Supreme Court weighs New Jersey lawsuit over fishing monitors

(The Center Square) — The U.S. Supreme Court is considering a lawsuit challenging a federal rule requiring commercial fishing boat captains to pay for monitors to observe catches.

The legal challenge before the high court deals with a 2020 federal rule implemented by the National Marine Fisheries Service that requires industry-funded monitoring. The monitors go out on commercial fishing vessels to collect data that’s used to craft new regulations.

A lawsuit, filed by plaintiff Loper Bright Enterprises of New Jersey, argues the new rules will force Atlantic herring fishery fishermen to pay more than $700 per day to contractors, or about 20% of their pay. The program has been delayed until April, amid a shortage of federal funding, but fishermen want it scrapped entirely.

A U.S. District Court judge previously rejected the lawsuit, which was upheld by a divided federal Appeals Court, but the fishing groups filed a petition to the Supreme Court, which agreed to take up the case.

Lawyers for the plaintiffs argue Congress never gave the federal agency approval to require fishing vessels to pay for the monitors, and accuse fisheries managers of government overreach.

“No federal law gives the NMFS or any other agency the power to force fishermen to pay monitor salaries,” said Paul Clement, a former solicitor general and lead attorney for the plaintiffs. “When a federal agency grants itself the power to tax the regulated to pay for more regulators, no one is safe from government overreach and abuse.”

The federal agency, which is being defended by the U.S. Solicitor’s Office, argue in court filings the Magnuson-Stevens Fishery Conservation and Management Act and regional fisheries management programs require vessels to “carry” observers to collect data on fish stocks.

The government’s attorneys argue previous federal court rulings have established “vessel owners may be required to pay for those observers when doing so is necessary and appropriate to the conservation and management of the fishery.”

Commercial fishing groups from several states, including Rhode Island and West Virginia, have filed legal briefs in support of the lawsuit. The legal fight has also drawn interest from groups like the watchdog groups like the Cato institute, New England Legal Foundation and Pacific Legal Foundation, which have also filed briefs in support of fishermen.

A ruling in the case could force the high court to overturn the so-called “Chevron deference,” a decades-old administrative law principle that directs courts to defer to a federal agency’s interpretation when regulations or policies are unclear.

The principle stems from the Supreme Court’s 1984 ruling in Chevron v. National Resources Defense Council, in which the justices said courts should defer to an agency in “ambiguous situations” as long as its interpretation of a law is “reasonable.”

“The federal government knows it cannot defend this blatant attempt to bypass Congress and force economic harm on hardworking fishing families, so it must rely on a dubious legal doctrine,” said Ryan Mulvey, Cause of Action’s legal counsel. “The Supreme Court should reverse the courts below and either overrule or further limit Chevron.”

The harvest of Atlantic herring, which is typically used as food and bait, is a major fishery on the East Coast, with 11 million pounds of landings in New England, New York and New Jersey valued at $6.6 million last year.

But NOAA cites data showing the species is overfished and has set tight catch quotas in recent years that fishermen say have considerably shrunken the yearly haul.