Much at stake in US Supreme Court review of at-sea monitoring case

The nine justices of the Supreme Court of the United States

Herring fishermen in the U.S. state of New Jersey are asking the U.S. Supreme Court to review their case challenging the at-sea monitoring program, a cause that has gained support from a wide variety of groups.

According to the Cause of Action Institute, which is representing the fishermen suing the federal government, 39 groups are part of 14 amicus briefs that have been filed in the case. That includes attorneys general from 18 states as well as the small business group NFIB, the Cato Institute, several legal foundations, and other fishing-industry stakeholders.

The fishermen, and their supporters, are hoping the nation’s top court will overturn Chevron, a decades-long legal principle that courts have used to allow Congress to pass lawmaking authority to regulatory agencies.

“This tremendous support highlights the broad agreement that the Supreme Court needs to revisit Chevron (deference) and ensure federal agencies do not usurp the constitutional authorities reserved for Congress and the courts,” Cause of Action Institute Executive Director James Valvo said.

In this case, the New England Fishery Management Council ordered boats in the herring fishery to start paying a USD 700 (EUR 659) per-day fee for monitors to board their vessels during fishing trips. Besides ensuring adherence to regulations, the monitors also collect other data for the government.

The fishermen say the fee is more than captains and crew members can make on their excursions and threatens their livelihoods. However, both the Washington D.C. Federal District Court and the Washington D.C. Federal Circuit Court have upheld the requirement.

For the fishermen’s supporters, the case may have more far-reaching implications, especially if the nation’s top court either overturns Chevron or restricts it.

“After almost 40 years, courts are unable to apply Chevron with any consistency,” the attorneys general wrote in their brief filed Thursday, 15 December. “Though the doctrine purports to defer only on the basis that Congress delegated gap-filling authority to an agency, Chevron’s confused state makes it difficult to ensure that courts do more than assume that delegation premise. Lower courts have real questions about whether Chevron remains viable and how to apply it if it does. The result is widespread confusion and wildly different approaches as courts suss out ambiguity.”

Attorneys general filing the brief were from Alabama, Alaska, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, South Carolina, Tennessee, Texas, Utah, Virginia, and West Virginia.  

Photo courtesy of Fred Schilling, Collection of the Supreme Court of the United States


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