Saving Seafood

ALASKA: State asks U.S. Supreme Court to reverse EPA’s veto of Pebble Mine

July 27, 2023 — The state of Alaska is appealing to the U.S. Supreme Court to resurrect the proposed Pebble Mine in the headwaters of Bristol Bay.

The state attorney general, with the help of a private law firm on contract, on Wednesday asked the Supreme Court to repeal a January decision by the U.S. Environmental Protection Agency that in essence vetoed the mine.

Pebble would be a massive open-pit copper and gold mine on state land. The deposit is located upstream from Bristol Bay, Alaska’s most productive sockeye salmon fishery. The company hoping to develop it, Pebble Limited Partnership, says their mine design would ensure contaminants don’t degrade the fishery.

Read the full article at Alaska Public Media

NH joins lawsuit seeking to end fed agency overreach

July 27, 2023 — New Hampshire Attorney General John Formella has joined prosecutors from 26 other states in urging the U.S. Supreme Court to strike down or scale back a landmark doctrine that critics say gives federal agencies unchecked powers.

“For decades now, unelected bureaucrats at federal agencies have been using a legal principle known as Chevron deference to operate like a fourth branch of the government,” Formella said.

“We now see courts deferring to federal agencies as they bend the law, grow their size, and expand their power over the everyday lives of Americans.”

The controversy stems from a Supreme Court ruling on a 1981 Environmental Protection Agency regulation in a suit against Chevron by the Natural Resources Defense Council, which claimed the agency’s rule violated the Clean Air Act.

The Supreme Court disagreed, holding the agency’s definition was a “reasonable construction” of the law. The court created a two-pronged test for applying the “Chevron deference” in challenges to federal regulations.

Formella and the other attorneys general have filed a friend of the court brief on behalf of a New Jersey-based company that has challenged a federal agency ruling regarding its fishing activity in New England waters.

Loper Bright Enterprises sued Secretary of Commerce Gina Raimondo over a National Marine Fisheries Service regulation requiring herring fishing boats to have an extra person on board to monitor compliance with federal rules.

Fishing companies have to pay the monitor’s salary, which can run about $700 a day.

The company argued the federal agency had no authority to force it to pay for the monitor.

Read the full article at Yahoo! Finance

Congress backs fishermen over feds in Supreme Court battle, tells justices to curb bureaucracy

July 26, 2023 —  House Speaker Kevin McCarthy’s chamber is urging the Supreme Court to reconsider the level of deference courts give federal agencies, saying that allowing them too much leeway conflicts with the separation of powers and upends congressional authority over lawmaking.

The House filed its brief in a case that stems from a dispute between herring fishers and the National Marine Fisheries Service, which wants to charge vessels as much as $700 a day to monitor what they are catching.

Fishing industry advocates say that while the law passed by Congress allows for the monitors, the agency is making up its own rules by insisting the boats pay the charges.

The high court agreed to hear the dispute in May, but has not scheduled oral arguments for the legal battle during its 2023 term, which begins in October.

The justices will decide whether to overrule Chevron v. Natural Resources Defense Council, 1984 precedent that gave federal agencies deference when interpreting how to implement legislation passed by Congress when lawmakers were silent with respect to certain aspects of enforcement.

Read the full article at the The Washington Times

House Republicans join push to overturn Chevron doctrine

July 26, 2023 — U.S. House Speaker Kevin McCarthy is throwing his weight behind a push to scrap a decades-old legal doctrine giving federal regulators wide-ranging powers.

The Republican-controlled House of Representatives has filed an amicus brief in support of a lawsuit filed in 2020 by New Jersey commercial fisherman, challenging a federal rule requiring them to pay for monitors to go out on fishing vessels to collect data to craft new regulations.

The lawsuit, pending before the U.S. Supreme Court, calls for scrapping the fish monitoring rules but also seeks to blunt the powers of federal agencies by overturning the so-called Chevron deference. Critics say the legal principle violates the separation of powers doctrine by giving the federal government authority over congressional spending.

Read the full article at The Center Square

McCarthy calls on Supreme Court to ‘rein in’ administrative state in upcoming case

July 25, 2023 — Republicans in Congress including House Speaker Kevin McCarthy (CA) backed amicus briefs Monday calling on the Supreme Court to unwind a landmark precedent that gives the federal government broad authority to interpret laws.

In the upcoming high court term, the justices will weigh a case known as Loper Bright Enterprises v. Gina Raimondo, which asks the justices to pare back the 1984 high court Chevron deference, which tells courts to defer to agency’s interpretations of statutes when the language written in them is ambiguous or vague.

“As part of our Commitment to America, House Republicans pledged to hold Washington accountable. The Chevron framework makes it easier for unelected bureaucrats to weaponize federal regulations against the American people. The Court should rein in the power of unelected bureaucrats and restore the separation of powers,” the House speaker said in a statement.

McCarthy backed the House’s Bipartisan Legal Advisory Group brief it filed at the high court in the Raimondo case, which centers on four New Jersey fishing companies asking the justices whether the National Marine Fisheries Service can force fishing vessels to pay the salaries of federal observers, which costs roughly 20% of company revenues.

Read the full article at the  Washington Examiner

Supreme Court urged to blunt power of federal regulators

July 19, 2023 — The Supreme Court is being asked to overturn a decades-old law giving federal regulators wide-ranging powers as it weighs a legal challenge by New Jersey commercial fishermen over new monitoring rules.

The high court is considering a lawsuit filed in 2020 by plaintiff Loper Bright Enterprises of New Jersey, challenging a rule requiring the industry to fund monitors to go out on commercial fishing vessels to collect data to craft new regulations. The fishermen argue the rules will force them to pay more than $700 per day to contractors, or about 20% of their pay.

But plaintiffs in the case say the dispute over federal monitors also provides an opportunity for the high court to blunt the powers of federal agencies by overturning the so-called Chevron deference.

“It’s a classic David versus Goliath story,” said Ryan Mulvey, an attorney with Cause of Action Institute representing commercial fishermen. “Chevron deference tips the scales of justice towards powerful federal agencies and away from citizens like the fishermen who are seeing their livelihoods threatened by a bureaucracy run amok.”

Read the full article at The Center Square

Rhode Island fishermen ask Supreme Court to hear challenge to observer fees

June 20, 2023 — Encouraged by New Jersey herring fishermen’s application to the U.S. Supreme Court, lawyers for Rhode Island captains are likewise asking the high court to consider what they say is “an unconstitutional rule requiring fishing companies to pay for at-sea government monitoring of their herring catch.”

The legal activist group New Civil Liberties Alliance petitioned the court June 14 for a “writ of certiorari” in its case representing Point Judith, R.I. companies Relentless Inc., Huntress Inc. and Seafreeze Fleet LLC.

Their case challenges a 2020 rule imposed by the National Oceanic and Atmospheric Administration that required vessel operators to pay for observers on their vessels at sea, at a cost that owners say can exceed $700 daily and sometimes exceed the money they make from landing low-priced herring.

The Supreme Court could soon hear arguments in a case called Loper Bright, named for one of several Cape May, N.J. fishing companies fighting the observer requirement that lost their initial case in court but appealed. NOAA waived the rule earlier this year as it ran short of money to administer the program. But fishermen want to make sure the observer requirement is not renewed, and conservative advocacy groups see their cause as a chance to overturn a long-standing precedent called the “Chevron deference.”

Read the full article at the National Fisherman

Fishermen ask US Supreme Court to consider second challenge to NOAA at-sea monitoring rule

June 15, 2023 — A nonprofit civil rights group representing Atlantic herring fishermen wants to take its case to the U.S. Supreme Court as part of a growing movement to limit NOAA Fisheries’ rulemaking authority.

In 2020, NOAA Fisheries implemented a new rule requiring fishermen to pay for human at-sea monitors aboard their vessels. While the agency claimed the monitors are necessary to ensure compliance, fishermen balked at the cost, which they claim can be more than USD 700 (EUR 640) per day. Represented by the New Civil Liberties Alliance (NCLA), some of the fishermen sued the government to overturn the regulation.

Read the full article at SeafoodSource

Commercial Fishermen Urge Supreme Court to Reel In Agency Authority

June 8, 2023 — The U.S. Supreme Court has agreed to hear a case challenging its landmark 1984 decision in Chevron v. Natural Resources Defense Council. The high court’s ruling could have important implications on federal officials’ discretion to regulate in many facets of American life.

Background and Chevron

When Congress delegates regulatory functions to administrative agencies, the delegating statute governs the agency’s ability to act. That is, the statute itself sets the agency’s boundaries and an agency may not regulate or take actions outside the scope of its delegated authority. But what happens when an agency takes actions that exceed the scope of its delegated authority? Or what happens when it is unclear from the statute whether an agency even has authority? For more than 200 years, the federal judiciary has served as a critical “check” on the powers and actions of the executive and legislative branches of government.

“Chevron deference” has become one of the most well-known precedents in administrative law. Arising from the Supreme Court’s landmark 1984 decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., it is based on the principle that an agency, with its expertise, is better positioned than a judge to know a statute’s meaning and, thus, it requires judges to defer to “reasonable” interpretations of ambiguous statutes.

Read the full article at the National Law Review

This Supreme Court case could restore oversight to bureaucratic rulemaking

June 8, 2023 — Every year, new rules and regulations are made and interpreted by the federal agencies that make up the American regulatory state. These rules and regulations fill some 74,000 pages of the Federal Register and serve as a hidden tax on the American people who pay for regulations in the form of higher taxes and fewer economic opportunities. The continuous creation of rules by federal agencies often disregards the will of Congress and pushes the boundaries of their statutory missions.

Fortunately, that may be about to change. On May 1, the Supreme Court of the United States announced it would hear Loper Bright Enterprises et al. v. Raimondo , which deals with a National Marine Fisheries Service (NMFS) rule on fishery inspectors. This rule would force fishermen to invite federal inspectors on their ships to observe operations and require them to compensate the inspectors for their time. Unsurprisingly, fishing company Loper Bright Enterprises decided to appeal the case to SCOTUS. The court’s decision to accept this appeal could signal the justices’ willingness to revisit a nearly 40-year-old legal doctrine established in the landmark 1984 court case Chevron U.S.A. v. Natural Resources Defense Council , which the NMFS has used to justify its new rule.

Read the full article at the Washington Examiner