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Herring fishery Supreme Court case challenges federal overreach

For many years, East Coast herring fishermen have argued that the National Marine Fisheries Service (NMFS) does not have the authority to require them to pay for mandated fisheries observers on their vessels, whose salaries may equal 20% of their yearly revenues. With no relief from NMFS, the fishermen turned to the courts, unsuccessfully. Now their argument will be heard by the U.S. Supreme Court. In May, the Court announced that it would take up an appeal petition from the fishermen. The Supreme Court receives thousands of petitions annually and accepts less than 1% of them. The Court’s ultimate decision in the case may affect the extent of all federal agencies’ authority.

Photo courtesy of J. Ciaramitaro.

The herring fishermen, led by Loper Bright Enterprises of New Jersey, are represented by Paul Clement, who also represents the Maine Lobstermen’s Association (MLA) in its legal case against NMFS. In Loper Bright Enterprises Inc. v. Raimondo, the fishermen argue that it is not within NMFS’s authority under the Magnuson-Stevens Fisheries Conservation and Management Act to require fishermen to pay for fisheries observers. Clement argues that the agency exceeded its authority and needs direct and clear Congressional authorization to make the demand.

The Washington D.C. district court earlier ruled in NMFS’s favor in the case, saying that the Magnuson-Stevens Act is ambiguous on the issue of observers. Drawing on a previous court case, Chevron vs. the EPA, which requires a court to defer to an agency’s expertise when a law is ambiguous, the district court found that NMFS’s actions were a reasonable interpretation of the Act.

Chevron vs. the EPA allows courts at all levels to defer to an agency’s interpretation of the law when the law’s intent is not explicit but rather implicit. A court may not substitute its own interpretation of the law for a reasonable interpretation made by the administrative agency.

The Washington D.C. district court came to a similar conclusion concerning the MLA’s case against NMFS regarding the agency’s 2021 Biological Opinion on the lobster fishery, which established a ten-year right whale conservation plan. In its 2022 ruling in the MLA’s case, the district court also gave deference to NMFS, saying that the agency “considered the relevant data and offered a rational and peer-reviewed explanation for its approach.” The decision is currently under appeal.

The herring fishermen’s petition to the Supreme Court states that the Magnuson-Stevens Act expressly grants NMFS the authority to require a fishery to pay for observers in only three specific instances and that the Act does not give NMFS general authority to require other fisheries to pay for observer coverage. It is not yet clear what the result of this case could mean for commercial fisheries. Among the potential outcomes, the Supreme Court may hold that the D.C. Circuit misapplied Chevron because the statute unambiguously did not allow NMFS to take this particular action. Or the Supreme Court may determine that Chevron is wrong and must be overruled or clarified because it allows for agencies to take unlawful actions.

The Supreme Court is due to hear the case in its next term, which begins in October.

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