Imagine in your place of employment that some government agency decides that you need to be watched at all times while you’re working. Now imagine that same agency requires you to also pay for that observer out of your own pocket!
In 1984, the U.S. Supreme Court decision in Chevron v. Natural Resources Defense Council allowed federal agencies “permissible” or “reasonable” interpretation over any “ambiguous” statute. That decision, forever known as the Chevron Deference, essentially gave appointed bureaucrats authority to interpret laws as they see fit.
In a prime example of government overreach, NOAA Fisheries requires commercial herring fishermen to surrender 20% of their earnings in order to pay at-sea monitors for gathering information used to regulate their industry. As Dan Radel reported at the Asbury Park Press on July 1 that can amount to as much as $700 a day, sometimes more than the crew actually takes home. So, the herring fishermen – including three commercial operators from New Jersey – took their case to the U.S. Supreme Court, and won. Forty years after requiring that judges defer to federal agencies in interpreting what they viewed as legal ambiguity, the U.S. Supreme Court voted 6-3 on June 28 to overturn the Chevron Deference, recognizing the herring fishermen’s plight in the face of bureaucratic interpretation of federal law.
As Radel noted, the requirement for at-sea monitors imposed on fishermen by the U.S. Department of Commerce and NOAA Fisheries was never approved by Congress, “but due to the so-called Chevron deference, the fishermen were handicapped to fight the rule, because the courts always deferred to the regulatory agencies.” Bill Bright, one of the New Jersey commercial fishermen listed as a plaintiff in the case called the decision a victory for small, family-run businesses like fishing, farming or retail. “Congress never authorized industry-funded monitoring in the herring fishery. And agency efforts to impose such funding hurts our ability to make an honest living,” Bright told the Asbury Park Press.
Environmental industry leaders have long used the Chevron Deference to help push onerous restrictions on fishing communities, both recreational and commercial, while working to defend federal bureaucrats in their mostly ambiguous over-regulation. Clearly the ideologues pushed the envelope a little too far in this case, and the death of the Chevron Deference will have far-reaching consequences, both good and bad.
In October of 2009, NOAA Fisheries shut down our recreational black sea bass fishery in mid-season after their random survey data showed we’d already exceeded our annual catch limits. The Recreational Fishing Alliance and thousands of individual donors filed suit claiming the closure was based on flawed science and resulted in financial disaster for the recreational fishing industry. The lawsuit, in part, cited the 2007 reauthorization of our federal fisheries law (Magnuson Stevens Act) whereby Congress required NOAA Fisheries to replace that “fatally flawed” recreational data collection used to shut down our sea bass fishery.
As the court was reviewing our case, sea bass ultimately reopened in the spring of 2010, thus rendering the legal action essentially moot. U.S. District Court Judge Joel Pisano tossed our case noting how Congress required the recreational data collection methodologies to be replaced at some point, which provided coverage for NOAA Fisheries to continue along doing so at their bureaucratic snail’s pace.
Part of me thinks that if the Chevron Deference hadn’t existed, our sea bass case might’ve turned out differently; clearly it would’ve helped in other suits brought forth by the recreational fishing community. For example, soon after Pisano’s ruling, a Florida lawsuit filed by red snapper anglers against NOAA Fisheries for failing to improve recreational data collection was also dismissed, the federal judge finding it was not the “intent” of Congress to actually replace it. Talk about ambiguity!
Bureaucratic smugness has just been dealt a big legal blow; personally, I think it’s about time!
