Commercial Fishing v. NOAA Fisheries

Gavel photo by Wesley Tingey via Unsplash.

In case you missed it, the Supreme Court on May 1 agreed to take up a dispute between the Biden administration and East Coast commercial fishing companies that could eventually have a huge impact on the U.S. commercial fishing industry as a whole.

The court’s eventual judgment has the potential to overrule a nearly 40-year-old decision that gives deference to federal agencies.

The case, Loper Bright Enterprises et al. v. Raimondo, is expected to be heard in the Supreme Court’s next term. The court is being asked to override the 1984 Chevron v. National Resources Defense Council ruling, in which the justices determined that courts should defer to an agency’s reasonable interpretation of statutes when laws are ambiguous.

The case revolves around Atlantic herring fishermen who say the National Marine Fisheries Service (NOAA Fisheries) doesn’t have the authority to require them to pay the salaries of government monitors who ride aboard the fishing vessels.

The herring fishermen, represented by attorney and former U.S. Solicitor General Paul Clement, argue that their boats normally only have room for five or six people. However, they’re now not only required to carry the monitors—who are onboard to observe whether federal regulations on fishery conservation are being followed—but also to, according to NOAA Fisheries, cover their salaries. 

Clement, though, argues that the agency has exceeded its authority and would need clear and direct congressional authorization to make the demand.

“In a country that values limited government and the separation of powers, such an extraordinary power should require the clearest of congressional grants,” Clement has stated.

The legal battle before the Supreme Court involves the Magnuson-Stevens Act, a 1976 law that governs management of marine fisheries in federal waters. Under the law, the U.S. commerce secretary is required to develop a comprehensive fishery management program to prevent overfishing and ensure conservation of limited resources.

The management plan may require at least one federal observer to be carried on board domestic fishing vessels while at sea. In 2017, the New England Fishery Management Council, which advises the secretary on fishery management plans, finalized a proposal to amend the plan for the Atlantic herring fishery to create an industry-funded monitoring program.

The proposal included provisions that required vessel owners to arrange for monitoring and pay for the services on certain voyages. A group of four family-owned and operated fishing companies in the Atlantic herring fishery sued the federal government in February 2020 over the  requirements, alleging that the Magnuson-Stevens Act doesn’t authorize the National Marine Fisheries Service to mandate industry-funded monitoring in the herring fishery.

A federal district court in Washington sided with NOAA Fisheries, citing the Chevron precedent. In its decision, the district court said provisions of Magnuson-Stevens granted “broad authority” for creation of the necessary rules to carry out conservation and management measures.

A divided three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit agreed, applying the Chevron framework and finding that the agency acted within the scope of its statutory authority when it allowed for the industry-funded at-sea monitoring.

The D.C. Circuit also deferred to NOAA Fisheries, saying that its interpretation of the Magnuson-Stevens Act is “reasonable.”

The fishing companies appealed to the Supreme Court.

Although the case is scheduled to be heard by the court in its next term, a ruling isn’t expected until 2024.

We’ll keep you posted on the latest developments as they occur. 

Managing Editor Mark Nero can be reached at