Decision could affect all US federal fisheries; NPFMC hiked fees in 2021
From the Associated Press via SeafoodNews.com — Fishermen Take Case Against Paying for Monitors to SCOTUS
A group of commercial fishermen is asking the U.S. Supreme Court to stop the federal government from making them pay for workers who gather data aboard fishing boats.
The fishermen harvest Atlantic herring off the East Coast and are opposed to a 2020 rule implemented by the National Oceanic and Atmospheric Administration that requires the industry-funded monitoring. The monitors are workers who collect data on board fishing vessels that are important for informing regulations.
The fishermen, led by main plaintiff Loper Bright Enterprises of New Jersey, have argued that the requirement forces them to pay more than $700 per day to third-party contractors, and that makes fishing financially unsustainable. They’ve lost in lower court rulings, and filed a petition with the high court on Thursday.
“Making these vessels pay to have the observer coverage on them just decreases hardworking fishermen’s wages and makes it less attractive for vessels to continue,” said Wayne Reichle, president of Lund’s Fisheries of New Jersey and an owner of two of the boats that are plaintiffs in the case. “In some cases, it prevents them from fishing.”
The fishermen have made the case that Congress never gave federal regulators the authority to require the expense of paying for the monitors. The price of at-sea monitoring, and who must pay for it, is a longstanding source of tension between commercial fishermen and regulators.
associated press, november 11, 2022
The monitors are on board to collect data about subjects such as bycatch and check for regulatory compliance.
Attorneys for the fishermen have said the case has the potential to set a precedent by overruling “Chevron deference,” which the U.S. Department of Justice has described as providing “principles to determine the extent to which a court reviewing agency action should give deference to the agency’s construction of a statute that the agency has been delegated to administer.”
A representatives for NOAA declined to comment. The agency does not typically comment on pending litigation.
NOAA officials said earlier this month that the industry-funded monitoring program will be suspended starting in April 2023. That is because the agency does not have a permanent source of money to cover its own administrative costs associated with the program next year, officials said. However, the fishermen said they’re going ahead with their lawsuit because they want the industry-funded monitoring rule permanently stopped.
The harvest of Atlantic herring is a major fishery on the East Coast, with most of the fish coming to the docks in New England and New York and New Jersey. The fish are economically important as bait and food.
The nation’s haul of herring has shrunk considerably in recent years due to tight fishing quotas. NOAA has described the species as overfished.
NMFS had no authority from Congress to mandate herring fishermen pay for at-sea monitors, but went ahead and imposed that requirement through its own rulemaking system, Clement and his legal team say.
National fisherman by kirk moore
From National Fisherman: Atlantic herring fishermen are asking the U.S. Supreme Court to reject a requirement that they pay for fishery observers at sea, at costs that can exceed $700 a day.
The fishermen’s petition to certify looks to bring their earlier lawsuit against the U.S. Department of Commerce and National Marine Fisheries Service to the high court, after they lost in a federal appeals court.
“We are fighting for our livelihoods and a future that is being unfairly targeted by federal overreach,” said Stefan Axelsson, a third-generation fisherman and captain of one of the vessels in the lawsuit, in a statement from the fishermen and their lawyers on Nov. 10. “These rules could force hardworking fishermen to surrender a significant part of their earnings.”
The lead plaintiff in the lawsuit, Loper Bright Enterprises of New Jersey, is associated with several fishing vessels and companies based at Cape May, N.J. The group has fought back against a 2020 rule from the National Marine Fisheries Service that forced vessel operators to pick up the tab for daily at-sea observer coverage. Fishermen say Congress should fund the program.
“Making these vessels pay to have the observer coverage on them just decreases hardworking fishermen’s wages and makes it less attractive for vessels to continue,” said Wayne Reichle, president of Lund’s Fisheries of New Jersey and an owner of two of the boats that are plaintiffs in the case. “In some cases, it prevents them from fishing.”
NMFS says it will suspend the industry-funded monitoring program in April 2023 because the agency does not have funding for its own administrative costs. The fishermen’s appeal to the Supreme Court seeks to prevent mandatory monitoring payments from returning in the future.
“I’m on such a small margin now, that I don’t know if the (herring catch) quotas shrink if I’m going to be able to do this,” said Cape May fisherman William Bright in a video produced by Cause for Action.
The fishermen’s lawyers say their Supreme Court effort aims for bigger fish: reining in the power of U.S. executive branch agencies.
Led by Paul Clement, who was U.S. solicitor general, and the top executive branch lawyer during the George W. Bush administration, the legal team aims to attack a legal doctrine known as the “Chevron deference.”
U.S. Department of Justice lawyers defending against the fishermen’s lawsuit have called the decades-old Chevron case law as “principles to determine the extent to which a court reviewing agency action should give deference to the agency’s construction of a statute that the agency has been delegated to administer.”
The herring fishermen’s cause was adopted by the Cause for Action Institute in Arlington, Va., which calls itself a “non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.”
The Cause for Action lawyers argue the Chevron rule “has allowed Congress to outsource lawmaking to executive agency employees. That standard has all but guaranteed government victories in regulatory cases by giving unelected bureaucrats carte blanche for rulemaking without congressional approval.”
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NMFS had no authority from Congress to mandate herring fishermen pay for at-sea monitors, but went ahead and imposed that requirement through its own rulemaking system, Clement and his legal team say.
“If Congress didn’t put it in there, Congress didn’t want to,” Clement says in the Cause for Action video. While the fishermen lost their last case in a split decision by the District of Columbia Circuit Court of Appeals, there is a chance “Chevron is on life support,” said Clement.
From Federal News –– Fishermen target Chevron deference in SCOTUS petition over onboard monitors
Former U.S. Solicitor General Paul Clement and Cause of Action Institute petitioned the U.S. Supreme Court on Thursday to review a casethat challenges an unlawful federal regulation requiring herring fishermen to pay the costs of hosting government-mandated observers on their boats. Central to the case is Chevron deference and the ability of federal courts to overrule executive branch actions that have no basis in law.
From Reuters, Nov. 10:
New Jersey fishing firms want the U.S. Supreme Court to review a lower court order that forces them to pay the salaries of federally mandated onboard monitors, arguing it’s the perfect opportunity to overturn a cornerstone precedent that gives federal agencies wide latitude to interpret laws.
The fishing companies say the … rule is too onerous, requiring them to not only give up valuable space on their small boats for the observers but also pay them over $700 a day. …
A petition filed by attorney Paul Clement with the high court Thursday asked the court to take the case and find the rule requiring fishermen to pay for the monitors is inconsistent with the Magnuson-Stevens fishing act or to overturn the Supreme Court’s 1984 Chevron v. Natural Resources Defense Council. That ruling, widely known as “Chevron deference,” directs judges to defer to agencies’ interpretation of laws that may be ambiguous. …
Chevron deference has been widely cited by federal courts to back agency rulemaking … [and] viewed with increasing skepticism in recent years, especially among conservatives, including Supreme Court Justice Neil Gorsuch. Gorsuch, while serving as a judge on the 10th Circuit Court of Appeals, criticized the precedent in 2016, saying it allows the executive branch of the federal government to “swallow huge amounts of core judicial and legislative power.”
From Reuters – November 11, 2022
Fishermen target Chevron deference in SCOTUS petition over onboard monitors
- Summary
- N.J. fishing companies say paying salaries for observers on their vessels is onerous
- Case is ‘ideal vehicle’ for review of past U.S. Supreme Court opinion that governs agency rulemaking, companies say
(Reuters) – New Jersey fishing firms want the U.S. Supreme Court to review a lower court order that forces them to pay the salaries of federally mandated onboard monitors, arguing it’s the perfect opportunity to overturn a cornerstone precedent that gives federal agencies wide latitude to interpret laws.
The fishing companies say the National Marine Fisheries Service’s (NMFS) salary rule is too onerous, requiring them to not only give up valuable space on their small boats for the observers but also pay them over $700 a day. The companies have said those fees can reduce returns by 20%.
A petition filed by attorney Paul Clement with the high court Thursday asked the court to take the case and find the rule requiring fishermen to pay for the monitors is inconsistent with the Magnuson-Stevens fishing act or to overturn the Supreme Court’s 1984 Chevron v. Natural Resources Defense Council. That ruling, widely known as “Chevron deference,” directs judges to defer to agencies’ interpretation of laws that may be ambiguous.
The companies sued the federal government in 2020 over the monitors, who ensure the boats are complying with federal fishing laws. They lost at the district level in 2021, and the U.S. Circuit Court of Appeals for the District of Columbia upheld the lower court’s ruling in August.
The companies say those courts were wrong to back the NMFS’s interpretation of the Magnuson-Stevens Act, which they said doesn’t explicitly authorize the agency to require fishermen to pay monitors’ salaries. The agency made a rule that goes well beyond the intent of Congress, they said, but “silence is not ambiguity.”
“The decision below is a case in point and an ideal vehicle for this Court’s review,” the companies said.
Chevron deference has been widely cited by federal courts to back agency rulemaking in the past nearly 40 years and touches on a broad swath of administrative actions on issues ranging from the environment to immigration.
The precedent has been viewed with increasing skepticism in recent years, especially among conservatives, including Supreme Court Justice Neil Gorsuch. Gorsuch, while serving as a judge on the 10th Circuit Court of Appeals, criticized the precedent in 2016, saying it allows the executive branch of the federal government to “swallow huge amounts of core judicial and legislative power.”
NMFS and counsel for the fishing companies didn’t immediately respond to requests for comment Friday.
Related story – NPFMC votes to hike observer fees in 2021 – by Elizabeth Earl, AK Journal of Commerce
The costs for on-board fisheries observers will be increasing, and no one in the industry is particularly happy about it.
The North Pacific Fishery Management Council voted to adjust the observer fee percentage to 1.65 percent of ex-vessel values. It was previously set at 1.25 percent.
The increase is intended to cover additional observer services to reach the target coverage rate set out by the council for the various fisheries across the North Pacific region.
Observers are hired through a federal contracting system. On board, the observers document the catches of both target species and bycatch, and take samples from the catch, among other responsibilities.
Typically, they have training in biological sciences and fisheries. Federally managed fisheries are designated as either partial or full coverage, with the National Marine Fisheries Service, or NMFS, determining where observers need to go based on the necessary data for each year.
Fishermen in the partial coverage category pay a 1.25 percent fee on their landings to cover the cost of observing and the deployment of electronic monitoring systems, collected by the processors on behalf of NMFS.
After the program was restructured in 2013, NMFS provided about $4.5 million in funding to help cover operations, and the federal government has contributed funds every year since — about 32 percent of total costs, according to documents submitted to the North Pacific Fishery Management Council.
However, with the likelihood of federal support diminishing and costs increasing, the council has been looking for ways to fund the program through industry fees.
The fee change will be delayed until 2021, making the funds available to pay for at-sea coverage by mid-2022, according to a memo from council staff member Diana Evans.
“It should be noted that while the scope of this analysis is focused narrowly on the amount of the observer fee, the Council is also pursuing parallel initiatives with the Fishery Monitoring Advisory Committee (FMAC) to evaluate additional ways to improve cost efficiency for the program,” she wrote.
Stakeholders were everywhere from fiercely opposed to begrudgingly supportive, but no one seems to be happy about the increase, particularly in the fixed-gear fleet.
Most asked the council to cap the cost increase and instead pursue containment measures and efficiencies to avoid overburdening fishermen.
Many recognized that the observer program is important enough to have to continue, but were concerned about the long-term trajectory.
Partial coverage is more expensive per trip than full-coverage fisheries. In 2018, a single observer day cost $1,380, while full-coverage observer days cost $382 per day. In theory, the observer fee is supposed to be shared between the processors and fishermen, but the fee analysis completed by council staff indicates that the burden may be shifted more toward the harvesters than the processors, as the existence of a tax lowers the dockside price.
The North Pacific Fisheries Association, a trade group based in Homer, pointed to this in connection with its opposition to a fee increase.
“NPFA appreciates that the Observer Program is operating on a tight budget, but so are our members,” NPFA President Malcolm Milne wrote in a comment to the council.
“We’ve put a lot of effort into the development of a workable Electronic Monitoring Program and have consistently participated in NPFMC committees and workgroups including the FMAC and its subgroups. It is imperative that the Observer Program control its costs and demonstrate some efficiencies and effectiveness before we would willing pay more money for it.”
The trawl fleet agreed, though the Midwater Trawlers Cooperative “begrudgingly” supported the fee increase to sustain the observer program, said Heather Mann, the group’s executive director.
“We need the observer program,” she said in testimony to the council. “We use it to manage fisheries. When I say begrudgingly (support), I also want to see cost containment measures … We can’t just let the program blow up; we need this program. So let’s fix it.”
She added that the group supported the motion that raised fees equally across the fishing sectors, rather than varying rates across sectors.
One alternative proposed in the fee analysis would have internalized the cost increase of vessels limited by protected species catch limits to those vessels — specifically, the prohibited catch species-limited trawl fleet.
The analysis reasoned that PSC catch by trawl vessels imposes costs on other sectors, but Mann argued that it isn’t fair to single out the trawl vessels.
AK journal of commerce, citing heather mann of the midwater trawlers cooperative
Oceana, a national ocean conservation advocacy nonprofit, supported the fee increase to maintain coverage levels but also encouraged the council to pursue cost containment measures.
In its comments, the organization advocated for the council to switch all Gulf of Alaska trawl vessels to the full-coverage category, particularly to control bias in sampling because of the presence of an observer and to make costs more efficient for broader coverage.
The Alaska Longline Fishermen’s Association also opposed the fee increases until the council looks for efficiencies and cost containment measures. Project Coordinator Dan Falvey told the council that the organization favored the continued implementation of electronic monitoring, which has equipment costs but is generally cheaper than a human observer and easier for small vessels.
With current costs increases, he said the program is unsustainable.
“How would (the council) sharpen your pencil, shave off 10 percent of the program costs while still getting the coverage rate?” he said.
Along with passing the 1.65 percent increase, the council passed a set of priorities for the partial coverage category focusing on cost containment.
Among the immediate items for work are conversion of pelagic, or midwater, trawl fisheries to electronic monitoring with shoreside sampling, an integrated monitoring plan for fixed gear that combines electronic monitoring, shoreside sampling and at-sea coverage as needed, and optimizing the size and composition of the fixed gear observed and electronic monitoring.
