An optimist’s view: Death of the Chevron Deference

My name is David Goethel. I am a 55 year plus commercial fisherman, research biologist and former fishery manager. As author of Endangered Species/Chronicles of A new England Fisherman I discuss these topics and a lawsuit I filed in 2015 with the legal group Cause of Action over the legal concept known as Chevron Deference.

Most people believe Congress writes laws, the Executive Branch carries out those laws and the Judicial Branch interprets and clarifies whether aspects of those laws are Constitutional and correctly applied. It turns out under a doctrine called “Chevron Deference” the regulatory bureaucracy can deem a law unclear or ambiguous and create any regulation the agency decides it needs to carry out its bureaucratic function. Until this past Friday, the courts gave deference to the regulators as the “recognized experts” even though no proof is required and no test for ambiguity is applied. The Supreme Court overturned Chevron Friday saying they had “placed a tombstone on its grave”. Fishermen, including me, had sued saying that unelected regulators should not have this vast power over our lives. Our case was about paying $700-$900 dollars a day for at sea monitors, even though the guiding legislation, the Magnusson-Stevens Act only lists two fisheries in the Pacific Northwest being required to pay for monitors and then strictly limits cost recovery to 3-4% of the value of the catch. NOAA Fisheries decided, citing Chevron, that all Herring and Groundfish vessels in the Northeast and Mid-Atlantic must pay for 100% monitor coverage no matter the cost. In my boat the cost often exceeded the value of the catch. I was vindicated Friday; if the law does not say regulators can do it, the courts will enforce the law as written. A victory for democracy and the rule of law.

So, if this is a victory for the rule of law why are the chattering classes so excised? Well, each group has their own reason, but most fall into several broad categories.

Some in Congress are upset because they will have to go on the record and do their job. Many in Congress have a vested interest in leaving legislation vague so that the bureaucracy takes the heat and Congress can get reelected. The operative word here is elected. The power of the ballot allows us to change members of Congress. The bureaucracy is unelected and virtually untouchable under civil service regulations.

The second major group are people who operate in the shadows, often getting through the bureaucratic back door what is undoable through the public process front door. These include a whole alphabet soup of non-profits who employ a tactic of sue and settle. Sue a government agency because their cause will not pass public muster then settle with the agency who implements through rule making using Chevron for cover (and pays the groups legal fees with your tax dollars as part of the settlement). Now that option is closed. They will have to deal with the dreaded “C” word. Anything that forces compromise in a public process fosters a civil society that values and respects all opinions. A win for everyone, not just certain agenda driven special interest.

Finally, the bureaucracy must be upset. They will be back working for and accountable to the American people. I have worked with many regulators in fisheries in my career. On a one-on- one basis nearly all were reasonable people trying to do their job. But collectively the agencies they work for revert to what the framers of the Constitution most worried about. Absolute power corrupts absolutely, and people spending other people’s money do not apply any means test or spend said money as if it were their own. No more hiding behind Chevron and passing the expense on to the regulated. Expenses will now have to be justified and scrutinized by
Congress, the only legal taxing authority. Hopefully life is about to get simpler and less expensive.

Some may not agree with my views, and some say I am a hopeless optimist. One thing I do know is the pundits who say democracy will end without Chevron are just a modern version of chicken little. They have been around all my life, and we are all still here. The world has not ended yet. We can agree on this: I am an optimist; I am a fisherman.

David Goethel
F/V Ellen Diane Too
23 Ridgeview Terrace
Hampton Nh 03842


One Response to An optimist’s view: Death of the Chevron Deference

  1. Joel Hovanesian says:

    Absolutely spot on Dave. Are the days of the inmates running the asylum over? Have the days of fisheries management being run by those people and organizations with the deepest pockets, who litigate their way to a desired outcome over? We all certainly hope so.
    I just hope it’s not too late. Looking around at what has become of our industry being taken over by multi national corporations holding the power, permits and vessels, gives me an uneasy feeling. Our biggest fears have come to fruition. Just about everything we feared with the implementation of catch shares have happened.
    I fear the only way that this can ever be resolved is to turn back the clock and reassess the implications of what has led to the state the industry is now in and undo what has happened to bring us to a place that is fair and reasonable.
    On this account I’m not so optimistic.
    Thank you for all your past efforts and your avocation for this industry.

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