Saving Seafood

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

Herring fishermen take at-sea monitoring costs to Supreme Court

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.”

Read the full article at the National Fisherman

Fishermen target Chevron deference in SCOTUS petition over onboard monitors

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%.

Read the full article at Reuters

Fishermen take case against paying for monitors to SCOTUS

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.”

Read the full story from the Associated Press