- 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.
The case is Loper Bright Enterprises et al. v. Gina Raimondo et al., United States Supreme Court, case No. not immediately available.
For the fishing companies: Paul Clement, Andrew Lawrence and Chadwick Harper of Clement & Murphy
For the government: Counsel information not immediately available
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