Loper Bright Enterprises, Inc. v. Wilbur L. Ross, Jr.
544 F.Supp.3d 82
D.D.C.2021Background
- Plaintiffs (commercial Atlantic herring fishermen) challenged the New England Industry‑Funded Monitoring Omnibus Amendment and implementing regulations, which established a process for future industry‑funded monitoring and imposed a 50% monitoring coverage target (combining industry‑funded coverage and NMFS SBRM) for Category A/B herring permit trips.
- The Omnibus Amendment allows vessels to contract with NMFS‑certified third‑party monitoring providers and pay those providers directly; exemptions and alternatives (e.g., waivers for trips landing <50 mt, electronic monitoring EFPs, use of SBRM credit) were built in to reduce costs.
- Plaintiffs asserted claims under the MSA, NEPA, the Regulatory Flexibility Act, the APA, and alleged violations of the Anti‑Deficiency Act, Miscellaneous Receipts Act, IOAA, and the U.S. Constitution (tax); they also sought to admit an extra‑record declaration regarding monitoring costs.
- The agency followed the Council submission, Federal Register notice(s), comment periods, and promulgated the final rule (Feb. 7, 2020); the court expedited review under the MSA and limited review to the administrative record.
- District court excluded the extra‑record declaration, denied plaintiffs’ summary judgment, and granted defendants’ cross‑motion, upholding the Omnibus Amendment across the asserted statutory, constitutional, and procedural claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Extra‑record evidence (Kaelin decl.) | Declaration about monitoring costs should be considered to illustrate impacts | Review limited to administrative record; no exceptional circumstances shown | Excluded — no departure from record allowed |
| Statutory authority under MSA | MSA does not authorize requiring industry to pay for monitors | MSA authorizes at‑sea monitors and "necessary and appropriate" measures; practice supports industry funding | Authorized — agency acted within MSA or reasonably interpreted it |
| Agency finance statutes (Anti‑Deficiency, Misc. Receipts, IOAA) | Industry funding unlawfully circumvents appropriations and receipts rules | Payments flow to private providers, not government; agency receives no funds or fees here | No violation — statutes not implicated |
| Unconstitutional tax | Payments are effectively a government‑imposed tax | Payments go to private vendors; government receives no revenue | Not a tax — constitutional argument fails |
| National Standards 7 & 8 (MSA) | Costs to fishing communities outweigh benefits; duplication and disparate burden on midwater trawl fleet | Agency considered alternatives, exemptions, and mitigation; balanced conservation and economic impacts | No violation — Secretary’s conclusions were rational and supported by record |
| NEPA (EA/FONSI, supplementation, predetermination) | Agency failed to take hard look, consider alternatives/mitigation, predetermed outcome, and should have supplemented EA after catch reductions | Plaintiffs lack NEPA zone‑of‑interests (economic harms); EA considered alternatives/impacts reasonably; catch reductions not a materially different environmental picture | Dismissed: lack of NEPA cause of action; alternatively EA adequacy and no supplementation/predetermination violation |
| Regulatory Flexibility Act | IRFA/FRFA were conclusory and inadequate about small‑entity impacts | Agency conducted reasonable analysis, prepared FRFA, and considered alternatives/exemptions | RFA obligations satisfied (no reversible procedural defect) |
| Approval/process (simultaneous proposed regs, notice) | Agency improperly proposed regs before Secretary’s approval and sent non‑public letter to Council | MSA contemplates simultaneous submission and notice; agency followed statutory timelines and provided public comment opportunity | Procedurally proper |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (two‑step deference framework for agency statutory interpretation)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard for agency rulemaking)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (administrative‑record review principle)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (standard for supplementing environmental analyses)
- Michigan v. EPA, 576 U.S. 743 (2015) (limits on agency use of permissive language; consideration of costs)
- Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (definition/essential features of a tax)
- New York Stock Exch., LLC v. SEC, 962 F.3d 541 (D.C. Cir. 2020) (limits on agency reliance on open‑ended "necessary and appropriate" authority)
- C & W Fish Co. v. Fox, Jr., 931 F.2d 1556 (D.C. Cir. 1991) (standard of review for Fishery Management Plan national standards)
- Groundfish Forum v. Ross, 375 F. Supp. 3d 72 (D.D.C. 2019) (MSA "conservation and management" scope and agency authority)