45 F.4th 359
D.C. Cir.2022Background
- The New England Fishery Management Council submitted an Omnibus Amendment to require standardized industry-funded at-sea monitoring programs; NOAA Fisheries (the Service) approved the Amendment and promulgated a Final Rule.
- The Final Rule sets a 50% observer-coverage target for the Atlantic herring fishery, met via a mix of Service-funded and industry-funded monitoring; vessel owners selected for coverage must pay third-party monitors (~$710/day; ~20% reduction in annual returns estimated).
- Appellants (commercial herring fishermen, e.g., Loper Bright) sued, arguing (1) the Magnuson–Stevens Act does not authorize the Service to require industry-funded monitoring and (2) the Amendment/Rulemaking process violated statutory timing and notice/comment requirements.
- The district court granted summary judgment for the government; the D.C. Circuit affirmed, applying Chevron deference and upholding the Rule as not arbitrary and capricious and procedurally adequate.
- Judge Walker dissented, concluding the statute unambiguously does not authorize forcing fishermen to pay monitors and that silence is not an implicit delegation of that funding authority.
Issues
| Issue | Plaintiff's Argument (Loper Bright) | Defendant's Argument (Raimondo/Service) | Held |
|---|---|---|---|
| Authority to require industry-funded at-sea monitoring under the Magnuson–Stevens Act | Act does not authorize shifting monitor wages to industry except in limited, specific statutory contexts | Statutory provisions (observer authorization, "necessary and appropriate" language, penalty provisions) and practice permit reasonable agency design of funding mechanisms | Chevron Step One: text not unambiguous; Step Two: agency interpretation reasonable and entitled to deference; authority upheld |
| Application of the "major questions" doctrine | Significant economic impact requires clear congressional statement before agency may act | Action is limited to fisheries context and Congress delegated broad, technical authority; not a major-questions case | Court declined to apply major-questions threshold and proceeded under Chevron |
| APA arbitrary-and-capricious challenge based on cost analysis | Agency failed adequately to account for economic harms to herring fishermen (~20% loss) | Agency analyzed costs, considered comments, and adopted mitigation (waivers, electronic monitoring, exemptions) | Rule survived arbitrary-and-capricious review; agency adequately considered costs and minimized impacts where possible |
| Procedural challenges (statutory timelines; overlapping comment periods) | Service missed statutory deadlines and prejudged outcome by overlapping comment periods | Timing violations were technical/harmless; notice-and-comment was adequate and Act contemplates concurrent consideration of plan and regulations | Timing lapses were harmless; notice and opportunity to comment satisfied APA and statute; no relief warranted |
Key Cases Cited
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) (framework for judicial review of agency statutory interpretations)
- Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014) (discusses need for clear congressional authorization for rules of vast economic significance)
- West Virginia v. EPA, 142 S. Ct. 2587 (2022) (major questions doctrine and limits on agency power)
- Michigan v. EPA, 135 S. Ct. 2699 (2015) (agency must consider costs when reasonable and statutory text requires)
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (agencies cannot assert regulatory power contrary to clear statutory limits)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary-and-capricious standard for rulemaking)
- Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) (courts generally will not impose sanctions for missed statutory timing where statute specifies none)
- City of Arlington v. FCC, 569 U.S. 290 (2013) (agency has authority to interpret its statutory jurisdictional provisions; Chevron reaffirmed)
- U.S. Telecom Ass'n v. FCC, 359 F.3d 554 (D.C. Cir. 2004) (silence in statute does not always equal delegation of authority)
- N.Y. Stock Exch. LLC v. SEC, 962 F.3d 541 (D.C. Cir. 2020) (agency action without delegated authority receives no deference)