Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

No. 22-451

IN THE

Supreme Court of the United States

______________

LOPER BRIGHT ENTERPRISES, ET AL.,

Petitioners,

v.

GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS

SECRETARY OF COMMERCE, ET AL.,

Respondents.

______________

On Writ of Certiorari to

the United States Court of Appeals

for the District of Columbia Circuit

______________

BRIEF OF CONSERVATION LAW

FOUNDATION, OCEAN CONSERVANCY, AND

SAVE THE SOUND AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

______________

Andrea A. Treece

EARTHJUSTICE

50 California St., Ste. 500

San Francisco, CA 94111

Kirti Datla

Counsel of Record

EARTHJUSTICE

1001 G St. NW, Ste. 1000

Washington, DC 20001

202.797.5241

kdatla@earthjustice.org

Counsel for Conservation Law Foundation, Ocean

Conservancy, and Save the Sound

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........................................ii

INTERESTS OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................... 2

ARGUMENT ............................................................... 6

I.

As Congress Has Recognized, Reliable Data

Is Essential For Effective Fishery

Management ...................................................... 6

A. Before the Magnuson-Stevens Act, U.S.

fisheries frequently collapsed .................... 6

B. The Magnuson-Stevens Act created a datadriven fishery management system .......... 8

C. Fishermen benefit when fishery managers

have access to reliable observer data ...... 10

II.

Congress Has Consistently Embraced Industry-Funded Observer Programs After

Fishery Managers Created Them ................... 14

A. Fishery managers have repeatedly read

the Act to allow them to require vessels to

bear observer costs ................................... 15

B. Congress has embraced, and expanded,

fishery managers’ authority to use

these programs ......................................... 19

III. The Herring Fishery Observer Program

Follows This Established Practice ................. 24

CONCLUSION .......................................................... 28

iii

TABLE OF AUTHORITIES

Page(s)

CASES:

Pension Benefit Guaranty Corporation v. LTV

Corp., 496 U.S. 633 (1990) ................................... 20

RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 566 U.S. 639 (2012) ................................... 19

The Volant, 59 U.S. 71 (1855) .................................. 3

STATUTES:

16 U.S.C. § 1801(a)(1) ............................................... 3

16 U.S.C. § 1801(a)(2) ........................................... 7, 8

16 U.S.C. § 1801(a)(6) ............................................... 8

16 U.S.C. § 1801(a)(8) ..................................... 3, 4, 10

16 U.S.C. § 1801(b)(4) ............................................... 8

16 U.S.C. § 1801(c)(3) ............................................... 8

16 U.S.C. § 1802(13) ................................................. 8

16 U.S.C. § 1802(21) ................................................. 9

16 U.S.C. § 1802(33) ................................................. 9

16 U.S.C. § 1802(34) ................................................. 8

16 U.S.C. § 1851...................................................... 11

16 U.S.C. § 1851(a)(1) ............................................... 8

16 U.S.C. § 1851(a)(2) ............................................... 5

16 U.S.C. § 1852(a) ................................................... 9

16 U.S.C. § 1852(a)(3) ............................................... 9

16 U.S.C. § 1852(b) ............................................... 5, 9

16 U.S.C. § 1852(h) ................................................... 9

16 U.S.C. § 1853 (1988) .......................................... 16

16 U.S.C. § 1853(a)(1) ............................................... 9

iv

TABLE OF AUTHORITIES—Continued

Page(s)

16 U.S.C. § 1853(a)(8) ............................................. 10

16 U.S.C. § 1853(a)(11) ........................................... 10

16 U.S.C. § 1853(a)(15) ............................................. 9

16 U.S.C. § 1853(b)(1)-(4) ....................................... 10

16 U.S.C. § 1853(b)(6) ............................................... 4

16 U.S.C. § 1853(b)(7) ............................................. 10

16 U.S.C. § 1853(b)(8) ....................................... 10. 23

16 U.S.C. § 1853(b)(14) ........................................... 10

16 U.S.C. § 1854........................................................ 9

16 U.S.C. § 1854(d) ................................................. 22

16 U.S.C. § 1854(d)(2)(B) ........................................ 22

16 U.S.C. § 1855(h)(5)(B) ........................................ 22

16 U.S.C. § 1862(a)(2) ............................................. 22

16 U.S.C. § 1862(b)(2)(E) ........................................ 22

16 U.S.C. § 1862(d) ................................................. 22

16 U.S.C. § 4107(d) (2018) ...................................... 25

33 U.S.C. § 1318(a) ................................................... 4

42 U.S.C. § 7410(a)(2)(F) .................................... 4, 11

Act of Jan. 12, 1983, Pub. L. No. 97-453,

§ 2(a), 96 Stat. 2481 ....................................... 21, 22

Fish and Wildlife Act of 1956, 70 Stat. 1119

§ 2(3), 70 Stat. 1119 ............................................... 7

§ 3(f), 70 Stat. 1120 ................................................ 7

Fishery Conservation Amendments of 1990,

Pub. L. No. 101-627, 104 Stat. 4436

§ 101(a), 104 Stat. 4437 ....................................... 23

v

TABLE OF AUTHORITIES—Continued

Page(s)

§ 109(b)(2), 104 Stat. 4448 ................................... 23

§ 118, 104 Stat. 4457 ........................................... 21

Fishery Conservation and Management Act

of 1976, Pub. L. No. 94-265, § 204(b)(7), 90

Stat. 331 ............................................................... 15

H.R.J. Res. of Feb. 9, 1871, § 2, 16 Stat. 593 ........... 7

Salmon and Steelhead Conservation and Enhancement Act of 1980, Pub. L. No. 96-561,

§ 236, 94 Stat. 3275 (1980) .................................. 20

Sustainable Fisheries Act, Pub. L. No. 104297, 110 Stat. 3559

§ 108(e), 110 Stat. 3576 ....................................... 22

§ 114(c), 110 Stat. 3599 ....................................... 24

RULES AND REGULATORY ACTIONS:

50 C.F.R. § 600.310(e)(1)(i) ....................................... 8

50 C.F.R. § 600.335(b) ............................................ 12

50 C.F.R. § 648.7 ..................................................... 11

50 C.F.R. § 648.86(a) .............................................. 12

50 C.F.R. § 648.204 ................................................. 27

50 C.F.R. § 660.314(d)(1), (e)(1) (2006) .................. 18

42 Fed. Reg. 8813 (Feb. 11, 1977) .......................... 15

48 Fed. Reg. 5560 (Feb. 7, 1983) ............................ 16

48 Fed. Reg. 22,606 (May 19, 1983) ....................... 16

49 Fed. Reg. 30,946 (Aug. 2, 1984)......................... 16

52 Fed. Reg. 8592 (Mar. 19, 1987) ......................... 17

55 Fed. Reg. 3416 (Feb. 1, 1990) ............................ 22

55 Fed. Reg. 4839 (Feb. 12, 1990) .......................... 17

vi

TABLE OF AUTHORITIES—Continued

Page(s)

55 Fed. Reg. 24,184 (June 14, 1990) ...................... 16

56 Fed. Reg. 63,685 (Dec. 5, 1991) ......................... 17

56 Fed. Reg. 65,007 (Dec. 13, 1991) ....................... 17

58 Fed. Reg. 21,931 (Apr. 26, 1993) ....................... 18

59 Fed. Reg. 9872 (Mar. 1, 1994) ........................... 18

59 Fed. Reg. 46,126 (Sep. 6, 1994) ........................ 21

60 Fed. Reg. 65,618 (Dec. 20, 1995) ....................... 18

61 Fed. Reg. 43,952 (Aug. 27, 1996)....................... 18

69 Fed. Reg. 31,751 (June 7, 2004) ........................ 18

72 Fed. Reg. 32,549 (June 13, 2007) ...................... 19

80 Fed. Reg. 39,731 (July 10, 2015) ....................... 13

85 Fed. Reg. 7414 (Feb. 7, 2020) ................ 26, 27, 28

OTHER AUTHORITIES:

Cape Code Commercial Fishermen’s Alliance, Comments on Industry Funded

Monitoring Amendment (Dec. 21, 2018),

bit.ly/cccfacomment .............................................. 26

Cong. Research Serv., Reauthorization Issues

for the Magnuson Stevens Fishery Conservation and Management Act (2014)..................... 21

Eric Gilman et al., Ecological data from observer programs underpin ecosystem-based

fisheries management, 74 ICES J. Mar. Sci.

1481 (2017) ........................................................... 10

Herring Alliance, Atlantic Herring: History of

a Fishery (2010), bit.ly/historyah .................. 24, 25

H.R. Rep. No. 393, 101st Cong., 1st Sess.

(1989) .................................................................... 23

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Kurt J. Heinz, et al., Review of NOAA Fisheries Safety Policies and Procedures in US

Regional and International Observer Programs (Dec. 2017), bit.ly/noaasafetyrpt .............. 11

Letter from Shaun M Gehan, Counsel to the

Sustainable Fisheries Coalition to Terry

Stockwell III, Chair, N.E. Fishery Mgmt.

Council (Jan. 19, 2018), bit.ly/sfcletter ............... 25

Mem. from Clarence G. Pautzke, Exec. Dir.,

to Council, SCC, and AP Members Re:

Fishery Observer Programs (Jan. 10, 1989),

bit.ly/jan89mem ................................................... 17

N. Pac. Fishery Mgmt. Council, Jan. 1989

Meeting Minutes (June 20, 1989),

bit.ly/jan89min ..................................................... 17

New England Fishery Mgmt. Council,

Atlantic Herring: Council Signs Off on

2023-2025 Specifications; Receives Stock

Assessment Overview (Sept. 30, 2022),

bit.ly/nefmc922 ..................................................... 25

New England Fishery Mgmt. Council,

Amendment 5 to the Fishery Management

Plan for Atlantic Herring (2013),

bit.ly/nefmcam5.................................................... 27

NOAA Fisheries, Atlantic Herring IndustryFunded Monitoring Program Suspended

Beginning in April 2023 (Nov. 2022),

bit.ly/noaaifm ....................................................... 27

NOAA Fisheries, Fishery Disaster Determinations (last updated Sept. 12, 2023),

bit.ly/noaadisaster................................................ 25

viii

TABLE OF AUTHORITIES—Continued

Page(s)

NOAA Fisheries, Industry-Funded Monitoring: An Omnibus Amendment to the Fishery

Management Plans of the New Eng-land

Fishery Management Council (2018),

bit.ly/neifmea ....................................................... 27

NOAA Fisheries, Evaluating Bycatch: A National Approach to Standardized Bycatch

Monitoring Programs (2004), bit.ly/noaasbrm .................................................................. 11

NOAA Fisheries, Setting an Annual Catch

Limit, bit.ly/aclnoaa ............................................. 12

NOAA Fisheries, Status of Stocks 2022: Annual Report to Congress on the Status of

U.S. Fisheries (Apr. 2023), bit.ly/noaasos22 ......... 8

NOAA Fisheries, Understanding Bycatch,

bit.ly/noaabycatch ................................................ 13

NOAA Fisheries, Using Observer Data ((last

updated Dec. 13, 2018), bit.ly/noaadatause ........ 13

Oversight of Marine Fisheries Management:

Hearing Before the S. Commerce, Science,

and Transportation Comm., S. Hrg. 101465, 101st Cong. (1989)........................................ 21

Peter Baker, With Atlantic Herring Population Crashing, Managers Should Adopt Science-Based Rules (Sept. 20, 2018), bit.ly/pewherring ............................................................... 25

S. Rep. No. 414, 101st Cong., 2d Sess. (1990)........ 23

Samantha Brooke, Federal Fisheries Observer Programs in the United States: Over

ix

TABLE OF AUTHORITIES—Continued

Page(s)

40 Years of Independent Data Collection, 76

Mar. Fisheries Rev. 1 (2014) ............................... 12

U.S. GAO, Federal Fisheries Management:

Overfishing Determinations Vary Across

Regions, and Data Challenges Complicate

Management Efforts (Oct. 2022).......................... 12

U.S. GAO, Fishery Management: Problems

Remain With National Marine Fisheries

Service’s Implementation of the MagnusonStevens Act (Apr. 2000) ........................................ 14

W. Jeffrey Bolster, THE MORTAL SEA:

FISHING THE ATLANTIC IN THE AGE OF SAIL

(2012) .................................................................. 6, 7

Yuntao Wang & Jane DiCosimo, NOAA

Technical Memorandum NMFS-F/SPO186: National Observer Program 2016 Fishery Observer Attitudes and Experiences

Survey (2019), bit.ly/noaa16 ................................ 11

INTERESTS OF AMICI CURIAE

Conservation Law Foundation, Ocean Conservancy,

and Save the Sound recognize that the federal government’s ability to effectively manage our fisheries is essential to preventing the collapse of those fisheries

and to protecting all who depend on them. 1

Conservation Law Foundation is a nonprofit environmental advocacy organization with offices in

Maine, Massachusetts, Vermont, New Hampshire,

Rhode Island, and Connecticut. Its mission is to protect New England’s environment for the benefit of all

people for generations to come. In order to protect and

restore New England’s endangered landscapes, wildlife, and waters, Conservation Law Foundation has

worked for decades to end overfishing, protect ecologically important habitat, and restore key forage species that support groundfish and other marine wildlife

by pushing for strong state and federal management

measures.

Ocean Conservancy is a national nonprofit organization which seeks a healthier ocean protected by a more

just world. For more than 50 years, it has used science-based advocacy, research, and education to

tackle some of the greatest global challenges facing

the ocean, including climate change, plastic pollution,

and overfishing. Ocean Conservancy has a longstanding, demonstrated commitment to securing healthy

fisheries which support the well-being of coastal

1 No party has authored this brief in whole or in part, and no

one other than amici, their members, and their counsel have paid

for the preparation or submission of this brief.

(1)

2

communities. Its goal is to ensure the best available

science is used in fisheries management, including innovations in fish catch monitoring, reporting, and

data management.

Save the Sound is a nonprofit organization with over

14,000 member households and activists in Connecticut and New York. It works to protect and improve

the land, air, and water of the entire Long Island

Sound region. Save the Sound uses legal and scientific expertise and brings citizens together to restore

ecosystem function and connectivity and ensure our

waters and coastal habitats can support thriving populations of fish, shellfish, and other wildlife.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioners claim the industry-funded observer program that they have challenged exists only because

Chevron “emboldened” the New England Fishery

Management Council to “dust[] off” an unused statute

and interpret it in a way “no one ever hinted” at.

Petrs. Br. 39. Reality belies their narrative. Before

Chevron evolved into the settled framework it provides today, councils read the Act to authorize observer programs that require domestic vessels to bear

the costs of obtaining and accommodating observers.

Rather than being suspiciously new, the Council’s program reflects a consistent, reasonable view that the

Act allows fishery managers to collect the kind of reliable data they need to carry out the Act’s data-driven

approach to fishery management.

This country realized the value of effective fishery

management the hard way. Early on in its history,

when information about fisheries was scarce, management was impossible, and fisheries collapsed quickly

3

and often. Fisheries continued to fall as Congress first

tried to manage fisheries itself and then left fishery

management to a patchwork system of statutes and

treaties. The collapses were disastrous for the fishermen and communities who relied on these fisheries.

To protect these “valuable and renewable natural resources” on a “continuous basis,” the Magnuson-Stevens Fishery Conservation and Management Act enacted a comprehensive fishery management system.

16 U.S.C. § 1801(a)(1), (b)(4). The Act requires fishery

managers to meet a series of data-driven requirements; for example, they must set annual catch limits

at a level that avoids overfishing. As Congress has

found, “[t]he collection of reliable data is essential” to

effective management under the Act. Id. § 1801(a)(8).

Fishery managers have long relied on observer programs to obtain data they need to implement the Act.

Observers are trained technicians who collect information while on board a vessel. They address a problem inherent to fisheries: Self-reported data can be

unreliable, so being on a vessel is often the only way

to verify certain important data—such as what types

of fish were caught, or what type of gear was used.

Fishery managers have also long relied on industryfunded observer programs. The first program applied

to foreign vessels, which then dominated U.S. fisheries. Though the Act did not expressly address the use

of observers on domestic vessels at the time, the next

industry-funded observer programs addressed domestic vessels, which by then had displaced foreign vessels in U.S. fisheries. These programs reflect a commonsense principle. Fisheries are a public resource

managed for the entire public’s benefit. See The Volant, 59 U.S. 71, 74–75 (1855). But the fishermen who

4

take (and profit) from fisheries see the most direct

benefit from observer data. Reliable observer data allows fishery managers to keep fisheries healthy (preserving the industry’s existence) and to take specific

actions like raising catch limits (increasing the industry’s profits). And so just as other regulated entities

bear monitoring costs, 33 U.S.C. § 1318(a); 42 U.S.C.

§ 7410(a)(2)(F); Resps. Br. 47, the fishing industry can

reasonably be asked to share the cost of obtaining this

“essential” data. 16 U.S.C. § 1801(a)(8).

Congress has embraced these programs by amending the Act to confirm, and sometimes expand, fishery

managers’ authority to create them. In three specific

contexts, Congress determined that observer data was

so essential that it required industry to cover both the

costs of obtaining observer data and the government’s

costs to administer observer programs and also set up

a stable funding scheme for the programs to insulate

them from appropriations lapses. For other contexts,

Congress confirmed fishery managers’ authority to require observers to “be carried on board . . . for the purpose of collecting data necessary for the conservation

and management of the fishery.” Id. § 1853(b)(6).

The New England Fishery Management Council’s

observer program for the herring fishery follows the

course set by prior councils over decades. The herring

fishery has collapsed before and is now in a delicate

state. Its stock crashed again in 2018, and the fishery

is currently overfished. The Council identified a clear

need for observer data in the fishery: There is significant uncertainty around catch rates of herring (a keystone forage species) and a need to better assess bycatch rates. The Council carefully considered the burdens of requiring industry to bear the costs of obtaining and accommodating observers, and it included

5

measures and exceptions to minimize those costs. In

the end, it found that the need for this data to keep

the fishery healthy justified the remaining burdens.

If this case is “Exhibit A” of anything, Petrs. Br. 39,

it is of the kind of statute under which agency interpretations deserve the respect that Chevron provides.

Reflecting hard lessons learned from past efforts that

failed to stop fishery collapses, the Magnuson-Stevens

Act delegated comprehensive management authority

to an administrative body. It is reasonable to presume

that Congress intended for that body to resolve questions that might come up when carrying out the Act.

Resps. Br. 13–14. The Act requires fishery management decisions to reflect scientific expertise. See 16

U.S.C. § 1851(a)(2) (requiring measures to “be based

upon the best scientific information available); id.

§ 1852(b) (council membership requirements). Fishery managers’ immersion in these complex issues

gives them a comparative advantage when wrestling

with questions that arise under the Act. Resps. Br.

17–18. And when answering interpretive questions

that, in the end, require “policy determinations,” fishery managers take all relevant views into account. Id.

at 18–19. Democratic accountability is built into the

Act’s structure, as councils must reflect the interests

of relevant communities, and decisions are made after

extensive public meetings and the standard noticeand-comment process. See 16 U.S.C. § 1852(b), (h).

However the Chevron question is resolved, the Court

should reject petitioners’ call for it to answer the Magnuson-Stevens Act question and reverse on that basis.

Petrs. Br. 47. Petitioners sought certiorari on the

Magnuson-Stevens Act question, Pet. i, but it was denied. 143 S. Ct. 2429. Setting the irregularity of the

request aside, it is unfounded. As this amicus brief

6

shows, the longstanding interpretation at issue is

firmly rooted in the Act’s text, context, and history. If

the Court does adopt a new approach to Chevron deference, then it should remand the case for the court of

appeals to apply that approach.

ARGUMENT

I. As Congress Has Recognized, Reliable Data

Is Essential For Effective Fishery Management.

A. Before the Magnuson-Stevens Act, U.S.

fisheries frequently collapsed.

Early on, this Nation lacked basic information about

its fisheries. In the 1800s, we did not know when important fish matured; where they bred, spawned, traveled, and were caught; or how quickly they were being

caught. See W. Jeffrey Bolster, THE MORTAL SEA:

FISHING THE ATLANTIC IN THE AGE OF SAIL 122 (2012).

Even the question whether “fishing could destroy”

stocks was up for debate. Id. at 178. “Scientific regulation” of fisheries was “impossible in the absence of

such knowledge.” Id. at 122.

The result was that fisheries collapsed one after the

other, wreaking “economic disaster” on communities

that depended on them. Id. at 177. Collapses followed

a “typical” sequence, shown by the menhaden’s example. Id. at 181. In the 1850s, the fish offered a new

source of oil after whale stocks collapsed. Smaller

fishermen first drove the new economy that grew up

around the fish, investing in gear and vessels to catch

the plentiful fish. Then industrial-scale technology

developed, allowing whole schools of fish to be caught

at once, over and over. Vessels were soon forced to go

far out to sea to search for the fish, which had once

“swarm[ed] near the shore.” Id. at 179. Within “thirty

years,” menhaden were overfished. Id. at 181; see also

7

id. at 133–139 (describing the 1850s collapse of the

New England cod fishery). The small fishermen who

had built the market were left with now-useless gear

and vessels and no way to recover. Id. at 177.

In a first step towards fisheries regulation, Congress

created an agency to provide it with basic information

about fisheries. It tasked the U.S. Commission of Fish

and Fisheries with determining “whether any and

what diminution” of fisheries had occurred and “what

causes the same,” and then reporting its findings to

Congress. H.R.J. Res. of Feb. 9, 1871, § 2, 16 Stat.

593, 594. Congress also directed the Commission to

use those findings to report on “whether any protective, prohibitory, or precautionary measures should be

adopted.” Id. This was not enough to stop the fishery

collapses, as Congress sometimes did not, or could not,

react to the Commission’s reports in time. See, e.g.,

Bolster, supra, at 262.

Congress thus moved to delegate day-to-day fishery

management authority to a federal agency in the

1950s. It created a Bureau of Commercial Fisheries

to provide research and “management to assure the

maximum sustainable production.” Fish and Wildlife

Act of 1956, § 2(3), 70 Stat. 1119, 1119. Given “the

need for authority to execute” the “Act effectively,”

Congress authorized the agency to “exercise such general administrative authority . . . necessary to carry

out the . . . Act.” Id. § 3(f), 70 Stat. at 1120–121. This

statute, along with other statutes and treaties, made

up the patchwork of federal fishery management.

Resps. Br. 2.

These early “fishery resource conservation and management practices and controls” were still not enough

to safeguard fisheries. 16 U.S.C. § 1801(a)(2). In the

8

1970s, important stocks had “declined to the point

where their survival [wa]s threatened.” Id. Others

were “so substantially reduced” that they were at risk

of that same decline. Id. This led Congress to decide

that a “national program for the conservation and

management of the fishery resources” was “necessary”

to stop overfishing, conserve stocks, and “realize the

full potential” of fisheries. Id. § 1801(a)(6).

B. The Magnuson-Stevens Act created a

data-driven fishery management system.

Congress enacted a comprehensive fishery conservation and management program in the Magnuson-Stevens Act to end overfishing and secure sustainable

fisheries. 2 See id. § 1801(b)(4). The Act is structured

to “assure” that management will be based on “the

best scientific information available.” Id. § 1801(c)(3).

This approach has helped, but significant work remains to be done. See NOAA Fisheries, Status of

Stocks 2022: Annual Report to Congress on the Status

of U.S. Fisheries 45 (Apr. 2023), bit.ly/noaasos22 (stating that 49 stocks have been rebuilt under the Act and

that 48 are overfished and remain under rebuilding

plans).

The Act requires fishery management to meet datadriven goals: to “prevent overfishing” and achieve “the

optimum yield” from the fishery.

16 U.S.C.

§ 1851(a)(1). Both relate to “maximum sustainable

yield,” the highest amount of fish that can be caught

under current conditions in the fishery. 50 C.F.R.

§ 600.310(e)(1)(i). Overfishing occurs when the rate of

fishing threatens a fishery’s ability to produce the

maximum sustainable yield; preventing it requires

2 A fishery is defined as a “stock[] of fish which can be treated

as a unit for . . . conservation and management.” Id. § 1802(13).

9

restricting catch limits to let the fishery recover. See

16 U.S.C. § 1802(34). The optimum yield reflects the

amount of fish that “will provide the greatest overall

benefit to the Nation” and reflects the maximum sustainable yield, as reduced “by any relevant social, economic, or ecological factor.” Id. § 1802(33).

Regional councils lead the implementation of the Act

through fishery management plans and plan amendments, like the one challenged in this case. See id.

§ 1852(a), (h). 3 The councils reflect state, commercial,

and recreational interests. See id. § 1852(b). The Secretary of Commerce reviews the councils’ proposed

plans and amendments and, if she approves them, issues implementing regulations through the noticeand-comment process. See id. § 1854.

The Act prescribes measures that must be in every

plan to meet the requirement to prevent overfishing

and achieve the optimum yield. For example, plans

must contain “measures . . . necessary and appropriate for the conservation and management of the fishery” and “to prevent overfishing and rebuild overfished stocks” Id. § 1853(a)(1). A plan must “establish

a mechanism for specifying annual catch limits . . .

such that overfishing does not occur,” including accountability measures. Id. § 1853(a)(15). And plans

must “establish a standardized reporting methodology

to assess . . . bycatch”—non-targeted species caught

but not kept or sold—in the fishery and develop

measures to “minimize bycatch” and “the mortality” of

3 The councils cover the U.S. Caribbean, Gulf of Mexico, MidAtlantic, New England, North Pacific, Pacific, South Atlantic,

and Western Pacific. Id. § 1852(a). The Secretary of Commerce

directly manages highly migratory species fisheries. See id.

§§ 1802(21), 1852(a)(3).

10

unavoidable bycatch.” Id. § 1853(a)(11). Plans must

also “assess and specify the nature and extent of scientific data . . . needed for effective implementation.”

Id. § 1853(a)(8).

The Act also lists measures that may be included in

a plan based on a fishery’s needs. Plans may, for example, require permits to operate within the fishery;

close areas to fishing; and restrict when, where, and

how fishing occurs. See id. § 1853(b)(1)-(4). Plans may

also obtain “data necessary for the conservation and

management of the fishery” from fishing vessels by

“requir[ing] that one or more observers be carried on

board,” subject to certain minimum safety requirements. Id. § 1853(b)(7)-(8). And plans may include

any other measures that “are determined to be necessary and appropriate for the conservation and management of the fishery.” Id. § 1853(b)(14).

C. Fishermen benefit when fishery

managers have access to reliable

observer data.

As Congress has expressly found, “[t]he collection of

reliable data is essential to the effective conservation,

management, and scientific understanding of [] fishery resources.” Id. § 1801(a)(8) (emphasis added).

Even without a legislative finding, common sense dictates as much. A fishery manager cannot avoid overfishing unless it knows how many fish are in the fishery, how quickly they reproduce, and how catch rates

affect that reproduction. Nor can it minimize bycatch

without knowing how the fishing gear being used affects bycatch, where and when bycatch occurs, and the

rate at which different measures may reduce bycatch.

See Eric Gilman, et al., Ecological Data From Observer Programs Underpin Ecosystem-Based Fisheries

11

Management, 74 ICES J. Mar. Sci. 1481, 1485 (2017).

The same is true of the other quantifiable requirements for fishery management. See 16 U.S.C. § 1851.

At-sea observers are a “crucial” source of the reliable

data that fishery managers need to carry out the Act.

Yuntao Wang & Jane DiCosimo, NOAA Technical

Memorandum NMFS-F/SPO-186: National Observer

Program 2016 Fishery Observer Attitudes and Experiences Survey 3 (2019), bit.ly/noaa16. Very often, “the

only independent data” that fisheries managers have

comes from observers. Id. at 1. These observers are

trained biological technicians who record data on

catch, bycatch, gear, location, timing, biological characteristics, and more while onboard a vessel. See id.

at 1, 3. In performing their work, observers face “the

same workplace risks and dangers as” fishermen but

can also face “harassment, assault, and interference

in the course of their work.” Kurt J. Heinz, et al., Review of NOAA Fisheries Safety Policies and Procedures in US Regional and International Observer Programs 28–29 (Dec. 2017), bit.ly/noaasafetyrpt.

The need for observer data reflects the unusual regulatory context fisheries present. In other settings, a

regulator may be able to impose reporting requirements and check reported data against its own monitoring. See, e.g., 42 U.S.C. § 7410(a)(2)(F) (requiring

monitoring and reporting of air pollutant emissions).

Because fishing occurs out at sea on moving vessels,

obtaining reliable data about vessels’ activities often

requires being on the vessel itself. For example, a vessel fishing for herring can be required to report where

it fished, the gear it used, what it caught, and how

much it caught. See 50 C.F.R. § 648.7. But crews have

a limited capacity to record data and may have incentives to misreport. See NOAA Fisheries, Evaluating

12

Bycatch: A National Approach to Standardized Bycatch Monitoring Programs 28–31 (2004), bit.ly/noaasbrm (discussing inaccuracies in self-reported

data). Or the vessel can be required to report whether

it also caught haddock, whether the haddock were

alive or dead when caught, and what gear it used. See

50 C.F.R. § 648.86(a). But the only way to verify

which fish were discarded, why, in what quantities, or

the mortality of discarded fish is by seeing what took

place on the vessel. See Samantha Brooke, Federal

Fisheries Observer Programs in the United States:

Over 40 Years of Independent Data Collection, 76 Mar.

Fisheries Rev. 1, 35 (2014) (noting that “observers are

highly trained and lack incentives for misreporting”

and address “scientific concerns” about “using fishermen to report data”).

Fishermen reap the benefits when fishery managers

have access to reliable observer data.

Fishery managers can, for example, set higher catch

limits when they have better data. To comply with

the Act’s requirement to avoid overfishing, fishery

managers adjust annual catch limits to address “scientific uncertainty,” for example about the size of the

stock or the effects of factors on the stock, and “management uncertainty,” for example about actual catch

rates in light of vessel underreporting. NOAA Fisheries, Setting an Annual Catch Limit, bit.ly/aclnoaa.

Observers produce more reliable data about a fishery

(reducing scientific uncertainty) and catch rates (reducing management uncertainty). That reliable data

helps “reduce the need for substantial buffers,” 50

C.F.R. § 600.335(b), and allows higher annual catch

limits. Fishery managers with access to sufficient observer data can therefore set higher catch limits. See,

e.g., U.S. GAO, Federal Fisheries Management:

13

Overfishing Determinations Vary Across Regions, and

Data Challenges Complicate Management Efforts 18

(Oct. 2022) (reporting that “setting a buffer . . . is not

a significant focus in the Alaska region because of the

region’s robust observer participation program”). But

where observer coverage is low and less data is available, managers need to decrease catch limits. See 80

Fed. Reg. 39,731, 39,733 (July 10, 2015) (declining to

increase observer coverage and explaining that “significant additional uncertainty buffers” already “mitigate[d] any lack of absolute precision and accuracy in

estimating overall catch”).

Better data also allows fishery managers to protect

the fishermen who target bycatch species while reducing burdens associated with the bycatch-minimization

requirement. When vessels catch non-target species,

they “contribute to overfishing and slow efforts to rebuild” stock of those species. NOAA Fisheries, Understanding Bycatch, bit.ly/noaabycatch. And when vessels catch or kill non-targeted species, they harm the

fishermen who do target those species. For example,

if a herring vessel’s football-field sized nets catch haddock too, those fish count against the haddock catch

limit, leaving fewer for the smaller vessels that fish

for haddock to catch. Observers are “the primary

source for data” on bycatch rates that allows fishery

managers to know whether their bycatch minimization measures are working. NOAA Fisheries, Using

Observer Data (last updated Dec. 13, 2018), bit.ly/noaadatause. This data also allows them to reduce burdens associated with the minimization requirement.

As new technology develops, offering the potential to

reduce bycatch at lower costs, fishery managers need

data on how it performs, including under real-world

conditions, to authorize its use in a fishery. See id.

14

Because observers provide reliable data, observer

coverage in a fishery can also increase trust in fishery

management. In the North Pacific Groundfish Fishery, observers are stationed aboard most vessels, and

fishermen can “observe and understand the data collection process.” U.S. GAO, Problems Remain With

National Marine Fisheries Service’s Implementation

of the Magnuson-Stevens Act 8 (Apr. 2000). This contributes to widespread agreement in the fishing industry “that the best available scientific information”

used to make management decisions “is of high quality.” Id. In fisheries without similar observer coverage, that agreement is often not present. See id. at 9.

II. Congress Has Consistently Embraced

Industry-Funded Observer Programs

After Fishery Managers Created Them.

Congress’s attention to the use of observer programs

under the Magnuson-Stevens Act has followed a pattern. After a fishery manager implements an observer

program, Congress amends the Act to confirm or

strengthen their authority to do so. In three contexts—for foreign vessels, in the North Pacific region,

and for limited-access privilege programs—Congress’s

amendments reflect a conclusion that observer data is

always needed and create a stable funding scheme under which industry pays for observer costs and the

government’s administrative costs to run the program. For all other contexts, Congress’s amendments

reflect a conclusion that fishery managers may sometimes need observer programs to address the data

needs in their fisheries and can obtain that data, subject to available appropriations. Over the thirty years

since that general amendment, fishery managers

have continued to create observer programs and to require industry to bear observer costs when needed to

15

implement the Act. Congress has not returned to the

Act to restrict their authority to do so.

A. Fishery managers have repeatedly

read the Act to allow them to require

vessels to bear observer costs.

Petitioners point to the herring observer program as

“Exhibit A” of the type of agency actions that Chevron

has wrought. Petrs. Br. 39. In reality, councils first

read the Act to authorize them to create industryfunded observer programs for domestic vessels as

early as 1990. These councils did not mention Chevron, which was then still developing into “an accepted

mode of analysis.” Merrill Br. 6. In the decades since

then, councils have continued to use industry-funded

observer programs when they have a specific need for

observer data. The driving force behind these programs is not Chevron, but a long-held view that the

Act authorizes fishery managers to collect the data

they need to meet its data-driven requirements.

In the mid-1980s, fishery management councils realized that they needed reliable data from observers

aboard domestic vessels. 4 When the Act was passed

in 1976, foreign vessels dominated U.S. waters. The

Secretary of Commerce included an observer program

in the first foreign fishery management plan in 1977. 5

4 The Act conditioned foreign vessel permits on, among other

things, an agreement to permit U.S. observers “on board” and to

reimburse the United States “for the cost of such observer.” Fishery Conservation and Management Act of 1976, Pub. L. No. 94265, § 204(b)(7), 90 Stat. 331, 343.

5 The Secretary did so to “collect[] scientific data and carry[]

out other management and enforcement activities” with respect

to foreign vessels. 42 Fed. Reg. 8813, 8817 (Feb. 11, 1977). The

program required foreign vessels to “[p]rovide, at no cost to the

16

When domestic vessels later displaced foreign vessels

in U.S. waters, the councils needed reliable data about

those vessels. As enacted, the Act required fishery

management plans to contain “necessary and appropriate” measures but did not expressly address observer programs for domestic vessels. See 16 U.S.C.

§ 1853 (1988). Relying on this general authority,

councils created observer programs as needed to address the specific needs of their fisheries. 6

Some of these programs relied on industry funding.

For example, the Mid-Atlantic Fishery Management

Council created an observer program in 1990 for the

Atlantic Surf Clam and Ocean Quahog Fishery to allow vessels to shuck at sea. 7 Shoreside shucking had

become expensive, and observers allowed the council

to authorize at-sea shucking and still “monitor the actual harvest.” 55 Fed. Reg. at 24,186. Vessel owners

were required to pay “all reasonable expenses of carrying the observer on board.” Id. at 24,196.

The North Pacific Regional Management Council

needed an observer program to obtain much-needed

data. In the 1980s, domestic vessels displaced foreign

observer or the United States, accommodations for the observer”

and “reimburse the United States for the total costs of placing

observers aboard.” Id.

6 See 48 Fed. Reg. 22,606, 22,607 (May 19, 1983) (Pacific Coast

Groundfish Fishery, allowing the Regional Director to “assign an

observer to permitted vessels” to “collect[] scientific data and

carry[] out other management and compliance activities”); 48

Fed. Reg. 5560, 5565 (Feb. 7, 1983) (Western Pacific Spiny Lobster Fisheries, requiring vessels to carry an observer on request).

7 See 55 Fed. Reg. 24,184, 24,196 (June 14, 1990); see also 49

Fed. Reg. 30,946, 30,948 (Aug. 2, 1984) (Atlantic Surf Clam and

Ocean Quahog Fishery, allowing fishing for research purposes to

be conditioned on “[e]mbarkation of observers”).

17

vessels (which had been covered by the Secretary’s

foreign vessel observer program) in the fishery. This

caused “a loss of observer data” considered critical for

fisheries management.” Mem. from Clarence G. Pautzke, Exec. Dir., to Council, SCC, and AP Members Re:

Fishery Observer Programs 1 (Jan. 10, 1989),

bit.ly/jan89mem. The Council formally declared that

“the lack of observer data” prevented it “from meeting

its obligations” under the Act. N. Pac. Fishery Mgmt.

Council, Jan. 1989 Meeting Minutes at 15 (June 20,

1989), bit.ly/jan89min.

To address the problem, the Council created an observer program and required vessels to pay observer

costs. 8 It required all large vessels (and a lower percentage of smaller vessels) in the North Pacific

groundfish fishery “to carry an observer.” 55 Fed.

Reg. at 4842. Vessels were required to pay “the cost

of the observer directly to the [observer] contractor”

and were also responsible for paying the day-to-day

“costs of deploying observers,” like room and board.

Id. at 4840. The government was responsible for administering the program and managing the collected

data (and funding those activities). Id.

Over the next decades, fishery managers continued

to create observer programs and require fishery users

to bear observer costs. 9 These programs varied in

8 See 55 Fed. Reg. 4839, 4848 (Feb. 12, 1990); see also 52 Fed.

Reg. 8592, 8596 (Mar. 19, 1987) (discussing an interim program

under which the council “may rely” on industry-funded observers

for “data necessary for conservation and management”).

9 See, e.g., 56 Fed. Reg. 63,685, 63,690 (Dec. 6, 1991) (Summer

Flounder Fishery, requiring vessels “to arrange for and facilitate

observer placement” and “[p]rovid[e] adequate accommodations

and food”); 56 Fed. Reg. 65,007, 65,012 (Dec. 13, 1991) (Atlantic

18

scope and duration, based on the needs of the fishery.

In 1993, the Secretary responded to evidence of overfishing in the Atlantic Shark Fishery by, among other

things, requiring vessels to accept observers onboard

and pay associated observer costs. 10 After being left

to act “based upon incomplete . . . information,” the

New England Fishery Management Council concluded in 1994 that an observer program was “necessary for the management program [in the Northeast

Multispecies Fishery] to be effective.” 11 In 1995, MidAtlantic Fishery Management Council used monitoring measures that included observers to address a

growing risk of overfishing in the Squid and Butterfish Fisheries. 12 Responding to concerns about overfishing in the new Golden Crab Fishery in 1996, the

South Atlantic Fishery Management Council restricted access to the fishery and imposed observer requirements. 13 In 2004, the Pacific Fishery Management Council required at-sea processing vessels in the

Pacific Coast Groundfish Fishery to “arrange for observer services from an observer provider” to generate

data the Council needed to carry out the Act’s bycatch

minimization requirements. 14 And the New England

Swordfish Fishery, noting “costs associated with observer coverage would be shared by NMFS and vessel owner/operators”).

10 See 58 Fed. Reg. 21,931, 21,935, 21,940, 21,947 (Apr. 26,

1993).

11 59 Fed. Reg. 9872, 9878, 9903 (Mar. 1, 1994) (requiring operators to “[p]rovide accommodations and food” to the observer).

12 See 60 Fed. Reg. 65,618, 65,619, 65,630 (Dec. 20, 1995) (re-

quiring operators to “[p]rovide accommodations and food”).

13 See 61 Fed. Reg. 43,952, 43,953, 43,957 (Aug. 27, 1996) (re-

quiring operators to “[p]rovide accommodations and food”).

14 69 Fed. Reg. 31,751, 31,752, 31,756 (June 7, 2004); see also

50 C.F.R. § 660.314(d)(1), (e)(1) (2006).

19

Fishery Management Council created an observer

program in the Atlantic Sea Scallop Fishery in 2007

because its specific bycatch restrictions “require close

monitoring to achieve specified mortality targets.” 15

Rather than breaking new ground, the New England

Fishery Management Council’s herring observer program follows a well-trod course.

B. Congress has embraced, and expanded,

fishery managers’ authority to use these

programs.

Petitioners point out that Congress has addressed

the costs of observer data in three contexts—foreign

vessels, the North Pacific region, and limited-access

privilege programs—and insist these provisions

“strongly suggest[]” that Congress did not otherwise

authorize fishery managers to impose observer costs

on vessels. Petrs. Br. 46. Their argument seems to

stem from an apparent misunderstanding of the Act.

These programs do not “cap[] the costs of [observer]

salaries.” Id. at i. In these contexts, Congress so

strongly agreed that observer data is crucial that it

guaranteed stable funding for the program, and it so

strongly agreed that industry should bear the associated costs that it made industry responsible for observer costs and the government’s administrative

costs. Congress’s endorsement of a stable, completely

industry-funded program in these contexts does not

suggest that it prohibited fishery managers from requiring vessels to bear only observer costs in other

contexts.

See RadLAX Gateway Hotel, LLC v.

15 72 Fed. Reg. 32,549, 32,551, 32,555 (June 13, 2007) (making

vessels responsible for “arrang[ing] for carrying” the observer

and “paying the cost of the observer,” in return for being allowed

additional fishing days at sea and a higher catch allowance).

20

Amalgamated Bank, 566 U.S. 639, 645 (2012) (discussing use of the specific-general canon to avoid a

contradiction or superfluity). The most that can be inferred is that Congress was comfortable making fishery managers’ ability to create these ad-hoc programs

contingent on their having sufficient appropriations to

cover their own administrative costs. 16

Foreign Vessels. After the Secretary created an observer program for foreign vessels, Congress amended

the Act to create a more robust program. It made observers mandatory, requiring U.S. observers to be

“stationed aboard each foreign fishing vessel.”

Salmon and Steelhead Conservation and Enhancement Act of 1980, Pub. L. No. 96-561, § 236, 94 Stat.

3275, 3299 (1980). It expanded the costs foreign vessels are responsible for, supra at n.4, to cover the government’s costs to implement the program. See § 236,

94 Stat. at 3300 (“all the costs of providing a United

States observer aboard”); Pub. L. No. 97-453, § 2(a),

94 Stat. 2481, 2481 (1983) (requiring vessels to pay

“all of the costs incurred incident to such stationing

[of monitors], including the costs of data editing and

entry and observer monitoring”). And it required

those charges to be deposited in a newly created

Treasury Fund, which the Secretary could draw from

as provided in appropriations acts. That restriction

created a risk that observer coverage would lapse due

to “insufficient appropriations,” so Congress directed

16 This Court does not rely on unenacted bills to settle statutory meaning. See, e.g., Pension Benefit Guaranty Corporation v.

LTV Corp., 496 U.S. 633, 650 (1990). Petitioners collect bills that

would allow fees that also fund the government’s costs to run observer programs. Petrs Br. 50. The interpretive question their

challenge raises involves a more limited set of costs: those associated with obtaining and accommodating observers.

21

the Secretary to create a “supplementary” program” to

ensure stable funding during appropriations lapses.

Act of Jan. 12, 1983, Pub. L. No. 97-453, § 2(a), 96

Stat. 2481, 2483. Under the supplementary program,

the Secretary sets fees that foreign vessels pay directly to third-party observers. See id. 17

North Pacific. Congress strengthened the North Pacific Council’s observer program, supra at 16–17,

when codifying it. Congress authorized the Council to

design “a fisheries research plan” that “requires” observers to “be stationed on fishing vessels” for “collecting data necessary for [] conservation, management,

and scientific understanding.” Fishery Conservation

Amendments of 1990, Pub. L. No. 101-627, § 118(a),

104 Stat. 4436, 4457. Congress also responded to the

concern that “data gathering, research, and enforcement” was “seriously handicapped . . . by a lack of stable funding” for the government’s side of the costs. 18

It allowed the Council to raise the permit fee for all

vessels or processors in the fishery to cover the costs

of obtaining observer data and the government’s

costs. See 16 U.S.C. § 1862(a)(2), (b)(2). 19 And it

17 Because the Magnuson-Stevens Act, along with later stat-

utes, succeeded in ending foreign fishing in U.S. waters, this program has become obsolete. See Cong. Research Serv., Reauthorization Issues for the Magnuson Stevens Fishery Conservation

and Management Act 35 (2014) (“[F]oreign catch . . . declined

from about 3.8 billion pounds in 1977 to zero since 1992.”).

18 Oversight of Marine Fisheries Management: Hearing Before

the S. Commerce, Science, and Transportation Comm., S. Hrg.

101-465, 101st Cong. 23 (1989) (Testimony of William E. Evans,

Under Secretary for Oceans and Atmosphere, U.S. Department

of Commerce).

19 “Agency costs to administer and operate . . . observer pro-

grams are authorized recoverable costs.” 59 Fed. Reg. 46,126,

22

created a fund for the fees and allowed the fund to be

used for the plan “without appropriation or fiscal year

limitation.” Id. § 1862(b)(2), (d).

Limited Access Privilege Programs. Fishery managers turned to these programs, which allocate the fishery’s quota among individual entities, in response to

conditions like overcapitalization. In an overcapitalized fishery, there are too many vessels and too few

fish, creating a rush to fish where “a very few” vessels

end up “tak[ing] the entire fleet’s annual quota.” 20

When addressing these programs, Congress again created a stronger version of the existing administrative

actions. Congress’s program, like the administrative

programs, required adequate observer coverage as

part of the enforcement and management measures to

make sure that no entity took more than its quota.

See Sustainable Fisheries Act, Pub. L. No. 104-297,

§ 108(e), 110 Stat. 3559, 3576–577 (1996). Congress

went further by requiring fishery managers to charge

permit fees for vessels in the limited-access privilege

program that cover “the actual costs”—including the

government’s costs—“directly related to the management, data collection, and enforcement” of the program. 16 U.S.C. §§ 1854(d), 1855(h)(5)(B). 21 For this

program, too, Congress created a fund for those fees,

and allowed the Secretary to use those funds to carry

46,127 (Sep. 6, 1994). The increased fees are capped at either the

actual costs of the research plan or 2% of the fishery’s harvest.

16 U.S.C. § 1862(b)(2)(E).

20 55

Fed. Reg. 3416, 3417 (Feb. 1, 1990) (using industryfunded observer coverage to manage a catch-share program in

the Atlantic Surf Clam and Ocean Quahog Fishery).

21 Fees are capped at 3% of the ex-vessel value of fish harvested

under a program. See id. § 1854(d)(2)(B).

23

out the programs “without appropriation.”

§ 1855(h)(5)(B).

Id.

General Observer Programs. After fishery managers

created domestic vessel observer programs to carry

out their duties under the Magnuson-Stevens Act,

Congress amended the Act to confirm that authority. 22 Using the same “carrying” language as the administrative programs, see supra at 16–17, Congress

stated that fishery management plans may “require

that one or more observers be carried on board a [domestic] vessel . . . for the purpose of collecting data

necessary for the conservation and management of

the fishery.” § 109(b)(2), 104 Stat. at 4448 (codified at

16 U.S.C. § 1853(b)(8)). It limited that authority only

where requiring an observer would put the “health or

safety of the observer” or the “operation of the vessel”

at risk. Id. In the same amendment, Congress made

a new finding that recognized the importance of the

kind of reliable data that observers provide. See

§ 101(a), id. at 4437 (“The collection of reliable data is

essential to the effective conservation, management,

and scientific understanding of the fishery resources

of the United States.”). And after fishery managers

had continued to create observer programs and

22 S. Rep. No. 414, 101st Cong., 2d Sess. 20 (1990) (The amendment “clarif[ied] the existing authority . . . to require that observers be carried on board domestic fishing vessels for conservation

and management purposes.”); H.R. Rep. No. 393, 101st Cong., 1st

Sess. 28 (1989) (stating that “Councils already have—and have

used—such authority” and that “the amendment makes the authority explicit”); see also S. Rep. No. 414, 101st Cong., 2d Sess.

8 (1990) (noting that the authority to “require[e] U.S. vessels to

carry observers” was “implicit in the Magnuson Act,” that the

North Pacific Council had used it, and that the Council-specific

amendments provided additional authority to spread costs

among all fishery users not just vessels carrying observers).

24

require users to bear observer costs, see supra at 17–

19, Congress amended the Act to impose sanctions

(like permit revocation) on those who fail to make “any

payment required for observer services . . . contracted

by an owner or operator.” § 114(c), 110 Stat. at 3599.

As this statutory history shows, each time Congress

addressed the use of fishery observers, it recognized

the important role that observer data plays in fishery

management. In three specific contexts—foreign vessels, the North Pacific region, and limited access privilege programs—it determined that observer data will

always be needed to meet the Magnuson Stevens Act’s

goals and provided stable funding for both the government’s administrative costs and the costs of obtaining

observer data. When addressing the general need for

observer data that might arise in a fishery, Congress

confirmed fishery managers’ authority to create observer programs. Congress has never overturned fishery managers’ understanding that, under this authority, they can create observer programs, require users

to pay observer costs, and fund their own administrative costs with available appropriations.

III. The Herring Fishery Observer Program

Follows This Established Practice.

The Atlantic herring fishery has collapsed before.

For centuries, fishermen caught herring off the New

England coast using “small-scale, low-impact gear.”

Herring Alliance, Atlantic Herring: History of a Fishery 1 (2010), bit.ly/historyah. Then the industrialization of herring fishing led to wild swings in the fishery’s health. The herring fishery collapsed in the

1970s when foreign trawlers crowded into the fishery,

rebounded in the 1980s after foreign vessels were kept

25

out, and fell again in the 1990s after domestic midwater trawling vessels took their place. See id.

The herring fishery remains at risk today. The herring stock crashed in 2018 after trawling vessels “operated under clearly unsustainable catch limits” for

years. Peter Baker, With Atlantic Herring Population

Crashing, Managers Should Adopt Science-Based

Rules (Sept. 20, 2018), bit.ly/pewherring. 23 The fishery is now overfished, meaning the spawning stock is

too small for the stock to replenish itself. See New

England Fishery Management Council, Atlantic Herring: Council Signs Off on 2023-2025 Specifications;

Receives Stock Assessment Overview 2 (Sept. 30,

2022), bit.ly/nefmc922. To successfully rebuild the

fishery, the Council will need access to adequate, reliable data. See supra at 10–14.

As other fishermen have noted, the lack of observer

data in the herring fishery harms their bottom line.

For example, when observer coverage is low, the estimate of how quickly herring fishermen catch haddock

(a commercially important groundfish stock caught as

a bycatch species in the herring fishery) may be based

on unrepresentative data. Herring fishermen may argue that the estimate of bycatch caught is too high,

causing the herring fishery to be shut based on a

premature conclusion that the haddock bycatch limit

was met. See Letter from Shaun M Gehan, Counsel

to the Sustainable Fisheries Coalition to Terry Stockwell III, Chair, N.E. Fishery Mgmt. Council 2–3 (Jan.

23 The Secretary has allocated more than $11 million to the

herring fishery to address this most recent crash under a statute

providing for assistance to commercial fishermen after a secretarial determination of a “fishing resource disaster.” 16 U.S.C.

§ 4107(d) (2018); NOAA Fisheries, Fishery Disaster Determinations (last updated Sept. 12, 2023), bit.ly/noaadisaster.

26

19, 2018), bit.ly/sfcletter (criticizing the low observer

coverage). And because the vessels that fish for herring can catch a large amount of haddock on any given

trip, low observer coverage can cause the haddock bycatch rate to be exceeded well before fishery managers

can react. That leaves fewer haddock for the groundfishermen that depend upon haddock for their livelihoods. See Cape Code Commercial Fishermen’s Alliance, Comments on Industry Funded Monitoring

Amendment at 1 (Dec. 21, 2018), bit.ly/cccfacomment

(supporting 100% observer coverage on larger vessels

to address haddock bycatch).

The New England Fishery Management Council developed the Atlantic herring observer program to provide “affordable monitoring for the herring fishery” to

address its data needs. 85 Fed. Reg. 7414, 7417 (Feb.

7, 2020). It needs the data to obtain “[a]ccurate estimates of catch” and “accurate catch estimates for incidental species for which catch caps apply” (like haddock). Id. at 7423, 7425 (estimating catch uncertainty

will be low as 30%). Under the program, observers

collect data on, among other things, catch, bycatch,

and gear, and also collect samples. See id. at 7418. 24

The Council required industry to bear some costs of

the program, following the model of prior programs.

Vessels covered by the program bear the costs of obtaining the observer data; the government is responsible for the administrative costs of running the program. See id. at 7415–416. The government may decide to reimburse vessels for observer costs, as it has

24 The program refers to “at-sea monitors” because monitors,

unlike observers, collect “whole specimens, photos, or biological

samples” in only limited circumstances.” Id. For simplicity’s

sake, this brief refers to observers throughout.

27

to date. Resps. Br. 5. When (as now) the government

lacks appropriations to fund its responsibilities under

the program, the program goes dormant. See NOAA

Fisheries, Atlantic Herring Industry-Funded Monitoring Program Suspended Beginning in April 2023

(Nov. 2022), bit.ly/noaaifm.

The Council took careful steps to minimize the observer costs that vessels bear. First, the vessels which

may be required to carry observers are larger and can

more easily accommodate observers. See 85 Fed. Reg.

at 7417 (vessels with Category A and B permits); see

also New England Fishery Mgmt. Council, Amendment 5 to the Fishery Management Plan for Atlantic

Herring 259 (2013), bit.ly/nefmcam5 (noting that

more than 60% of vessels with these permits are over

80 feet in length). Second, the covered vessels’ permits do not contain vessel- or trip-specific catch limits,

meaning they offer the most potential for profit and

can more easily absorb costs of the program. See 50

C.F.R. § 648.204; see also NOAA Fisheries, IndustryFunded Monitoring: An Omnibus Amendment to the

Fishery Management Plans of the New England Fishery Management Council 82 (2018), bit.ly/neifmea

(“[V]essels with [these] permits harvest greater than

98% of herring catch.”). Third, though some fishermen supported higher observer levels, see supra at 26,

the Council selected a target of 50% of vessel trips to

balance its need for data against vessel costs. See 85

Fed. Reg. at 7425. Finally, it included exemptions to

further lower the burden on vessels. See id. at 7418,

7420, 7422 (wing vessels; 25 vessels intending to land

less than 50 metric tons of herring; and midwater

25 When two midwater trawl vessels drag a net between them

and one does not take on any fish, it is a “wing vessel.”

28

trawl vessels that opt for electronic monitoring and

portside sampling, with federal funds available to offset electronic monitoring costs). And it committed to

reassessing the program in two years to consider

whether costs can be further reduced. See id. at 7420.

In the end, the Council’s observer program rests on

the same kind of reasonable judgments that other

fishery managers have made for decades. The Council

identified a specific need for reliable observer data to

meet its responsibilities under the Magnuson-Stevens

Act. It read the Act to authorize vessels to bear the

costs of obtaining and accommodating observers (but

not the government’s administrative costs). It carefully considered the burden the program would impose on fishermen and took steps to minimize them.

The result is a program that will produce data that

will help the Council improve its management of the

fishery and, in doing so, avoid more crashes—or a

larger collapse—that could drive “the herring industry into nonexistence.” Petrs. Br. 18.

CONCLUSION

This Court should affirm.

Respectfully submitted,

Andrea A. Treece

EARTHJUSTICE

50 California St., Ste. 500

San Francisco, CA 94111

Kirti Datla

Counsel of Record

EARTHJUSTICE

1001 G St. NW, Ste. 1000

Washington, DC 20001

202.797.5241

kdatla@earthjustice.org

Counsel for Conservation Law Foundation, Ocean

Conservancy, and Save the Sound

September 22, 2023