Nov 4 (Reuters) - A U.S. appeals court on Monday
appeared open to upholding a federal rule requiring commercial
fishermen to fund a program to monitor for overfishing of
herring off New England's coast even after the U.S. Supreme
Court in that same case issued a landmark ruling curbing
agencies' regulatory power.
A three-judge panel of the U.S. Court of Appeals for the
District of Columbia Circuit, during oral arguments, weighed the
impact of the U.S. Supreme Court's June decision to scrap a
40-year-old legal doctrine that had required courts to defer to
agencies' interpretations of ambiguous laws they administer.
The 6-3 conservative majority U.S. Supreme Court nixed the
doctrine, known as "Chevron ( CVX ) deference," after taking up an
appeal by several commercial fishing companies of the D.C.
Circuit panel's 2-1 ruling in August 2022 that had relied on the
doctrine to uphold the fishing rule.
The justices sent the case back to the D.C. Circuit to
reassess the rule's validity post-Chevron ( CVX ) using their own
judgment and for further arguments by the fishing companies, led
by New Jersey-based Loper Bright Enterprises.
"With the end of Chevron ( CVX ) deference, this case I think
presents what should be a straightforward question of statutory
interpretation," Ryan Mulvey, a lawyer for the companies at the
conservative legal group Cause of Action Institute.
He argued the 1976 fishing law the Magnuson-Stevens Act,
which the National Marine Fisheries Service relied on to craft
the 2020 rule, does not authorize the type of industry-funded
monitoring program like the one at issue.
But the two D.C. Circuit judges who previously upheld the
rule appeared open to doing so again after assessing whether the
Magnuson-Stevens Act would allow for such an industry-funded
program.
"Without specifically saying that costs are going be borne
by the regulated entity, a statute can still be best read to
allow for that," said Chief U.S. Circuit Judge Sri Srinivasan,
an appointee of Democratic former President Barack Obama.
Senior U.S. Circuit Judge Judith Rogers, an appointee of
Democratic former President Bill Clinton, noted the fishing
companies did not dispute that the government could require them
to have monitors on their vessels and quarter them. She
questioned why funding their salaries was a step too far.
"Congress didn't say in the statute, 'industry shall never
be charged for the cost of the observer's salary,'" she said.
The rule at issue provided for a program that aimed to
monitor 50% of declared herring fishing trips in the regulated
area, with program costs split between the federal government
and the fishing industry. The monitors assess the amount and
type of catch including species inadvertently caught.
The cost of paying for the monitoring services was an
estimated $710 per day for 19 days a year, which could reduce a
vessel's income by up to 20 percent, according to government
figures.
The D.C. Circuit panel originally relied on the Chevron ( CVX )
doctrine to defer to the agency's interpretation of the law,
with U.S. Circuit Judge Justin Walker, an appointee of
Republican former President Donald Trump who was on Monday's
panel, dissenting.
The Supreme Court on appeal overturned the 1984 ruling
called Chevron ( CVX ) v. Natural Resources Defense Council that had
established that principle of deference.
Chief Justice John Roberts wrote that instead of deferring
to agencies' interpretations of ambiguous statutes, courts "must
exercise their independent judgment in deciding whether an
agency has acted within its statutory authority."
The case is Loper Bright Enterprises v. Raimondo, U.S. Court
of Appeals for the District of Columbia Circuit, No. 21-5166.
For Loper Bright: Ryan Mulvey of Cause of Action Institute
For the government: Daniel Halainen of the U.S. Department
of Justice
Read more:
Democrats push US Senate bill to reverse Supreme Court
ruling curbing agency power
US Supreme Court curbs federal agency powers, overturning
1984 precedent
US Supreme Court appears split over US agency powers in
fishing dispute
US Supreme Court to review federal agency powers in fishing
dispute
(Reporting by Nate Raymond in Boston)