The National Sea Grant Law Center


  • Courts Uphold Rule Requiring Commercial Fishermen to Pay At-Sea Monitors

  • October 1st, 2021 — by Terra Bowling — Category: Fisheries

  • In two separate lawsuits, commercial herring fishermen have challenged a rule promulgated under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) requiring them to pay for at-sea monitors, also known as “fishery observers.” The U.S. District Court for the District of Columbia rejected a challenge to the rule from several New Jersey fishermen in June, and the U.S. District Court for the District of Rhode Island likewise rejected a separate challenge from several New England fishermen earlier this month. In both cases, the court concluded that the MSA allows industry-funded fishery observers.

    The MSA was enacted to “conserve and manage the fishery resources found off the coasts of the United States,” as well as to “promote domestic commercial and recreational fishing under sound conservation and management principles.” 16 U.S.C. § 1801(b)(1), (3). Pursuant to the MSA, eight regional Fishery Management Councils must prepare and submit Fishery Management Plans (FMPs) for approval to the National Marine Fisheries Service (NMFS). The New England Fishery Management Council (NEFMC) develops the FMP for the Atlantic herring fishery. NMFS published a final rule implementing an NEFMC amendment to the FMP that required industry-funded monitoring in the Atlantic herring fishery (monitoring rule) in February 2020.

    In the D.C. district court case, New Jersey commercial fishing companies participating in the Atlantic herring fishery claimed the monitoring rule violated the MSA, the National Environmental Policy Act, and the Regulatory Flexibility Act. The fishing companies alleged violations of several financing and expenditure statutes, including the Anti-Deficiency Act and Miscellaneous Receipts Act. Loper Bright Enterprises, Inc. v. Raimondo, No. CV 20-466 (EGS), 2021 WL 2440511 (D.D.C. June 15, 2021). The plaintiffs further asserted that the requirement for the industry to cover the costs of at-sea monitors resulted in an unconstitutional tax.

    When analyzing these claims, the court first noted that Section 1853 of the MSA specifically states that FMPs may require at-sea monitors. FMPs may also “prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery.” The court determined the rule did not violate the Anti-Deficiency Act because the government is not spending public funds without authorization from Congress, which the statute prohibits. The court also held that the monitoring requirement did not violate the Miscellaneous Receipts Act, which regulates the use of certain government funds, on the basis that at-sea monitors are not government officials and do not receive federal money. The court further found that the monitoring was not an unconstitutional tax because the monitoring requirement does not result in any revenue for the government. Finally, the court concluded the federal government sufficiently studied the environmental impacts of the rule and studied other alternatives and mitigation measures. The court granted the defendants’ motion for summary judgment, upholding the rule.

    In the Rhode Island district court case, several New England commercial fishers claimed that the monitoring requirement violated the MSA, the Regulatory Flexibility Act, and the Commerce Clause. Relentless Inc. v. U.S. Dep't of Com., No. CV 20-108 WES, 2021 WL 4256067 (D.R.I. Sept. 20, 2021). As in the D.C. district court case, the Rhode Island district court concluded that the monitoring rule is authorized by Section 1853 of the MSA. Section 1853(b)(8) authorizes observers in FMPs. Further, Section 1853(a) states that FMPs must include “conservation and management measures” that are “necessary and appropriate” to “prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery.” At-sea monitors collect data to ensure that the conservation measures put in place are followed and help prevent overfishing. Next, the court considered the plaintiffs’ argument that the monitoring rule violated the Commerce Clause by requiring them to participate in the market for at-sea monitors. The court was unpersuaded by this argument, noting that the plaintiffs are voluntarily in the commercial herring fishing market and free to pursue commercial fishing in a manner that would put them beyond the scope of the monitoring rule. For example, the fishermen could choose not to fish for herring, fish outside the New England region, or use fishing vessels that qualify for electronic monitoring. Like its D.C. counterpart, the Rhode Island district court allowed the rule to survive by granting the defendants’ motion for summary judgment.

    Although two different courts defeated challenges to the monitoring rule, this may not be the end of the road for the commercial fishermen challenging the monitoring rule. The plaintiffs in Loper have filed an appeal with the D.C. Circuit Court of Appeals, but the timeline for the case is unclear for now.

  • Terra Bowling
    Senior Research Counsel

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