(December 16, 2022) – Advocates of limited government are backing fishing companies’ bid to persuade the U.S. Supreme Court to use their suit over the imposition of an industry-funded fishery monitor program to reconsider Chevron deference to agency interpretations of statutes.
Loper Bright Enterprises et al. v. Raimondo et al., No. 22-451, amicus curiae brief filed (U.S. Dec. 14, 2022).
“Deference to an agency’s interpretation of a statute has administrative agencies usurping the judicial role of interpreting legal texts … and the congressional role of enacting legislation,” the Center for Constitutional Jurisprudence says in a Dec. 14 amicus curiae brief supporting the petitioners.
Industry billed for observers
The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.A. § 1852
, established eight regional fishery management councils that regulate fishing activities in federal waters subject to oversight by the National Marine Fisheries Service.
To implement the MSA’s twin goals of supporting the domestic fishing industry and conserving aquatic resources, Section 1853(b)(8) gives regional councils discretion to require vessels to carry observers who record catch data.
In 2018 the New England Fishery Management Council, which oversees fisheries in Connecticut, Maine, Massachusetts, New Hampshire and Rhode Island, sought NMFS approval to require industry to contribute to observer program costs.
NMFS in 2020 issued 85 Fed. Reg. 7414
, which created an industry-funded monitoring program for the Atlantic herring fishery and set forth standards for the development of future ones.
Loper Bright Enterprises Inc. and other New Jersey-based fishing firms that catch Atlantic herring sued NMFS, the U.S. Commerce Department and related officials in the U.S. District Court for the District of Columbia.
The complaint alleged NMFS lacked authority under the MSA to force the herring fleet to fund at-sea observers, which the agency estimated would cost $710 per day.
A split panel of the District of Columbia U.S. Circuit Court of Appeals affirmed in August, concluding that the statute’s text was ambiguous but deferring to the agency’s interpretation of its powers under the second step of the Chevron analysis.
Deference on the chopping block?
The fishing companies petitioned for certiorari Nov. 10, arguing that the D.C. Circuit’s opinion allows Chevron deference to gut essential checks on executive agency power provided by congressional appropriations and judicial interpretations of statutes.
They ask the Supreme Court to use their case to clarify Chevron or, if necessary, overrule it. The Center for Constitutional Jurisprudence says separation-of-powers concerns also warrant high court review, though it stops short of advocating for scrapping Chevron.
The amicus brief from the Cato Institute and Liberty Justice Center notes that the Supreme Court has not deferred under step two of Chevron in six years, but the doctrine’s apparent burial at the high court has not stopped it from “roaming like a zombie at the circuit courts.”
Federal government lawyers are propelling this “vertical split” in the application of Chevron by avoiding the doctrine in Supreme Court proceedings while regularly invoking it in lower courts, according to the Pacific Legal Foundation’s brief.
In its brief, the New England Legal Foundation takes issue with the D.C. Circuit’s understanding of Chevron rather than challenging the doctrine itself.
A brief filed by the Competitive Enterprise Institute and the Manhattan Institute shifts the focus from Chevron and suggests that the high court analyze whether NMFS has constitutional authority to levy duties.