CAPE MAY — Space is tight on commercial fishing boats.
There is little room for luxury, and each crew member has a job to do, whether on a short run or a long haul. So the addition of a federal observer can feel like a significant imposition, said Nils Stolpe, a fishing consultant who has long been involved in New Jersey fishing issues.
If the boat owner is then responsible for paying that observer, it can take a considerable bite out of the profits for the voyage, Stolpe said. The requirement for boats to fund their own federal enforcers had come up in a few cases, but Stolpe believed bureaucrats were certain to expand the model wherever they could.
“Fortunately, it is not going to be common anymore,” Stolpe said. A recent Supreme Court decision will reduce the potential for “all kinds of difficulties the feds would inflict on the fishermen.”
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At the heart of the issue is a herring fisherman out of Cape May named Bill Bright, and others, who challenged the regulation, with the help of the Cause of Action Institute, an organization that describes itself as “working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.”
One of Bright’s boats, the Retriever, can handle thousands of pounds of squid or herring, bringing it into Lund’s Fisheries, tucked just inside the Middle Thorofare Bridge a little over a mile from Cape May Inlet.
Wayne Reichle, the owner and president of Lund’s, did not respond to a request for an interview. An emailed response to a request said Bright would not be available either, and included a news release that quoted Bright as saying the Supreme Court ruling restored the separation of powers and was a victory for small family businesses in farming, fishing 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,” he said in a statement. “Nothing is more important than protecting the livelihoods of our families and crews.”
A series of landmark decisions reflects a deep and sometimes bitter divide on a court in which conservatives, including three appointed by former President Donald Trump, have a two-to-one advantage.
In a 2024 interview with The New York Times, Bright said he understood that the case had political implications, but to him it was not political.
“This is my livelihood,” he was quoted as saying.
In its decision, the Supreme Court did not decide Loper Bright Enterprises, et al., v. Gina Raimondo, the U.S. secretary of commerce. It sent the decision back to the D.C. Circuit Court to decide, but changed how that decision was to be reached.
For more than 40 years, in situations where the law was unclear or silent, courts have given significant weight to the opinions of agencies charged with enforcing regulations, what has long been referred to as the Chevron deference or the Chevron doctrine. Essentially, so long as the agency’s rules or opinions were reasonable, they should be relied upon, with the idea that the courts could not hold expertise in every area of potential federal regulation.
The court overruled that doctrine. Attorneys with Cause of Action described the decision as restoring the balance of power between Congress and the administration.
Many environmentalists and Democratic lawmakers see the case in far more dire terms. U.S. Sen. Cory Booker, D-N.J., called the decision a radical shift that will damage air and water quality, workplace and food safety, and nearly every other aspect of life for Americans.
“The Supreme Court has handed special interests a giveaway by dramatically reducing the ability of federal agencies to address climate change, ensure the stability of financial markets, reduce gun violence, and many other critical issues,” Booker said after the decision. “Rather than rely on scientific and subject matter experts who use scientific evidence to issue regulations to carry out the laws Congress passes, the Supreme Court wants to make the courts all-powerful and put the lives of the American people in the hands of judges who have no expertise or training on these complex issues.”
A dissenting opinion, written by Justice Elena Kagan and joined by Justices Ketanji Brown Jackson and Sonia Sotomayor, argued the rule formed the backdrop against which Congress, courts and agencies have operated for decades.
“It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest,” Kagan wrote. “And the rule is right.”
Writing the majority opinion, Chief Justice John G. Roberts said, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”
Ryan Mulvey, an attorney with Cause of Action representing Bright, said he does not expect the sky to fall. It should not be controversial that the courts would be the ones to interpret the law. He added that the regulations approved and upheld over those four decades that Chevron has been in effect remain in force.
“This is closer to the Constitution. This is how the system is supposed to work,” he said. “It doesn’t take away the ability of agencies to regulate. They just have to regulate within the confines of what Congress has given them the authority to do.”
The case has been covered extensively but has been overshadowed by other recent Supreme Court decisions, including one in former President Donald Trump’s criminal case involving accusations of election interference in 2020, which found presidents have absolute immunity from prosecution for officials acts.
Even in coverage of the Bright case, the fishermen behind the original legal challenge have received less attention than the potentially sweeping impacts on future cases. In addition to Bright, the court also ruled on a similar case brought by New England fishermen.
In a 1984 case related to the Clean Air Act, Chevron U.S.A. Inc. vs. Natural Resources Defense Council, the court decided to look to the agencies established by Congress to work out the details of how those regulations were to be implemented, with the limit that it must be “reasonable.”
In the Loper Bright v. Raimondo case, the National Marine Fisheries Service could not afford to put monitors on herring boats to ensure compliance with catch limits and other regulations.
The cost was estimated at about $700 a day, although along with other factors, the total impact could be as high as 20% of the profits, Mulvey said.
A district court supported the federal right to impose the monitors, based on the Chevron deference, and a federal appeals court affirmed.
The Supreme Court wants a new decision, but now without the Chevron methodology.
The ruling goes way beyond fish. Multiple environmental advocacy groups say the decision could upend decades of progress across multiple areas, potentially ushering in a wave of new challenges to federal regulations related to health care, food safety, environmental protections and more.
In Cape May, federal observers, funded with federal dollars, still head out with fishing boats, gathering data on the catch and also about marine mammals and other species. Stolpe said regulators are looking at other options to keep an eye on the catch, including the use of remote cameras onboard, aimed where the catch gets sorted.
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