Saving Seafood

Supreme Court Set to Decide Case That Could Curb Power of Government Agencies

June 27, 2024 — The Supreme Court is expected to issue a decision this week that could have broad implications for the authority of federal regulatory agencies including the Securities and Exchange Commission and Environmental Protection Agency.

At issue is a four-decade-old precedent known as Chevron deference, which gives agencies wide latitude in crafting regulations. During oral arguments in January, some conservative justices expressed skepticism about it, suggesting the court could overturn or curtail it.

The precedent directs courts to defer to federal agencies’ reasonable interpretations of federal law when statutes are deemed ambiguous. Conservatives and business groups say that it has handed too much power to unelected government regulators.

Chevron deference lies at the heart of two cases the court heard this term: Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce. Both cases involve fishing boat operators who challenged the constitutionality of federal government regulations intended to protect Atlantic herring fisheries. The plaintiffs took issue with a 2020 National Marine Fisheries Service rule requiring boat operators to pay for federal monitors on their ships. This can cost as much as $710 a day, according to the plaintiffs.

Chevron has been a “disaster,” lawyers for one of the fishing companies, Loper Bright Enterprises, wrote in a November court filing. “Lower courts see ambiguity everywhere and have abdicated the core judicial responsibility of statutory construction to executive-branch agencies,” they wrote. “The exponential growth of the Code of Federal Regulations and overregulation by unaccountable agencies has been the direct result.”

Read the full article at Market Watch

The President Shouldn’t Be Able to Seize Land Unilaterally

March 20, 2024 — On March 22, the Supreme Court will consider acting on a constitutional challenge to what is among the most misunderstood and abused federal land statutes: the Antiquities Act of 1906. If the Supreme Court does not act on American Forest Resource Council v. United States of America, it will green-light a vast expansion of executive power over all federal lands, waters, and natural resources, ultimately putting their fate in the hands of one person: the president.

Passed during President Theodore Roosevelt’s second term, the Antiquities Act gave presidents authority to declare “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments . . . which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”

The original purpose of the Antiquities Act was to protect archaeological sites, or “antiquities,” and other specific, definable objects and landscapes in federal ownership at risk of theft or desecration. Four months after the passage of the Antiquities Act, President Roosevelt declared Wyoming’s Devils Tower our first national monument. The designated area covered 1,304 acres.

Yet, over the last century, presidents have expanded the use of the Antiquities Act to make its original purpose and intent unrecognizable. For example, President Obama issued 34 monument proclamations directing the management of over 550 million acres of federal lands, waters, and resources.

Read the article at The National Review

 

Additional coverage of last week’s historic Supreme Court actions in the Loper Bright and Relentless cases

January 23, 2024 — For more background on last week’s historic Supreme Court actions in the Loper Bright and Relentless cases, we are sharing three segments from Fox News.

– Lund’s Fisheries President and co-owner Wayne Reichle joined ‘America Reports’ to discuss the Supreme Court case.
– https://www.foxnews.com/video/6345131453112
– Fox News’ Douglas Kennedy visited Seafreeze and spoke with Fisheries Liaison Megan Lapp to discuss the lengthy legal battle over new fishing regulations.
– https://www.foxnews.com/video/6345054530112
– Fox News’ Martha MacCallum joins Seafreeze Fisheries Liaison Meghan Lapp and NCLA’s President and Chief Legal Officer Mark Chenoweth to discuss landmark case,
https://m.youtube.com/watch?feature=shared&v=klHR3ca6yT8 (https://m.youtube.com/watch?feature=shared&v=klHR3ca6yT8)

Herring fishermen cautiously optimistic after US Supreme Court hears arguments on at-sea observer requirements

January 21, 2024 — The New Civil Liberties Alliance (NCLA), which has been representing commercial fishermen in an ongoing case before the U.S. Supreme Court, expressed cautious optimism that the court would align with their reasoning following oral arguments.

“After many years, our clients were finally before a court that seemed disinclined to defer to the agency they have been fighting as to what the law is,” NCLA Senior Litigation Counsel John Veccione said.

Read the full article at SeafoodSource

Cape May fishermen at center of major U.S. Supreme Court case

January 21, 2024 — The U.S. Supreme Court is weighing what could be one of the most important decisions it makes this term: whether to uphold a 1984 legal precedent known as Chevron, which states that federal courts must defer to regulatory agencies when a law is ambiguous.

But a lawsuit filed by three commercial fishermen at the Jersey Shore could sink Chevron.

Environmentalists fear that would greatly curtail the power of federal regulators such as the Environmental Protection Agency, as well as a broader spectrum of agencies handling public health and safety.

In short, the fishermen are objecting to a regulation that requires them to pay observers to ensure their vessels comply with federal regulation while at sea. Cape May-based commercial fishing operations, run by Bill Bright, Wayne Reichle, and Stefan Axelsson, filed a suit, Loper Bright Enterprises v. Raimondo, which is backed by conservative groups seeking to overturn Chevron.

Read the full article at The Philadelphia Inquirer 

America’s Supreme Court is inclined to clamp down on regulators

January 18, 2024 — A pair of spirited Supreme Court hearings on January 17th confronted a question at the heart of American democracy: what is the balance of power among the three branches of the federal government? The justices seemed inclined to shift that balance towards their own chambers.

The cases under review both involve fishermen objecting to a regulation requiring them to pay hefty fees for monitors who keep an eye on them as they troll for herring. The rule was issued in 2020 by the National Marine Fisheries Service, an agency of the executive branch. It was then blessed by two circuit courts of appeal as consonant with the Magnuson-Stevens Fishery Conservation and Management Act, a law passed by Congress in 1976.

Read the full article at the Economist 

Conservative Justices Appear Skeptical of Agencies’ Regulatory Power

January 18, 2024 — Members of the Supreme Court’s conservative majority seemed inclined on Wednesday to limit or even overturn a key precedent that has empowered executive agencies, threatening regulations in countless areas, including the environment, health care and consumer safety.

Each side warned of devastating consequences should it lose, underscoring how the court’s decision in a highly technical case could reverberate across wide swaths of American life.

Overruling the precedent, Solicitor General Elizabeth B. Prelogar told the justices, would be an “unwarranted shock to the legal system.”

But Justice Brett M. Kavanaugh responded that there were in fact “shocks to the system every four or eight years when a new administration comes in, whether it’s communications law or securities law or competition law or environmental law.”

Read the full article at The New York Times

US Supreme Court appears split over US agency powers in fishing dispute

January 17, 2024 — The U.S. Supreme Court on Wednesday appeared divided over a bid to further limit the regulatory powers of federal agencies in a dispute involving a government-run program to monitor for overfishing of herring off New England’s coast.

The justices heard arguments in appeals by two fishing companies of lower court rulings allowing the National Marine Fisheries Service to require commercial fishermen to help fund the program. The companies – led by New Jersey-based Loper Bright Enterprises and Rhode Island-based Relentless Inc – have argued that Congress did not authorize the agency, part of the U.S. Commerce Department, to establish the program.

The companies have asked the court, with its 6-3 conservative majority, to rein in or overturn a precedent established in 1984 that calls for judges to defer to federal agency interpretation of U.S. laws deemed to be ambiguous, a doctrine called “Chevron deference.”

The questions posed by the justices did not reveal a clear majority willing to overturn the precedent. Some of the conservative justices seemed skeptical of the doctrine’s continuing force. Others signaled hesitation about reversing it. The court’s liberal justices appeared ready to preserve the doctrine’s deference to the expertise of agencies.

Read the full article at Reuters 

Bureaucrats threatened to sink my fishing business. Supreme Court can keep others afloat.

January 17, 2024 — I’ve spent eight years fighting the federal government to protect my livelihood. I’ve even filed a lawsuit in federal court. Now, the Supreme Court is set to hear a case like mine on Wednesday, Loper Bright Enterprises v. Raimondo.

The stakes are much higher than just protecting fishermen like me. This is a chance to restore representative democracy, real accountability and the constitutional system that protects every American’s liberty.

This case is about family-owned herring fishing companies in New Jersey. They’ve been forced by unelected federal bureaucrats to pay for monitors who ride on their boats and look out for illegal fishing activities. Following the law is a good thing, but the government should pay for its own monitors. Federal law never required the fishermen to cover this cost, and they can’t afford the $700 to $900 daily fee. It’s going to run them out of business.

Read the full article at USA Today

Case brought to Supreme Court by herring fishermen may gut federal rulemaking power

January 17, 2024 –– The U.S. Supreme Court will hear a case today, brought by fishing interests who are friends of Saving Seafood, which could upend the Chevron doctrine. The Supreme Court will hear oral arguments in two cases, Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm. (22-451) and Relentless, Inc. v. Dept. of Commerce (22-1219).

From National Public Radio:

Judges are supposed to follow a two-step procedure. First, they’re supposed to ask whether the law is clear when someone challenges a federal rule. Then, if the law is not clear, if there’s an ambiguity, the court is supposed to defer to the agency interpretation if it’s reasonable.

In practice, that’s meant that courts often defer to people inside federal agencies who are experts on things like pollution, banking and food safety.

But all of it could be upended by a conservative supermajority on the court at the request of an unlikely set of plaintiffs: a group of herring fishermen based in Cape May, N.J.

One of them is Bill Bright, a first-generation fisherman whose family has followed him to the sea.

“My boys are working on the boats,” Bright said. “And my daughters, we have a shoreside business and they run that. So we’re all, the whole family is, in the seafood business 100%.”

Bright said he welcomes regulations to keep the herring population strong in the Northeastern United States. But he said the fisheries service went too far when the government mandated that vessel owners like him had to pay for observers on the boats to make sure they’re following the rules. 

Paul Clement, a former solicitor general in the George W. Bush administration, has argued more than 100 times before the Supreme Court. He represents the herring fishermen.

“Can’t think of a better way to mark the 40th anniversary of the Chevron decision than with an overruling,” Clement said. “In our view, this really has gotten out of control.”

He said the current system means Congress never has to weigh in and reach a compromise on the toughest policy questions, because one side or the other can just wait for a change in the executive branch every four or eight years, and the rules will swing back and forth based on the views of the political party in power.

“I think it’s really as simple as this: which is when the statute is ambiguous, and the tie has to go to someone, we think the tie should go to the citizen and not the government,” Clement added. “And one of the many problems with the Chevron rule is it basically says that when the statutory question is close, the tie goes to the government, and that just doesn’t make any sense to us.”

Read the full story at NPR