How NJ herring fishermen could upend federal laws, push power from White House to Congress

Several New Jersey commercial herring fishermen say they don't think it's fair that a federal rule forces them to pay over 20% of their earnings to cover the salary of the government's at-sea monitors who ride on their boats. And their case, now going before the U.S. Supreme Court, has a chance of upending the way federal laws are made and shifting power from the White House back to Congress.

The 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.

The fishermen concede 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 National Oceanic and Atmospheric Administration, which manages the nation's fisheries, has abused its power.

“It’s humbling that a few herring fishermen like us could bring such an important case to the nation’s highest court,” said Stefan Axelsson, one of the fishermen who brought the case. “If the government can do this to fishermen trying to make an honest living, they can do it to anyone.”

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Their case looks to overturn a long-standing precedent set in 1984 in Chevron USA Inc. v. Natural Resources Defense Council Inc. The decision in that case requires 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.

'Seriously distorted'

The court’s decision could impact how federal agencies make rules, as well as the types of issues addressed in those rulemakings.

“Chevron has seriously distorted how the political branches operate,”wrote former U.S. Solicitor General Paul Clement in the opening brief filed in court last Friday.

Clement is lead counsel for the fishermen, who are also represented by lawyers from Cause of Action Institute. The case is Loper Bright Enterprises v. Raimondo. 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.

“Thanks to Chevron, Congress does far less than the Framers envisioned and the executive branch does far more, as roughly half of Congress can count on friends in the executive branch to tackle controversial issues via executive action without the need for compromise, bicameralism or presentment,” Clement said in the brief.

The case was first heard in the U.S. District Court for the District of Columbia and then the US Court of Appeals for the District of Columbia.

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."

Highest-paid person on the boat

The government expects the third-party monitors will cost the fishermen as much as $700 per day, in some cases making the monitor the highest-paid person on the boat. Axelsson said that is sometimes more than he or his crew make for a day.

A decision favoring the fishing businesses would have far-reaching consequences, the plaintiffs argue. For nearly 40 years, they contend, people from all walks of life have been denied fair hearings in federal courts due to Chevron, which puts tremendous power hands of unelected bureaucrats.

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“It’s a classic David versus Goliath story,” said Ryan Mulvey, an attorney with Cause of Action Institute and a co-counsel representing the fishermen. “Chevron deference tips the scales of justice towards powerful federal agencies and away from citizens like the fishermen who are seeing their livelihoods threatened by a bureaucracy run amok.,”

The case will be argued before the court in November.

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.

The herring fishery has been in decline as 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.

“It’s been a long road with many bumps and challenges, but this case is about fairness and honest government. It needs to be fixed,” Axelsson said.

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: NJ herring fishermen Supreme Court case could upend federal lawmaking