‘It’s Time To Toss It’: Republican AGs Join Fishermen, Ask SCOTUS To Dismantle A Key Pillar Of The Regulatory State

Republican state attorneys general are urging the Supreme Court to overturn a key ruling that is forcing New Jersey fishermen to pay federally-mandated monitors’ wages.
The attorneys general called on the court to overrule the “Chevron deference,” a legal doctrine that instructs courts to defer to a government agency’s interpretation of a statute in certain cases, which is propping up a National Marine Fisheries Service (NMFS) rule that is requiring herring fishermen to over $7oo per day to keep monitors onboard.
“It’s clear that the Chevron deference can have a huge impact on small businesses, so the Supreme Court needs to step in and get rid of it, but if they’re not going to get rid of it, they need to be very clear as to how it’s supposed to apply,” Ryan Mulvey, an attorney representing the fishermen on behalf of the Cause of Action Institute, told the Daily Caller News Foundation.

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West Virginia Attorney General Patrick Morrisey and 17 other Republican state attorneys general are urging the Supreme Court to overturn a landmark ruling that is forcing Atlantic herring fishermen to pay the salaries of government-mandated monitors on fishing boats.

The attorneys general called on the Supreme Court to overrule the 1984 Chevron v. Natural Resources Defense Council decision, known as the “Chevron deference,” a legal doctrine instructing courts to defer to a government agency’s interpretation of a statute in certain cases, which is propping up National Marine Fisheries Service (NMFS) mandate that forces New Jersey fishermen to pay $710 per day to keep monitors onboard, according to an amicus brief filed Monday. The brief states that the Chevron deference violates the “separation of powers” and is allowing the federal government to threaten fishermen’s livelihoods by “unilaterally” taxing the industry.

“The Court should intervene now to limit Chevron in a way that is consistent with the separation of powers and the principles of federalism,” the attorneys general wrote. “Otherwise, it’s time to toss it.”

The 2007 Magnuson-Stevens Conservation and Management Act gave the National Oceanic and Atmospheric Administration (NOAA), the parent agency of NMFS, the authority to require commercial fishermen to allow monitors, who make sure boats are complying with fishing laws, onto their boats. However, the New England fishing company Loper Bright Enterprises contends that the law does not give the government the authority to force the fishermen to pay the salaries of the onboard monitors, according to a legal petition filed by the Cause of Action Institute on behalf of the company.

“The statute is clear on that … but where the agency has exceeded its authority is in passing the costs of those observers and monitors on to the fisherman,” Ryan Mulvey, an attorney representing the fishermen on behalf of the Cause of Action Institute, told the Daily Caller News Foundation.

However, the Chevron deference allowed NOAA to shift costs onto fishermen without authorization from Congress when the agency ran out of money to pay for additional monitoring in Atlantic herring fisheries, prompting the agency to shift the cost onto fishermen themselves, according to the brief. After Loper Bright Enterprises sued the government in 2020 and lost at the district level in 2021, the U.S. Circuit Court of Appeals for the District of Columbia validated the lower court’s decision in August by applying Chevron deference, according to legal documents.

“The statute has three instances where it specifically addresses where the agency has authority to require the industry to pay, but none of those apply to our clients’ fisheries, and our view is that the silence of a general grant of authority and the existence of these specific grants of authority suggests that the Fishery Service can’t just do whatever it wants,” Mulvey said.

The Competitive Enterprise Institute, the America First Legal Foundation and 37 organizations, businesses and fishing industry participants have filed 14 amicus briefs to challenge the Chevron deference, according to a Cause of Action Institute press release. The 1984 Chevron case has been used to justify numerous examples of agency rulemaking over the past 40 years, according to Reuters.

“It’s clear that the Chevron deference can have a huge impact on small businesses, so the Supreme Court needs to step in and get rid of it, but if they’re not going to get rid of it, they need to be very clear as to how it’s supposed to apply,” Mulvey stated.

NMFS did not immediately respond to the Daily Caller News Foundation’s request for comment.

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