on public use this purely discretionary designation can serve to justify.  See C. Vincent, Congressional Research Service, National Monuments and the Antiquities Act 8–9 (2018) (detailing ways in which “management” of a monument limits recreational, commercial, and agricultural uses of the surrounding area).

Read the full statement here

Supreme Court to Review Endangered Species FOIA Case

March 3, 2020 — The Supreme Court is taking up the Trump administration’s legal quest to keep certain Endangered Species Act records from the public eye.

The justices agreed Monday to review a petition from two U.S. agencies trying to reverse a court order to release draft documents from a controversial species consultation process. The Freedom of Information Act case could have broad ramifications for agency disclosure in other contexts.

Government lawyers warned in their petition that allowing the order to stand would undermine a FOIA exemption that allows for “candid” communication between agencies during decision-making processes. But the Sierra Club, which filed the underlying case, says FOIA doesn’t allow agencies to shield important records simply by labeling them drafts.

“If an agency makes a decision that alters the course of either another agency’s decision-making or affects the public, it doesn’t get to just stamp that document ‘draft’ or ‘secret’ or ‘for our eyes only’ or anything else,” Sierra Club attorney Sanjay Narayan told Bloomberg Law.

Some legal analysts predict that the court’s decision to take the case means the justices will side with the government.

Read the full story at Bloomberg Law