Loper Bright Enters., Inc. v. Raimondo

Decision Date12 August 2022
Docket Number21-5166
Citation45 F.4th 359
Parties LOPER BRIGHT ENTERPRISES, INC., et al., Appellants Cape Trawlers, Inc., et al., Appellees v. Gina RAIMONDO, in her official capacity as Secretary of Commerce, et al., Appellees
CourtU.S. Court of Appeals — District of Columbia Circuit

Eric R. Bolinder argued the cause for appellants. With him on the briefs was Ryan P. Mulvey.

Daniel Halainen, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Todd Kim, Assistant Attorney General, and Rachel Heron, Attorney.

Before: Srinivasan* , Chief Judge, Rogers and Walker, Circuit Judges.

Dissenting opinion by Circuit Judge Walker.

Rogers, Circuit Judge:

In implementing an Omnibus Amendment that establishes industry-funded monitoring programs in New England fishery management plans, the National Marine Fisheries Service promulgated a rule that required industry to fund at-sea monitoring programs. A group of commercial herring fishing companies contend that the statute does not specify that industry may be required to bear such costs and that the process by which the Service approved the Omnibus Amendment and promulgated the Final Rule was improper. We affirm the district court's grant of summary judgment to the Service based on its reasonable interpretation of its authority and its adoption of the Amendment and the Rule through a process that afforded the requisite notice and opportunity to comment.


The Magnuson-Stevens Fishery Conservation and Management Act of 1976 (the "Act"), 16 U.S.C. §§ 1801 – 1884, in furtherance of its goal "to conserve and manage the fishery resources ... of the United States," 16 U.S.C. § 1801(b)(1), authorizes the Secretary of Commerce, and the National Marine Fisheries Service ("the Service") as the Secretary's delegee, to implement a comprehensive fishery management program, id. § 1801(a)(6) ; see id. §§ 1854, 1855(d). Key to the statutory scheme is the promulgation and enforcement of "fishery management plans." Plans and periodic amendments are developed by regional fishery management councils, id. § 1852(h)(1), and include measures "necessary and appropriate for the conservation and management of the fishery," id. § 1853(a)(1)(A). The proposing council may include specific conservation and management measures enumerated in 16 U.S.C. § 1853(b), as well as any other measures "determined to be necessary and appropriate," id. § 1853(b)(14). In addition, the council may propose implementing regulations. Id. § 1853(c).

Nine fisheries, including the Atlantic herring fishery, are managed by the New England Fishery Management Council (the "Council"). Id. § 1852(a)(1)(A), (h)(1). The Council submitted the Omnibus Amendment to the Service, which published a notice of availability and subsequently opened a comment period. Notice of Availability, 83 Fed. Reg. 47,326 (Sept. 19, 2018) ; Notice of Proposed Rulemaking ("NPRM"), 83 Fed. Reg. 55,665 (Nov. 7, 2018). The Service approved the Omnibus Amendment on December 18, 2018, and published the Final Rule on February 7, 2020.1 The Amendment and the Rule set out a standardized process to implement and revise industry-funded monitoring programs in the New England fisheries. Omnibus Amendment at v; Final Rule, 85 Fed. Reg. at 7,414–17. Plan coverage requirements may be waived if monitoring is unavailable or certain exemptions based on use of monitoring equipment or catch size apply. See Final Rule, 85 Fed. Reg. at 7,417, 7,419 –20.

The monitoring program for the Atlantic herring fishery covers 50 percent of herring trips. The 50-percent coverage target is met through a combination of limited Service-funded monitoring pursuant to the fishery management plan, see 16 U.S.C. § 1853(a)(11), and, for the difference between the target and Service-funded monitoring, industry-funded monitoring, with owners of vessels selected by the Service to carry an industry-funded monitor and pay the associated costs (other than administrative costs). Final Rule, 85 Fed. Reg. at 7,417. The Service estimated industry costs to the herring fishery "at $710 per day," which in the aggregate could reduce annual returns by "approximately 20 percent." Id. at 7,418.

Appellants are commercial fishermen who regularly participate in the Atlantic herring fishery. They filed a lawsuit alleging, as relevant, that the Act did not authorize the Service to create industry-funded monitoring requirements and that the rulemaking process was procedurally irregular. The district court ruled on the partiescross-motions for summary judgment in the government's favor. Loper Bright Enters., Inc. v. Raimondo , 544 F. Supp. 3d 82, 127 (D.D.C. 2021).


On appeal, appellants’ challenge to the Final Rule presents the question how clearly Congress must state an agency's authority to adopt a course of action. This court is aware of the Supreme Court precedent that Congress must clearly indicate its intention to delegate authority to take action that will have major and far-reaching economic consequences. Util. Air Regul. Grp. v. EPA , 573 U.S. 302, 323–24, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014). But that "major questions doctrine" applies only in those " ‘extraordinary cases in which the ‘history and breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress meant to confer such authority." West Virginia v. EPA , ––– U.S. ––––, 142 S. Ct. 2587, 2595, 213 L.Ed.2d 896 (2022) (alteration in original) (quoting FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 159–60, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ). Here, the Service's challenged actions are distinct. Congress has delegated broad authority to an agency with expertise and experience within a specific industry, and the agency action is so confined, claiming no broader power to regulate the national economy. The court's review thus is limited to the familiar questions of whether Congress has spoken clearly, and if not, whether the implementing agency's interpretation is reasonable. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Although the Act may not unambiguously resolve whether the Service can require industry-funded monitoring, the Service's interpretation of the Act as allowing it to do so is reasonable.


Appellants contend the Act permits the Service to require at-sea monitors but prohibits any industry-funded monitoring programs beyond three circumstances. The Service responds that the Act unambiguously authorizes it to implement industry-funded monitoring requirements. The court applies the familiar two-step Chevron framework. See, e.g. , Cigar Ass'n of Am. v. FDA , 5 F.4th 68, 77 (D.C. Cir. 2021) (citing Chevron , 467 U.S. at 842–43, 104 S.Ct. 2778 ). At Chevron Step One, the court, "employing traditional tools of statutory interpretation," evaluates "whether Congress has directly spoken to the precise question at issue." Chevron , 467 U.S. at 842–43 & n.9, 104 S.Ct. 2778. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842–43, 104 S.Ct. 2778. If the statute considered as a whole is ambiguous, then at Chevron Step Two the court defers to any "permissible construction of the statute" adopted by the agency. Cigar Ass'n of Am. , 5 F.4th at 77 (quoting Chevron , 467 U.S. at 843, 104 S.Ct. 2778 ).

At Chevron Step One, the court "begin[s] with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist. , 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004) (internal quotation marks omitted). Section 1853(b)(8) provides fishery management plans may "require that one or more observers be carried on board a vessel ... for the purpose of collecting data necessary for the conservation and management of the fishery." That text makes clear the Service may direct vessels to carry at-sea monitors but leaves unanswered whether the Service must pay for those monitors or may require industry to bear the costs of at-sea monitoring mandated by a fishery management plan. When Congress has not "directly spoken to the precise question at issue," the agency may fill this gap with a reasonable interpretation of the statutory text. Chevron , 467 U.S. at 842, 104 S.Ct. 2778.

The Service maintains that two additional features of the Act, when paired with Section 1853(b)(8), unambiguously establish authority to require industry-funded monitoring. First, Section 1853 contains two "necessary and appropriate" clauses that permit plans approved by the Service to "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." Id. § 1853(b)(14); see also id. § 1853(a)(1)(A) (mandating "measures ... necessary and appropriate for the conservation and management of the fishery"). Second, the penalty provisions allow the Service to impose permit sanctions for failure to make "any payment required for observer services provided to or contracted by an owner or operator," id. § 1858(g)(1)(D), and make unlawful various acts committed against "any data collector employed by the [Service] or under contract to any person to carry out responsibilities under [the Act]," id. § 1857(1)(L).

Taken together, these provisions of the Act signal the Service may approve fishery management plans that mandate at-sea monitoring for a statutory purpose. Section 1853(b)(8) grants authority to require that vessels carry at-sea monitors. Sections 1853(a)(1)(A) and (b)(14) grant authority to implement measures "necessary and appropriate" — a "capacious[ ]" grant of...

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