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.
November 15, 2022 — Atlantic herring fishermen are asking the U.S. Supreme Court to reject a requirement that they pay for fishery observers at sea, at costs that can exceed $700 a day.
The fishermen’s petition to certify looks to bring their earlier lawsuit against the U.S. Department of Commerce and National Marine Fisheries Service to the high court, after they lost in a federal appeals court.
“We are fighting for our livelihoods and a future that is being unfairly targeted by federal overreach,” said Stefan Axelsson, a third-generation fisherman and captain of one of the vessels in the lawsuit, in a statement from the fishermen and their lawyers on Nov. 10. “These rules could force hardworking fishermen to surrender a significant part of their earnings.”
The lead plaintiff in the lawsuit, Loper Bright Enterprises of New Jersey, is associated with several fishing vessels and companies based at Cape May, N.J. The group has fought back against a 2020 rule from the National Marine Fisheries Service that forced vessel operators to pick up the tab for daily at-sea observer coverage. Fishermen say Congress should fund the program.
“Making these vessels pay to have the observer coverage on them just decreases hardworking fishermen’s wages and makes it less attractive for vessels to continue,” said Wayne Reichle, president of Lund’s Fisheries of New Jersey and an owner of two of the boats that are plaintiffs in the case. “In some cases, it prevents them from fishing.”
November 15, 2022 — New Jersey fishing firms want the U.S. Supreme Court to review a lower court order that forces them to pay the salaries of federally mandated onboard monitors, arguing it’s the perfect opportunity to overturn a cornerstone precedent that gives federal agencies wide latitude to interpret laws.
The fishing companies say the National Marine Fisheries Service’s (NMFS) salary rule is too onerous, requiring them to not only give up valuable space on their small boats for the observers but also pay them over $700 a day. The companies have said those fees can reduce returns by 20%.
November 10, 2022 — Former U.S. Solicitor General Paul Clement today petitioned the U.S. Supreme Court to hear the case of several New Jersey fishermen challenging a federal mandate that forces herring fishermen to pay hundreds of dollars out of pocket to host at-sea monitors who observe the fishermen on fishing trips and report their activities to the federal government. The mandate forces herring fishermen to pay monitors as much as $700 per day, which can be more than some boat captains and crew members make on the same trips.
Paul Clement served as United States solicitor general from 2004 to 2008. Over the past three Supreme Court terms, attorneys with Clement & Murphy have argued 14 cases and prevailed in 12. Its team has successfully litigated both alongside and against the United States government, as well as federal agencies, and have successfully secured certiorari over the federal government’s opposition and successfully opposed certiorari when the federal government has sought it.
The following is an excerpt from a story originally published by the Associated Press:
A group of commercial fishermen is asking the U.S. Supreme Court to stop the federal government from making them pay for workers who gather data aboard fishing boats.
The fishermen harvest Atlantic herring off the East Coast and are opposed to a 2020 rule implemented by the National Oceanic and Atmospheric Administration that requires the industry-funded monitoring. The monitors are workers who collect data on board fishing vessels that are important for informing regulations.
The fishermen, led by main plaintiff Loper Bright Enterprises of New Jersey, have argued that the requirement forces them to pay more than $700 per day to third-party contractors, and that makes fishing financially unsustainable. They’ve lost in lower court rulings, and filed a petition with the high court on Thursday.
“Making these vessels pay to have the observer coverage on them just decreases hardworking fishermen’s wages and makes it less attractive for vessels to continue,” said Wayne Reichle, president of Lund’s Fisheries of New Jersey and an owner of two of the boats that are plaintiffs in the case. “In some cases, it prevents them from fishing.”
November 10, 2022 — The following was released by Cause of Action Institute:
Former U.S. Solicitor General Paul Clement today petitioned the U.S. Supreme Court to hear the case of several New Jersey fishermen challenging an onerous and unlawful federal mandate. Central to the case is Chevron deference and the ability of federal courts to overrule executive branch actions that have no basis in law.
National Oceanic and Atmospheric Administration (NOAA) regulations force herring fishermen to pay hundreds of dollars out of pocket to host at-sea monitors who observe the fishermen on fishing trips and report their activities to the federal government. The mandate forces herring fishermen to pay monitors as much as $700 per day, which can be more than some boat captains and crew members make on the same trips.
“We are fighting for our livelihoods and a future that is being unfairly targeted by federal overreach,” said Stefan Axelsson, a third-generation fisherman and captain of one of the vessels in the lawsuit. “These rules could force hardworking fishermen to surrender a significant part of their earnings.”
Click here to view a video profile of the case.
Federal law authorizes the placement of at-sea monitors, but not passing the cost of monitors onto herring fishermen. When NOAA realized it would be unable to afford its desired herring monitoring program, the agency shifted the costs to fishermen instead of seeking additional funds from Congress.
Click here to read the petition.
Interestingly, Congress has already spoken to the issue of industry funding. It gave NOAA explicit authority to require fishermen in certain fisheries to pay for at-sea monitors. But Congress considered and rejected granting that authority over the herring fishery at issue in this case.
“It is the duty of the judiciary to step in when any branch of government has abused its power,” said Paul Clement. “This case is about correcting one such abuse and reining in executive overreach that threatens the livelihoods of fishing families and the constitutional balance of power.”
Overturning Chevron Deference
The case, Loper Bright Enterprises v. Raimondo, has the potential to set a landmark precedent by overruling Chevron deference, a decades-old legal doctrine that has allowed Congress to outsource lawmaking to executive agency employees. That standard has all but guaranteed government victories in regulatory cases by giving unelected bureaucrats carte blanche for rulemaking without congressional approval.
There are indications the federal judiciary is prepared to revisit Chevron. The D.C. Circuit Court of Appeals upheld the at-sea monitor requirement based on Chevron in a 2-1 ruling. In a strong dissent, Judge Justin Walker derided NOAA’s attempt to circumvent Congress:
Congress can make profitable fishing even harder by forcing fishermen to spend a fifth of their revenue on the wages of federal monitors embedded by regulation onto their ships. But until Congress does that, the Fisheries Service cannot.
“Congress did not give NOAA the power to outsource the costs of at-sea monitors,” said Cause of Action Institute Counsel Ryan Mulvey. “It is time for the Supreme Court to do away with Chevron and return lawmaking to its rightful place in Congress and statutory interpretation to its rightful place: the judiciary, not the executive branch.”
The fishermen received legal assistance from Cause of Action Institute, a non-profit devoted to individual liberty.
The petition is available on Cause of Action Institute’s website. Background information, including the petition, motion, and lower court rulings, can be found here.
August 10, 2022 — Starkist has followed through on its pledge to appeal a decision made in the class-action civil lawsuit filed against it for its role in fixing the prices of canned tuna sold in the United States between 2011 and 2013.
On Monday, 8 August, 2022, Starkist filed a petition at the U.S. Supreme Court asking it to strike down a decision made by the Ninth U.S. Circuit Court of Appeals in San Francisco, California, U.S.A., which ruled in a 9-2 decision in April 2022 to uphold the class certification completed in 2019 by U.S. District Court for the Southern District of California Judge Janis L. Sammartino.
December 6, 2021 — The U.S. Supreme Court ruled Friday against Maine lobster fishermen who sought to block new fishing restrictions that are designed to protect rare whales.
The new rules make an approximately 950-square-mile area of the Gulf of Maine essentially off limits to lobster fishing from October to January. That’s to protect North Atlantic right whales, which are one of the rarest whales and number less than 340.
Members of Maine’s lobster fishing industry asked the high court to block the new restrictions after an appeals court ruled that the closure was legal. Justice Stephen Breyer rejected the appeal on Friday without comment, a spokesperson for the Supreme Court said.
The Maine Lobstering Union and others have argued that the restrictions will hurt the fishing industry economically. The restrictions are intended to protect the whales from lethal entanglement in fishing gear. That’s one of the biggest threats to their existence.
January 23, 2018 — While the federal government was shut down on Monday, the federal courts were still making decisions.
The U.S Supreme Court decided to keep the bearded seal as threatened under the Endangered Species Act — rejecting an oil and gas industry challenge to the animal’s protection status.
The marine mammal was listed in 2012, due to melting sea ice. But the Alaska Oil and Gas Association or AOGA and the American Petroleum Institute thought the listing was premature.
Joshua Kindred, an environmental counselor at AOGA, said he was “disappointed” in the supreme court’s decision.
He said the National Marine Fisheries Service didn’t provide enough evidence to warrant a listing.
“They didn’t ever really show from a scientific point of view why the seasonal sea ice was so critical to their long-term health of the species,” he said.
Kindred said there also wasn’t sufficient guidance for a plan moving forward. He said excessive critical habitat designations can slow oil and gas development.
The Center for Biological Diversity has fought to keep the bearded seal’s protection status.
Read the full story at KTOO Public Media
August 21, 2017 — PORTLAND, Maine — The federal government has waived its right to respond to a fishermen’s group’s petition to the U.S. Supreme Court about a court battle over the cost of fishing monitors.
The monitors are workers who collect data used to help develop government fishing regulations, and the government shifted the cost of paying for monitors to fishermen last year. A group of fisherman, led by David Goethel of New Hampshire, then sued the government over the change and lost in a federal district court and later in the federal appeals court in Boston.
Goethel filed a petition with the Supreme Court seeking a review of the case last month.
Read the full story from the Associated Press at the New Bedford Standard-Times
May 19, 2017 — They lost in U.S. District Court in New Hampshire last summer and failed to have that decision overturned in federal appeals court in Boston this spring.
Still, New Hampshire groundfisherman David Goethel and his legal team may not be done in their legal challenge of the federal government’s ability to shift the costs of at-sea monitoring to groundfishermen.
“We’re still assessing all of our legal options at this point,” said Julie Smith, one of the lawyers from Washington D.C.-based Cause of Action Institute that has represented Goethel and Northeast Fishing Sector 13 in the initial federal lawsuit and appeal.
Smith declined to be more specific, but clearly the options are limited:
Goethel and his lawyers could swing for the fences and petition the U.S. Supreme Court to hear their case, hoping it would overturn the April decision by the U.S. Court of Appeals upholding the judgment in the original lawsuit filed in U.S. District Court in Concord, New Hampshire.
Petitioning the highest court in the land with a writ of certiorari — which would compel the lower court to deliver its record for review — is not exactly a high-percentage play.
The Supreme Court, according to the website of the federal court system, accepts only 100 to 150 of the more than 7,000 cases it is asked to review each year.