Dispute Over Federal Monitors on Herring Boats Could Prove a Test of Government Regulators’ Power

The Supreme Court has agreed to hear a second case in a dispute over fishing regulations, and the main difference is that all nine justices will hear the case.

AP/Jacquelyn Martin
The Supreme Court on June 27, 2023. AP/Jacquelyn Martin

A dispute over who will pay for federal monitors to ride along on herring fishermen’s boats is headed to the Supreme Court in what could turn out to be one of the most consequential issues of its term.

The fishermen say there’s no requirement under the law for them to pay for the federal supervisors, but the National Marine Fisheries Service disagrees. Now, the Supreme Court will have to decide whether the maritime regulators, based out of the Department of Commerce, have the authority they claim. 

The outcome of the case could have major implications for other federal regulations, as it could decide how much leeway federal agencies are given in executing laws passed by Congress.

The fishing dispute is the second case taken up by the court concerning a legal doctrine known as “Chevron deference” — a precedent that, in effect, gives regulators the benefit of the doubt when their actions are challenged in court. 

The key difference is that Justice Ketanji Brown Jackson will not recuse herself from the new case, Relentless, Inc. v. Department of Commerce

Justice Jackson recused herself from the earlier case due to involvement with the litigation at an earlier stage. The high court’s desire to have all nine justices rule could speak to how its ruling this term on “Chevron deference” could become a major test of the power of the executive branch’s administrative agencies.

On Friday, the court agreed to hear Relentless, which, like the other herring-fishing case being heard this year, Loper Bright Enterprises v. Raimondo, centers on the precedent set by Chevron v. Natural Resources Defense Council — hence the name of the Chevron doctrine.

At issue in both Relentless and Loper Bright Enterprises is a regulation under the Magnuson-Stevens Act that requires fishing companies to periodically carry federal observers on their boats to ensure that the fishermen are following regulations. Both fishing companies complain that they are responsible for covering the cost of having those observers on board, a detail not explicitly described in the regulatory legislation.

In the petition to the high court, the attorney for Relentless, John Vecchione, writes that “nothing in the MSA hints that such federal observers will be paid by the regulated vessels of New England’s herring fishery.”

In this point, Mr. Vecchione is touching on Chevron deference, which maintains that when a law is silent or ambiguous on a topic, administrative agencies have some leeway in writing rules as long as their rules are considered a reasonable interpretation of the statutes in question.

The doctrine has long been a target for those seeking to weaken regulatory agencies, with some, like Columbia Law School’s Philip Hamburger, arguing that the doctrine is a violation of due process.

Mr. Hamburger is the founder of the group that Mr. Vecchione works for, the New Civil Liberties Alliance, which is on a crusade to end the precedent of Chevron deference. 

In a statement responding to the Supreme Court accepting the case, Mr. Vecchione said that the group is “eager to reverse the error of the lower courts and remove the unfair and unnecessary thumb on the scale for bureaucracy against citizens that Chevron deference inflicts on them when they face their government in court.”

Proponents of the doctrine, like Justice Antonin Scalia, who supported it despite pressure from other legal conservatives, maintain that leaving interpretation to the executive branch in these scenarios leaves the policy of administrative agencies in more democratic hands.

“Under our democratic system, policy judgments are not for the courts but for the political branches; Congress having left the policy question open, it must be answered by the Executive,” The Great Scalia wrote in a 1989 Duke Law Journal article

The key difference between the two cases is that in the Loper Bright Enterprises case, Justice Jackson recused herself, apparently because she had heard the case in her service as a judge before joining the Supreme Court.

Aside from Justice Jackson’s recusal, the cases are nearly identical, with both addressing the same question of Chevron deference and both concerning the same fishing regulation.

Mr. Vechionne, though, tells the Sun that there are factual differences between the cases that make the Relentless case a more sound challenge to Chevron.

One difference is that in Relentless, the companies operate freezer ships that catch four types of fish. The relevant regulation only applies to one of those fish, herring.

Another issue is that the freezer ships can spend as long as two weeks at sea, meaning that they have to carry and pay to carry the monitor for longer than most ships, and they might not even be catching herring, meaning that the monitors could find they have nothing to observe.

“Most herring fishermen are out for three or five days, our boats are out for two weeks,” Mr. Vecchione says. “There’s an exception. If you don’t take over 50,000 tons of fish per trip — per trip — you don’t have to have a monitor on your ship.”

In Mr. Vecchione’s opinion, these factors combine to make his case a more clear illustration of the “unworkability and unfairness of Chevron.” The other big difference,Mr. Vecchione said, is that Justice Jackson can and will hear Relentless.

It shows “that the Court thinks that this is a very serious question and they want to have the full bench’s view of it,” Mr. Vecchione said.

Relentless might normally have been put on hold due to its similarities with the Loper Bright Enterprises case. Yet the court fast-tracked the case, seemingly to allow the full court to consider the issue. Oral arguments for Loper Bright Enterprises also have not yet been scheduled.

The situation mirrors, to some extent, that in the Supreme Court’s last term when the Nine took up two cases concerning affirmative action brought by Students for Fair Admissions, one against Harvard and the other against the University of North Carolina, but heard them separately.  

In the Harvard case, Justice Jackson, who had previously served on the university’s board, also recused herself.


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