Saving Seafood

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

US Supreme Court deals blow to EPA’s reach under Clean Water Act

May 30, 2023 — The United States Supreme Court rolled back the U.S. Environmental Protection Agency’s ability to regulate wetlands under the Clean Water Act, ruling that the law only applies to wetlands that are indistinguishable from “waters of the United States.”

Environmental groups have condemned the court’s decision as a limitation on the ability of communities to protect waterways and the fish that live in them, but others argue that it’s a necessary curtailment of federal overreach and state bodies can better balance environmental protections and local needs.

Read the full article at SeafoodSource

Will a Supreme Court decision in fisheries case tie the hands of all government regulators?

May 23, 2023 — Fishing for Atlantic herring may seem worlds away from restrictions on power plant emissions or responses to the COVID-19 pandemic. But a case before the U.S. Supreme Court could affect all those activities and more by altering how federal agencies apply scientific expertise in carrying out their regulatory duties.

On 1 May the high court agreed to hear a case brought by four family-owned herring businesses. They argue that the National Marine Fisheries Service has no authority to require them to pay for onboard observers who would monitor their catch to help the agency protect declining fish stocks.

But legal scholars and environmentalists say much more than fishing is at stake in Loper Bright Enterprises v. Raimondo. When the high court rules, most likely in the spring of 2024, it may also take a step back from a long-standing legal doctrine, called the Chevron deference, used to determine whether government agencies have exceeded their authority. The doctrine has been applied for nearly 40 years to everything the government does, including regulations affecting businesses, schools, and the general population.

Read the full article at Science.org

Appeals court ruling on 24/7 GPS-monitoring of charter boats could play role in Supreme Court Chevron battle

May 16, 2023 — An appeals court ruling in favor of Gulf of Mexico charter boats earlier this year could play a big role as the U.S. Supreme Court determines the limits of NOAA Fisheries’ rulemaking authority.

Earlier this month, the U.S. Supreme Court announced that it will take up a challenge to federal regulations brought by New Jersey fishermen, who sued the government to stop a 2020 New England Fishery Management Council (NEFMC) rule that would force them to pay for at-sea monitors out of pocket. Fishermen argued that the financial burden of paying for monitors was crippling for their business

Read the full article at SeafoodSource

A Welcome Supreme Court Review of Chevron Deference

May 3, 2o23 — Few Supreme Court doctrines have been stretched more by regulators and lower-court judges than Chevron deference, which says judges should defer to regulators’ interpretations when laws are supposedly ambiguous. The High Court agreed Monday to give Chevron a much-needed legal review.

The Court agreed to hear Loper Bright Enterprises v. Raimondo, which concerns an obscure regulation under a 1976 fishing law. The Magnuson-Stevens Act lets the National Marine Fisheries Service (NMFS) require fishing vessels to carry federal observers on board to enforce the agency’s fishing regulations.

In three narrow circumstances, the law also permits the agency to require vessels to pay the salaries of government monitors. In February 2020 the agency went further and required some vessels to foot the bill for government monitors when those narrow circumstances don’t apply. This would cost fishermen about 20% of their annual revenue.

Read the full article at the Wall Street Journal

Save us, Supreme Court, from runaway regulation

March 14, 2023 — Farmers and fishermen make their living the old-fashioned way — sweat and struggle. Increasingly they share another thing in common: oppressive bureaucratic oversight. If the Supreme Court can summon the courage this year, it can deal the bureaucrats a body blow and free millions of Americans from diktats from on high, each one of which makes their lives more difficult, more expensive and decidedly less free.

“Operating fishing vessels in the Atlantic is hard work.” So begins a brief to the high court on behalf of herring fishermen. In a new petition asking for the Supreme Court to review a case involving fishing for Atlantic herring, former solicitor general Paul D. Clement paints a picture reminiscent of last year’s Oscar-winning film “CODA.” You will be forgiven if you forgot that the movie featured two actors playing federally mandated monitors on the fishing boat where much of the drama plays out. The presence of the monitors — even the physical space they take up — is the sort of detail that makes a movie great, because it dives deep enough into the realities that reflect the lives made even more difficult by bureaucracy.

The role and cost of such monitors figure at the heart of Clement’s petition to roll back an out-of-control “administrative state.” Monitors figure as well in the tale of another bureaucracy — this one bedeviling the opposite coast, in California.

Read the full article at the Washington Post

Supreme Court weighs New Jersey lawsuit over fishing monitors

March 11, 2023 — The U.S. Supreme Court is considering a lawsuit challenging a federal rule requiring commercial fishing boat captains to pay for monitors to observe catches.

The legal challenge before the high court deals with a 2020 federal rule implemented by the National Marine Fisheries Service that requires industry-funded monitoring. The monitors go out on commercial fishing vessels to collect data that’s used to craft new regulations.

A lawsuit, filed by plaintiff Loper Bright Enterprises of New Jersey, argues the new rules will force Atlantic herring fishery fishermen to pay more than $700 per day to contractors, or about 20% of their pay. The program has been delayed until April, amid a shortage of federal funding, but fishermen want it scrapped entirely.

A U.S. District Court judge previously rejected the lawsuit, which was upheld by a divided federal Appeals Court, but the fishing groups filed a petition to the Supreme Court, which agreed to take up the case.

Read the full article at The Center Square

Rhode Island Herring Fishermen Encourage Supreme Court Review of NMFS’s at-Sea Monitor Rule

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.

Read the full article at the National Fisherman

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.

Read the full article at SeafoodSource

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.

Read the full article at SeafoodSource