NMFS MAY STILL REQUIRE HERRING BOATS TO CARRY OBSERVERS, DESPITE LOPER-BRIGHT

 

Thirteen months ago, the United States Supreme Court handed down its decision in Loper-Bright Enterprises v. Raimondo, a decision that abolished the so-called “Chevron Doctrine,” created by Court in 1984, which had given agencies the ability to make reasonable interpretations of law related to such agencies’ core expertise, and required the courts to give deference to such interpretations.  In its Loper-Bright decision, the Supreme Court found that, while agencies may set policies and decide issues of fact, deciding issues of law is a duty that the federal Administrative Procedures Act assigned solely to the courts, as that law clearly states

“To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of an agency action.”

That language seems clear and unambiguous, raising the question of how the Chevron Doctrine, which allowed agencies to interpret some questions of law, was ever created in the first place. 

But created it was, and over the past 40 years, agencies, attorneys, and various advocacy groups became very comfortable depending on Chevron.  That was particularly true among conservation and environmental advocates, which often deal in areas that require the sort of detailed technical knowledge that is found far more often in administrative agencies and rarely, if ever, on the bench.  Thus, such advocates bewailed the demise of the Chevron Doctrine, with one group, the Natural Resources Defense Council, writing that the decision

“dealt a severe blow to the ability of federal agencies to do their jobs by ending the 40-year old precedent of ‘Chevron deference.”  Instead of deferring to the expertise of agencies on how to interpret ambiguous language in laws pertaining to their work, federal judges now have the power to decide what a law means for themselves.  As a result, despite not being accountable to the people, judges will not be able to expand their role into the realm of policymaking.”

The League of Conservation Voters’ Senior Director of Judiciary and Democracy, Doug Lindner, lamented that

“Today’s decision is yet another relentless power grab by MAGA Supreme Court justices trying to make it harder for public agencies to protect our communities, our democracy, health, clean air, and clean water.  The Chevron Doctrine is one of the most fundamental principles in American law, and overturning this precedent shifts power away from the public agency experts who understand the science and the issues, and from the voters who elect the Congress and the President responsible for protecting us.”

While such comment is appropriately partisan and properly vehement, it seems pretty simple to rebut by asking just one pointed question:  If a critical legal issue related to the Clean Air Act or Clean Water Act was being considered, who would you rather see decide it:  A federal district court judge, who might lack subject matter expertise and so focused on the law of the case, or the current Environmental Protection Agency head, Lee Zeldin?

From that perspective, maybe the demise of Loper-Bright was not such a bad thing…

Yet more than a few hyperventilated once the Court’s decision came out, with an opinion piece in the Tampa Bay Times declaring that

“U.S. fisheries could be devastated by Supreme Court’s ending the Chevron doctrine.”

Now, a little over a year later, we can get some perspective on how things have changed, and perhaps the best way to do that is to go back to the original matters that gave rise to the decision.  One was, as we know, Loper-Bright Enterprises v. Raimondo, but there was also a second, companion case, Relentless, Inc. v. Department of Commerce, which was decided at the same time.

Both matters arose from similar fact patterns—fishing operations challenged the National Marine Fisheries’ Service ability to require vessels trawling for Atlantic herring to carry industry-funded observers.  The cost of such observers was over $700 per observer, per day, and the plaintiffs argued that the Magnuson-Stevens Fishery Conservation and Management Act, which governs all fishing in the federal waters of the United States, did not authorize NMFS to require that fishermen pay for observer coverage.

The lower courts in the original case, citing Chevron, found against the plaintiffs, but the Supreme Court reversed, abolishing the Chevron Doctrine.  However, abolishing the Chevron Doctrine was all that it did—the Supreme Court did not find for the fishermen on the underlying issue, but rather remanded the matters back to the trial courts which, with the Chevron Doctrine no longer in play, would have to do what judges have done for a very long time—look at the language of Magnuson-Stevens, and figure out what Congress really said when it wrote that law.

And we now have an answer, at least from the court that decided Relentless, Inc. v. Department of Commerce.

Magnuson-Stevens does, in fact, allow NMFS to require fishermen to pay for their on-board observers. 

On July 15, 2025, the United States District Court for the District of Rhode Island found that the general language found in Magnuson-Stevens, which requires fishery management plans to

“contain the conservation and management measures…which are necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery,”

which allows such plans to

“prescribe such other measures, requirements, or conditions and restrictions that are determined to be necessary and appropriate for the conservation and management of the fishery,”

and which authorizes regional fishery management councils to adopt regulations that such council

“deems necessary or appropriate,”

is sufficient to allow NMFS to require paid fisheries observers aboard vessels trawling for Atlantic herring.

The court’s explains that language in Magnuson-Stevens

“permits plans to ‘require that one or more observers be carried on board a vessel of the United States engaged in fishing for species that are subject to the plan, for the purpose of collecting data necessary for the conservation and management of the fishery[.]’  To the extent that the Final Rule does this, Plaintiffs do not contest its legality; they oppose the Final Rule only insofar as it sometimes places the associated costs on them.  But as the First Circuit noted, ‘[t]his argument faces an uphill textual climb.’  This is so because ‘the ‘default norm’ as manifest without express statement in literally hundreds of regulations, is that the government does not reimburse regulated entities for the cost of complying with properly enacted regulations, at least short of a taking.’  [citations omitted]”

The decision continued:

“Next, the Court considers Section Subsection (b)(14), which allows fishery management plans to ‘prescribe such other measures, requirements, or conditions and restrictions that are determined to be necessary and appropriate for the conservation and management of the fishery.’  This provision, in no uncertain terms, delegates to NMFS a large degree of discretionary authority.  Such delegation is not uncommon…This Court and the Relentless I court have already reviewed the Final Rule and found it reflects reasoned decisionmaking and does not cross the boundaries specified by MSA…”

The court rejected the plaintiffs arguments, and concluded,

“To interpret the MSA, the Court ‘must exercise [its] independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedures Act] requires.  In doing so, the Court concludes that the MSA authorizes the Final Rule.  For this reason, the Court DENIES Plaintiffs’ Motion for Summary Judgment, and GRANTS Defendants’ Cross Motion for Summary Judgment.  [citations omitted]”

So at this point, plaintiff Relentless, Inc. finds itself exactly where it was when this years-long legal odyssey began—required to pay for fisheries observers if NMFS deems that it must do so.  While the Loper-Bright decision may be a new landmark of federal administrative law, for Relentless, Inc., it might as well never have happened.

But that doesn’t mean that the debate is over.  There will undoubtedly be a new round of appeals, this one focusing on whether the trial court’s interpretation of the Magnuson-Stevens language was correct.  And the Loper-Bright/Relentless decision still has a lot of symbolic meaning for that terminally nostalgic group of folks who want to take the United States, including its judicial and administrative systems, back to the good old days of the late 18^th Century.

So we recently saw a columnist in the conservative National Review observe that

“As I reported last month, even while Pam Bondi’s Justice Department has been treating Loper-Bright Enterprises v. Raimondo as a victory for conservative and MAGA critics of the administrative state, career lawyers at the DOJ were continuing to defend the very Commerce Department fishing-monitor regulation at issue in Loper-Bright and its companion case, Relentless, Inc. v. Department of Commerce.  On Tuesday, a federal judge ruled in favor of the government in Relentless…Never mind that this isn’t a matter of the boats bearing the costs of their own compliance with the rules, but of paying a regulatory agent for the government…

That columnist, too, recognizes that there will be appellate battles ahead, although he holds out one bit of hope for his, and his publication’s, anti-regulatory agenda:

“But it seems that attention to the anomalous position taken by the DOJ and Commerce may be paying off:  The government has entered into talks with the Loper-Bright plaintiffs to settle the case, and any such settlement would necessarily entail at least some retreat from the original regulations.”

Which means that there are still a lot of different ways that this matter might end.

The most likely might be that the plaintiffs just decide to give up and move on with their lives.  So far, their cases have been championed by a right-wing, anti-regulatory legal entity known as the New Civil Liberties Alliance.  Although we don’t know what the fee arrangements are, there’s a pretty good chance that the plaintiffs aren’t paying anything close to typical legal fees—if, in fact, they’re paying anything at all—because their role in the larger game has been to provide a vehicle to challenge the Chevron Doctrine, and not really to challenge specific provisions of Magnuson-Stevens.  

Now that plaintiffs’ counsel have scored their big win against the administrative state, the case will probably look far less attractive to them—although they can’t ethically just walk away.

I suspect that we will see an appeal of the Relentless decision to the First Circuit, but I doubt it will go any farther.  While it’s possible that the Supreme Court might accept a case interpreting fisheries law, the odds are probably stacked against that occurring.

What happens at the administrative level is harder to predict.  Someone in Commerce or Justice may well decide to settle the case, perhaps by dropping any penalties accrued in the past, just to make it go away.  They might question the policy of requiring fisheries observers, considering it burdensome to fishermen and contrary to the April 17 Executive Order.  They might even insist on enforcing the terms of the management plan, although that’s probably the least likely outcome.

Right now, uncertainty reigns.

About the only thing that seems to be certain is that the Supreme Court’s Loper-Bright decision won’t prevent NMFS from enforcing the terms if its management plans.

Provided that it chooses to do so.