New Jersey-based herring fishermen forced to pay for at-sea government monitoring have picked up new allies in their federal courts challenge.

A group of Rhode Island fishermen and two more non-profit legal groups are chiming in on calls for the U.S. Supreme Court to review the National Marine Fisheries Service requirement for Atlantic herring fishermen to pay for monitors on board while they are fishing, which captains and owners say can run to $700 a day.

Fishermen from Cape May, N.J., are asking the high court to review the NMFS monitoring rule, arguing that Congress should fund the program. Their appeal is led by by Paul Clement, who was the federal government’s top executive branch lawyer during the George W. Bush administration, now with the Cause for Action Institute in Arlington, Va.

Their case aims at a four-decades old the legal doctrine known as the “Chevron deference.” Dating from a 1984 federal court case called Chevron vs. National Resources Defense Council, the decision in that case held that courts should give deference to a federal agency’s “construction of a statute that the agency has been delegated to administer.”

Critics contend the Chevron deference cedes too much authority for agencies to interpet “ambiguous” federal statutes – and in the case of the herring fishery, allow NMFS to act outside of Congress by forcing fishermen to pay for observer costs.

“Agencies must not be allowed to circumvent congressional appropriations by forcing the regulated to pay government salaries,” according to the National Civil Liberties Alliance, which filed an amicus curiae brief (‘friend of the court’) to the Supreme Court supporting the herring fishermen’s bid for a hearing. The NCLA is representing Rhode Island fishermen in the herring fishery, specifically the Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC, corporations.

“Incredibly, the agencies being sued here admit that the regulation at issue was implemented precisely because Congress would not fund the statutorily designated ‘observer’ program at the levels the agencies wanted. This disturbing development may metastasize if not stopped by the Supreme Court now,” the NCLA says.

The Chevron deference has been interpreted differently by federal appeals courts in the Fifth District, covering the Gulf of Mexico, and the District of Columbia court which supported NMFS in the herring fishermen’s pushback against paying observer costs.

Libertarian and conservative legal activists see the herring case as an opportune moment to take the Chevron precedent to the Supreme Court for a review.

“These Rhode Island small businesses urge the Supreme Court to review this case to resolve the circuit split in how Chevron deference applies to agency actions under the Magnuson-Stevens Act (MSA); and halt a regulation which allows the National Marine Fisheries Service 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,” according to the NCLA’s summary of the case.

In a 2-1 split decision, appeals judges of the District of Columbia circuit earlier ruled against the herring fishermen, a decision that “wrongly applied Chevron, ruling that statutory silence produced an ambiguity that justified deferring to the agencies,” the NVLA contends. “A circuit split exists between the Fifth Circuit and the D.C. Circuit on the application of Chevron in interpreting the MSA. The Supreme Court should grant certiorari (and hear the appeal) to ensure the MSA is interpreted uniformly in all the nation’s fisheries.”

The libertarian Cato Institute stepped into the fray too. In a brief supporting the fishermen’s appeal, lawyers for Cato argue “the Supreme Court should put an end to Chevron deference because it is ahistorical, because it unconstitutionally gives judicial power to the executive branch, and because it biases the judiciary in favor of the government.”

“Chevron is unconstitutional for several reasons. It gives judicial power – the power to interpret the meaning of the law – to the administrative state within the Executive Branch. The Constitution, however, grants all judicial power to the Judicial Branch. Chevron is also unconstitutional because it biases the courts towards the agencies, stripping the judiciary of impartiality and denying litigants basic due process.”

But the Cato brief focuses on the group’s argument that the Chevron deference is counter to the history of U.S. law – “arising not out of the original understanding of the Constitution but rather out of the administrative bloat of the New Deal era.”

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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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