Magnuson-Stevens in a Post-Chevron World

Fishing boats

After June 28, 2024, when the United States Supreme Court handed down its decision in Loper Bright Enterprises v. Raimondo (Loper Bright), some of the commentary in both the popular press and various legal publications made it sound as if the sky had fallen. One opinion article in the Tampa Bay Times went so far as to proclaim, “U.S. fisheries could be devastated by Supreme Court’s ending the Chevron doctrine.”

Such reactions are almost certainly overblown, at least with respect to fisheries issues. To understand why, one must take a look not only at the lawsuit and the court’s decision, but also at the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which governs all fishing in the marine waters of the United States.

The Issues Underlying Loper Bright

Loper Bright was brought by a group of Atlantic herring fishermen who challenged a National Marine Fisheries Service (NMFS) regulation that required such fishermen to carry industry-funded observers aboard their vessels, which cost vessel owners as much as $710 per day. The fishermen argued that Magnuson-Stevens did not authorize NMFS to impose industry-funded observers on Atlantic herring vessels, while NMFS argued that language in Magnuson-Stevens, which authorizes it to “require that one or more observers be carried upon a vessel of the United States engaged in fishing…for the purpose of collecting data,” when read together with other language that permitted the agency to impose “measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery” gave it all the authority that it needed to require the observers.

The fishermen argued that, while the statute did allow NMFS to require observers aboard fishing vessels, and stated that observers must be carried in a few specified fisheries, nothing in the law authorized NMFS to force Atlantic herring fishermen to pay for the observers carried aboard their vessels. They also noted that NMFS had originally paid for the herring observers, but that a change to the management plan, made in 2013, allowed NMFS to require industry funding if federal funding became unavailable.

The trial court, after weighing both sides’ arguments, found that there was some ambiguity in Magnuson-Stevens’ language, and invoked the so-called “Chevron doctrine,” created by the Supreme Court when it decided Chevron U.S.A. v. Natural Resources Defense Council (Chevron v. NRDC) in 1984.

In Chevron v. NRDC, the court found that, “if…the court determines that Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” The Court thus gave administrative agencies, rather than the courts, the power to interpret the meaning of certain statutes, writing, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”

The trial court applied the Chevron doctrine to the issues raised in Loper Bright, and found that NMFS had the authority to require industry-paid observers in the Atlantic herring fishery. The United States Court of Appeals for the District of Columbia Circuit affirmed the trial court’s decision, although one member of the three-judge panel dissented, and would have had the court find for the fishermen.

However, the Supreme Court disagreed with the lower courts’ analyses. While it did not decide whether Magnuson-Stevens authorized NMFS to require industry-paid observers in the Atlantic herring fishery, and remanded that matter for the Court of Appeals to decide, it overruled the Chevron doctrine, finding that only the courts, and not administrative agencies, had the authority to interpret the meaning of federal laws.

Chevron Was Never Consistently Applied

While most observers expected the Supreme Court to limit the Chevron doctrine’s application, fewer expected the doctrine to be completely overturned. Yet, throughout much of the Chevron doctrine’s history, the court has demonstrated at least some skepticism about its use.

In 2018, Michael Kagan, a professor at the University of Nevada, Las Vegas William S. Boyd School of Law, published an article titled “Loud and Soft Anti-Chevron Decisions” in the Wake Forest Law Review, where he pointed out multiple occasions on which the Supreme Court chose to ignore, or at least find a way to work around, its holding in Chevron v. NRDC. He noted that

To a great extent, the current analytical challenge in administrative law is not new—it is just more out in the open. Since the early days of the doctrine, the trouble with Chevron has been in understanding why the Court does one thing in one case but another thing in another case. The problem is not that the court has sometimes explicitly indicated that there are exceptions to this doctrine…Instead, the problem is that the Court far more frequently fails to follow Chevron’s normal two-step analysis in cases to which it seems to apply and then does not explain why. Explaining this inconsistency has long been a preoccupation of administrative law scholarship…

At least one scholar has recently suggested that the Court’s “failure to apply Chevron where it would seem to apply,” should be seen as a signal of reluctance about “a full-throated Chevron doctrine…

The clearest expressions of doctrinal doubts are what can be called “loud” anti-Chevron decisions, where the judges actually articulate a limitation on or a critique of the doctrine…The bigger difficulty concerns the many decisions in which the Supreme Court failed to apply Chevron when it ostensibly should have mattered or applied it is such a way as to render the doctrine irrelevant.

Kagan also notes that, in the beginning, the Chevron doctrine wasn’t viewed as a major change in administrative law, particularly by the Supreme Court.

The doctrinal meaning typically attributed to the case has been much more than anyone would have anticipated from reading the decision itself. The Chevron doctrine actually developed through interpretation by lower courts than from an immediate understanding that the Supreme Court had issued a watershed decision. In fact, it could be said that the Chevron doctrine would more appropriately be termed the General Motors doctrine, in honor of the D.C. Circuit decision that seems to have been the first to cite and explain Chevron as a major change in administrative law.

To further his argument, he quotes Michael Herz’s 2015 article in the Columbia Law Review, “Chevron is Dead; Long Live Chevron,” which opined that “Despite all the attention…the ‘Chevron revolution’ never quite happens. This decision, though seen as transformatively important, is honored in the breach, in constant danger of being abandoned, and the subject of perpetual confusion and uncertainty.”

The Supreme Court’s Reasoning in Loper Bright

In the face of that sort of judicial ambiguity and uneven application, it was probably only a matter of time before the Chevron doctrine was modified, limited or, as proved to be the case, completely overruled. While the court’s decision in Loper Bright will undoubtedly cause some difficulties at federal agencies, the basis for that decision was not, as some have suggested, ideologically extreme. Instead, it was rooted in the plain language of the federal Administrative Procedure Act which, as the court noted, “prescribes procedures for agency action and delineates the basic contours of judicial review of such action.”

The relevant section of the Administrative Procedure Act, Title 5, Section 706 of the United States Code, unambiguously states that “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. [emphasis added]” It was in light of such language that the Supreme Court decided that the Chevron doctrine was in direct conflict with the governing statute, and must be overturned.

How Will Loper Bright Impact Magnuson-Stevens?

The important questions now, with respect to marine conservation, are how the Loper Bright decision might impact the application of the Magnuson-Stevens Fishery Conservation and Management Act, and whether the NMFS’ efforts to conserve and manage the nation’s living marine resources will be badly hampered as a result.

Some within the conservation community fear that the Loper Bright decision will do real harm. They fear that judges who lack the needed technical background and training will attempt to decide between competing scientific arguments, and perhaps substitute their own opinions for an agency’s considered determination. However, the Loper Bright decision does not set the stage for such outcome, as it merely confirms the courts’ sole authority to decide issues of law and statutory interpretation.

Loper Bright does not authorize the courts to substitute their judgement for that of the agencies with respect to issues of fact.

The distinction between the courts’ obligation to decide questions of law and the agencies’ responsibility to decide questions of fact is clearly set out in the Loper Bright decision, when it states,

The [Administrative Procedure Act]…codifies for agency cases the unremarkable, yet elemental proposition…that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action (emphasis added)—even those involving ambiguous laws—and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because Section 706 [of the Administrative Procedure Act] does mandate that judicial review of agency policymaking and factfinding be deferential.

Thus, an administrative agency may, in its factfinding capacity, adopt the conclusions presented in presumably objective research rather than those developed in industry-funded, and so possibly biased, studies and, so long as the basis for its decision is clearly articulated in the administrative record, have no fear that such factfinding will be overturned by a reviewing court. The agency may use the results of such research to formulate policy without worrying about such policy being overturned during judicial review. But what an agency cannot do, under any circumstances, is decide arguments about the scope or meaning of the statutes that created the agency or define the scope of its authority for, in the wake of the Loper Bright decision, adjudicating such arguments is the sole responsibility of the courts.

When those principles are applied to Magnuson-Stevens, there is little question that the Loper Bright decision may prevent NMFS from expanding its authority beyond the bounds set out in the statute, and from taking action that is not clearly authorized in such law. Should NMFS base a regulatory action on its own interpretation of a statute, the demise of the Chevron doctrine makes it more likely that an aggrieved party will seek judicial review, and more likely that such party will prevail. That being said, the Loper Bright decision is unlikely to seriously degrade NMFS’ ability to conserve and manage the nation’s living marine resources.

That is because there is little ambiguity with respect to the core conservation and management provisions of Magnuson-Stevens. The National Standards for Fishery Conservation and Management are explicit, as are the provisions establishing and authorizing the regional fishery management councils. Magnuson-Stevens spells out which provisions that must be included in fishery management plans, as well as what provisions may be included in such plans. The duties of the Secretary of Commerce, with respect to fisheries management, are clearly stated, as is the timeline for rebuilding overfished stocks. While some ambiguities remain, one of which gave rise to the Loper Bright case, the meaning of the law’s core provisions, which have been challenged and interpreted by the courts on many occasions, have generally been settled.

Because Magnuson-Stevens’ central conservation and management provisions are clearly expressed, and have already been subject to judicial review, it is unlikely that NMFS’ efforts to properly conserve and manage fisheries resources will be unduly hampered by the Supreme Court overruling the Chevron doctrine. Since the court’s decision in Loper Bright explicitly recognizes that courts must defer to agencies’ findings of fact, NMFS should still be able to use its factfinding authority to determine whether a stock is overfished or experiencing overfishing, and to set annual catch limits likely to rebuild overfished stocks and maintain sustainable fisheries. It will merely have to adopt management measures that clearly fall within the letter of the law.

Finally, when considering the long-term impact of the Loper Bright decision, we should always remember that the Chevron doctrine, when first applied in Chevron v. NRDC, ultimately hindered the cause of conservation.

In the years since, the Chevron doctrine has often been used to preserve an agency’s conservation initiatives, but we should never forget that, in the future, voters might easily elect a new president who is hostile to conservation concerns, and more than willing to allow industry to pollute the air and water, and overexploit the nation’s natural resources. Such an administration might well seek to interpret federal laws in a way that creates a more industry-friendly regulatory environment, in which those who pollute the air and water, or cause harm to living resources, can easily escape significant sanctions.

Under such circumstances, we may be grateful that the law doesn’t allow administrative agencies to issue their own interpretations of the governing law, but rather subjects their actions to judicial scrutiny that might keep at least some legislative safeguards in place.

Top photo: Purse seining For Maine Herring, via NOAA

About Charles Witek

Charles Witek is an attorney, salt water angler and award-winning blogger. Read his work at One Angler’s Voyage.

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