Saving Seafood

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

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.

Read the full article at the Cato Institute

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.

Read the full article at SeafoodSource