Relentless Inc., et al. v. U.S. Dept. of Commerce, et al.

Washington, DC (January 17, 2024) – Today, Latham & Watkins partner Roman Martinez presented oral argument to the Supreme Court in Relentless Inc. v. Dept. of Commerce, calling for an end to the unconstitutional Chevron doctrine. The lawsuit, argued in tandem with Loper Bright Enterprises, et al. v. Raimondo, challenges Chevron and a National Oceanic and Atmospheric Administration (NOAA) and National Marine Fisheries Service rule requiring fishing companies like NCLA’s clients to pay for at-sea government monitors on their fishing boats. NCLA’s clients made their case in the courtroom today, and they look forward to a Supreme Court decision by the end of June that will eliminate Chevron deference and vacate the NOAA rule once and for all.

NCLA raised two core problems with Chevron deference that NCLA founder Philip Hamburger has emphasized for years. First, employing such deference abandons a judge’s duty to provide independent judgment. Second, when a federal court defers to an agency’s legal interpretation, the litigants opposing that agency—like the fishermen opposing NOAA in Relentless—do not have their case judged by an impartial adjudicator. So, Chevron’s systematic pro-government bias denies due process of law to those opposing the agency in that case.

During his argument, Martinez explained that lower courts frequently apply Chevron in a way that allows courts to avoid the duty of finding the best meaning of an ambiguous statute. Instead of performing the interpretive function themselves, courts let agencies do the work for them. In response to a question from Associate Justice Neil Gorsuch, Martinez confirmed that this leads to such anomalous results as allowing agencies to change their interpretation of statutes over time, even when a prior interpretation had been accepted by a court. As a result, Chevron destroys the ability to rely on what an agency says a statute means, or even on a meaning previously accepted by the court. The arguments explored why Chevron must go because it is unworkable, cannot be fixed, and abandons core judicial power of interpretation to the executive branch.

The government argued that interpreting ambiguous statutes in the Chevron context involves policymaking—not legal interpretation—even though courts can and do exercise legal judgment to resolve ambiguities in cases not involving federal agencies all the time. The government advanced the fiction that Congress implicitly delegates interpretive power to agencies when statutes contain ambiguities or are silent on a question. In fact, interpreting statutes is a traditional legal duty that Article III of the Constitution entrusts to federal courts. Congress cannot delegate such judicial power to executive agencies, because Congress does not possess that power to begin with.

The government also claimed the Supreme Court must uphold Chevron out of respect for precedent, but interpretive methods are not entitled to stare decisis. Besides, Chevron destabilizes the law and runs afoul of the rule-of-law values that stare decisis protects, because agencies can change what the law means and demand that courts defer to that new meaning. Citizens also expect to be able to rely on the protections of Article III and Fifth Amendment due process of law in litigating against the government that exceed any stare decisis claims for Chevron. And in § 706 of the Administrative Procedure Act, Congress told courts to review agency rules de novo.

No matter how the Court reins in Chevron, the fishing boat at-sea monitor rule is unlawful under any sensible reading of the Magnuson-Stevens Act (MSA). The MSA directs fishermen to pay for monitoring in only three specific cases, and not in the New England herring fishery. This can only mean one thing: the government itself must pay, as it did for 20 years before the agencies invented this rule. The absence of express statutory authority to impose direct costs on the fishing industry renders the Final Rule at issue unlawful, and it should be set aside.

NCLA released the following statements:

“After many years, our clients were finally before a court that seemed disinclined to defer to the agency they have been fighting as to what the law is. That’s what every American should get. Today, Justice Gorsuch pointed out that the Chevron doctrine has disproportionately hurt the vulnerable, such as veterans, the injured on Social Security, and I would add, the fishermen. We hope this problem will soon be no more.”
— John Vecchione, Senior Litigation Counsel, NCLA, and Counsel of Record in Relentless

“We are here today because fishermen matter. Fishermen do a dangerous job to bring you seafood. But they aren’t afraid of rough weather and high seas—they are terrified of the federal government. One abusive regulation like this can economically force vessels like ours out of a fishery we have sustainably harvested in for 40 years. Fishermen shouldn’t be forced to pay out of pocket to expand a government program that the government doesn’t have enough money to fund itself. Congress never intended that. Agencies like NOAA can take liberties with the citizens they regulate, because Chevron gives them an automatic win and they know it. My hope is that ends today.”
— Meghan Lapp, Fisheries Liaison & General Manager, Seafreeze, Ltd.

“The Court’s questions today showed that it has a thorough grasp on the constitutional questions at issue in this case, the Administrative Procedure Act issues, and why Chevron deference needs to be ended not improved. We are cautiously optimistic that the Court is prepared to take the final step that is necessary to restore the judicial role in legal interpretation and reverse Chevron.”
— Mark Chenoweth, President and Chief Legal Officer, NCLA

For more information visit the case page here and watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (January 5, 2024) – Today, the New Civil Liberties Alliance filed a reply brief in Relentless Inc., et al. v. Dept. of Commerce, et al., a potential landmark case before the U.S. Supreme Court, calling for an end to the unconstitutional Chevron doctrine. NCLA addresses two core problems with Chevron deference that NCLA founder Philip Hamburger has emphasized for years. First, employing such deference abandons a judge’s Article III duty of judicial independence. Second, when a federal court defers to an agency’s legal interpretation, it denies due process of law to the entity opposing the government in that case. The logic of Chevron deference breaks apart under this devastating dual critique. Chevron also violates the Administrative Procedure Act (APA).

Relentless is set for oral argument on January 17. The Department of Commerce, the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service created the challenged rule requiring fishing companies like NCLA’s clients to pay for at-sea government monitors on their fishing boats. NCLA urges the Court to vacate Respondents’ rule, which lower courts only upheld by applying Chevron deference. Roman Martinez, a Latham & Watkins partner, will argue on behalf of the Relentless clients. Relentless will be argued in tandem with Loper Bright Enterprises, et al. v. Raimondo, as the Supreme Court considers overruling Chevron.

The government’s response brief argues that interpreting ambiguous statutes in the Chevron context involves policymaking—not law—even though courts can and do exercise legal judgment to resolve ambiguities in every other interpretive context. It further argues that Congress—without saying so and contra the APA’s text—implicitly delegated this interpretive power to agencies. In fact, interpreting statutes is not policy choice, but a traditional legal duty that Article III of the Constitution entrusts to federal courts. Congress cannot delegate or reallocate such judicial power—which it never possessed in the first place—to executive agencies like NOAA.

The government also contends the Supreme Court must uphold Chevron out of stare decisis respect for precedent, but interpretive methods are not entitled to stare decisis. Besides, Chevron destabilizes the law and runs afoul of the rule-of-law values that stare decisis is meant to protect, because agencies can change what the law means and demand that courts defer to that new meaning. Citizens also have reliance interests in expecting the protections of Article III and Fifth Amendment due process of law in government litigation that exceed any stare decisis claims for Chevron. Finally, § 706 of the APA commands courts to review agency rules de novo. The Supreme Court has never considered any of these arguments against Chevron before, so stare decisis simply does not apply.

No matter how the Court rules on Chevron, the fishing boat at-sea monitor rule has to be vacated as unlawful under any sensible reading of the Magnuson-Stevens Act (MSA). The MSA directs fishermen to pay for monitoring in only three specific cases, and not in the New England herring fishery. This omission can only mean one thing: the government itself must pay, as it did for 20 years before the agencies invented this rule. The absence of express authority to impose direct costs on the fishing industry renders the Final Rule at issue unlawful.

NCLA released the following statements:

“Chevron has tempted every actor in our tripartite Government structure to act badly. It allows Congress not to write clear statutes. It leads the Executive to make law rather than execute it and administrators to seize power not granted to them. And it requires the Judiciary to abandon its duty to say what the law is. Chevron must fall.”
— John Vecchione, Senior Litigation Counsel, NCLA

“Under the Constitution, courts have a duty to apply their independent judgment and interpret federal statutes to faithfully reflect their text, structure, and history. Chevron departs from that principle, forcing judges to enforce agency interpretations that the judge believes are wrong. We hope the Court overrules Chevron and vindicates the essential role judges play in upholding the rule of law.”
— Roman Martinez, Partner, Latham & Watkins

“It has been a years-long voyage for our clients to get to the Supreme Court. Throughout this journey they have remained steadfast even with the odds stacked against them because of Chevron deference. We look forward to oral argument and the chance to restore a balanced approach to judicial review of agency rulemaking.”
— Kara Rollins, Litigation Counsel, NCLA

“Overruling Chevron is overdue. Many administrative state pathologies can be traced to the malign influence that Chevron has in encouraging unlawful administrative power grabs. By putting this genie back in the bottle, the Supreme Court can restore federal court oversight to ensure that agencies execute the law as Congress wrote it.”
— Mark Chenoweth, President and Chief Legal Officer, NCLA

For more information visit the case page here and watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (November 20, 2023) – Today, the New Civil Liberties Alliance filed the opening brief on the merits in the U.S. Supreme Court on behalf of clients Relentless, Inc., Huntress, Inc., and Seafreeze Fleet, LLC in Relentless v. Department of Commerce, urging the Court to overturn the Chevron doctrine. The Relentless brief highlights two core problems with Chevron deference that NCLA founder Philip Hamburger has pressed for years. First, employing such deference abandons a judge’s Article III duty of judicial independence. Second, when a federal judge defers to an agency’s legal interpretation, it denies due process of law to the entity opposing the government in that case. The logic of Chevron deference cannot withstand this withering dual critique.

The First Circuit below used Chevron deference to uphold a National Oceanic and Atmospheric Administration (NOAA) and National Marine Fisheries Service rule requiring fishing companies like NCLA’s clients to pay for at-sea government monitors on their fishing boats. NCLA asks the Court to vacate NOAA’s rule, which lacks constitutional and statutory support. NCLA will present oral argument in Relentless against the Chevron doctrine and NOAA’s rule on January 17, 2024, in tandem with the case of Loper Bright Enterprises, et al. v. Gina Raimondo. In both cases, the U.S. Supreme Court will consider whether to overrule Chevron or just limit it. Roman Martinez, a partner at Latham & Watkins, will deliver oral argument on behalf of the Relentless clients.

The government claims Chevron honors Congress’s power to delegate policy decisions to Executive Branch agencies, but interpreting ambiguity in a statute is a legal action constitutionally reserved for Article III courts, not a policy choice. Congress cannot delegate such judicial power—which it does not possess in the first place—to be administered by executive agencies. The government also argues that the Supreme Court must uphold Chevron out of stare decisis respect for its prior precedents. However, interpretive methods like Chevron are not entitled to stare decisis. Moreover, Chevron destabilizes the law and runs afoul of the rule-of-law values that stare decisis protects, so the Supreme Court should not worry about overruling this precedent. Finally, the text of § 706 of the Administrative Procedure Act commands courts to review agency rules like this one de novo.

Whether or not the Supreme Court overturns Chevron, the NOAA fishing boat surveillance rule must be vacated as unlawful under any sensible reading of the Magnuson-Stevens Act (MSA), which governs U.S. fisheries. The MSA directs fishermen to pay for monitoring in only three specific cases. It does not direct monitors to be paid by the regulated fishermen in the New England herring fishery. This can only mean one thing: the government itself must pay. That was the rule for 20 years until the administrative agencies used Chevron to change the law. The absence of express authority to impose costs on the fishing industry renders the NOAA rule unlawful.

NCLA is pleased to team up again with Latham & Watkins for this potentially historic Supreme Court appeal. Our joint efforts obtained a good result in SEC v. Cochran last term; we hope to replicate that success here. NCLA also represents clients in two other cases due to be argued this term: Murthy v. Missouri and Garland v. Cargill.

NCLA released the following statements:

“NCLA’s clients have been threatened by unjust administrative power under this rule. Chevron deference has emboldened the bureaucrats to aggrandize their power at every step, leaving small businesses like Relentless, Inc. and Huntress, Inc. at the mercy of unelected regulators. Ending Chevron deference will both bring policymaking back to the legislature where it belongs and spare the fishermen of New England from unnatural interpretations of law dreamed up by bureaucrats in Washington.”
— John Vecchione, Senior Litigation Counsel, NCLA, and Counsel of Record in Relentless

“For nearly 40 years, the Chevron doctrine has told judges to abandon their independent judgment and defer to the federal government’s interpretation of ambiguous statutes. That doctrine violates the Constitution and encourages unlawful overreach by government agencies. In agency cases—just like in all other cases—judges should enforce their own best understanding of a statute’s text, structure, history, and precedent. We hope the Justices seize this opportunity to overrule Chevron and restore the rule of law.”
— Roman Martinez, Partner, Latham & Watkins

“The Supreme Court has been relentless in imposing Chevron bias on the American people in violation of due process. Now it should be relentless in fixing that problem.”
— Philip Hamburger, Chairman and CEO, NCLA

“It is time for the Supreme Court to fish or cut bait on the Chevron doctrine. This deference charade has gone on long enough. Executive agencies cannot be allowed to serve as judges in their own cases any longer.”
— Mark Chenoweth, President, NCLA

“For almost a decade, our clients have told the government that it didn’t have the authority to require industry-funded monitoring on their fishing boats. Tellingly, the rule has only been upheld by judges deferring to the agency’s interpretation of the statute and abdicating their role in the process. It is time for Chevron to be overruled and the proper balance of powers restored.”
— Kara Rollins, Litigation Counsel, NCLA

For more information visit the case page here and watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (October 13, 2023) – Today, the U.S. Supreme Court agreed to hear the New Civil Liberties Alliance’s Relentless Inc., et al. v. Dept. of Commerce, et al. lawsuit challenging the Chevron precedent and an unconstitutional federal rule requiring fishing companies to pay for at-sea government monitoring of their herring catch. The case will be argued before the U.S. Supreme Court during the January 2024 argument session in tandem with the case of Loper Bright Enterprises, et al. v. Gina Raimondo, which challenges the same at-sea monitor rule. NCLA thanks the Court for granting a writ of certiorari in Relentless, which presents an important opportunity to sweep away the fatally flawed Chevron doctrine and vindicate fishermen’s fundamental rights.

The U.S. Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) and its National Marine Fisheries Service (NOAA Fisheries) implemented a Final Rule in 2020 to force fishing companies like Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC, to pay for human monitors aboard their vessels. This would be like forcing motorists to pay for ride-along state troopers to monitor their speed. Not surprisingly, Congress never gave the agency authority to launch such a program. NCLA’s clients are small businesses that commercially fish for Atlantic herring (as well as mackerel, Loligo and Illex squids, and butterfish). Paying for monitors would cost them more than $700 per day, substantially cutting into—or even exceeding—their daily fishing profits for herring. The Magnuson-Stevens Act (“MSA”), which governs U.S. fisheries, does not support such a rule.

In Relentless and Loper Bright, the U.S. Supreme Court will consider whether to overrule Chevron. It might instead take the lesser step of saying that statutory silence does not create an ambiguity to which Chevron deference may be applied.

The U.S. Supreme Court already granted certiorari earlier this year in Loper Bright, which had unsuccessfully challenged the same at-sea monitor rule in the D.C. Circuit. By arguing the same question in Relentless, NCLA will fully brief two core problems with Chevron deference that NCLA’s founder, Philip Hamburger, is famous for first positing. Namely, when a federal judge defers to an agency’s interpretation of law, doing so denies due process of law to the entity opposed to the government in that litigation. Employing such deference also abandons a judge’s Article III duty of judicial independence. The logic of Chevron deference cannot withstand this devastating dual critique. Neither the doctrine nor NOAA’s unconstitutional rule should survive.

NCLA released the following statements:

“Our clients have persevered in this suit relentlessly, you might say, and we are eager to reverse the error of the lower courts and remove the unfair and unnecessary thumb on the scale for bureaucracy against citizens that Chevron deference inflicts on them when they face their government in court.”
— John Vecchione, Senior Litigation Counsel, NCLA

“For nearly 40 years Chevron has violated judicial independence and denied due process of law for people litigating against the government. When litigating against the United States, no one should face a judge who is forced to defer to the government’s interpretation of the law. NCLA was founded to right this wrong, and we look forward to doing so at the U.S. Supreme Court for our clients and all Americans.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here and watch the case video here.

ABOUT NCLA

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Washington, DC (June 14, 2023) – The U.S. Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) and its National Marine Fisheries Service (NOAA Fisheries) have imposed an unconstitutional rule requiring fishing companies to pay for at-sea government monitoring of their herring catch. Unfortunately, relying on Chevron deference to do the heavy lifting, the First Circuit Court of Appeals upheld that rule. Today, the New Civil Liberties Alliance petitioned the U.S. Supreme Court for a writ of certiorari in Relentless Inc., et al. v. Dept. of Commerce, et al., seeking to overturn the Chevron precedent and vacate the rule.

NOAA implemented a Final Rule in 2020 to force fishing companies like Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC, to pay for human at-sea monitors aboard their vessels. This would be like forcing motorists to pay for ride-along state troopers to monitor their speed. Not surprisingly, Congress never gave the agency authority to launch such a program. NCLA’s clients are small businesses that commercially fish for Atlantic herring (as well as mackerel, Loligo and Illex squids, and butterfish). Paying for monitors would cost them more than $700 per day, substantially cutting into—or even exceeding—their daily fishing profits for herring.

The U.S. Supreme Court already granted certiorari on the first question presented in NCLA’s cert petition in a case called Loper Bright earlier this year, which had unsuccessfully challenged the same at-sea monitor rule in the D.C. Circuit. By seeking certiorari on that same question in Relentless, NCLA hopes to be able to fully brief two core problems with Chevron deference that NCLA’s founder, Philip Hamburger, is famous for first positing. Namely, when a federal judge defers to an agency’s interpretation of law, doing so denies due process of law to the entity opposed to the government in that litigation. Employing such deference also abandons a judge’s Article III duty of judicial independence. The logic of Chevron deference cannot withstand this devastating dual critique.

In addition, NCLA is asking the U.S. Supreme Court to resolve a split between two U.S. courts of appeal, the First and Fifth Circuits. When the First Circuit upheld the Final Rule, it decided that broad “necessary and appropriate” language in the Magnuson-Stevens Act (“MSA”), which governs U.S. fisheries, augmented the agency’s regulatory power. It then relied heavily on Chevron deference to uphold the agency’s ostensibly reasonable interpretation of a supposedly ambiguous federal statute. However, the Fifth Circuit rejected similar government arguments in the Mexican Gulf Fishing Company, et al. v. NOAA, et al. case. That court eschewed Chevron and set aside a different NOAA Fisheries rule in February that required constant GPS tracking of recreational charter fishing vessels. The Court should examine this conflicting treatment of key MSA language.

NCLA released the following statements:

“When the Supreme Court decides the question presented in Loper Bright, it must confront two central problems with Chevron deference: its denial of due process of law and its destruction of independent judicial judgment. If the Court grants cert in Relentless, it will have the full benefit of briefing on these defects of Chevron deference. But even if the Court does not grant cert in Relentless, NCLA still anticipates the Court will decide the Chevron question in Loper Bright’s favor. It will then grant, vacate, and remand our clients’ case to the First Circuit.”
— Mark Chenoweth, President and General Counsel, NCLA

“We’re glad the Supreme Court decided to grant certiorari in the case of Loper Bright, and we think it should also take our second question on what ‘necessary and appropriate’ means in the Magnuson-Stevens Act, so that the Administrative State cannot use such broad language to assume powers Congress never bestowed on it.”
— John Vecchione, Senior Litigation Counsel, NCLA

“This case concerns the core conflict between what Congress has permitted NOAA and the National Marine Fisheries Service to do and what those agencies wish to do. For decades, Chevron deference has emboldened agencies to twist statutory text to generate all manner of regulations Congress never authorized. More troubling, however, is that Chevron has caused courts themselves to abandon their judicial independence and abdicate their duty to determine what the law is to executive branch agencies. That is why the Court should overturn Chevron.”
— Kara Rollins, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (February 1, 2022) – Atlantic herring fishermen are having to spend huge sums of money to fund agency-mandated at-sea monitors to police the harvest aboard their ships. The New Civil Liberties Alliance has filed an opening briefin the appeal of Relentless Inc., et al. v. U.S. Dept. of Commerce, et al., in the U.S. Court of Appeals for the First Circuit. NCLA represents a private fishing company against the regulating agencies.

NCLA, a nonpartisan, nonprofit civil rights group, is suing the Department of Commerce, the National Oceanic and Atmospheric Administration (NOAA), and the National Marine Fisheries Service (NMFS) for threatening the livelihoods of fishermen with a mandate that is both unconstitutional and lacking statutory authority. The lawsuit argues the lower court erred in holding that the Magnuson-Stevens Act allows these agencies to create an at-Sea Monitoring Program and force regulated fishermen to pay for it.

NOAA, NMFS, and the New England Fishery Management Council (NEFMC), dissatisfied with the amount of monitoring they could perform with the funds from Congressional appropriations, formulated and implemented the Industry-Funded Monitoring Omnibus Amendment to “increase monitoring” and “assess the amount and type of catch and more precisely monitor annual catch limits.” This Final Rule ignores Congressional limits on burdening fishers in the New England fisheries. NCLA argues that the federal agencies cannot fund their operations through this mandate, outside of Congressional appropriations. Appellees assert they can require a regulated party to pay for at-sea monitoring of fish stocks when: 1) Congress has explicitly authorized it by statute; or 2) Congress has not authorized it by statute but has allowed the placement of monitors on private vessels.

Appellants Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC are small businesses incorporated in Rhode Island and Massachusetts engaged in commercial fishing of Atlantic herring as well as Loligo and Illex squids, Butterfish, and Atlantic Mackerel. They 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. Fishing trips typically last 7-14 days at sea, compared to 2-3 days for other vessels in the herring fleet. It can cost anywhere from $750 to $850 a day to have monitors on board. That’s more than they make in profit from the fishing catch a day.

It is arbitrary and capricious to allow some fishers to harvest more herring without monitors, while requiring the Relentlessand Persistence vessels to be monitored when they harvest fewer herring. This is particularly true when the cost of monitoring is higher than for any statutory program Congress has authorized in the fisheries.

NCLA released the following statements:

“The lower court relied on Chevron deference to uphold the agencies’ actions here. But such deference, even if it should unfortunately continue to exist, ought not be used to aggrandize agency power to circumvent the very protections Congress has created against those same agencies in statute.”
— John Vecchione, Senior Litigation Counsel, NCLA

“This case concerns a conflict between what Congress permitted and what agencies wish Congress had permitted. NOAA and NMFS wish Congress had granted them more authority and budget to obtain the data they want to collect and to develop at-sea monitoring programs in the Atlantic herring fishery. But instead of asking Congress for that power, they took it for themselves and dared industry to object. This unlawful power grab harms our clients financially, but it also offends the Constitution when agencies claim and wield power they do not have.”
— Kara Rollins, Litigation Counsel, NCLA

For more on this topic visit the case page, watch the case video, or watch January’s Lunch & Law.

ABOUT NCLA

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Washington, DC (July 30, 2021) – The New Civil Liberties Alliance released a video today outlining why it is unconstitutional to force Atlantic herring fishermen to fund government-mandated monitors at sea. It is “the equivalent of having a cop in your car who’s policing you while you drive, and you have to pay his salary out of your own pocket,” said Meghan Lapp, Fisheries Liaison & General Manager for Seafreeze, Ltd. about the rule being challenged in Relentless Inc., et al. v. U.S. Dept. of Commerce, et al.

The Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC are small businesses of high-capacity freezer trawlers incorporated in Rhode Island and Massachusetts that have commercially fished Atlantic herring as well as Loligo and Illex squids, butterfish, and Atlantic Mackerel for more than thirty years. The rule penalizes NCLA’s clients unfairly by making them pay for herring monitors even when fishing for other catches.

NCLA, a nonpartisan, nonprofit civil rights group, represents these private fishing companies in their lawsuit against the Department of Commerce (DOC), the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), and the New England Fishery Management Council (NEFMC). The at-sea monitor mandate, issued in 2018, is unlawfully “industry-funded.” These agencies do not have statutory authority from Congress to order additional industry funding for a program that the agencies think is underfunded, but they have issued a rule that threatens the livelihoods of fishermen regardless.

Earlier this week, NCLA presented oral argument before the U.S. District Court for the District of Rhode Island. Both sides have moved for summary judgment.

Excerpts from the video:

“It can cost anywhere from $750 to $850 a day to have these onboard monitoring people. That’s more than they make in profit from the fishing catch a day. So, while these monitors are there, if this program is implemented and they’re on your boat, you won’t be making any money. You’ll be fishing for nothing.”
— John Vecchione, Senior Litigation Counsel, NCLA

“It’s a multi-species fishery on these boats over the course of a long trip. If I leave the dock and I declare into herring, an at-sea monitor is going to make the trip. They may not see a herring for the whole trip. We may never go herring fishing. We shouldn’t have to pay for an at-sea monitor on a daily basis if we’re not actually herring fishing.”
— Kyle Goodwin, Owner, Seafreeze, Ltd. and Captain of F/V Persistence

“I brought about this case because for three years I went to every single herring advisory panel meeting, every single herring committee meeting, every single New England Council meeting, telling them about the problems with this amendment, and not one person listened.”
— Meghan Lapp, Fisheries Liaison & General Manager, Seafreeze, Ltd.

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (December 7, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a motion asking the U.S. District Court for the District of Rhode Island to award summary judgment in favor of NCLA’s clients in Relentless Inc., et al. v. U.S. Dept. of Commerce, et al. NCLA argues that the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration (NOAA), and the National Marine Fisheries Service have no power to make fishermen pay for monitors the government puts on their boats. So, NCLA is asking the Court to declare NOAA’s regulation seeking to implement an industry-funded, at-sea-monitor mandate on the nation’s Atlantic herring fishermen unconstitutional and set it aside.

NCLA’s clients, small Rhode Island fishing businesses, are entitled to summary judgment on three grounds. First, the mandate violates the U.S. Constitution’s Article I. Congress never authorized these agencies to require payments for at-sea monitors in the Atlantic herring fishery. The federal agencies’ attempt to fund their operations through a requirement that fishermen contract with government contractor at-sea monitors outside of Congressional appropriations, violates the Magnuson-Stevens Act (MSA)—meant to protect, manage, and grow U.S. fishery resources. The MSA’s structure and purpose, and its associated regulatory framework, prohibit industry-funded monitoring as proposed by the Secretary of Commerce, NOAA and the other Defendants.

Second, industry funding unconstitutionally forces NCLA’s clients into a market they do not wish to join. They are being forced to hire these monitors only because an administrative agency has created the office without statutory basis. NOAA wants to require small commercial fishing businesses to purchase the equipment to “solve” the “problem” of Congress not appropriating the amount of money NOAA wants for monitoring, and it wants to penalize them if they do not enter this market by barring them from the fisheries.

Lastly, the February 7, 2020 Final Rule, which created the requirement to “increase monitoring” in some fishery management plans and “assess the amount and type of catch and more precisely monitor annual catch limits,” violates the Regulatory Flexibility Act. The Act requires administrative agencies to consider the effects of their actions on small businesses and to reduce their impact where possible. It was discovered that of the 66 businesses affected by the Final Rule, 62 were small businesses, and only 30, like NCLA’s clients, were actively fishing Atlantic herring. The agencies involved completely ignored alternatives to their unlawful proposals contrary to Congressional mandate.

Agencies cannot be allowed to fund themselves without authorization from Congress. And the U.S. Department of Commerce and its subsidiaries failed to comply with the MSA and the RFA while trying to fund their regulatory activities at the expense of small commercial fishing businesses.

NCLA released the following statements: 

“One of the main checks on government, and an important bulwark of liberty, is how much government activity Congress is willing to fund. If Agencies, without Congressional authorization, are allowed to pick the pockets of anyone whom they regulate as it suits them, the Founders’ efforts to give Congress the Power of the Purse will be circumvented.” 

– John Vecchione, NCLA Senior Litigation Counsel 

For more information visit the case page here. 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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WASHINGTON, DC, March 4, 2020 – The New Civil Liberties Alliance today filed a lawsuit in the U.S. District Court of Rhode Island against the U.S. Department of Commerce (DOC), the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NOAA Fisheries), as well as the heads of those agencies. The suit challenges the agencies’ unconstitutional and statutorily unauthorized effort to force fishing companies to pay for a new agency enforcement program. NCLA represents Relentless Inc., Huntress Inc. and their related company, Seafreeze Fleet LLC, in this facial challenge to DOC/NOAA’s newly promulgated rule.

The at-sea monitor mandate for the nation’s Atlantic herring fleet violates the U.S. Constitution’s Article I, and the agencies have exceeded the bounds of their statutory authority, because Congress never allowed these agencies to create or to require the industry to finance at-sea monitors or an at-sea monitoring program in the Atlantic herring fishery.

The New England Fishery Management Council’s Industry-Funded Monitoring Omnibus Amendment (IFM Amendment) and the February 7, 2020 Final Rule created the requirement to “increase monitoring” in some fishery management plans and “assess the amount and type of catch and more precisely monitor annual catch limits.” But NCLA contends the federal agencies’ attempt to fund their operations through this mandate, outside of Congressional appropriations, violates the U.S. Constitution. In addition, it violates the Magnuson-Stevens Act (MSA)—meant to protect, manage, and grow the U.S. fishery resources.

Relentless and Huntress own fishing vessels (F/V Relentless and F/V Persistence) equipped with unique at-sea freezing technology, which allows their fleet to stay longer at sea than other ships in the Atlantic herring fishery and provides their vessels flexibility in what catch it harvests during a fishing trip. The MSA does not contemplate or even use the word “at-sea monitor” and does not require any ships to pay for such monitors. But under the IFM Amendment and the Final Rule, Relentless and Persistence would be forced to carry a herring at-sea monitor employed by a NOAA-approved or certified private company—even on trips that do not land herring. Thus, Relentless, Huntress, and Seafreeze will be subject to disparate treatment including higher costs relative to the rest of the Atlantic herring fleet. The IFM Amendment and the Final Rule would also force these small commercial fishing companies to enter a market for at-sea monitors that they do not wish to enter.

Agencies cannot be allowed to fund themselves without authorization from Congress. Congress appropriated funds for observers, and NOAA has to make do with those funds. Among other problems, NCLA believes that mandating small commercial fishing businesses to pay for the Atlantic herring at-sea monitoring program is arbitrary, capricious, and an abuse of government power.

NCLA released the following statements:

“NCLA filed this case on behalf of our clients because the Administrative State’s effort to fund itself, completely outside Congressional appropriations and authorization, must be stopped. These runaway agencies cannot create an “off the books” source of funding when Congress has already decided how much money to give them.”

– John Vecchione, NCLA Senior Litigation Counsel

 “The livelihoods of America’s herring fishermen and the industry are at stake here. We cannot allow these agencies to assume power that Congress did not grant them. NCLA will continue working to stop agencies from violating people’s civil rights with unlawful mandates that threaten to ruin entire industries. This regulation should be thrown back into the sea.”
– Kara Rollins, NCLA Litigation Counsel

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
For more information visit us online at NCLAlegal.org.

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