Saving Seafood

NH fisherman takes $700-a-day mandate to have federal agent aboard to Supreme Court

July 31, 2017 — HAMPTON, N.H. — A commercial fisherman who is suing the National Oceanic and Atmospheric Administration over its at-sea monitoring program is hopeful the U.S. Supreme Court will hear his case on its merits.

David Goethel, of Hampton, who filed his original suit against the federal government in 2015, has been joined in his efforts by the Northeast Fisheries Sector 13. They represent fishermen from Massachusetts to North Carolina.

Cause of Action Institute, a nonprofit oversight group advocating for economic freedom and individual opportunity in Washington, D.C., is funding the lawsuit. Goethel said their support is evening the playing field for small commercial fishermen who are being forced to pay about $700 per day for at-sea monitors under current regulations.

“We simply just don’t have the money to play in these arenas,” Goethel said Friday.

Lawyers submitted their petition to the Supreme Court earlier this month. It calls for the court to reverse rulings about a 30-day statute of limitations for challenges, but at its heart, Goethel is asking for the case to be heard on its merits.

Goethel said he believes it is illegal for NOAA to require commercial fishermen to pay for at-sea monitors, when NOAA mandates them. NOAA has paid for the monitors on and off in the past, when they can find the money, Goethel said.

Read the full story at the New Hampshire Union Leader

Dave Goethel takes case to US Supreme Court

July 13, 2017 — After losing a lawsuit alleging a federal agency has imposed unfair regulations, Hampton fisherman David Goethel is taking his case to the U.S. Supreme Court.

Cause of Action Institute, which is representing Goethel and a group of other fishermen pro bono, filed a petition to be taken up by the Supreme Court Tuesday. The suit was originally filed in U.S. District Court against the National Oceanic and Atmospheric Administration and U.S. Department of Commerce in 2015. It alleges NOAA unfairly requires commercial groundfishermen to fund at-sea monitors to join them on fishing trips and observe their compliance with regulations. Groundfish include popular New England fishing species like cod and haddock.

A First U.S. Circuit Court of Appeals panel in Boston affirmed a ruling in favor of NOAA and the DOC this spring. According to Cause of Action’s petition, the lower court erred in dismissing the case based on the original suit being filed well after a 30-day deadline for challenging the regulation. Cause of Action is arguing the ruling prevented the court from addressing the merits of the suit’s argument – that fishermen believe it is unconstitutional for the government to force an industry to pay for its own policing.

Read the full story at the Portsmouth Herald

Trump’s Supreme Court Nominee Skeptical Of Federal Agency Power

March 17, 2017 — At most Supreme Court confirmation hearings, questions focus on hot-button social issues — abortion, affirmative action, same-sex marriage — and the hearings next week on Supreme Court nominee Neil Gorsuch will be no exception.

But senators are also likely to spend a lot of time examining the nominee’s views on federal regulations — of the environment, health and safety laws for workers, and laws on consumer rights and business.

In question is a doctrine that Gorsuch has criticized but that also once helped his mother.

The Chevron doctrine

The Chevron decision is perhaps the most cited case in American law. Decided unanimously in 1984, it established a general rule of deferring to an agency’s reasonable interpretation of a statute.

The idea is that in passing a law, Congress sets out broad provisions and tells agencies that have considerable expertise to establish rules for carrying out the law’s mandates. In short, the agency is to fill in the details.

The Chevron case stems from the Reagan administration. When President Ronald Reagan took office in the early 1980s, the White House adopted more permissive rules for air pollution caused by manufacturing plants. The Natural Resources Defense Council sued the Environmental Protection Agency, then under the leadership of Anne Gorsuch, contending the agency had exceeded its authority.

Read the full story at NPR

ALASKA: State appeals to U.S. Supreme Court to overturn salmon decision

March 1, 2017 — In the midst of the Upper Cook Inlet Board of Fisheries meeting, the battle for state management of Cook Inlet salmon fisheries continues.

The State of Alaska has filed with the U.S. Supreme Court to review a recent 9th Circuit Court of Appeal decision that would require some of Alaska’s salmon fisheries to conform to federal management.

The state says this is the wrong move.

“This is an area where the federal government recognizes the State’s expertise and agrees that the State is better equipped to manage the fishery, even in federal waters,” said Attorney General Jahna Lindemuth in a press release Feb. 27. “We hope the U.S. Supreme Court will review this important issue and reverse the Ninth Circuit’s decision.”

Last September, the U.S. 9th Circuit Court of Appeals overturned a 2011 decision by the North Pacific Fishery Management Council to remove several Alaska salmon fisheries from the federal management plan.

Read the full story at the Alaska Journal of Commerce

‘Chevron Deference,’ Key Issue in Fisheries Management, Questioned by Supreme Court Nominee

February 2, 2017 (SAVING SEAFOOD) — On January 31, President Donald Trump nominated Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to fill the vacant seat on the Supreme Court. If confirmed, the Court may potentially reexamine the legal principle of Chevron deference, a principle that has heavily impacted fisheries management.

Chevron deference is a legal principle established in 1984, in the Supreme Court case of Chevron v. Natural Resources Defense Council. It states that in cases when the meaning of federal laws is unclear, courts should prioritize the interpretations of the regulatory agencies, such as NOAA. Practically, this has the effect of bolstering the influence of the federal bureaucracy at the expense of judicial review. In the case of fishery management, this has resulted in several instances where courts have upheld agency decisions whose legality has been disputed by the fishing community.

Most notably, in Lovgren v. Locke the plaintiffs (including fishermen and several municipalities in New England) challenged the establishment of catch shares management in New England in 2010 as being in violation of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act. The First Circuit Court of Appeals relied on Chevron in ruling in favor of the Commerce Department. This principle also was cited last year by District Court for the District of New Hampshire as a reason why the lawsuit against NOAA’s at-sea monitoring industry funding requirements failed.

While the Supreme Court – including Justice Scalia – has previously applied Chevron deference on several occasions, Judge Gorsuch has expressed trepidation about its merits. In his concurring opinion for Gutierrez-Brizuela v. Lynch, Gorsuch wrote:

“What would happen in a world without Chevron? […] Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is.”

While Judge Gorsuch has only been nominated recently, should he ascend to the High Court, look for a reexamination of the principle of Chevron deference in the coming years.

Merrick Garland and Chevron deference make an ugly combination

March 21, 2016 — George Will points out a glaring problem with Merrick Garland’s Supreme Court nomination, namely Garland’s excessive affection for the lamentable Chevron deference doctrine:

“Chevron deference” … actually is germane to Garland. He is the most important member (chief judge) of the nation’s second-most important court, the U.S. Court of Appeals for the District of Columbia Circuit, the importance of which derives primarily from its caseload of regulatory challenges. There Garland has practiced what too many conservatives have preached — “deference” in the name of “judicial restraint” toward Congress, and toward the executive branch and its appendages in administering congressional enactments. Named for a 1984 case, Chevron deference unleashes the regulatory state by saying that agencies charged with administering statutes are entitled to deference when they interpret supposedly ambiguous statutory language.

See the full commentary at ProfessorBainbridge.com

George Will on Merrick Garland and “Chevron deference.”

WASHINGTON (March 21, 2016) — The Republican party’s incoherent response to the Supreme Court vacancy is a partisan reflex in search of a justifying principle. The multiplicity of Republican rationalizations for their refusal to even consider Merrick Garland radiates insincerity.

Republicans instantly responded to Antonin Scalia’s death by proclaiming that no nominee, however admirable in temperament, intellect, and experience, would be accorded a hearing. They say their obduracy is right because:

Because they have a right to be obdurate, there being no explicit constitutional proscription against this.

Or because President Obama’s demonstrated contempt for the Constitution’s explicit text and for implicit constitutional manners justifies Republicans reciprocating with contempt for his Supreme Court choice, regardless of its merits.

Or because, 24 years ago, then-senator Joe Biden — he is not often cited by Republicans seeking validation — suggested that a president’s right to nominate judges somehow expires, or becomes attenuated, in a “political season,” sometime after the midterm elections during a second presidential term.

Or because if a Republican president tried to fill a Court vacancy during his eighth year, Democrats would behave the way Republicans are behaving.

Read the full column at the National Review