Three NJ herring fishermen made history at the Supreme Court, but their fight isn't over

Three herring fishermen from Cape May fought the law all the way to the U.S. Supreme Court and won.

In doing so, the three men overturned the 40-year-old Chevron doctrine, thus making it easier for them and others to challenge federal regulations in court. But, their battle is not over.

The fishermen are challenging what they say is an unlawful requirement that forces them to surrender 20% of their earnings to pay at-sea monitors, who gather information that is used to regulate their industry. That worked out to as much as $700 a day, which is more pay than the crews take home sometimes.

The requirement was imposed on them by an executive branch agency — in this case the U.S. Dept. of Commerce, which oversees the National Oceanic and Atmospheric Administration, which in turn regulates the nation's fisheries. The at-sea monitors were never approved by Congress, but due to the so-called Chevron deference, the fishermen were handicapped to fight the rule, because the courts always deferred to the regulatory agencies.

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Who makes the law?

The long-standing Chevron precedent was set in 1984 in Chevron USA Inc. v. Natural Resources Defense Council Inc. The decision in that case required courts to defer to a federal agency’s interpretation of a statute it administers when that statute is ambiguous or leaves a gap for the agency to fill — what is often referred to as Chevron deference, a legal doctrine that requires federal courts to defer to agency interpretations of law, even in the absence of expressed congressional authorization.

Chief Justice John Roberts, who wrote the Court's opinion, determined that “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

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The court's decision on Friday to toss out Chevron clears the way for the fishermen to fight the at-sea monitoring rule in a Washington, D.C., circuit court, where the case originated. That litigation will begin in earnest in a few months.

“We are grateful the Court has overruled Chevron," said Bill Bright, one of the three herring fishermen. "(Friday’s) restoration of the separation of powers is a victory for small, family-run businesses like ours, whether they’re involved in fishing, farming or retail. Congress never authorized industry-funded monitoring in the herring fishery. And agency efforts to impose such funding hurts our ability to make an honest living. Nothing is more important than protecting the livelihoods of our families and crews.”

Bright owns two commercial vessels and a seafood restaurant in Wildwood. He runs both businesses with his wife and their four grown children.

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The two other fishermen are Wayne Reichle, a third-generation fishermen and president of Lund Fisheries in Cape May, one of the biggest seafood operations in the state, and Stefan Axelsson, another third-generation fishermen who owns the herring vessel Drysten and runs it with his daughter.

“The Court’s decision puts to rest an interpretive methodology that has seriously distorted how the political branches operate for far too long. Courts should ask what the law means, not whether it is ambiguous, and in close cases, the tie should go to the citizen, not the government. We are gratified that the Court restored the constitutionally mandated separation of powers.” said Paul Clement, former U.S. Solicitor General and attorney for the fishermen.

Where the fight started

At-sea monitors collect scientific, management and regulatory compliance and economic data and report back to the government. They also focus on the discarded catch, or fish that are thrown back because they're not the target species or are undersized, for example. The data is used for the management and monitoring of the annual catch limits.

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The fishermen don't contest that federal law allows the government to require at-sea monitors on their boats, but they argue Congress never gave the executive branch further authority to pass monitoring costs onto the herring fishermen. They contend that the NOAA abused its power.

Their case, Loper Bright v. Raimondo, was first heard in the U.S. District Court for the District of Columbia and then the U.S. Court of Appeals for the District of Columbia. Gina Raimondo is the U.S. Secretary of Commerce. Richard Spinrad, head of the National Oceanic and Atmospheric Administration, is also named as a defendant.

In both instances the courts ruled in favor of the government, citing Chevron deference. In the Appeals Court, the judges ruled 2 to 1 in favor of the government, but Judge Justin Walker issued a dissenting opinion that closed by saying, “Fishing is a hard way to earn a living. And Congress can make profitable fishing even harder by forcing fishermen to spend a fifth of their revenue on the wages of federal monitors embedded by regulation onto their ships."

The New Civil Liberties Alliance, nonprofit civil rights group, joined the fishermen's fight along the way and fought the Chevron deference in tandem.

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Fishermen land the herring using mid-water trawlers that deploy and tow a net in the water column to catch schooling fish such as the herring. The fishermen contend that space onboard a commercial fishing vessel is a scarce and precious resource. Thus, displacing someone engaged in active fishing to make way for a federal observer is already an enormous imposition. Making the fishing vessels foot the bill for that imposition adds insult to injury in a fishery that has seen revenue fall in recent years, they argue.

Fishermen are already eking out a living in the herring fishery which has been in decline for some time. As a result, federally managers have sought more conservative quotas on the shrinking stock of Atlantic herring. NOAA's stock assessments have found the stock's spawning biomass declined from 317,080 metric tons in 2014 to 77,883 metric tons by 2019, the lowest value since the late 1980s.

NOAA did not have New Jersey's catch totals set aside for 2019-2022 on its catch landings page, but New Jersey fishermen's herring catch was worth $606,426 in 2014 but fell to $335,500 in 2018. Overall, the entire Atlantic seaboard's herring harvest was worth $6.6 million in 2021.

"We’re gratified that the Court recognized Chevron’s perverse consequences and ruled in favor of our clients and all citizens whose livelihoods are threatened by an unaccountable bureaucracy. We look forward to any further steps that will be needed to ensure the unlawful industry-funded monitoring regime imposed on herring fishermen is finally taken off the books," said James Valvo, executive director of Cause of Action Institute, which served as the co-counsel for the fishermen.

When Jersey Shore native Dan Radel is not reporting the news, you can find him in a college classroom where he is a history professor. Reach him @danielradelapp; 732-643-4072; dradel@gannettnj.com.

This article originally appeared on Asbury Park Press: Supreme Court favors NJ herring fishermen in historic Chevron case