Atlantic Herring. Photo: NOAA Fisheries
WASHINGTON, D.C. — Earthjustice has filed a Supreme Court amicus brief in Loper Bright Enterprises v. Raimondo on behalf of environmental and local groups, including Conservation Law Foundation. The case involves a challenge by a New England-based fishing company to fishery managers’ ability to obtain valuable data they need to manage our fisheries effectively.
In Loper Bright, the Court has agreed to re-examine the Chevron deference doctrine, a 40-year-old Supreme Court principle under which federal courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that Congress has authorized the agency to administer. The industries and lawyers behind this case filed it as part of a decades-long campaign to use the Supreme Court to shift power away from the branches of government that are most responsive to everyday Americans and move it to the federal courts.
The underlying case involves a challenge to a decision by the New England Fishery Management Council and the National Marine Fisheries Service (NMFS) to use at-sea observers to gather much-needed data about the Atlantic herring fishery. The Magnuson-Stevens Act requires the Secretary of Commerce, who oversees NMFS, to promulgate fisheries management plans that prevent overfishing, requires that those plans reflect “the best scientific information available” and also states that management plans may “require that one or more observers be carried on board” operating fishing vessels.
Under the herring observer plan, the largest fishing vessels in the fishery are required to bear some of the costs of obtaining that data. The fishing companies who sued in Loper Bright argue that the Magnuson-Stevens Act does not give NMFS the authority to require fishermen to pay for observers to monitor their use of public waters. A district court rejected that argument, and a court of appeals upheld the district court’s ruling by applying the Chevron deference doctrine, as Supreme Court precedent requires.
When Congress passed the Magnuson-Stevens Act with bipartisan support in 1976, it was addressing a serious problem: 20% of all known fish stocks had been overfished. Nearly fifty years later, many fisheries still struggle to produce sustainable yields, threatening resources that belong to all of us and the livelihoods of those who harvest them.
Everyone, including fishermen, relies on monitoring data to prevent overfishing, preserve fishing economies, and keep marine ecosystems intact. “The observer program being challenged in this case relies on a decades-old interpretation of the Magnuson-Stevens Act and rests on the common sense idea that when Congress enacted a statute that requires reliable data to work, it did not hamper the implementing agencies’ ability to obtain that data,” said Earthjustice Director of Strategic Legal Advocacy Kirti Datla. “The groups pushing the Supreme Court to take this case to revisit Chevron are doing so to shift power to the courts, which they think will be more open to their deregulatory agenda. The Justices should reject their arguments and leave statutory decisions that require policy judgments to politically accountable legislators and executive branch agencies.”
“The ocean belongs to all of us and we allow fishermen access to these public resources for the cost of a permit,” said CLF Senior Attorney Erica Fuller. “But there are times, like this one, when the industry must shoulder a portion of the costs to gather data that ensures equity across fisheries. Without good monitoring on the largest boats in this fishery, we can’t prevent overfishing of Atlantic herring, a keystone forage species, or the further depletion of other valuable species such as haddock, shads, and river herring, caught as bycatch. The Supreme Court should reject the arguments being made in this case.”
“On-board observers, in many cases industry-funded, have been an indispensable part of preventing overfishing and maintaining healthy populations since the birth of the Act,” said Save the Sound Senior Legal Director Roger Reynolds. “By way of example, Long Island Sound river herring have suffered a precipitous drop in the last several years and good data from observers is critical to understand and address the issue. Industries are routinely required to bear the costs of compliance with environmental protection and other regulatory schemes and the Justices should reject the invitation to rewrite the law.”
Earthjustice filed the amicus brief on behalf of Conservation Law Foundation, Ocean Conservancy, and Save the Sound.