On January 23, Landmark filed an amicus brief in the First Circuit Court of Appeals supporting fishermen challenging a regulation obligating them to pay the salaries of government authorized monitors. A 2017 amendment to Department of Commerce regulations forces herring fishermen to enter contracts with and pay federally-approved At-Sea Monitors.

This case has been ongoing for almost six years. The fishermen originally sued the Department in 2020 arguing that federal courts should not defer to an agency’s interpretation of its statutory authority (Chevron deference).  After a successful outcome before the Supreme Court in Loper Bright v. Raimondo, the district court had to decide for itself whether the regulation was improper.  The fishermen argued the Department does not have the statutory authority to force them into contracts with these monitors.  Unfortunately, the District Court for the District of Rhode Island again sided with the Department of Commerce and the decision was appealed to the First Circuit.

This case involves more than the simple regulation of herring fishermen. It is about whether an administrative agency may use vague statutory language to compel private parties into contracts. In its brief, Landmark urged the Circuit to reverse the district court’s ruling. No language in the law explicitly authorizes the Department of Commerce to force small fishing operations to contract and pay the high costs of At-Sea Monitors.

The district court and the Department rely on vague terms in the law such as those granting the Department authority to take all actions “necessary and appropriate” to justify the regulation. This rationale conflicts with the Major Questions Doctrine, which requires clear congressional authorization before an agency can impose major economic burdens. Landmark argued that if the district court’s decision was upheld, federal agencies could impose all kinds of costs upon regulated entities through forced contracting for inspectors, observers, and monitors. Landmark also demonstrated that almost no other federal agencies have opted to pay for monitoring through forced contracting, contradicting the assertion of one Circuit Court judge that such a regulatory scheme is the norm.

Landmark believes the First Circuit will find this onerous regulation unsupported by the law and avoid opening the door to potentially enormous new regulatory costs for businesses across the nation.

See our brief below.