Saving Seafood

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

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

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

US Supreme Court overturns Chevron in blow to NOAA’s regulatory authority

June 28, 2024 — A lawsuit filed by New Jersey herring fishermen has struck a massive blow to the authority of U.S. regulators.

On 28 June, the U.S. Supreme Court ruled in favor of the plaintiff fishermen in Loper Bright Enterprises v. Raimondo, overturning the long-standing Chevron deference – a legal precedent that gave federal agencies wide latitude in interpreting congressional statutes – and limiting the authority of NOAA Fisheries to implement regulations without clear guidance from lawmakers.

Read the full article at SeafoodSource

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

June 28, 2024 — The Supreme Court on Friday upended a 40-year-old decision that made it easier for the federal government to regulate the environment, public health, workplace safety and consumer protections, delivering a far-reaching and potentially lucrative victory to business interests.

The court’s six conservative justices overturned the 1984 decision colloquially known as Chevron, long a target of conservatives who have been motivated as much by weakening the regulatory state as social issues including abortion. The liberal justices were in dissent.

The case was the conservative-dominated court’s clearest and boldest repudiation yet of what critics of regulation call the administrative state.

Bill Bright, a Cape May, New Jersey-based fisherman who was part of the lawsuit, said the decision to overturn Chevron would help fishing businesses make a living. “Nothing is more important than protecting the livelihoods of our families and crews,” Bright said in a statement.

Read the full article at the Associated Press

Fishermen Land Major Supreme Court Victory Overruling Chevron Doctrine

June 28, 2024 — Today, attorneys for a group of New Jersey herring fishermen landed a significant victory at the Supreme Court.  With its ruling in Loper Bright v. Raimondo, the Court has overruled the Chevron doctrine and restored the balance of power between Congress and the Administration. The Loper Bright decision was issued alongside Relentless v Department of Commerce.

The fishermen in the Loper Bright case face an unlawful requirement imposed on them by an executive branch agency that could force them to surrender 20 percent of their earnings to pay at-sea monitors. Because that fee resulted from unlawful overreach and threatened their ability to make a living, the fishermen decided to challenge the requirement in court four years ago. After a split decision in the D.C. Circuit, the Supreme Court decided to review the Chevron doctrine, which is the legal theory the government cited to justify its controversial monitoring rule. For 40 years, Chevron has required federal courts to abdicate their constitutional role to interpret the law by deferring to agency interpretations of statutes whenever those same agencies deem the law “silent” or “ambiguous.” In practice, such deference permitted agencies to engage in egregious overreach, often at the expense of ordinary citizens.

James Valvo, Executive Director of Cause of Action Institute. “We’re gratified that the Court recognized Chevron’s perverse consequences and ruled in favor of our clients and all citizens whose livelihoods are threatened by an unaccountable bureaucracy. We look forward to any further steps that will be needed to ensure the unlawful industry-funded monitoring regime imposed on herring fishermen is finally taken off the books.”

Read the full article at LoperBrightCase.com

Supreme Court delivers blow to power of federal agencies, overturning 40-year-old precedent

June 28, 2024 — The Supreme Court on Friday overturned a 40-year-old precedent that has been a target of the right because it is seen as bolstering the power of “deep state” bureaucrats.

In a ruling involving a challenge to a fisheries regulation, the court consigned to history a 1984 ruling called Chevron v. Natural Resources Defense Council. That decision had said judges should defer to federal agencies in interpreting the law when the language of a statute is ambiguous, thereby giving regulatory flexibility to bureaucrats.

It is the latest in a series of rulings in which the conservative justices have taken aim at the power of federal agencies, including one on Thursday involving in-house Securities and Exchange Commission adjudications. The ruling was 6-3, with the conservative justices in the majority and liberal justices dissenting.

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

He said that the ruling does not cast into doubt prior cases that relied on the precedent, but going forward lower courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

Read the full article at NBC News