For the past thirty years, the Magnuson-Stevens Act (MSA) has given the National Marine Fisheries Service (NMFS), an arm of the National Oceanic and Atmospheric Association (NOAA), the authority to place third-party observers on commercial fishing boats. Those observers have largely been federally funded except in certain limited instances where the MSA provides NMFS with the power to collect fees from the regulated industry. When NMFS and the New England Fishery Management Council decided to explore the possibility of increased discretionary monitoring in the Atlantic herring fishery, however, they realized the federal government would be unable to pay for additional monitoring. The solution was a rule that would instead shift the cost of increased coverage to small businesses—the fishermen themselves. NMFS estimated the cost of industry-funded monitoring in the herring fishery would run upwards of $700 per day and lead to a 20% reduction in most of the fleet’s net revenue.
If the story sounds familiar, that’s because the 2022 Academy Award Best Picture, CODA, concerns the same kind of industry-funded monitoring scheme in New England’s storied groundfish fishery. Up and down the Atlantic seaboard, commercial fishermen have long protested they are facing an onslaught of overlapping and ever-increasing state and federal regulations, all while fishing quotas and revenue continue to decline. NMFS, in the face of multiple lawsuits, has sought to justify industry-funded monitoring as a compliance cost necessary to preserve fishing stocks. Moreover, the agency has relied on Chevron deference to defend its reading of the MSA.
In May 2023, the Supreme Court agreed to hear Loper Bright Enterprises v. Raimondo, a lawsuit brought by a group of herring fishermen from Cape May, NJ challenging NMFS’s industry-funded monitoring rule. Rather than agreeing to directly address NMFS’s interpretation of its authority under the MSA, however, the Court agreed to consider whether Chevron v. NRDC should be overruled or, alternatively, clarified such that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in a statute does not constitute an ambiguity requiring deference to an agency. The implications of Loper Bright are tremendous across multiple agencies and regulatory spaces—it could turn out to mark a defining shift in administrative law.
Featuring:

Ryan Mulvey, Counsel, Cause of Action Institute
Eli Nachmany, Former Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit