December 23, 2022 — Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC, corporations operating in the herring fishery off the coast of New England, have filed an amicus curiae brief in support of Loper Bright Enterprises’ petition for a writ of certiorari in Loper Bright Enterprises, et al. v. Raimondo, et al. These Rhode Island small businesses urge the Supreme Court to review this case to (1) resolve the circuit split in how Chevron deference applies to agency actions under the Magnuson-Stevens Act (MSA); and (2) halt a regulation which allows the Nationalarine Fisheries Service (NMFS) to charge fishermen unlawfully for a government function Congress has not approved and apparently does not believe to be worth spending Americans’ tax dollars on. The New Civil Liberties Alliance represents amici here as parties in Relentless Inc., et al. v. U.S. Dept. of Commerce, et al., now pending in the U.S. Court of Appeals for the First Circuit.
Much at stake in US Supreme Court review of at-sea monitoring case
December 21, 2022 — Herring fishermen in the U.S. state of New Jersey are asking the U.S. Supreme Court to review their case challenging the at-sea monitoring program, a cause that has gained support from a wide variety of groups.
According to the Cause of Action Institute, which is representing the fishermen suing the federal government, 39 groups are part of 14 amicus briefs that have been filed in the case. That includes attorneys general from 18 states as well as the small business group NFIB, the Cato Institute, several legal foundations, and other fishing-industry stakeholders.
Justice Gorsuch’s white whale: Supreme Court has new chance to consider agencies’ power
December 20, 2022 — Supreme Court Justice Neil M. Gorsuch was expected to be conservatives’ barbarian at the gates of big government, leading a charge to tear down the 1984 case they pinpoint as a legal justification for expansion of the regulatory state.
Those hopes were inflated by the confirmation of two more Trump appointees to the high court, delivering what conservative legal scholars thought might be reinforcement for the effort to tear down Chevron U.S.A. v. Natural Resources Defense Council.
The Supreme Court Should End Chevron Deference
December 14, 2022 — Loper Bright Enterprises is a family owned herring fishing company that operates in New England waters. Herring fishing is hard work on a small boat, and every inch of space is valuable for storing supplies, fishermen, and the catch. Nonetheless, a National Marine Fisheries Service (“NMFS”) regulation requires that herring fishing boats allow an additional person on board to serve as a monitor, tracking compliance with federal regulations. Not only does this monitor take up limited space, but the fishermen must also pay the monitor’s salary of around $700 per day. Overall, the regulation reduces fishing profits by about 20%. If fishing boats decline to carry a monitor, they are prohibited from fishing for herring.
Loper Bright and other fisheries sued to challenge this rule, arguing that the NMFS lacked statutory authority to force them to pay for these monitors. Although the statute at issue says nothing about industry funding for government monitors, the district court surprisingly held that the statute clearly authorized the rule. Loper Bright appealed, and the D.C. Circuit held that the statute was ambiguous but deferred to the agency’s interpretation under the Chevron doctrine. Loper Bright has now asked the Supreme Court to grant review of its case, and Cato—joined by the Liberty Justice Center—has filed an amicus brief supporting that petition.
New Jersey groundfish fishermen ask US Supreme Court to take up at-sea monitor case
November 15, 2022 — Fishermen from the U.S. state of New Jersey who oppose a federal regulation requiring them to pay for monitors to oversee their trips have asked the U.S. Supreme Court to take up their case.
The New Jersey herring fishermen say a federal law gives NOAA the ability to make them pay up to USD 700 (EUR 680) per day to cover the costs of the monitors – which they claim is often more than what captains and crew members can earn on their trips.
Herring fishermen take at-sea monitoring costs to Supreme Court
November 15, 2022 — Atlantic herring fishermen are asking the U.S. Supreme Court to reject a requirement that they pay for fishery observers at sea, at costs that can exceed $700 a day.
The fishermen’s petition to certify looks to bring their earlier lawsuit against the U.S. Department of Commerce and National Marine Fisheries Service to the high court, after they lost in a federal appeals court.
“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, in a statement from the fishermen and their lawyers on Nov. 10. “These rules could force hardworking fishermen to surrender a significant part of their earnings.”
The lead plaintiff in the lawsuit, Loper Bright Enterprises of New Jersey, is associated with several fishing vessels and companies based at Cape May, N.J. The group has fought back against a 2020 rule from the National Marine Fisheries Service that forced vessel operators to pick up the tab for daily at-sea observer coverage. Fishermen say Congress should fund the program.
“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.”
Fishermen target Chevron deference in SCOTUS petition over onboard monitors
November 15, 2022 — New Jersey fishing firms want the U.S. Supreme Court to review a lower court order that forces them to pay the salaries of federally mandated onboard monitors, arguing it’s the perfect opportunity to overturn a cornerstone precedent that gives federal agencies wide latitude to interpret laws.
The fishing companies say the National Marine Fisheries Service’s (NMFS) salary rule is too onerous, requiring them to not only give up valuable space on their small boats for the observers but also pay them over $700 a day. The companies have said those fees can reduce returns by 20%.
Fishermen take case against paying for monitors to SCOTUS
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.”
NJ Fishermen Ask Supreme Court to End Unlawful, Job-Killing Mandate
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.
Starkist appeals decision on price-fixing suit to US Supreme Court
August 10, 2022 — Starkist has followed through on its pledge to appeal a decision made in the class-action civil lawsuit filed against it for its role in fixing the prices of canned tuna sold in the United States between 2011 and 2013.
On Monday, 8 August, 2022, Starkist filed a petition at the U.S. Supreme Court asking it to strike down a decision made by the Ninth U.S. Circuit Court of Appeals in San Francisco, California, U.S.A., which ruled in a 9-2 decision in April 2022 to uphold the class certification completed in 2019 by U.S. District Court for the Southern District of California Judge Janis L. Sammartino.