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Arguing on behalf of commercial fishermen from New Jersey and Rhode Island, lawyers with conservative legal activist groups made their case before the U.S. Supreme Court Wednesday for reversing a 40-year precedent, and sharply cutting back the regulatory powers of federal agencies.

During a three and a half-hour hearing, the court’s conservative majority appeared skeptical of the government’s arguments in two related cases – dubbed Relentless v. Department of Commerce and Loper Bright v. Department of Commerce – brought on behalf of herring fishermen in Rhode Island and Cape May, N.J.

The fishermen challenged a National Marine Fisheries Service rule that required them to carry onboard observers to monitor fishing, and pay costs for the observers contracted by NMFS, at up to $700 a day.

The cases hinge on the so-called "Chevron deference," a landmark ruling in federal administrative law dating back to a 1984 dispute between the oil giant and environmental activists of the Natural Resources Defense Council. In that Supreme Court decision, justices ruled that the courts should “defer” to executive agencies’  reasonable interpretations of federal statutes. 

As part of managing the Atlantic herring fishery, NMFS told fishermen they had to pay observer costs. Fishermen protested the agency was appointing itself power without Congressional authority to impose a new fee.

NMFS waived the rule in early 2023 as the agency ran short of money to administer the program. But fishermen want to make sure the observer requirement is not renewed – and their conservative legal allies are eager to see a conservative-dominated Supreme Court revisit the Chevron doctrine.

The Chevron deference has become a cause célèbre among conservative legal groups, who see it as a vast overreach by what they refer to as “the administrative state.”  

While the cases are focused narrowly on fishing, the Supreme Court decision could have profound effects across U.S. government and industry, setting new guardrails on regulation of energy, transportation, food and drugs and other health, safety and environmental rulemaking.

On the Washington D.C. courthouse steps after the hearing, Meghan Lapp, fisheries liaison at Seafreeze Ltd. In Point Judith, R.I., the homeport of Relentless, said the protests wound their way through fisheries council meetings and NMFS officials to no avail. So fishermen went to court – and appealed the earlier decisions against them.

“I was ignored the entirety of the time because the agency knew it would have deference if it ever got to court,” said Lapp. Pressing their appeal through the courts was the New Civil Liberties Alliance. 

The Chevron decision “tilts the playing field in favor of the government and against citizens,” said Roman Martinez, the lead attorney for the Relentess fishermen.

Representing the Cape May fishermen was the Cause of Action Institute, another conservative legal foundation, with a legal team headed by Paul Clement, a former solicitor general in the administration of former president George W. Bush.

“It’s a hugely important case for small businesses,” Clement said outside the courthouse. The Chevron doctrine “puts a thumb on the scale in favor of the government,” he said, crediting fishermen “who had the gumption to take this…all the way to the Supreme Court.”

Chevron is a blatant violation of the constitutionally mandated separation of powers because it requires federal judges to defer to administrative agencies’ regulatory interpretations of laws that are either silent or ambiguous on a particular issue and undermines judges’ delegated authority to interpret what the law says,” according to a Cause for Action statement Wednesday.

A split in decisions among federal appeals courts has set the stage for possibly overturning the Chevron deference.

In its ruling on the Cape May fishermen’s case, the First Circuit Court of Appeals in Washington, D.C., “decided that broad ‘necessary and appropriate’ language in the Magnuson-Stevens Act, which governs U.S. fisheries, augmented the agency’s regulatory power,” according to a narrative from the New Civil Liberties Alliance. “It then relied heavily on Chevron deference to uphold the agency’s ostensibly reasonable interpretation of a supposedly ambiguous federal statute.” 

However, the Fifth Circuit Court of Appeals in New Orleans, La., rejected similar arguments by government lawyers for NOAA in defending another agency rule requiring Gulf of Mexico charter fishing operators to submit to tracking of their vessel movements.


A ruling in the cases is expected in June. Conservative and libertarian activists relished the prospect after Wednesday's oral arguments before the court.

 "It's clear from today's arguments, the Court comes to bury Chevron deference, not praise it," said Caleb Kruckenberg, an attorney at the Pacific Legal Foundation, another longtime challenger of federal regulatory power. "The only question left is what mischief will remain from its legacy."

Environmental groups have been dreading a Chevron showdown. 

"The cases narrowly involve the management of the Atlantic herring fishery. The stakes, though, are much broader: whether the courts will continue to respect the decisions of the expert agencies, or whether judges will be set free to impose their own preferences on agency actions and decisions," wrote David Doniger, senior strategic director of the climate and clean energy program at the Natural Resources Defense Council in a Jan. 12 post on the group's website.

"The result could put hundreds of such decisions in the hands of unelected lower-court judges rather than agency professionals who have deep expertise in their appointed fields and who are accountable to the elected branches of government—the president and Congress," wrote Doniger.

 

 

 

 

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Associate Editor Kirk Moore was a reporter for the Asbury Park Press for more than 30 years and a 25-year field editor for National Fisherman before joining our Commercial Marine editorial staff in 2015. He wrote several award-winning stories on marine, environmental, coastal and military issues that helped drive federal and state government policy changes. Moore was awarded the Online News Association 2011 Knight Award for Public Service for the “Barnegat Bay Under Stress,” 2010 series that led to the New Jersey state government’s restoration plan. He lives in West Creek, N.J.

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