A Hollywood depiction of the lives of fishermen tells a real life story about how Executive Branch overreach damages American families. Hear from two practitioners challenging the administrative state on these very regulations depicted in “Coda” and learn why telling clients’ stories is critical to reform.
Eric Bolinder, Managing Policy Counsel, Americans for Prosperity Foundation; Counsel, Cause of Action Institute
John Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
Moderator: Eileen O'Connor, Founder, Law Office of Eileen J. O'Connor PLLC
To register, click the link above
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Guy DeSanctis: Welcome to The Federalist Society’s webinar call. Today, May 12th, we discuss, “Hollywood’s Recent Best Picture Winner Shines a Spotlight on the Harms on the Administrative State.” My name is Guy DeSanctis, and I am an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.
Today, we are fortunate to have with us our moderator, Eileen O’Connor. She is Chairman of the Executive Committee of The Federalist Society’s Administrative Law and Regulation Practice Group. For six years, during the administration of President George W. Bush, she was the Assistant Attorney General of the United States, responsible for the Tax Division of the Department of Justice. She’s now in private practice with her own firm. Throughout the panel, if you have any questions, please submit them through the Q&A feature so that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. Elieen, the floor is yours.
Eileen O'Connor: Thank you, Guy. Welcome, all, to this program about one of the many ways in which the federal government regulates the activities of the American fishing industry. As Guy said, after our speakers have discussed our topic, they will respond to the questions you have posed in the question -- in the Question and Answer, or chat, feature. So, as the discussion proceeds, go ahead and type in the questions you’d like to pose, including if you have a preference which speaker you would like to address it. It’s not every day that an Academy Award-winning movie is made about administrative law. In fact, it has probably never happened before.
You might have thought that the movie CODA, the acronym for “child of deaf adults,” was about a family consisting of deaf adults and a hearing child. And it was. But to administrative law scholars and attorneys, it was also about how federal regulations affected that family. We are fortunate to have as our speakers today two attorneys, each of whom is presently engaged in litigation on behalf of clients challenging some of these regulations. Their biographies are in the materials for this program, so I’ll just briefly introduce them, so we can get straight to the discussion of our topic.
John Vecchione is Senior Litigation Counsel at the nonprofit New Civil Liberties Alliance. His fishing industry regulation challenge is presently in the First Circuit. Eric Bolinder is Managing Policy Counsel at American for Prosperity Foundation and Counsel at Cause of Action Institute. It is in this latter capacity that he is representing plaintiffs challenging some fishing industry regulations in the DC Circuit. Before I pass the baton, I need to mention that I might occasionally interrupt a speaker and ask that he explain an acronym he has just used. The fishing industry and the laws and regulations governing it are full of acronyms most of us have not encountered before. Eric, get us started.
Eric Bolinder: Thank you so much, everyone, for joining today, and thank you so much for the kind introduction. You might have seen the CODA won Best Picture at the Oscars. And I had not watched the movie until I saw it won Best Picture, and I sat down with my wife one night and said, “Oh, let’s watch this movie. It seems like a really nice movie.” About 20 minutes into the movie, all of a sudden, some of the characters start talking about a regulation that I and John and -- both John and I have been litigating for seven years. And I was stunned. I turned to my wife and said, “Can you believe this? This must just be the only mention of it in the movie, but this is so exciting.”
Well, it turns out that this fishery regulation, which I’ll describe in detail, was a main plotline and drove a lot, not all, but a lot of the primary conflict in the movie throughout the entire movie. And I don’t want to say I’m overreaching here in saying that it is probably one of the greatest depictions of the harms of administrative law in American families that I’ve ever seen. And a lot of people --
John Vecchione: Outside of Ghostbusters, yes.
Eric Bolinder: Of course. That I’ve ever seen. And one thing that the movie really drives home — before I tell you about what happened here — is that — and I think this is something that all administrative law practitioners and people that tell stories need to understand to relate to people — is that, when a federal or a state bureaucrat passes a regulation that might impose a new cost or a new paperwork burden, on the other end of that regulation, very often, is a small business and an American family, sitting around the table at dinner, looking at each other and saying, “How are we going to deal with this? How are we going to survive this? How -- is this going to put us out of business? Is this going to ruin the family business that we’ve had for decades or maybe even longer?”
And I think this movie does a great job of telling that story, and I think sometimes we get caught up in the very issues of litigating administrative law. We need to not miss the opportunity to tell stories like that. So let me tell you a little bit about the story here. The way fisheries are regulated in the United States is very complicated, so I’m going to try and give the shortest and most basic explanation I can. The fisheries are divided up into eight regional councils, and then, within the councils, there’s specific fisheries. There might be a groundfish fishery.
There might be the fishery we’re talking about today, which is the herring fishery. And the councils pass what are called Fishery Management Plans, or Amendments to Fishery Management Plans, and the councils have both government and industry participants on them. In order for a new regulation under the governing statute — which is Magnuson-Stevens Act — to be passed, most of the time it needs to originate in the Fishery Management Council. So they come up with a new Fishery Management Plan and say, “X, Y, Z’s going to be regulated this way.” There’s a public hearing period. There’s all sort of procedural issues there. Then, it goes up to the Department of Commerce, which has governing — obviously, the National Oceanic and Atmospheric Administration is under the Department of Commerce — for both NOAA and the Department of Commerce to review the regulation and then improve and then, in most cases, implement it.
The issue we’re dealing with is — and that’s in the movie, CODA — is that the statute says -- the Magnuson-Stevens Act says that the government can require fishermen to carry monitors on their boat, which are basically government minders to watch them fish and ensure that they comply with the law and regulations and whatever it may be --
John Vecchione: They’re called observers.
Eric Bolinder: Observers, right. They’re called observers and monitors. And I recently wrote a Wall Street Journal op-ed that said this is like a taxicab driver has to have a state trooper riding along with him to make sure he doesn’t speed and doesn’t overcharge passengers. And the statute does require. It is an extraordinary invasion of the fisherman’s privacy on the boat. A lot of times, they have to -- they bunk on the boat. They watch a lot more on the boat and just the compliance measures that you would think of.
But then, the government went a step further, and when it started running out of money to pay for these monitors, these observers, it said, “Well, let’s make the industry pay for them.” So it first started with the groundfish industry, which is what you see in the movie, CODA, where they finalized a rule that said, “Well, even though” -- and, of course, in our view, even while there’s nothing in the statute that gives the government the authority to do this, not only do they have to carry these government minders on their boat, they also have to pay the salary for them to ride the boat. And that salary and those other fees and costs in riding the boat can be from between $700 to $800 a day. And the movie very accurately depicted it and talked about it as $800 a day. Now, when you think about a commercial fisherman, I think some people get a misconception. You’re talking about some big boat out deep in the ocean.
Most commercial fishermen, particularly in the New England fishery that we’re talking about here, are small, family-owned boats. They’ve been in the families for years. Maybe they have one boat. Maybe they have a couple more. These are really salt of the earth, American small business, when you think about it. And, so, these regulatory costs are very significant on the amount of money that they take home every day.
And indeed, in some circumstances, they could actually lose money because they don’t make enough money to cover all the costs of their crew and everything else and also pay these government minders that ride their boat. Now, at Cause of Action, we sued on behalf of the ground fishermen that are depicted in the movie. But we lost on an interesting statute of limitations technicality. So the rule was --
John Vecchione: That was called the Goethel case.
Eric Bolinder: The Goethel case. That’s right. The rule was actually promulgated in -- or finalized in 2010, but they never enforced it. And in 2015, all of a sudden, the government started to decide, “Oh, we’re going to implement and enforce it.” It was then in 2015 that we sued, once they implemented it. The statute has a 30-day -- yes, 30-day statute of limitations on challenges.
Of course, we argued, “Well, 2015’s when they implemented, so that triggered it.” And the courts disagree. So that went up in the First Circuit and never really got a substantive hearing, although --
John Vecchione: The First Circuit ruled that the statute of limitation applied. The agency had cooled the mark. These fishermen don’t have lawyers. They didn’t even come to a lawyer because the government wasn’t doing anything to them. The government actually says, “Now, we’re doing it to you.” They go get a lawyer, and the court says, “You’re out of time.” So that’s what happened in the Goethel case. There was no substantive ruling. Sorry, Eric.
Eric Bolinder: The lower court did opine on the merits in dicta. The First Circuit didn’t touch it. In dicta, it did find erroneously, in our viewpoint, that the government had statutory authority here, and I’ll get into why that’s erroneous in just a moment. So then -- the government, then, they’re not just going to stop at the groundfish fishery. They’re going to try and expand this to every fishery. Their next target was the herring fishery in New England.
This time, we were ready. We knew it was coming. We sued within 30 days. There’s no statute of limitations issue, and we get right to the merits. And the primary argument is this the statute -- nowhere in the Magnuson-Stevens Act is the government afforded any authority to shift costs onto fishermen in this fishery. Now, “in this fishery” is an important point because Congress did give the government authority to shift the monitoring costs onto fishermen in three specific fisheries.
So Congress looked at the statute and said, “Well, this is in our viewpoint. There’s no general authority here, but the North Pacific fishery, a special program called Limited Access Privilege Program, and the foreign fishery, we do want government to be able to bill a fisherman for the cost of having the observers and monitors on the boat. So we’re going to give them authority in those three circumstances and those three circumstances only.” So, of course, we argue, first of all, there’s silence in the statute. You can’t do this. Second of all, even so, the fact that Congress went out of the way to give this explicit authority in three specific fisheries, and this is -- administrative law practitioners will say, “Well, that’s -- the specific governs the general canon. Right?
If they have this general authority, then why did the fish -- why did Congress feel it necessary to give these specific authorities? The specific would -- or the general would swallow the specific.” There’s an alternative argument known as expression unius -- right? -- done by implication that they don’t have this authority. And, so, we brought this case. We had some other challenges as well on procedure that the government prejudged the legality of the amendment. And unfortunately, we lost at the district court level.
Now, both us and the government argued, in our case — John has a separate case, which he’ll talk about — that the case should be decided on Chevron Step One. We say, “It’s unambiguous, that they don’t have this authority.” And the government says, “Well, it’s --
John Vecchione: Opposite way, ambiguous. Right? It’s unambiguous to you one way, and unambiguous to them on the other way.
Eric Bolinder: Exactly. Exactly. So we -- both the government and -- that’s the one thing the government agreed on was, “Well, it’s unambiguous. It’s just we both went a different way.” The district court found for the government on Chevron Step One. He did say, in one sentence, “Alternatively, I would have found for them on Chevron Step Two if I hadn’t found for them on Step One.” So we appealed.
The appeal has been fully briefed and argued at the DC Circuit. Of note, Judge -- then-Judge Ketanji Brown Jackson, now Justice-designee Jackson was on the panel. And in the oral argument, I had a really interesting colloquy with her, where she was pressing me on, “Well, you need to basically disprove that the government has this authority.” And my response was, “Well, that’s sort of backwards. The obligation is on the government to show it has any authority at all, particularly regulatory agency.”
But, in addition, I think we did show that many other agencies have not exercised this sort of authority with a statute underneath. And the government’s two primary arguments were, one, “Well, we have the implicit authority to shift costs and regulation just because they gave us the authority to carry the monitors. And in the alternative, there’s a necessary and appropriate clause stacked at the end of a long statutory list that says nothing about charging fishermen for anything except for their permits, and that gives us the authority.” And, of course, our response is that Congress’s silence rules the day, and in addition, we have the specific general [inaudible 00:13:05]. So our case is really focused on the statutory issues. John’s case, which is in the same fishery but with different clients, has some unique issues in it, and I’ll shift it over to him to talk about this.
John Vecchione: All right. So I give the name of these cases. Eric’s case, with Cause of Action, that we started Cause of Action was -- is called Loper Bright. That’s the lead plaintiff. Ours is called Relentless, named after the company and ship. That’s the lead plaintiffs.
The other one is Huntress. So they’re good names, I think, for a case. But, in any event -- so we filed in Rhode Island, and we lost also on a cross-motion for summary judgment on many of the same issues. I’ll talk about some of the different ones. But, in our case, the judge said, “This is very ambiguous. I -- it’s ambiguous.” That’s Chevron Step One for the nonlawyers out there, that -- the first a court says is, “Is this statute clear or not clear?”
If it’s not clear, it’s ambiguous. So the ambiguous statute, you see, then goes and looks at other things and uses the canons of interpretation and other sort of things. So he looked at them, and he said, “Hey, there’s Chevron.” That’s case where you have to defer to the agency’s reasonable interpretations. So he says, “I can’t get you there on the fact that it’s unambiguously in your corner, but you’re the government. I’ve got to defer to you, even though I’ve got these two litigants in front of me. One of them, I’ve got to put my thumb on the scale of their view of the law. So, I’m not a great fan of that, but that’s certainly what they’re told the district courts to do.”
So that’s what he did, and he sent it up to the First Circuit. And we’re there now, and it’s in briefing. We haven’t argued it. But I find it -- there’s one thing I want to mention about the Goethel case that’s interesting, and it talked -- Eric talked about telling stories of what’s happening to people. And I think that -- certainly appellate practitioners, if you just practice appeals, sometimes you don’t this at all. Sometimes, you forget at the trial level too.
But you have to — there’s a lot of legal issues, and you might be outraged — but you have to tell the story of what’s actually happening. And we told that story in Goethel and that the First Circuit had on it Souter -- Justice Souter is retired on the bench on the First Circuit, and he was on the panel. And he and another judge said, “The state didn’t make the statute of limitations, but Congress should really look at this funding issue and should make its intentions clear and should fund.” And they did. They followed their suggestion for a while. And Eric always points out that there was a dissent.
He said, “We shouldn’t do that. We shouldn’t be telling Congress anything. That’s a -- that’s outside our bailiwick.” But, anyways, it worked out for the client, at least, that little fill-up. But I think, in Relentless, we have a couple of things going on here. And two of them that -- the constitutional issues are twofold.
It's really one, which is these onboard monitors -- they’re a market. They’re a market created by the government that they force us into. So we use the Obamacare case to say, “You can’t do that. You can’t put us in a market we don’t want to be in just because we’re -- you have control over the resource, meaning the fish.” But there’s another argument in there that we’ve used below. It’s in our briefs, and it’s this: that -- and I think that the Loper Bright case had this as well.
Part of the reason we don’t believe that the agency has this power is that there are tons of statutes where Congress has said, “We have the power over the purse. You shouldn’t do this because we’re supposed to spend the money.” They say, “We have the power to tax. We have the power to make fees. So you, agencies, should not be doing this.” And there’s a number of statutes that say that to them in a number of other cases.
And there are -- as Eric pointed out, a lot of things in the Magnuson-Stevens Act — I’ll sometimes call that the MSA — lots of things in the MSA, saying, “Well, you can charge foreign vessels. Right? We don’t get to tax them. We don’t get to control them. We don’t like them really fishing here, so we’re going to let you charge the foreign vessels.” And it’s clear. And then, some of you might watch The Most Dangerous Catch. Right?
That’s the northern Pacific. That’s -- it’s a -- it’s big, capital-intensive fishing with a lot of money involved. You pull up those king crabs. You can sell them for whatever you want over here in Fairfax. Right? So it’s more profitable, and it’s huge, and Congress may say, “Hey, you guys can pay these costs, so we’ll do that.” So there’s a legislative judgment that’s made that we might not like and our clients may not like, but, at least, we can read it and say, “Oh, look. There it is.”
It’s not coming out of a bureaucracy that just wants to do this and says, “You know, I’d like to do more of this meddling than Congress has allowed, so I’m going to find some way to allow the people I want to meddle with to pay for it.” And that is just -- that is where we are. And the other issue we have is that our boats come out of Rhode Island. They are freezer boats. They go out, and they stay out for days, for a week to two weeks, and they can’t catch as many fish as everyone else per day because they catch them. Then, they process them there, freeze them, and then, sell them when they dock.
So you can’t check the fish on the dock side because they’re already frozen and boxed to go off where they’re going to go. And you also can’t -- so you can’t take any advantages of the other exemptions. And, so -- but you got to pay the monitors by day. So we said, “Listen. Why can’t you say -- if you catch a certain amount, 50 metric tons, if you catch a certain amount of herring per trip, you don’t have to have these monitors, if it’s below it. But all the other boats only go out for two or three days. Right?
So they’re there for two or three days, and then, they come back to dock and drop off the herring. So this is the math, and this is why it’s so arbitrary and capricious, and I’m going to get a little excited about this because I don’t think you can argue with math. Right? You have different opinions about everything, but two plus two has to equal four; it has to. If it doesn’t equal four, I don’t know what we’re doing. So, when I explained to the court it’s under this regulation, every other boat in the fishery can get 50,000 metric tons of herring, go back to the dock, unload it, go out, get another 50,000 tons, come back to the dock. That’s four days.
They do this. They can get 300 metric tons of herring in the two weeks my client’s out there. My client goes out, gets 60,000 tons of herring over the two weeks, and they’ve got an onboard monitor that they’re paying $800 a day to two weeks for. It's outrageous. It’s outrageous that the regulation’s been set up with no exception for this that takes less fish, so they’re treating people who could be taking more fish worse than my client who could be taking less fish. And we told them about it, and they go, “Ahh, you know, you could take a lot of fish in those two weeks.”
Well, yeah, if we took the amount per day -- whatever it is per day that they’re allowed to take, it would be the same. It’s apples to apples. It's the transitive property, as you learn in fourth grade, I think, second grade, if you’re smart. I think that -- so we’re hoping that there’s somebody who is not an English alone, before they went to law school, on the panel. So we’ll see. But I do think that they -- I want to go back to CODA because it is a really nice little picture. It’s well-done.
There’s not wrong note in it. And I say, all the time about Hollywood, that, if you’ve ever been involved in something -- I can only watch couple of law movies. I can watch My Cousin Vinny and The Verdict. But, other than that, they are off-putting, if you’re a real lawyer. This -- of something we know well, we’re like, “Oh my God. They’re getting this exactly right. I can’t believe it.” This is how the fishermen talk, first of all.
This is how they talk to the regulators. This is how they talk whenever there’s a proposal for something like this. It’s very true to life, and then, the observer, who comes on the boat, there’s a cultural clash that we always see with our clients and the observers. The guys who’ve been on the boats for 30 or 40 years are salty-type guys, and then, the observers are often young people from Woods Hole or BC or Harvard or something, and they majored in oceanography or something. In the movie, she comes on, and her seal skin water -- to shed water is brand new and still has the tags on it. And all these guys are looking at her, like, “Maybe you could have put the thing before you got on the boat.”
But, so, I really recommend seeing CODA, if you have interest in how regulations affect everything. And I brought up Ghostbusters because, if you remember, that was the movie we always used for examples of how a regulator could really screw things up because this -- they’re business model didn’t fit into his regulations, so he just shut it down. And then, of course, all the ghosts went all over New York. So I -- this movie has taken that over, for me, in a lot of ways because it’s so good.
Eric Bolinder: Yeah. I would say, in thinking about the movie, it really is an accurate depiction in many ways. They get the dollar per day right. There’s a meeting of -- now, it condenses the timeline a little bit. Okay, that happens. You make a movie. That’s fine.
There’s a meeting of fishermen in the dock where you hear their very real and visceral reaction to what’s going on. “This is going to be $800 a day. This is -- I don’t make that much money a day. This is going to kill our business. How are we supposed to profit?” That’s real life.
That’s what really happened. This is a huge burden. And I led off by talking about the conversation around the dinner table. That really happens in the movie. It’s a real-life depiction of what these fishermen went through and are still going through, in many respects, when dealing with these regulations. And keep in mind, this is an industry that’s already very heavily regulated. Okay?
So this is a regulatory burden that’s being a significant one with real costs. It’s being placed on top of -- I think there’s seven overlapping federal and state agencies that already regulate fishermen when they have to go out. They have to deal with what the feds want. They have to deal with what the state wants. They have to deal with what the Coast Guard wants. They have to -- and you see it in the movie.
This is also depicted. They can get boarded by the Coast Guard at any time. And, in fact, in the movie, I was -- so I said, “Well, it’s Hollywood. I’m sure they’ll make nice with the government in the end, and we’ll all find out that it was worth it.” That’s not what happen -- which would be inaccurate. That’s not what happened. The observer comes on the boat, comes in the family because they’re deaf on the boat, tips off the Coast Guard.
The Coast Guard boards them, and they lose their license. And it really goes to show, to my point, that the observers are looking at more than just the regulations that they’re supposed to be observing on the boat. And the --
John Vecchione: She wasn’t counting fish. Right? The other thing that the agency does all the time. They always -- and they put it all in their briefs, “Oh, if this regulation isn’t approved, there’ll be no fish in the sea.” And they do this all the time, and they get further and further away from what it is. I have another fish case down the Gulf of Mexico, where they put -- they say that -- these are charter boat captains. They’re not even taking any fish themselves, but they say that they can put a GPS tracker that goes back to the government and tells them where you are all the time, even when you’re not fishing, even when you’re not fishing.
Now, that’s -- and then, they put in there, “Oh, well, if we don’t have this, there’s not going to be any fish in the Gulf of Mexico. These guys are taking their wives to dinner or going sightseeing, and we don’t know what’s going on. It’s very dangerous.” It’s kind of -- it really points out where the regulatory agencies go, if they’re not checked by judicial review.
Eric Bolinder: And what the regulatory agency was saying, “Well, all these regulations are necessary to prevent overfishing and diminishment of the fishing stocks.” And even if you do conceive that. Not everyone’s really ready to conceive that. But, even if you do, these guys are already heavily regulated. The government sets quota on how much fish they’re allowed to catch and bring back in. They establish all sorts of standards for the way that they’re supposed to fish. So you could argue that of course, yes. The government -- Congress did authorize the placement of these observers on the boat. So, statutorily, that --
John Vecchione: Which none of our cases are challenging.
Eric Bolinder: Right.
John Vecchione: It says it in the statute. So we went, “Yeah.”
Eric Bolinder: Yeah. The government harps on this. “Well, these guys are necessary to [inaudible 00:26:14]” -- well, sure. Then, pay for them because it’s at -- when -- usually, when there’s an unfunded mandate, we all know what happens to the unfunded mandate. You don’t just turn to the citizen and say, “Okay, fork over your cash.” And the citizen says, “Well, what authority do you have to do that?” It’s like, “Well, I don’t need any. It’s implicit in the statute.” This is an extraordinary thing to demand of an industry that’s already heavily burdened by regulation, and there’s no statutory authority to do it.
John Vecchione: And, in fact, in our brief, we compare it to the Declaration of Independence, where they say that the king has created offices to swarm and eat out our substance because this is an office that has been created -- Eric -- and I believe that this is slightly different from the observer that’s in the statute. They do slightly do things. And even the regulation says they’re slightly different. So they’ve created an office that they’re requiring these people to pay for, and the other thing about it is, they say that they’re paying the administrative cost. Okay? So the government says, “We’ve paying the administrative cost. You’re just paying for what’s benefit to you, which is to have this guy on your boat. So all the food and salary and everything and his berth, you’re doing that already.” So what benefit is to them?
It’s no benefit to the fishermen. It’s a benefit to the government, which makes it more like a tax than a fee. But, in any event, I think that CODA is a movie that you -- that really brings this home, and we owe it -- Eric and I were joking earlier about the fact that, “Okay, no one’s going to believe this is about regulation.” But, if you’ve been working on a case for seven years and you see that case come to life on a movie screen, you have to be forgiven for thinking the movie’s all about that and not about family relations and coming-of-age story. Don’t believe any of that.
Eileen O'Connor: I have two questions. One is a practical question for either of you, and, when you answer that, I’ll ask you the second one. The first one is mechanics. So the monitors/observers have to be paid by the fishermen. How is that done? Does the fisherman pay the government, and then, the government pays the monitor? They’ve got to pay the monitor/observer directly?
Eric Bolinder: Yeah, it’s -- the government forces them to contract -- now, this -- and this -- the government tries to use to say, “Oh, well, it’s not us” -- forces them to contract directly with third-party monitoring companies that the government must then approve. So the government selects a list of companies and said, “Here’s the companies that you can negotiate with” -- or I’m sorry -- “that you can contract with in order to pay for the observers.” And, so, the government -- one of the arguments that the government made in its briefing is, “Well, the money goes direct to them. And there’s nothing in the statute about that.” Well, first of all, the foreign fisheries provision of the statute actually talks about this exact function and gives of the -- in the foreign fisheries, and only foreign fisheries, not fish fishery. The statute says, “You can have them contract and pay directly to a monitor.”
So, of course, our response is, “Well, Congress obviously thought that, if you had this authority, they needed to delegate it specifically because, if you had it generally, why wouldn’t it be in here.” So, yeah, it’s not that it goes direct to the government and goes out. Now, in the other two -- in the other fisheries, Congress has developed a system of fees that is deposited and then paid out. But they did contemplate such a relationship also in the foreign fishery. John, I don’t know if you want to add anything.
John Vecchione: No, I --
Eileen O'Connor: This is exactly what you were saying, John, is that the government created a market here, created --
John Vecchione: That’s exactly right. The other thing they did, which I think this is not a main point, but what they do is -- we have another complaint in our -- it’s that, for some reason, our boats get assigned the monitors. The nonpay -- people you don’t pay for -- we get assigned more often. And I think it’s because we have bigger boats, and then, there’s another regulatory matter. The observers have to have a certain amount of sea time -- well, if you go out with us for two weeks, you get sea time a lot easier than going on the boats for two or three days and then reupping and reupping and finding out when they’re going out. So we have another part of this, which they really haven’t addressed, is why are so many guys assigned to our boats? But it’s true. You get -- they tell you that you have to have a monitor, and then, you have to go to the market of the monitors and go contract and bring them onboard.
Eileen O'Connor: Thanks. So my second question was — and you probably want to answer this individually — what does the government have to say for themselves in response to your challenges? Obviously, they won at the district court in DC and in Rhode Island, so how -- what does the government have to say itself?
John Vecchione: There’s -- the key argument the government makes is the Magnuson-Stevens Act is broad and large. It gives them power to regulate the fishery. And that has natural consequences. And one of them is that this -- these observers are -- if they require you to have breakaway nets so the fish don’t get on there, they think it’s like that. But the -- but even that section of the statute actually says the various things -- equipment. This is not -- the observers are already -- the cost of the observers to be on your boat you already carry.
No one has challenged the fact that, if an observer’s on your boat, you have to have a place for. Right? That’s a cost. But it’s a different thing than a salary being paid for a government worker. And these guys are government workers, and you can’t have the individual pay for them without Congressional authorization anywhere else that I know of. So the government then says, “that that necessary and appropriate cost.” And my view is that’s narrower, and there’s nice case out of the DC.
It’s -- Judge Leon has a nice case out of -- where he says is that that’s a constraint or that it cabins it. I forget the exact language, but -- so it has to be necessary and appropriate. Well, we don’t think it’s necessary because we know because there’s observers who are not paid by us who are on there. So it’s not necessary. And it’s not appropriate because it isn’t our job, so -- but they say that necessary and appropriate means they can do anything that they think is good -- becomes necessary and appropriate. And in the Chevron deference area, that’s what Judge Smith said. He hit it. He says, “Look. They got necessary and appropriate and Chevron deference. What am I supposed to do?” I think that was his attitude.
Eric Bolinder: The government, in our case, makes two primary arguments. One, they do -- so the necessary and appropriate argument — I won’t repeat it — is part of it. But the primary argument is that, when we are given, at least on appeal -- when we are given the authority to carry these observers, implicit in that authority is the ability to shift this compliance cost onto the fishery, just like you would shift a compliance cost in other industries. So we have two responses to that. One is that -- again, I’m beating this to death, but Congress gave this authority to shift the compliance cost elsewhere in the statute. It withheld it here.
That speaks volumes, regardless of what you say of whether it’s a compliance cost or not or say it’s like other industries. And second of all, like John just said, this is an extraordinary thing. It’s not like nets. Okay. Well, they say, “You have to use specific type of nets.” Well, I have to use a net to fish, anyways. This is paying the fee, the cost of someone to be on your boat, so that’s a real distinction. But, again, I think the idea that Congress thought it necessary to delegate the power elsewhere solves -- to me, that should end the case. But the government --
Eileen O'Connor: It hasn’t yet.
Eric Bolinder: I don’t think -- on the necessary and appropriate -- so there’s a list of 13 things that the government can do. B1, so they can charge fees for permits. That’s the only mention of charging fishermen in that entire list. B8, B7 --
John Vecchione: And we’ve been charged that we have permits. We’ve been charged the fee. We paid the fee. That’s not this.
Eric Bolinder: B8 says only they can carry -- make them carry monitors on the boat. That’s -- it stops right there. Elsewhere in the statute, it talks about carrying monitors and other things. And then, there’s a Section II that says, “And you can charge them fees for it.” And then, at the end of the list, it’s actually B -- there’s 13 items on the list, but it’s technically B14. It says, “Anything necessary and appropriate can be above.” Well, that entire above list has one mention of fees, and, so, Congress obviously thought -- I mean, a permit. Right?
The basic thing you would associate a fee with, Congress still took the time to write down in its Magnuson-Stevens Act that you can charge them fees for it. And, so, to us, you have to look at the context of the statute. You have to look at what Congress did here. We think -- I’m not going to go into legislative history because I don’t think it’s necessary, and I have some feelings about it. But, even if you were someone who’s interested in legislative history, you would find legislative history strongly supports this too. There was just no evidence that Congress indicated -- wanted to give this authority. And there is plenty evidence that they wanted to withhold this authority in this circumstance and only grant it in three other circumstances.
John Vecchione: There is one other thing they say. They say that “we used to do this before Congress said that we could put observers on. We used to put observers on, and we put observers on and charged for it before, and no one’s complained.” Well, what I always say -- so they say that Congress knew about that. “Congress knew we were doing this.” And I always say about -- that, basically, no one sued them, probably because there’s a 30-day statute of limitations, to tell you the truth. But whatever the -- it’s basically the old bank robbers. “I’ve robbed lots of banks, and I’ve never been caught. So how can you catch me now?”
Eric Bolinder: Well, a better stressing analogy is I’ve robbed lots of banks, and Congress came and said, “Okay, you can only rob this bank.” Right. And I kept robbing the other banks and said, “What are you talking about?” And, again, the history of how the statute was developed shows this was a very contentious thing. This was not a -- they argue, “Oh, this authority was assumed. We had already” -- that’s not the case when you look at the legislative history and the comments and all of that. And throughout this entire process, from the counsel process to the NOAA-review process to the implementing-regulation process, commentors, including my co-counsel, Ryan Mulvey, who has been engineering this from day one, have been saying, time and time again, “This is unlawful. Here is why” and spelling it out.
Fishermen have been saying, “This could destroy my livelihood.” It’s not like NOAA had no idea. They were put on notice, time and time again. My colleague, Ryan, just sat before them and the New England Fishery Management Council and read it straight to them as they were all sitting there. There’s a scene in the movie where they have a New England Fishery Management Council meeting. It’s in a beer hall with four people.
That’s probably the most unrealistic thing. It’s actually in a conference room at a hotel with 20 people sitting around tables. But he sat down and said, “What you guys are about to do is unlawful, and here’s why.” So they’ve been on notice about this from day one. They have fully understood what they’re doing and plucked forward with it, anyways. And unfortunately, to this point, the courts have blessed that course of action.
Eileen O'Connor: We have a question from Warren Belmar, which strikes at the heart of something that I’ve been studying for many years, and that is -- I’m calling them switchbacks, when you go from one administration to another. And it was particularly egregious last January the incoming administration found it necessary to disavow and undo everything the prior administration had done. And in the -- in a tax area, where I have spent my professional life, I have seen the attitudes of people in various agencies change with leadership changes. And so that’s Warren’s question also. “When the leadership and the regulatory agencies changes from administration to administration, have you seen any change in the actions of lower echelon officials who drafted and are enforcing the regulatory program?”
Eric Bolinder: You know --
John Vecchione: In this one, I’ll -- in this one, no. This was a Trump-era rule. It has been carried over by the Biden administration. There are other things. We don’t -- neither of us have litigated quota rates of fishes -- of fisheries. There is a feeling that -- I think there’s a feeling that in Democratic administrations that they less -- there’s less care for whether or not the fishermen survive rather than the fish, and Republican administrations, maybe there’s more care about the fishermen than the fish.
And it’s supposed to be both. The way MSA works, it’s supposed to be both. But, on this issue — and I’ve seen what you’ve seen many times — but, on this issue, I’ve seen not a hair’s breadth of change.
Eric Bolinder: We tried. I’m going to be honest. We raised the profile of this issue very high. I had a former client who used to go out. He had signs that said, “Make commercial fishing great again.” There was a real effort to bring this issue to the attention of the Trump administration, but this is one of those issues where it’s not where it’s not a high profile -- it is now, but, at that time, it was not a top-of-the-headline news.
And you have career staff within NOAA that have been pushing this for a long time. You had folks within Commerce as well, and ultimately -- the Secretary of Commerce could have declined to approve this regulation. And that actually kicks off an interesting series of mechanisms within the statute where, if the Fisheries Council keeps not doing or fails to do what the Commerce Secretary wants them to do, the Commerce Secretary can start promulgating some of its own views on things. But that did not happen here, unfortunately, and quite honestly, from my seat, I did not see a change from administration to administration. And we -- John and I litigated this issue under the Obama administration at Cause of Action with the first case. We litigated this issue under a Trump administration rule, and the arguments and the things we’ve run into are very, very similar.
John Vecchione: And in Goethel, it is interesting though. Both senators were interested in this. The Democratic and the Republican -- I think that’s why it got funded eventually. I don’t know, but the Senate moves slowly, but they at least -- both of them took an interest in this.
Eileen O'Connor: John, would you spell the name of that case you’re referring to?
John Vecchione: Goethel?
Eileen O'Connor: Yeah. What is --
John Vecchione: G-o-e-t-h -- e-l or a-l? E-l.
Eric Bolinder: E-l. G-o-e-t-h-e-l. Yeah. And that was the --
Eileen O'Connor: And you said that was the First Circuit?
John Vecchione: v. Commerce. Yes.
Eric Bolinder: It was DNH --
John Vecchione: Out of New Hampshire, yeah. Out of New Hampshire.
Eric Bolinder: And that’s really -- when you want --
Eileen O'Connor: [Inaudible 00:40:31].
Eric Bolinder: The ground fishermen -- so CODA’s ground fishermen, which is -- all fishermen, when they catch different fish, they have different approaches and methods to catching fish. It’s really fascinating, if you ever want to learn about it. These guys are awesome. They’re incredible at their craft. You go out there and watch them mend nets and stuff, it’s just incredible. But ground fishermen catch fish in a little bit of a different way, and that’s what you see in the movie, is the groundfish fishery.
Eileen O'Connor: And explain the difference between ground fishing and other fishing. What’s the other fishing called?
Eric Bolinder: Well, there’s -- so here, we’re talking about herring fishing. If you watch on TV, you might see Deadliest Catch, which John referred to before. You might see Wicked Tuna. They might catch with long lines. They might catch with harpoons. They might trawl, bottom trawlers, which is what we see more often in these regulations. So --
John Vecchione: And then, there’s -- there’s bottom trawlers and mid-sea trawlers. And then, what’s the other one? I forget what the other one is, but it’s where you go. And the fish stay at different places, so you’re getting different stuff.
Eric Bolinder: Yeah.
Eileen O'Connor: Now, one of the people in the audience has commented that, “When I googled a documentary on regulation of the fishing industry, what comes up is a Netflix piece called, Sea Piracy, which exposes the detrimental effects of fishing, not only for our oceans but for the entire planet.” She’s wondering whether the search engines might be biased.
Eric Bolinder: Well, this might as well have been a documentary, but it’s -- this one was fiction but really based on real-life. So I’ve watched some the stuff online. I know Cause of Action -- we have a video that we put out on our first case about David Goethel. If you look on YouTube, you should be able to find it. I know John has done a video at NCLA for the Relentless case. And I think both videos are really insightful, but I’m going to be honest. As much as I like the videos we made, nothing beats the Hollywood depiction of the real impacts of the regulatory --
John Vecchione: Production values. I think the budgets were different.
Eric Bolinder: Budgets were a little different, yeah. I saw someone ask where they can watch this. This movie’s on Apple TV, and, so, that’s where I saw --
John Vecchione: I saw a response. Someone says it’s opening tomorrow in theaters again.
Eric Bolinder: Yeah. Yeah. And I saw the acceptance speech, and I heard someone thank the fishermen in the acceptance speech, and it just -- I said, “That’s interesting.” But I sat down, watching the movie, having no idea what was in it, so it’s just -- watching a case you’ve litigated appear before your eyes in Hollywood was really amazing. And I just -- to talk about storytelling. This is something -- and I’m speaking to litigators here. Whether you’re an appellate attorney, whether you’re a trial attorney or in the district court, storytelling is really, really important, particularly when you’re dealing with regulatory overreach because you have to think about that Congress may be watching too.
The regulators are looking, and judges, whether they should or shouldn’t — that’s a different conversation — but they do pay attention to the facts of the case. And they can be really important, so don’t let those slide by. Of course, the issues of law are the most important things to present, but the facts of what’s happening to these families here, especially -- I will say they are relevant to some extent, where on our Chevron Step Two argument, we argue that the government failed to properly consider cost and burden on the industry. So, if the court does get to Chevron Step Two, that’s one of our primary arguments is that, under precedent, they can’t hoist whatever they want on an industry and suffocate. That would be arbitrary and capricious without evaluating it and properly explaining it, so that’s an important fact.
John Vecchione: And I will tell you this about that storytelling. One of the things about almost all of these judicial opinions is how they use fishing terminology. If you read Judge Smith’s opinion out of New Hampshire in the Relentless case, it is just one fishing analogy after another. And I’ve noticed that in the precedent in the First Circuit, they do the same thing. It is -- it does kind of grab them. Whether the cases come out right or not, the fact of the fishing and how long it’s -- particularly in New England -- how long and pervasive it is to the economy and mindset is -- really comes out in the opinions, I think, because of the stories.
Eric Bolinder: It’s one of America’s oldest industries, and, if you think about the movie, they could have set this movie in any industry, any situation -- obviously, the movie is primarily about the child in a deaf family and the -- familial triumph. It’s a very inspiring movie about a teacher that’s persevering after a student. They could have -- and that the conflict of what the family is facing economically is driven by this regulation, which leads to the family triumph in the end. And -- sorry to spoil you. But it has a happy ending. But they could have picked any industry to set this in, any type of small business. In New England, they picked ground fishermen. And this is something that traces its roots back to our country’s founding, basically. And, so, if you’re looking for salt of the earth -- or I should say, salt of the ocean, I --
John Vecchione: Or of the sea. How about salt of the sea? There you go.
Eric Bolinder: These are the type of folks that are being affected by these regulations. It’s not just -- people get this idea that it’s just commercial. Oh, it’s some big business, and that’s just not the case. Like many industries in America, it is small businesses and family-owned businesses that pay the dearest price for regulatory overreach. And they’re often the ones that either can’t afford or can’t get the attention to tell their story and to plea their case in court. So we need to --
John Vecchione: Or who get lawyers at nonprofits, like our outfits, because it’s not like -- oil and gas has a lot of regulation, but it also has a lot of lawyers.
Eileen O'Connor: And a lot of money. A lot of money. All right. I see no more questions or comments. You guys want to make any final comments before closing this up?
John Vecchione: I’ll give it to -- that to you, Eric, and then, I’ll go.
Eric Bolinder: No, I appreciate so much everyone paying attention to this issue. I’m so glad that it’s being brought into the spotlight now. I would continue to track these cases. John -- I have an appeal in the DC Circuit. John’s got an appeal in the First Circuit. We know how those things can sometimes end up, so we’re hopeful that the case progresses forward, and we get a good outcome.
And just, tell stories, guys. That’s my big message here is to tell stories, find clients with great stories, and make sure the little guy that is sometimes forgotten is getting that representation, particularly if you’re a litigator for a nonprofit or you’re at a firm and you’re looking for pro bono opportunities. These are amazing opportunities, not only to advance some of the precedents and regulatory reform that we want to see in the courts but also to help people that really need it. And, so, I would encourage you to seek out more of those opportunities.
John Vecchione: Yeah. And I guess my last point on this is, to anyone who might be out there in Hollywood, this is the way to do it, in that you -- there’s certain things you do because you have to do them for the story. And I was reading the other day about the Navy and it’s -- the Navy’s alliance with movies. And the Navy has certain things -- if you’re going to do a Navy movie, you can’t do -- they’ll allow one explosion on a ship accidentally but not two or three because they don’t want you to think -- so they’re telling stories. And sometimes, you have to do things to drive the plot. But, if you can drive the plot with real-life this way, it made everything better.
So I think that it’s good for lawyers, but also, there’s no reason sometimes to Hollywood up the facts because they’re compelling on their own, if you just present them. So I want to thank The Federalist Society, and I want to tell you, if you do want to see anything more about this, the video at the -- on the Goethel case, that’s on the Cause of Action website, and ours on the Relentless case at NCLA on our website are both very good. And we have -- our client, who speaks for C3S and Relentless, Megan Lapp. She’s been Eric’s client in the -- or acquaintance in the past. I think that she’s very compelling. And she’s been in this industry for a long time. So, if you have anymore interest in this, I’d go to those websites, and I’d take a look at those two videos because they’re good.
Eric Bolinder: We’ve got an op-ed in the Wall Street Journal on the connection to CODA as well. It’s linked in the Chat, so please, check that out and share it, if you think it’s helpful to folks. Really appreciate. Thank you to The Federalist Society and everyone for your time.
Eileen O'Connor: Thank you to our speakers. I think this was a really informative discussion, and it’s a very, very important area. I thank the audience for attending and ask that you share information about this podcast with everyone you know because it’s going to be available as a podcast in a week or so. And it’s just really important information. I’m glad that Eric and John were willing to spend some time with us, talking about it today. And at their websites -- go to their websites because you can download the documents in the cases.
That’s what I did, and it’s really, really fascinating. Thanks again, Eric and John. Now, turning it back over to Guy for a wrap up.
Guy DeSanctis: Yeah. Thank you, all. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at [email protected] As always, keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you, all, for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.