Petition for Writ of Certiorari — Relentless, Inc., et al., Petitioners v. Department of Commerce, et al.

Supreme Court briefJun 14, 2023

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No. 22-___

IN THE

Supreme Court of the United States

_________________________

RELENTLESS, INC., et al.,

Petitioners,

U.S. DEPARTMENT OF COMMERCE, et al.,

Respondents.

_________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JOHN J. VECCHIONE

Counsel of Record

MARK S. CHENOWETH

KARA M. ROLLINS

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

John.Vecchione@ncla.legal

June 14, 2023

QUESTIONS PRESENTED

The Magnuson-Stevens Act (“MSA”) governs

fishery management in federal waters. It states that,

with the approval of the Secretary of Commerce, the

National Marine Fisheries Service (“NMFS”) may

require fishing vessels to carry federal observers who

enforce the agency’s regulations.

Congress

appropriates funds for these observers. In three

circumstances absent here, but not elsewhere, the

MSA allows federal observers to be paid in some

manner by the regulated party. Deeming annual

Congressional appropriations for the federal

observers insufficient, the agency asserted a right to

force the fishing vessels into contracts to pay the

federal observers. The First Circuit approved this

practice without stating whether its conclusion was a

“product of Chevron step one or step two.” It held the

mere fact that the MSA provides for federal observers

gave the agency carte blanche to charge the regulated

party for those observers. Neither Chevron nor the

MSA provision allowing measures “necessary and

appropriate” to enforce the statute allows this result.

The questions presented are:

1. Whether the Court should overrule Chevron

or at least clarify that statutory silence concerning

controversial powers expressly but narrowly granted

elsewhere in the statute does not constitute an

ambiguity requiring deference to the agency. 1

1 This is the question already accepted by the Court in Loper

Bright Enterprises, et al. v. Raimondo, Secretary of Commerce, et

al., No. 22-451, certiorari granted (May 1, 2023) concerning the

same statute and regulation.

2. Whether the phrase “necessary and

appropriate” in the MSA augments agency power to

force domestic fishing vessels to contract with and pay

the salaries of federal observers they must carry.

iii

PARTIES TO THE PROCEEDING

Petitioners (plaintiffs-appellants below) are

Relentless Inc., Huntress Inc., and Seafreeze Fleet

LLC.

Respondents (defendants-appellees below) are

U.S. Department of Commerce; Gina M. Raimondo, in

her official capacity as Secretary of Commerce;

National Oceanic and Atmospheric Administration

(“NOAA”); Richard Spinrad, in his official capacity as

Administrator of NOAA; National Marine Fisheries

Service, a/k/a NOAA Fisheries; Janet Coit, in her

official capacity as Assistant Administrator for NOAA

Fisheries.

CORPORATE DISCLOSURE STATEMENT

Petitioners Relentless Inc. and Huntress Inc. are

wholly owned by Petitioner Seafreeze Fleet LLC.

Petitioner Seafreeze Fleet LLC is a limited liability

company with no parent corporation, and no publicly

held corporation holds 10% or more of its stock.

RELATED PROCEEDINGS

1. Relentless, Inc., et al. v. United States

Department of Commerce, et al., No. 21-1886 (1st Cir.),

judgment entered March 16, 2023;

2. Relentless Inc. et al. v. U.S. Department of

Commerce, et al., No. 1:20-cv-108-WES (D.R.I.)

judgment entered September 20, 2021.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING .......................... iii

CORPORATE DISCLOSURE STATEMENT ........... iv

RELATED PROCEEDINGS ....................................... v

TABLE OF CONTENTS ............................................ vi

TABLE OF AUTHORITIES....................................... ix

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW .................................................... 4

JURISDICTION .......................................................... 4

STATUTORY PROVISIONS INVOLVED ................. 4

STATEMENT OF THE CASE .................................... 4

I.LEGAL FRAMEWORK OF THE MSA ......................... 4

II.FACTUAL BACKGROUND ....................................... 9

III. PROCEEDINGS BELOW ...................................... 14

REASONS FOR GRANTING THE WRIT ................ 18

I.THE FIRST CIRCUIT’S OPINION BELOW REJECTS

PRECEDENT AND DEMONSTRATES THE FUTILITY

OF “REFINING” CHEVRON ................................. 20

A. The Opinion Below Failed to Use All the

Traditional Statutory Construction Tools

and Created Two to Expand Deference .... 20

B. The Circuits Are Split on the Application of

Chevron to the MSA and This Case Is an

Excellent Vehicle to Resolve Those

Differences ................................................. 24

vii

II.INDUSTRY-FUNDED

MONITORS

ARE

NOT

“NECESSARY AND APPROPRIATE” AND THERE IS A

CIRCUIT SPLIT ON HOW THAT PHRASE IS

INTERPRETED UNDER THE MSA THAT THIS

COURT SHOULD RESOLVE................................. 30

A. The Courts Below Misapplied the MSA’s

“Necessary and Appropriate” Provision to

Allow the Agency to Expand Its Power .... 30

B. There Is a Circuit Split Concerning the

Meaning of “Necessary and Appropriate”

Under the MSA ......................................... 32

CONCLUSION .......................................................... 34

viii

APPENDIX

Appendix A

Opinion, United States Court of Appeals for the

First Circuit, Relentless, Inc. v. United States Dep’t

of Commerce, No. 21-1886 (March 16, 2023) ..... 1a

Appendix B

Opinion and Order, United States District Court

for the District of Rhode Island, Relentless Inc. v.

U.S. Dep’t of Commerce, No. 20-108 WES (Sept. 20,

2021) .................................................................. 35a

Appendix C

Relevant Statutory Provisions .......................... 66a

16 U.S.C. § 1821(h) ...................................... 66a

16 U.S.C. § 1827 ........................................... 69a

16 U.S.C. § 1853(a)(1)(A)-(C), (a)(6) ............ 72a

16 U.S.C. § 1853(b)(7)-(8) ............................ 73a

16 U.S.C. § 1853(c) ....................................... 74a

16 U.S.C. § 1853a(c)(1), (e) .......................... 74a

16 U.S.C. § 1857(1)(L) ................................. 77a

16 U.S.C. § 1862(a)-(b) ................................. 77a

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama Power Co. v. OSHA,

89 F.3d 740 (11th Cir. 1996) ................................. 31

Am. Elec. Power Serv. Corp. v. FCC,

708 F.3d 183 (D.C. Cir. 2013) ................................ 34

Amoco Prod. Co. v. Village of Gambell,

480 U.S. 531 (1987)................................................ 30

Auer v. Robbins,

519 U.S. 452 (1997)................................................ 20

Bais Yaakov of Spring Valley v. Act, Inc.,

12 F.4th 81 (1st Cir. 2021) .................................... 16

Boston Edison Co. v. FERC,

856 F.2d 361 (1st Cir. 1988) .................................. 31

Buffington v. McDonough,

143 S. Ct. 14 (2022)................................................ 30

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984).......................................... 16, 20

Cmty. Fin. Servs. Ass’n of America, Ltd. v. CFPB, 51

F.4th 616 (5th Cir. 2022) ....................................... 23

Direct Commc’ns Cedar Valley, LLC v. FCC,

753 F.3d 1015 (10th Cir. 2014).............................. 33

Doe v. Leavitt,

552 F.3d 75 (1st Cir. 2009) .................................... 28

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018)............................................ 21

Forest Guardians v. USFWS,

611 F.3d 692 (10th Cir. 2010) ............................... 34

Glacier Fish Co. v. Pritzker,

832 F.3d 1113 (9th Cir. 2016) ............................... 29

Goethel v. Pritzker,

No. 15-CV-497-JL, 2016 WL 4076831

(D.N.H. July 29, 2016) ........................................... 31

Goethel v. U.S. Dep’t of Commerce,

854 F.3d 106 (1st Cir. 2017) ............................ 17, 31

Greenpeace v. NMFS,

80 F. Supp. 2d 1137 (W.D. Wash. 2000) ............... 33

Gulf Fishermens Ass’n v. NMFS,

968 F.3d 454 (5th Cir. 2020) ..................... 26, 27, 28

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016).............................. 24

Hawaii Longline Ass’n. v. NMFS,

281 F. Supp. 2d 1 (D.D.C. 2003)............................ 33

Japan Whaling Ass’n v. Am. Cetacean Soc’y,

478 U.S. 221 (1986).......................................... 29, 30

Kisor v. Wilkie,

139 S. Ct. 2400 (2019)............................................ 21

Loper Bright Enterprises, Inc. v. Raimondo,

45 F.4th 359 (D.C. Cir. 2022) .................... 22, 26, 27

Loper Bright Enterprises, Inc. v. Raimondo,

544 F. Supp. 3d 82 (D.D.C. 2021) .................... 14, 15

Lovgren v. Locke,

701 F.3d 5 (1st Cir. 2012) ................................ 26, 28

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................. 24

Mexican Gulf Fishing Co. v. Dep’t of Commerce,

60 F.4th 956 (5th Cir. 2023) ...................... 16, 32, 33

Michigan v. EPA,

576 U.S. 743 (2015).......................................... 24, 31

Nat’l Grain & Feed Ass’n v. OSHA,

866 F.2d 717 (5th Cir. 1988) ................................. 32

Or. Trollers Ass’n v. Gutierrez,

452 F.3d 1104 (9th Cir. 2006) ............................... 29

Pereira v. Sessions,

138 S. Ct. 2105 (2018)............................................ 24

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015).................................................. 24

Relentless Inc. v. U.S. Dep’t of Commerce,

2020 WL 5016923 (D.R.I. Aug. 25, 2020).............. 14

Russello v. United States,

464 U.S. 16 (1983).................................................. 23

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018)............................................ 21

Shell v. HUD,

355 Fed. Appx. 300 (11th Cir. 2009) ..................... 34

The Ocean Conservancy v. Gutierrez,

394 F. Supp. 2d 147 (D.D.C. 2005) ........................ 33

TWISM Enterprises, L.L.C. v. State Bd. of

Registration for Pro. Engineers & Surveyors,

— N.E. 3d —, 2022-Ohio-4677 (Ohio 2022) .......... 35

U.S. Dep’t of Navy v. Fed. Lab. Rels. Auth.,

665 F.3d 1339 (D.C. Cir. 2012) .............................. 22

United States v. Colon Munoz,

292 F.3d 18 (1st Cir. 2002) .................................... 34

xii

United States v. District of Columbia,

669 F.2d 738 (D.C. Cir. 1981) ................................ 34

United States v. Havis,

907 F.3d 439 (6th Cir. 2018) ................................. 25

Western Sea Fishing Co. v. Locke,

722 F. Supp. 2d 126 (D. Mass. 2010) .................... 10

Statutes

16 U.S.C. § 1801 ...................................................... 4, 5

16 U.S.C. § 1802 ...................................................... 5, 7

16 U.S.C. § 1821 .................................................... 8, 23

16 U.S.C. § 1827 ..........................................................8

16 U.S.C. § 1852 ...................................................... 5, 6

16 U.S.C. § 1853 ............................ 5, 6, 8, 9, 13, 21, 31

16 U.S.C. § 1853a ........................................................7

16 U.S.C. § 1854 ...................................................... 6, 7

16 U.S.C. § 1855 ..........................................................5

16 U.S.C. § 1857 .................................................... 8, 14

16 U.S.C. § 1858 ..........................................................8

16 U.S.C. § 1862 ..........................................................8

16 U.S.C. § 1881a ........................................................7

Regulations

50 C.F.R. § 648.14 ..................................................... 14

79 Fed. Reg. 8,786 (Feb. 13, 2014) ............................ 11

xiii

83 Fed. Reg. 47,326 (Sept. 19, 2018) ........................ 12

83 Fed. Reg. 55,665 (Nov. 7, 2018) ..................... 12, 13

Other Authorities

Aditya Bamzai, The Origins of Judicial Deference to

Executive Interpretation,

128 Yale L.J. 908 (2017) ........................................ 25

Brett M. Kavanaugh, Fixing Statutory

Interpretation,129 Harv. L. Rev. 2118 (2016)....... 25

Kristin Hickman & Richard Pierce, Jr.,

Administrative Law Treatise

§ 3.1 (6th ed. updated Nov. 1, 2021) ..................... 25

NEFMC, Observer Policy Committee (IndustryFunded Monitoring),

https://www.nefmc.org/committees/observer-policycommittee (last visited June 9, 2023) ................... 11

NOAA Fisheries, Atlantic Herring Regulated and

Closed Areas, https://www.fisheries.noaa.gov/newengland-mid-atlantic/sustainablefisheries/atlantic-herring-regulated-and-closedareas (last visited June 9, 2023) .............................9

NOAA Fisheries, Atlantic Herring,

https://www.fisheries.noaa.gov/species/atlanticherring (last visited June 9, 2023) ..........................9

Philip Hamburger, Chevron Bias,

84 Geo. Wash. L. Rev. 1187 (2016) ................. 24, 30

The Declaration of Independence para. 12

(U.S. 1776) ...............................................................1

xiv

Tr. of Oral Arg. at 61, Babb v. Wilkie,

No. 18-882 (U.S. Jan. 15, 2020)............................. 25

PETITION FOR A WRIT OF CERTIORARI

The people of New England famously rebelled

against George III because he “erected” “New Offices

and sent hither swarms of Officers to harass” them

“and eat out their substance.” See The Declaration of

Independence para. 12 (U.S. 1776). Respondents have

revived cause for similar grievance by promulgating a

regulation that requires at-sea monitors (“ASMs”) to

be paid for by the very fishing vessels forced to carry

them. They have thereby supplemented the federal

observers provided by statute and funded by

appropriations, created a new federal office without

statutory authority, and imposed the cost of such on

the small businesses they regulate. Not only has

Congress failed to explicitly grant this authority to

Respondents, but in analogous circumstances

Congress has capped such costs well below those being

imposed by the agency here.

The Magnuson-Stevens Act (“MSA”) requires

Petitioners Relentless Inc. (“Relentless”) and

Huntress Inc. (“Huntress”) to periodically carry

federal observers on their vessels. Petitioners provide

berths and space for these observers to perform their

work for the federal government. Respondents never

protested nor brought suit against this burden, even

though their method of fishing keeps them at sea

longer than the average fishing fleet vessel and thus

incurs a greater imposition. But nothing in the MSA

hints that such federal observers will be paid by the

regulated vessels of New England’s herring fishery.

Respondents promulgated the New England Fishery

Management Council’s Industry-Funded Monitoring

Omnibus Amendment (“IFM Amendment”) through

the February 7, 2020 Final Rule (the “Final Rule”)

implementing the IFM Amendment.

That rule

created industry-funded monitors (the at-sea

monitors (“ASMs”)) to supplement the government

funded observers in the herring fishery. In so doing,

it exceeded the powers the MSA granted to those

agencies.

The MSA was clear that industry funding was only

available in three specific circumstances inapplicable

to Petitioners. Notably, each of those circumstances

caps the amount domestic fishing vessels need pay for

government observers.

The Final Rule was

implemented with no such caps.

Moreover,

contracting to pay the ASMs is a substantial cost for

Petitioners. The Final Rule estimated the cost to

carry an ASM to be $710 per day—an amount that can

exceed the profits from a day’s fishing for herring.

The district court held the statute is ambiguous.

After applying Chevron deference, it found that the

Respondents could impose these enormous costs,

validating these agencies’ seizure of power. Notably,

the district court, at Respondents’ urging, also relied

on the MSA phrase “necessary and appropriate” to

conclude that industry-funded monitoring was lawful

under the MSA. The district court cited the language

repeatedly in its opinion, including in its closing

paragraph upholding the Final Rule.

The First Circuit cited the “necessary and

appropriate” language and purported to perform

Chevron’s two-step analysis, but it stated that the

“default norm” was for industry to pay the costs of

regulation. It also relied heavily on the D.C. Circuit’s

opinion in Loper Bright, which this Court’s grant of

certiorari has already vacated. The First Circuit did

not state whether it was deciding the issue at Chevron

step one or step two but blithely stated that the

agencies’ interpretation did not exceed “the bounds of

the permissible.” Merely because the MSA requires

carrying federal observers allows an agency—in the

face of statutory silence—to charge the regulated

party the observers’ salaries by contract. The First

Circuit affirmed the district court in all respects.

The danger of these decisions is manifest. Any

time a statute allows an inspector of any kind, even if

Congress appropriates no money for such inspectors,

the application of Chevron and the mere existence of

“necessary and appropriate” language in a statute will

allow an agency to escape much of the “power of the

purse,” which is Congress’s main check against the

Executive branch. Neither the district court nor the

First Circuit explained what “necessary and

appropriate” means. The approach taken below

endangers liberty for every citizen.

How were

Petitioners to know that government-paid federal

observers, which they did not oppose, could be

transformed into ASMs paid for by Petitioners?

Certainly not by reading the statute.

Chevron deference coupled with an interpretation

of the “necessary and appropriate” phrasing works

many evils. On the questions of how Chevron

deference and “necessary and appropriate” are to be

interpreted under the MSA, there is a Circuit split.

The Fifth Circuit takes the proper approach to both

questions, and the First Circuit has misapplied this

Court’s precedent on both Chevron and statutory

interpretation. By eliminating or limiting Chevron

and/or by illuminating the meaning of “necessary and

appropriate,” this Court should grant review to curtail

administrative overreach and to clarify a statute that

governs fishing in all federal waters that this Court

has not interpreted in almost 40 years.

OPINIONS BELOW

The First Circuit’s opinion is reported at

Relentless, Inc., et al. v. United States Dep’t of

Commerce, 62 F.4th 621 and reproduced at 1a. The

district court’s opinion is reported at Relentless Inc., et

al. v. U.S. Dep’t of Commerce, 561 F. Supp.3d 226 and

reproduced at 35a.

JURISDICTION

The First Circuit issued its opinion on March 16,

2023. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant provisions of the MSA are reproduced at

66a-80a.

STATEMENT OF THE CASE

LEGAL FRAMEWORK OF THE MSA

Recognizing the economic importance of

commercial and recreational fishing, the MSA was

adopted in 1976 to protect, manage, and grow the

United States’ fishery resources. To achieve these

goals, the MSA delineates scientific and conservationbased statutory obligations to sustainably manage

fishery resources for the benefit of the fishing industry

and the environment. 16 U.S.C. § 1801 et seq. 2 The

MSA entrusts those goals to the Secretary of

2 All further statutory references are to Title 16 of the U.S.

Code unless otherwise noted.

Commerce, who in turn has delegated the

administration of the statute to the National Marine

Fisheries Service (“NMFS”). §§ 1802(39), 1855(d).

The MSA grants the Dep’t of Commerce the ability

to exercise “sovereign rights” to conserve and manage

fisheries resources “for the purposes of exploring,

exploiting, conserving, and managing all fish” in the

Exclusive Economic Zone (“EEZ”). §§ 1801(b)(1),

1811(a).

Generally, the EEZ extends from the

seaward boundary of each of the coastal States to 200

nautical miles offshore. § 1802(11).

The MSA provides for the development and

implementation of fishery management plans

(“FMPs”) for fisheries. § 1801(b)(4). FMPs are

implemented with the goal of continually achieving

and maintaining optimum yield within fisheries. Id.

The MSA establishes eight Regional Fishery

Management Councils (“Councils”). § 1852(a)(1). The

Councils share fishery conservation, management,

and regulatory responsibilities with the Dep’t of

Commerce and National Oceanic and Atmospheric

Administration (“NOAA”). Two of the Councils, the

New England Fishery Management Council

(“NEFMC”)

and

the

Mid-Atlantic

Fishery

Management Council (“MAFMC”) were involved in

the

Final

Rule.

Id.

The MSA prescribes the required and

discretionary provisions of FMPs.

§ 1853(a)(b).

Section 1853(b) includes discretionary functions

which may include “requirements for carrying

observers on board to collect conservation and

management data.” Id.

The MSA does not use the term “at-sea monitor.”

A key duty of each regional council, including NEFMC

and MAFMC, is to prepare an FMP for each of the

region’s fisheries. § 1852(h).

When such a plan is prepared or amended, the

council must seek approval from NMFS. § 1854. After

NMFS reviews the plan or an amendment for

consistency with applicable legal requirements, it

must provide a period for public comment and

eventually decide whether to approve or disapprove

the proposal.

§ 1854(a).

If approved, NMFS

promulgates it as a final regulation. See § 1854(b)(3).

The MSA sets forth various “required provisions”

that fishery management plans “shall” contain, as

well as “discretionary provisions” that they “may”

contain.

§ 1853(a)-(b).

Among the required

provisions, fishery management plans “shall …

contain the conservation and management measures”

that are “necessary and appropriate for the

conservation and management of the fishery, to

prevent overfishing and rebuild overfished stocks, and

to protect, restore, and promote the long-term health

and stability of the fishery[.]”

§ 1853(a)(1)(A)

(emphasis added).

Among the discretionary

provisions, fishery management plans “may …

require that one or more observers be carried on board

a vessel of the United States engaged in fishing for

species that are subject to the plan, for the purpose of

collecting data necessary for the conservation and

management of the fishery.” § 1853(b)(8). The

“necessary and appropriate” language is also

contained in § 1853 (b)(14) , a catch-all provision

which states that FMPs “may … prescribe such other

measures,

requirements,

conditions

and

restrictions as are determined to be necessary and

appropriate for the conservation and management of

the fishery.”

The MSA permits information collections that are

beneficial for developing, implementing, or revising

FMPs. § 1881a(a)(1). If a Council determines such

information collection is necessary, it may request

that the Secretary implements the collection. Id. If

the Secretary determines that the collection is

justified, then the Secretary has the duty to

promulgate regulations implementing the collection

program. Id. If determined necessary, the Secretary

may also initiate an information collection.

§ 1881a(a)(2). The MSA explicitly authorizes the

collection of fees or cost shifting of other kinds for

observers, but only in closely circumscribed conditions

for specific purposes and with protections for domestic

producers on costs.

The MSA authorizes the Secretary to collect fees to

cover actual costs directly related to the management,

of, data collection for, and enforcement of limited

access privilege programs (“LAPPs”) 3 and certain

community development quota programs. § 1854(d).

Fees for monitoring are required because of the nature

of the fisheries quota system. See § 1853a(c)(1)(H),

(e)(2) (“shall” include observers and “shall” provide for

a program of fees). Such fees are nonetheless capped

at 3 percent of the ex-vessel value of fish harvested

under those programs. § 1854(d)(2)(B).

3 LAPPs allow a permitted individual to harvest a certain

quantity of the total allowable catch of the fishery, essentially a

quota system and so must be closely monitored. See § 1802(26).

The MSA explicitly permits the North Pacific

Fishery Management Council (“NPFMC”) to establish

a system of fees to pay for the cost of implementing

fisheries research plans, including mandated

observers, for certain fisheries under its jurisdiction.

§ 1862(a). There is no such provision for the NEFMCor MAFMC-managed fisheries. The NPFMC includes

Alaska and the largest and most lucrative fishing

region in the United States. Nonetheless the fees

allowed by the MSA in that fishery are also capped so

as “not to exceed 2 percent, of the unprocessed exvessel value” of the catch harvested under that

council. § 1862(b)(2)(E).

The MSA has explicit provisions for cost shifting to

foreign fishing vessels to either pay a fee or contract

directly for observer services. There is an observer

fund supplied by a fee on foreign fishing vessels but

controlled by appropriations of Congress. If at any

time the fund cannot cover the cost of observers, the

Secretary may require foreign vessels to contract

directly with observers. See § 1821(h)(4)(5) (setting up

Foreign Fisher Observer Fund) and § 1821(h)(6)(C)

(requiring foreign vessels to pay observers directly);

and see § 1827(c)(d)(f)(1)(B) (observer fees for taking

of billfish and refusing to pay for such coverage when

requested to do so by the Secretary).

These provisions are enforced by allowing

sanctions on vessels that do not pay the observers

when required to do so. § 1858(g)(1)(D). In addition,

it is unlawful to assault or otherwise molest or

interfere with any federal observer or data collector.

§ 1857(1)(L).

Not until the 1990 amendment to the MSA was

section 1853(b)(8) added to make clear that the

agencies could require observers on permitted fishing

vessels. That section also delineates what regulatory

costs Congress expects the regulated entity to carry;

the berths and space for the observer to work. The

MSA provides that observers may be placed on

commercial vessels.

§ 1853(b)(8).

The statute

explicitly excludes observers from vessels with

inadequate berths or inadequate places to carry out

observer functions.

Id.

The MSA has been

reauthorized three times since then, and Congress has

not altered where cost shifting to industry is allowed

outside the three exceptions.

II.

FACTUAL BACKGROUND

Atlantic herring, or Culpea harengus, are small

schooling fish from the family Clupeidae. Atlantic

herring are found across the North Atlantic, but in the

western North Atlantic they are distributed from

Labrador, Canada to Cape Hatteras, North Carolina.

See

NOAA

Fisheries,

Atlantic

Herring,

https://www.fisheries.noaa.gov/species/atlanticherring (last visited June 9, 2023).

In federally managed waters, the Atlantic herring

population is concentrated from New England to New

Jersey.

See NOAA Fisheries, Atlantic Herring

Regulated

and

Closed

Areas,

https://www.fisheries.noaa.gov/new-england-midatlantic/sustainable-fisheries/atlantic-herringregulated-and-closed-areas (last visited June 9, 2023).

Atlantic herring is a biologically important species as

it is vital to the marine food chain, but it is also

economically important in its own right. 4

The

commercial herring fishery has operated in New

England for hundreds of years.

Petitioners Relentless and Huntress are small

businesses whose primary industry is commercial

fishing. Their annual gross receipts are less than or

equal to $11 million. CA1.App.162 ¶ 5. They are

subject to the IFM Amendment and the Final Rule.

Both Relentless and Huntress are corporations

organized under Rhode Island law and operating out

of North Kingstown, Rhode Island. Relentless owns

the pseudonymous F/V Relentless and Huntress owns

the F/V Persistence. Both vessels are high-capacity

freezer trawlers that alternatively, but sometimes

simultaneously, harvest Atlantic herring, Loligo and

Illex squids (Doryteuthis (Amerigo) pealeii, and Illex

illecebrosus, respectively), Butterfish (Peprilus

triacanthus), and Atlantic mackerel (Scomber

scombrus). See CA1.App.288.

Both ships use a unique at-sea freezing technique

that allows the vessels to stay at sea longer than other

vessels in the Atlantic herring fishery and provides

each vessel flexibility in what catch it harvests during

fishing trips. Id. Both vessels hold several permits

and operate across the jurisdictional boundaries of the

NEFMC and the MAFMC. Petitioners typically

declare 5 into herring, squid, and mackerel fisheries on

the trips they take from late November through April

4 The “‘silver darlings’ of song and folklore.”

Western Sea

Fishing Co. v. Locke, 722 F. Supp. 2d 126, 130 (D. Mass. 2010).

5 “Declaring” means informing regulatory authorities of what

species a vessel intends to pursue on any given trip.

because they harvest all those species alternatively

but sometimes simultaneously during the season. See

CA1.App.288. That is, they may take each species,

some, or all species during any given trip. This

flexible style of fishing allows Petitioners to cover

operating costs by switching over to a different species

based on what they encounter.

Petitioners’ trips typically last 7-14 days at sea,

compared to 2-3 days for other vessels in the herring

fleet. Id. Because ASMs are paid per day, the costs

to these Petitioners are higher per trip than they are

for the rest of the fishing fleet. Id. This regulatory

inequity threatens Petitioners’ use of the flexible style

of fishing they have developed and even the use of

their vessels with enormous sunk costs. The Final

Rule could result in some fishing trips losing rather

than making money.

The IFM Amendment and Final Rule are the

culmination of almost seven years of design and

development by the NEFMC, MAFMC, and NMFS.

See NEFMC, Observer Policy Committee (IndustryFunded

Monitoring),

https://www.nefmc.org/committees/observer-policycommittee (last visited June 9, 2023). Part of this

design and development was explicitly to elide

Congressional prohibitions on burdening fishers in

the New England fisheries and were expressed as

dissatisfaction with Congressional appropriations for

the observer program. See, e.g., 79 Fed. Reg. 8,786,

8,793 (Feb. 13, 2014) (“Budget uncertainties prevent

NMFS from being able to commit to paying for

increased observer coverage in the herring fishery.”).

Respondents were clear that the entire scheme of the

Final Rule was implemented because the agencies

wanted more monitoring than Congress would fund

and to get around the strictures of LAPPs and the

other constraining statutes. CA1.App.173 (Pub.

Hearing

Summaries);

CA1.App.191–197

(Memorandum to GARFO’s Regional Administrator

Chris Oliver discussing previous denials of industry

funding) (“Oliver Mem.”). The IFM Amendment and

Final Rule allow industry-funded monitoring in

NEFMC FMPs, except for those under joint

management with MAFMC, e.g., 6 mackerel. See

CA1.App.240. On or about April 20, 2017, the

NEFMC finalized its preferred alternatives and

adopted the IFM Amendment. See id. A year later,

on April 19, 2018, the NEFMC “refined” its industryfunded monitoring recommendations.

Id.

September 19, 2018, the NEFMC published a Notice

of Availability for the IFM Amendment in the Federal

83 Fed. Reg. 47,326 (Sept. 19, 2018). The Notice of

Availability permitted interested parties to submit

comments regarding adoption of the IFM Amendment

for a 60-day period ending on November 18, 2018. Id.

On November 7, 2018, while the IFM Amendment

comment period was still open, the proposed rule

implementing the IFM Amendment was published in

the Federal Register. NOAA, Industry-Funded

Monitoring Proposed Rule, 83 Fed. Reg. 55,665 (Nov.

7, 2018) (“Proposed Rule”). The Proposed Rule

permitted interested parties to submit comments

regarding the implementing rule for a 47-day period

“CA1.App.” refers to the appendix filed with the First

Circuit.

ending on December 24, 2018. Id. Petitioners

submitted comments criticizing the rule. The IFM

Amendment was contentious and controversial.

CA1.App.193 (Oliver Mem.).

The current

government-funded observer rate was what Congress

funded; the new requirement was imposed because

the regulators wanted more monitoring than

Congress would fund. See CA1.App.173.

On February 7, 2020, NMFS and NOAA adopted

the Final Rule implementing the IFM Amendment,

which was substantially the same as the Proposed

Rule. See CA1.App.248. Congress had amended the

MSA to allow placing observers on permitted fishing

vessels in 1990. § 1853(b)(8). Thirty years later the

Respondents had transmogrified this requirement

into making the industry pay for a similar

government functionary.

The Respondents acknowledged in the Final Rule

that its costs were great and that ASMs had

somewhat different duties than “federal observers.”

And of course, were industry not government funded.

The IFM Amendment and the Final Rule project that,

for vessels like F/Vs Relentless and Persistence that

cannot use electronic monitoring, implementing the

IFM Amendment will reduce Returns to Owners by

almost 20 percent. See CA1.App.244, CA1.App.251.

The Final Rule states that the ASMs are not

“observers” and have different functions from that

office. See id. It states “in contrast to observers,

ASM[s] would not collect whole specimens, photos or

biological samples …” Id. The $700-800 per day cost

of ASMs proposed in the Final Rule is twice as high as

the cost in the high-value Alaskan fishery, which is

where the MSA authorizes industry-funded ASMs.

See CA1.App.246. Although, the ASMs do not have

the same duties as “observers” according to the

regulation, they are federal agents performing

federal, not industry, tasks and interfering with their

duties is a federal crime. See § 1857; 50 C.F.R.

§ 648.14(e).

III.

PROCEEDINGS BELOW

On March 4, 2020, Plaintiffs-Petitioners timely

filed a Complaint challenging the Final Rule in the

district court. While the matter was pending, the

Defendants-Respondents attempted to have the

matter transferred to the District of Columbia and

consolidated with the case of Loper Bright

Enterprises, Inc. v. Raimondo, 544 F. Supp. 3d 82

(D.D.C. 2021) (“Loper Bright”). On August 25, 2020,

the district court denied the motion. Relentless Inc. v.

U.S. Dep’t of Commerce, 2020 WL 5016923 (D.R.I.

Aug. 25, 2020). The parties then cross-moved for

summary judgment, and on September 20, 2021, the

district court denied Petitioners’ motion for summary

judgment on all counts and granted it on behalf of

Respondents. 35a-65a.

The district court’s opinion shows great deference

to the executive at every step. First, it recites a

presumption of validity of the Secretary’s action and

deemed the Administrative Procedure Act’s (“APA”)

review standard as deferential. 40a-41a. The district

court first looked at the text of the MSA. 41a-42a. It

stated “[a]s explained below, the Court concludes that

Congress has not spoken unambiguously on the

subject, and that the Secretary’s interpretation

satisfies Chevron’s deferential review.” 42a (citations

omitted). The district court noted that the Secretary

relied on the “necessary and appropriate” language in

§ 1853(a) to uphold the Final Rule. 43a. The district

court relied on the district court’s decision in Loper

Bright to distinguish the requirement to contract with

ASMs from statutorily authorized fee-based

programs. 44a (citing Loper Bright, 544 F. Supp. 3d

at 106). The Court rejected the Respondents’ position

that the MSA unambiguously provided for industryfunded monitoring, stating: “With statutory currents

running in all directions, the Court concludes the

Congress’s

intent

regarding

industry-funded

monitoring is ambiguous, and the inquiry cannot end

at step one.” 47a. The district court then concluded

that given the nature of monitoring fish catches, and

that some industry-funded monitoring happened in

the North Pacific before the 1990 amendment, it was

reasonable for the Secretary to interpret the MSA to

allow it. 50a-51a. 7 The district court also cited the

“necessary and appropriate” phrase in the MSA many

times in supporting its decision. 37a, 43a, 50a-51a,

64a.

The Petitioners timely filed an appeal on October

28, 2021. On March 7, 2023, subsequent to full

briefing and oral argument below, Respondents’

counsel submitted a F.R.A.P. 28(j) letter informing the

court below that a petition for certiorari in Loper

Bright had been filed, as well as the Fifth Circuit’s

opinion on the meaning of “necessary and

appropriate” in interpreting the MSA. Mexican Gulf

7 Of course, Congress amended the MSA to allow industry

funded monitoring in the North Pacific. So only that, if anything,

was approved by Congress, which did this in no other fishery.

Fishing Co. v. Dep’t of Commerce, 60 F.4th 956 (5th

Cir. 2023). Nine days after that 28(j) letter, the First

Circuit issued its opinion. That opinion did not

acknowledge that there was a petition for certiorari in

Loper Bright, nor did it grapple with the Mexican Gulf

authority on the meaning of “necessary and

appropriate” in the MSA.

The First Circuit quoted the “necessary and

appropriate” language of the MSA. 3a. It determined,

“At issue here, principally, is the interpretation of the

MSA.” 10a. The court continued, “Plaintiffs challenge

the Agency’s authoritative interpretation of the

statute as granting it the power to enact the Rule.” Id.

(emphasis added). It then stated the now-familiar

two-step Chevron test, whether the statute spoke

directly to the question, and if not, whether the agency

had a “permissible construction of the statute.” Id.

(citations omitted). It then noted the standard of

statutory interpretation requiring use of the “ordinary

tools of statutory construction.” Id. (citations omitted).

It recognized that if, after using these tools, “the

statute is silent or ambiguous with respect to the

specific issue, the question for the court is whether the

agency’s answer is based on a permissible

construction of the statute.” Id. (citing Bais Yaakov of

Spring Valley v. Act, Inc., 12 F.4th 81, 86 (1st Cir.

2021) (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 843 (1984)).

The court then turned to Petitioners’ arguments.

It held that industry-funded ASMs were simply a

subset of statutorily identified observers despite the

Final Rule giving them different names, different

qualifications and duties, and different funding than

“observers.” 11a-12a.

It then reduced Petitioners’ argument to

“Congress somehow conditioned the Agency’s right to

require monitors on the Agency paying the cost of the

monitors.” 12a. It then equated paying the salaries

of government functionaries without statutory

authorization as equivalent to requiring the purchase

of fishing equipment. It called this the “default norm”

and wrote, “When [C]ongress says that an agency may

require a business to do “X,” and is silent as to who

pays for “X,” one expects that the regulated parties

will cover the cost of “X.” 13a. That sentence has no

citation. The sentence before it cites a concurring

opinion by the same author in a previous case also

conflating paying the salaries of government

functionaries with ordinary regulatory costs. Id.

(citing Goethel v. U.S. Dep’t of Commerce, 854 F.3d

106, 117-18 (1st Cir. 2017)). Goethel itself only ruled

on the statute of limitations. The circuit court again

conflated ASMs with fishing gear and noted the

Government received no funds from this transaction.

13a-14a. It held that the specific provisions of the

MSA that required foreign vessels to pay observer fees

and even contract with observers were there because

of the sensitivities of foreign governments and treaty

rights stating, “With treaties, international

agreements, and foreign relations at stake, it makes

sense that Congress would have opted for extra

specificity.” 20a n.6.

The Court relied on legislative history and the fact

that the funding schemes in the other portions of the

MSA were not apples to apples comparisons. 21a-22a;

and 20a n.6 (stating that § 1821(h)(6) is different

because foreign relations are sensitive and need more

specificity). The court below then said, “We need not

decide whether we classify this conclusion as a

product of Chevron step one or step two. Congress

expressly authorized NMFS to require vessels to carry

monitors. And at the very least, it is certainly

reasonable for the Agency to conclude that its exercise

of that authority is not contingent on its payment of

the costs of compliance.” 22a. 8

REASONS FOR GRANTING THE WRIT

As to the Chevron issue, this case travels with

Loper Bright. While the vessels differ, the statute and

the regulation at issue are the same. The wrongful

application of Chevron is also the same. In fact, the

application of Chevron by the First Circuit was even

worse and more sweeping than what the D.C. Circuit

did. With the Petitioners in Loper Bright, Petitioners

here make up the bulk of the herring fishers in the

affected fisheries. The Final Rule and the decision of

the Court below make a mockery of this Court’s

repeated refrain to use Chevron sparingly and

carefully. The profligate use of Chevron in this case

demonstrates how it strips citizens of their right to

control their government at every stage. First, in

1990 when Congress decided to statutorily require

permitted vessels to carry observers, no citizen of New

England could tell from reading the proposed statute

that the fishing vessels would have to pay for these

officers doing work for the government. Even though

it would require valuable space on a vessel for both

berths and a place for observers to do their work,

8 As the district court was affirmed in full, it appears the

Final Rule was deemed “reasonable” under step two.

neither Petitioners nor apparently any fishing vessel

owner opposed that legislation.

But as the comments on the Final Rule

demonstrate, there was plenty of opposition to paying

for these observers. The ability to oppose that

proposal was absent because Congress did not make

that proposal. When such proposals were made

legislatively in the context of LAPPs and the North

Pacific, protections to the regulated on the cost of such

observers was factored in and capped legislatively.

Nowhere do they approach the huge numbers

required by the Final Rule. Congress alone provided

funds for observers for decades before the Final Rule

was implemented. The Respondents admitted they

designed the whole program to get around

Congressional prohibitions on charging the fishing

industry in these fisheries. CA1.App.191-197 (Oliver

Mem.). The application of Chevron, particularly the

First Circuit’s unsupported assertion that “[w]hen

[C]ongress says that an agency may require a

business to do ‘X,’ and is silent as to who pays for ‘X,’

one expects that the regulated parties will cover the

cost of ‘X.’”, 13a, creates an expansion and overreach

of the regulatory state and its burdens beyond

anything this Court has ever countenanced. By

rejecting any analysis of costs in its assessment of

“reasonableness” under Chevron, the First Circuit and

the district court stretched that term beyond the

breaking point. The opinion below, if not corrected,

will allow the administrative state unprecedented

leeway to use silence, ambiguity and a default finding

of “reasonableness” to get any regulation upheld.

The decision below is a perfect vehicle to assess

Chevron deference, because it demonstrates its abuse

so starkly. Congress was not silent. It stated clearly

when observers could be paid for by industry.

Chevron cannot be used to grant that power

throughout the statute at the fiat of an agency simply

because implementing regulations were allowed. The

Court should grant certiorari on that issue.

The Second question presented is also important.

The MSA, like many federal statutes, admonishes

agencies to perform acts “necessary and appropriate”

in the service of the statutorily authorized powers.

Unfortunately, rather than analyze that language as

a limit on what the agencies can do, many courts

including the court below, have regarded it as

augmenting the powers Congress has provided the

agency. The Circuits are split on what that language

does with respect to the MSA, so the Court should

take up the question to resolve the matter.

THE FIRST CIRCUIT’S OPINION BELOW

REJECTS PRECEDENT AND DEMONSTRATES

THE FUTILITY OF “REFINING” CHEVRON

A. The Opinion Below Failed to Use All the

Traditional Statutory Construction Tools

and Created Two to Expand Deference

This Court has repeatedly placed limits on when

courts must defer to federal agencies when construing

statutes and regulations under Chevron, 467 U.S. 837,

and Auer v. Robbins, 519 U.S. 452 (1997). Among the

most important such limits has been a rigorous

enforcement of the comprehensive step one inquiry

into whether the relevant statute or regulation is

truly ambiguous and thus eligible for deference. As

this Court originally made clear in footnote 9 of

Chevron itself, courts must apply all “traditional tools

of statutory construction” in conducting the ambiguity

analysis at step one. 467 U.S. at 843 n.9. The Court

has repeatedly reaffirmed that principle ever since.

See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019);

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,1630 (2018);

SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348,1358 (2018).

The court below ignored these admonitions.

Instead of rigorous analysis, it airily stated, “We need

not decide whether we classify this conclusion as a

product of Chevron step one or step two.” 22a. But

that is exactly what the court had to do. It appears it

affirmed the Final Rule at Step 2. It should not have.

When Congress added the provision in the MSA

that provides that observers may be placed on

commercial vessels, it explicitly excluded observers

from vessels with inadequate berths or inadequate

places to carry out observer functions. § 1853 (b)(8).

It acknowledged by doing so that the regulatory cost

to the fishing vessels without those spaces would be

too high to provide them, so Congress exempted

vessels that lacked such spaces and berths from

having to comply with the statute. The court below

ignored the issue along with Congress’s clear

statement of what it was requiring of domestic fishing

vessels in regard to shouldering regulatory costs.

Second, it disregarded the MSA’s carve out for fee

shifting of observer costs only in the case of the North

Pacific fishery, LAPPs, and foreign fishing vessels. It

claimed they were not the same as the Final Rule’s

requirement of contracting with ASMs, rather than

addressing why the MSA specifically allowed cost

shifting in three circumstances but nowhere else.

This approach violated this Court’s constant

admonition to analyze the statute as a whole.

The court below then made up two canons of

statutory construction that are novel and devasting to

any attempt to cabin Chevron deference. First, it

claimed without citation that “[w]hen [C]ongress says

that an agency may require a business to do ‘X,’ and

is silent as to who pays for ‘X,’ one expects that the

regulated parties will cover the cost of ‘X.’” This

default rule would badly damage Congress’s ability to

control agencies through the power of the purse. 13a.

The dissent in Loper Bright is particularly powerful

here. NMFS “has identified no other context in which

an agency, without express direction from Congress,

requires an industry to fund its inspection regime.”

Loper Bright Enterprises, Inc. v. Raimondo, 45 F.4th

359, 376 (D.C. Cir. 2022) (J. Walker, dissenting). The

First Circuit’s invention of a “default rule” that

requires regulated entities to pay for government

inspectors when Congress does not is novel and

destroys many of the guardrails this Court has placed

around Chevron. The court analogized equipment

required by a regulation to the payment of the salaries

of government workers. 14a. But obviously the power

plant owns the scrubbers. They have value and can

be transferred. That is not the case with government

agents performing government tasks. It has been

observed that the appropriations power is a powerful

tool in Congress’s efforts to control the executive. U.S.

Dep’t of Navy v. Fed. Lab. Rels. Auth., 665 F.3d 1339,

1347 (D.C. Cir. 2012) (Kavanaugh, J.) (“The

Appropriations Clause is … a bulwark of the

Constitution’s separation of powers among the three

branches of the National Government. It is

particularly important as a restraint on Executive

Branch officers[.]”); Cmty. Fin. Servs. Ass’n of

America, Ltd. v. CFPB, 51 F.4th 616, 637 (5th Cir.

2022), cert. granted 215 L. Ed. 2d 104, 143 S. Ct. 978

(2023), and cert. denied sub nom. 215 L. Ed. 2d 106,

143 S. Ct. 981 (2023) (“The Appropriations Clause

thus does more than reinforce Congress’s power over

fiscal matters; it affirmatively obligates Congress to

use that authority to ‘maintain the boundaries

between the branches and preserve individual liberty

from the encroachments of executive power.’”)

(internal citations omitted)). The Circuit below erred

grievously in creating this unsupported rule in its

Chevron analysis.

Second, this Court has been firm that “[w]here

Congress includes particular language in one section

of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion

or exclusion.” Russello v. United States, 464 U.S. 16,

23 (1983). In this case, Petitioners pointed out not

only the cost-shifting in LAPPs and the North Pacific,

but also foreign fishing vessel cost shifting, which had

the exact same cost-shifting device as the Final Rule

(“forced contracting with observers”). The First

Circuit explained this away.

“With treaties,

international agreements, and foreign relations at

stake, it makes sense that Congress would have opted

for extra specificity.” 20a; and see 20a n.6 (stating

that 1821(h)(6) is different because foreign relations

are sensitive and need more specificity). The court

below cites no treaty nor foreign relations document

that would impel Congress to clearly state for

foreigners what costs will be imposed for observers

but leave the matter opaque to its own citizens.

These two made-up interpretive canons: 1) allow

inspection regimes to be paid for by industry as the

default rule; and 2) afford foreign actors in the

American economy greater specificity as to their

obligations than Americans receive. The First Circuit

exposes the futility of trying to cabin Chevron in the

lower courts by admonitions to be careful and detailed

in using all the traditional tools of statutory

construction.

B. The Circuits Are Split on the Application

of Chevron to the MSA and This Case Is an

Excellent Vehicle to Resolve Those

Differences

The problems with Chevron are legion, as

members of both the Judiciary and academy have

recognized. 9 Among these myriad problems, the two

most glaring are the violation of judicial independence

and the assault on due process that it presents. First,

and most importantly, Chevron violates the

independent judgment of the judiciary. Article III

vests “[t]he judicial power of the United States”—and

with it, the duty “to say what the law is”—in the

independent federal courts. Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177-78 (1803). Chevron abdicates

that duty. It forces federal courts to let executive

branch agencies authoritatively interpret the law in

9 See, e.g., Pereira v. Sessions, 138 S. Ct. 2105, 2120-21 (2018)

(Kennedy, J., concurring); Michigan v. EPA, 576 U.S. 743, 760

(2015) (Thomas, J., concurring); Perez v. Mortgage Bankers Ass’n,

575 U.S. 92, 109-10 (2015) (Scalia, J., concurring in the

judgment); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149

(10th Cir. 2016) (Gorsuch, J., concurring); Philip Hamburger,

Chevron Bias, 84 Geo. Wash. L. Rev. 1187 (2016).

pending cases—even when the courts themselves

disagree with what the agency says. That is nothing

less than a massive “judicially orchestrated shift of

power[.]” Kavanaugh, supra, 129 Harv. L. Rev. at

2150. Neither Congress nor the courts themselves

have authority to transfer judicial power to the

Executive. That approach is unjustified by the

Constitution’s text or structure, and unsupported by

history. 10

Second, Chevron upends basic principles of

constitutional due process of law. It is patently unfair

for a court to defer to an agency’s interpretation,

especially when the agency itself is a litigant, before

that same court, in the actual case at hand. Judges

are supposed to be impartial arbiters of law—not

home-team umpires for the executive branch. 11

10 See Aditya Bamzai, The Origins of Judicial Deference to

Executive Interpretation, 128 Yale L.J. 908 (2017); Kristin

Hickman & Richard Pierce, Jr., Administrative Law Treatise

§ 3.1 (6th ed. updated Nov. 1, 2021) (“In scores of cases and in

every term through 1983, the Supreme Court relied on its own

analysis and judgment regarding statutory meaning without

regard for the administering agency.”)

11 See, e.g., Hamburger, supra; United States v. Havis, 907

F.3d 439, 451 n.1 (6th Cir. 2018) (Thapar, J., concurring), vacated

on reh’g en banc, 927 F.3d 382 (6th Cir. 2019). Underscoring the

problem, the United States has taken the remarkable position

that it possesses unilateral authority to turn Chevron deference

off whenever it would benefit a private party invoking an

agency’s otherwise-binding interpretation when litigating

against a different government entity. See Tr. of Oral Arg. at 61,

Babb v. Wilkie, No. 18-882 (U.S. Jan. 15, 2020) (Solicitor General

arguing that pro-plaintiff EEOC interpretations do not receive

Whether it decides to take this case to abandon

Chevron entirely or modify or clarify its application,

this Court should recognize that there is an effective

split in the Circuits as to its use in the context of the

MSA, and this case provides an excellent vehicle to

resolve that divergence. The eight fishery regions are

effectively now governed differently under the MSA

not primarily because of the different councils but

because of the divergent use of Chevron by the federal

appellate courts.

This case and Loper Bright illuminate the stark

difference in interpretation of the MSA under Chevron

depending on what circuit a fishing vessel finds itself

in. It was clear in Loper Bright that a circuit split on

how to interpret the MSA in light of Chevron had

developed. Compare Gulf Fishermens Ass’n v. NMFS,

968 F.3d 454, 460-61 (5th Cir. 2020) (denying Chevron

deference when the MSA was silent on aquaculture),

with Loper Bright, 45 F.4th at 370 (finding ambiguity

and, in Chevron step two, granting the agencies

Chevron deference when MSA does not explicitly

preclude industry funding of at-sea monitors), and

Lovgren v. Locke, 701 F.3d 5, 30-31 (1st Cir. 2012)

(granting Chevron deference on interpretation of

LAPPs under the MSA and creating a “strong

presumption” of such deference in “notice and

comment” regulation under the MSA). This Court

should grant certiorari to ensure the MSA is

interpreted uniformly in all of the nation’s fisheries.

Chevron deference in discrimination litigation against federal

defendants).

In both Loper Bright and the case below,

Petitioners cited divergent Fifth Circuit precedent on

the use of Chevron in the context of silence in the

MSA, but in neither case did the majority grapple

with the divergence—nor even mention the cases.

The Fifth Circuit Court of Appeals decided Gulf

Fishermens Ass’n by rejecting agency action under

Chevron step one. 968 F. 3d at 460-61. The D.C.

Circuit in Loper Bright did not even mention the case

(which the dissent cited). Loper Bright, 45 F.4th at

374 n. 4. In Gulf Fishermens Ass’n, the Fifth Circuit

addressed the question of “whether a federal agency

may create an ‘aquaculture,’ or fish farming, regime

in the Gulf of Mexico pursuant to the MagnusonStevens Fishery Conservation and Management Act

of 1976 …, §§ 1801-83. The answer is no.” 968 F.3d

at 456. The Fifth Circuit was pellucid that when the

MSA “neither says nor suggests that the agency may

regulate aquaculture” that “Congress [did] not

delegate authority merely by not withholding it.” Id.

The same conclusion would apply to industry-funded

observer monitoring in a fishery where Congress has

not explicitly provided it as it has in other parts of the

statute.

The Petitioners cited Gulf Fisheries below, but the

First Circuit did not mention it in its analysis of the

MSA. Nor did it mention Mexican Gulf Fishing Co.,

which Appellants-Respondents put before it in a

response to a question concerning “necessary and

appropriate” language, which can, combined with

Chevron deference, create even larger administrative

overreach.

In Gulf Fisheries as here NMFS attempted to use

the MSA’s “necessary and appropriate” language and

Chevron to urge that it had the power to impose

regulations on aquaculture. Id. at 457. NMFS

claimed that the statute’s use of the word “harvesting”

implied aquaculture, but the Fifth Circuit did not bite

at that either. Id. at 456, 462-63. There was no

ambiguity in the statute, and NMFS could not

manufacture ambiguity by pointing to broad

language. Id.

That route is how the agency’s proposition—that

Congress, without saying so in the statute, allowed

the agency to create ASMs and force the industry to

contract with these ASMs who solely perform a

government function and do nothing for the vessel or

its business—should have been addressed. The

analysis should have ended at Chevron step one, as it

would have in the Fifth Circuit, where no ASMs are

currently authorized in the Gulf of Mexico.

Unfortunately, a disproportionate amount of

litigation regarding our country’s fisheries are

determined in the First, Ninth, and D.C. Circuits,

which almost always resort to Chevron step two and

allow the agencies wide latitude to do what they like

to those who make their living fishing at sea.

The First Circuit not only uses Chevron to allow

agencies to do almost anything, unchecked by

searching judicial review, but it also has a

presumption that Chevron deference is warranted

whenever an agency engages in notice-and-comment

rulemaking. See Lovgren, 701 F.3d at 30-31 (citing

Doe v. Leavitt, 552 F.3d 75, 79 (1st Cir. 2009)). This

policy leaves all those who work in the legendary New

England fishery—America’s oldest, most storied—

disadvantaged under Chevron. Chevron deference not

only exists when an agency acts, but the Circuit has

collapsed the two-step framework and created a

presumption that it applies in notice-and-comment

rulemaking. This obstacle is not in keeping with this

Court’s admonishments on when and how Chevron

deference may be invoked. But it is routinely inflicted

on fishermen regulated by NMFS and NOAA. See 42a

(applying Lovgren and invoking Chevron deference to

uphold the ASM regulation challenged here). The

agencies have taken full advantage of the defiance

predicted by Justice Kavanaugh. See Brett M.

Kavanaugh, Fixing Statutory Interpretation, 129

Harv. L. Rev. 2118, 2150 (2016). Other circuits also

routinely abuse Chevron under the MSA to bless

agency action without textual warrant. See, e.g., Or.

Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1116-18

(9th Cir. 2006) (citing Chevron and approving

regulation unless the statute “compel[led]” a different

result than the agency indicated); Glacier Fish Co. v.

Pritzker, 832 F.3d 1113, 1120-21 (9th Cir. 2016) (using

Chevron to allow fees to be imposed on industries as

long as MSA is “silent or ambiguous”).

Petitioners here, as in Loper Bright, are

represented pro bono publico and are not the sort of

business with the resources to persevere to this Court

in the face of agency onslaught. The last case the

Court took before Loper Bright meaningfully

interpreting the MSA was nearly two generations ago,

shortly before Justice Scalia joined the Court. Japan

Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221

(1986) (interpreting amendments to the MSA

regarding whaling). Significantly, that case affirmed

executive action based on the broad grant of authority

under Chevron and determined to affirm the agency

whenever a statute is “silent or ambiguous” on an

issue. Id. at 233-34. 12

The fishing industries situated outside the Gulf of

Mexico therefore face appellate courts primed and

inclined to affirm any agency action imposed on them.

This is especially so when those courts deem that the

MSA is “silent” on any given issue. The damage is

frequent and severe.

Granting certiorari would

enable this Court to review whether those courts’

servile devotion to the broadest possible application of

Chevron is warranted. Such interpretations amount

to bias against these parties. See Buffington v.

McDonough, 143 S. Ct. 14, 18-19 (2022) (Gorsuch, J.,

dissenting from the denial of cert.) (citing

Hamburger, supra).

II.

INDUSTRY-FUNDED MONITORS ARE NOT

“NECESSARY AND APPROPRIATE” AND THERE

IS A CIRCUIT SPLIT ON HOW THAT PHRASE IS

INTERPRETED UNDER THE MSA THAT THIS

COURT SHOULD RESOLVE

A. The Courts Below Misapplied the MSA’s

“Necessary and Appropriate” Provision to

Allow the Agency to Expand Its Power

The First Circuit interprets the language

“necessary and appropriate” as “augment[ing]

whatever existing powers have been conferred on [the

12 The Court mentioned the statute in Amoco Prod. Co. v.

Village of Gambell, 480 U.S. 531, 554 n.22 (1987), but nothing

substantive regarding it was established.

agency] by Congress.” Goethel v. Pritzker, No. 15-CV497-JL, 2016 WL 4076831 *4 (D.N.H. July 29, 2016),

aff’d sub nom. Goethel, 854 F.3d 106 (citing Boston

Edison Co. v. FERC, 856 F.2d 361, 369-70 (1st Cir.

1988)). It was this view of statutory interpretation

that both rulings below relied upon to uphold the

Final Rule. The district court and the court below

explicitly relied on the Goethel case that stated the

“necessary

and

appropriate

language”

§§ 1853(a)(1)(A) and 1853(b)(14) provided the power

to the agencies to impose industry-funded monitoring

upon the fishing industry. See id. (citing the statute

and approving industry-funded monitoring of

groundfish fishery). While Goethel was not affirmed

on that point upon appellate review, it and the

concurrence were followed by the courts here. 51a

(“Thus, in keeping with the statutory text, the only

two on-point decisions (Loper and Goethel), and the

legislative history, the Court concludes that the

Secretary reasonably interpreted the MSA to

authorize the Omnibus Amendment”); see also 13a.

The decision below flies in the face of this Court’s

interpretation of such language. In Michigan v. EPA,

576 U.S. 743, this Court held that the Clean Air Act’s

requirement that regulations be “appropriate”

obligated the agency to ensure a reasonable

relationship between costs imposed on the industry as

against air quality benefits before promulgating such

a regulation. Id. at 752 (“One would not say that it is

even rational, never mind ‘appropriate,’ to impose

[exorbitant] economic costs in return for [marginal]

health or environmental benefits.”); see also Alabama

Power Co. v. OSHA, 89 F.3d 740, 746 (11th Cir. 1996)

(interpreting the same “necessary or appropriate”

language); Nat’l Grain & Feed Ass’n v. OSHA, 866

F.2d 717, 733 (5th Cir. 1988) (“necessary or

appropriate” language “encompasses a specie of costbenefit justification.”). Nat’l Grain and Alabama

Power had language that allowed regulation to be

“necessary or appropriate” that is either of those two

alternatives. The MSA requires that all regulations

be both. Yet, in keeping with its view that such

language augments agency power, the court below

failed to analyze the reasonableness or “necessary and

appropriate” nature of this regulation that imposed

costs of $710 dollars a day and reduced ROI by up to

20%.

This is an especially suspect statutory

interpretation

because

explicit

cost-shifting

provisions in the MSA cap costs at no more than 3%.

B. There Is a Circuit Split Concerning the

Meaning of “Necessary and Appropriate”

Under the MSA

On the question of what the MSA’s “necessary and

appropriate” provision means, there is a circuit split.

Below, the court virtually ignored the cost of the

regulation even though the government, when asked

to submit a 28(j) letter with the actual costs of the

regulation, could not do so. The court below simply

speculated the costs would not be as high as the

regulation’s forecast. 15a n.5.

The Fifth Circuit’s decision in Mexican Gulf

Fishing Co. contradicts the court’s decision below.

There, virtually the same Respondents as here

implemented an electronic monitoring system rather

than a human one. 60 F.4th at 962. The Secretary

relied on the same “necessary and appropriate”

language as here to implement it. Id. at 965-966. The

argument was summarily rejected. The “adjectives

necessary and appropriate limit the authorization

contained in this provision.” Id. 965 (citing Gulf

Fishermens Ass’n) (emphasis in original). According

to the Fifth Circuit, this provision requires that the

regulation’s “benefits reasonably outweigh its costs.”

See id. ; see also The Ocean Conservancy v. Gutierrez,

394 F. Supp. 2d 147 (D.D.C. 2005) (“[NMFS’s]

discretion is tempered by substantive elements of the

[MSA] that require all regulations to be ‘necessary

and appropriate[.’]”); see also Hawaii Longline Ass’n v.

NMFS, 281 F. Supp. 2d 1, 3 (D.D.C. 2003) (“[MSA’s]

substantive requirements demand that an FMP be

‘necessary and appropriate for the conservation and

management

the

fishery[.]’”)(quoting

1853(a)(1)(A)); accord Greenpeace v. NMFS, 80 F.

Supp. 2d 1137, 1139-40 (W.D. Wash. 2000).

The First Circuit holds that the phrase “necessary

and appropriate” augments the powers granted to the

agencies under the MSA. The Fifth Circuit holds the

same term limits the powers granted to the agencies.

The First Circuit upheld an expensive and textually

bereft grant of extraordinary power involving a

human inspection regime while the Fifth Circuit

struck down an expensive and textually bereft

automatic inspection regime. A clearer split in the

meaning of words in a statute cannot be imagined.

And that difference has enormous consequences for

the fishing industry which operates on every coast.

The question is of enormous import as that provision,

as Goethel noted, appears in other statutes and can be

interpreted in paria materia in each. See Direct

Commc’ns Cedar Valley, LLC v. FCC, 753 F.3d 1015,

1047 (10th Cir. 2014) (using “necessary and

appropriate” language to bolster the FCC’s

interpretation of a statute as “an implicit grant of

authority”); Am. Elec. Power Serv. Corp. v. FCC, 708

F.3d 183, 190 (D.C. Cir. 2013) (interpreting

“necessary

and

appropriate”

“broad

authorization”); Forest Guardians v. USFWS, 611

F.3d 692, 697 n.6 (10th Cir. 2010) (interpreting

“necessary and appropriate” as granting “more

regulatory leeway”); Shell v. HUD, 355 Fed. Appx.

300, 306 (11th Cir. 2009) (interpreting “necessary and

appropriate” in agency regulations as a commitment

to agency discretion “by law” and stating a court

“would have no meaningful standard against which to

judge the agency’s exercise of discretion.”); United

States v. Colon Munoz, 292 F.3d 18, 20-21 (1st Cir.

2002) (interpreting “necessary and appropriate” as

“broad authority”); United States v. District of

Columbia, 669 F.2d 738, 752-753 n.7 (D.C. Cir. 1981)

(MacKinnon, J. concurring in part and dissenting in

part) (interpreting “necessary and appropriate” as

granting “exceptionally broad discretion”).

The question of what “necessary and appropriate”

means—in the MSA and more broadly—is of

enormous import. This case provides a good vehicle

for addressing it, and this Court should grant the

petition for certiorari to do so.

CONCLUSION

For the foregoing reasons, we respectfully urge the

Court to grant this petition, or grant and hold it, or

combine it with Loper Bright Enterprises, Inc., et al.,

No. 22-451, as the arguments regarding judicial

independence made here have been persuasive in

having other high courts abandon their own deference

doctrine precedents.

See generally TWISM

Enterprises, L.L.C. v. State Bd. of Registration for Pro.

Engineers & Surveyors, — N.E. 3d —, 2022-Ohio-4677

(Ohio 2022).

Respectfully,

/s/ John J. Vecchione