Fishermen Ask SCOTUS to Scrap Chevron

A group of herring fishermen have filed their opening brief with the U.S. Supreme Court in a case that asks the Court to overturn its “Chevron doctrine,” which says courts should defer to administrative agencies’ interpretation of the statutes delegated to them.

In the 1984 ruling in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court held that a court “may not substitute its own construction of a statutory provision for a reasonable interpretation made by [the agency charged with administering the statute],” where the statute is ambiguous.

The decision established a two-step test in which a court must first “assess whether the statutory language is ‘clear’ and, if so, give effect to the clear terms” and “if the statutory language is ‘silent or ambiguous,’ then—at step two—a court is prohibited from resolving the legal question itself as it would in any other case, and instead must defer to the agency’s interpretation.”

In the intellectual property context, Chevron deference has come up in cases like SAS Institute v. Iancu, where the Court arguably stopped just short of overturning the doctrine and rejected the U.S. Patent and Trademark Office (USPTO) Director’s argument that Chevron should apply.

In the fishermen’s petition, filed in November 2022 by Loper Bright Enterprises, et. al., they asked the Court to consider: 1) whether the Magnuson-Stevens Act (MSA), which governs fishery management in federal waters and says that the National Marine Fisheries Service (NMFS) can require vessels to carry federal observers onboard to enforce the agency’s regulations, also authorizes the NMFS to require that the vessels pay the salaries of those monitors; and 2) whether the Court should overrule Chevron.

In response to the petition, the Secretary of Commerce, Gina Raimondo, said the case doesn’t warrant review because the district and appellate courts’ view that NMFS’s interpretation of the statute was “at least reasonable” was correct. But in May, the Court granted the petition, limited to Question 2.

In their latest brief, the fishermen argue that ever since the 1984 Chevron decision, “judges, litigants, and scholars have struggled not only to apply Chevron, but to reconcile it with the Constitution, the Administrative Procedure Act (APA), and the historical record.” While it is on the books, the brief argues, administrative agencies will continue to abuse their power.

Specifically, the fishermen contend that Congress only authorized NMFS to require that vessels pay observers’ salaries in “three narrow circumstances” and capped those salaries at 2-3% of the value of the vessels’ hauls. “Nonetheless, seizing on the statute’s ‘silence’ and purported ‘ambiguity,’ NMFS declared that domestic vessels in the Atlantic herring fishery would have to cede upwards of 20% of their returns to pay observer salaries,” explains the brief. The appellate court acknowledged there was no explicit authorization by congress of such a regulation but upheld the district court’s interpretation under Chevron anyway, say the fishermen.

“That result is intolerable, and the Court should jettison Chevron altogether—or at least narrow its scope,” says the brief.

Eighteen amici have also weighed in so far in support of petitioners.

Image Source: Deposit Photos
Image ID: 9522064
Author: iofoto