November 1, 2023 — Conservatives who have spent decades asking the Supreme Court to rein in the US government’s regulation of businesses are now betting on a case involving fishermen challenging a $710 fee they’ve never had to pay.
The case could undercut the power of federal regulators on major issues including air pollution and securities fraud. It also exemplifies the way many of the high court’s biggest fights are born these days — driven less by the practical aims of the litigants than by the ideological vision of the interest groups behind the suits.
The fight concerns a federal requirement that some herring boats host government-approved observers aboard their vessels and cover an estimated $710 daily cost. The fisherman say that would be an onerous burden on their family-owned businesses — so onerous they are suing even though the fee is on hold and might never kick in.
“We have not had to pay. We’re just nervous about this hanging over our head,” said Bill Bright in an interview in Cape May, New Jersey, where he runs his two-vessel fishing business. “So we feel that we need to solve this problem now.”
The real stakes lie in the broader legal issue, one that anti-regulatory groups have eagerly sought to get before the Supreme Court and its conservative supermajority. The justices are considering overturning a 1984 ruling known as Chevron v. Natural Resources Defense Council, under which judges typically defer to regulators on the meaning of ambiguous statutes – including those that set out how much power the agency has.
Democratic administrations have relied heavily on the so-called Chevron doctrine, using it to justify rules governing energy, the environment and the workplace. In the herring case, a federal appeals court invoked Chevron in upholding the National Marine Fisheries Service’s payment demand even though Congress didn’t explicitly authorize the rule.
Those pressing the lawsuits say they readily work with the Fisheries Service toward the common goal of a robust herring stock but draw the line at having to pay for monitors.
“We welcome observers on board our fishing vessels, but we shouldn’t have to pay for that,” said Wayne Reichle, president of Lund’s Fisheries Inc., which owns vessels as well as five processing facilities on the East and West Coasts. “That’s something that the government should have to pay for.”