Thanks very much for your column on the status of Atlantic herring in the March 28, 2024, East Providence Post.

As you probably know, the U.S. Supreme Court has taken up the Atlantic herring issue as entrée to the much larger question of regulatory authority of federal agencies. The specific complaint is that NOAA Fisheries does not have authority to charge Atlantic herring fishery vessels for observers when required.

Observers, among other things, help to reduce the bycatch of river herring. Neither the court nor any but a few of the friends of the court that have submitted briefs are focused on the fishing issue. However, it may be useful for people to know more about how this issue rose and what the implications might be. The court accepted only the question of authority of federal agencies – but that makes the combined cases a major decision for this term. The cases are Loper Bright v. Raimondo and Relentless v. U.S. Department of Commerce. A decision is expected by the end of June.

Atlantic herring stocks have been in a difficult state for a number of years. In 2019, the Atlantic herring fishery was declared a “disaster”, $11 million in federal aid was distributed, and the annual catch limit was reduced by 70%. As you note, between 2013 and 2022 catch levels fell from 207 million pounds to less than 10 million pounds. The total value of landings in 2022 was $4.5 million – the federal aid in 2019 was more than twice the value of the catch in 2022.

In 2019, NOAA Fisheries established the Northeast Midwater Trawl Exclusion Zone limiting midwater herring fishing inshore of 12 miles. However the U.S. District Court struck that down in March of 2022 on grounds that data were insufficient to establish localized depletion.

Currently the NOAA Fisheries Management Plan for Atlantic herring is not enabling rebound of the overfished stock and thus requires amendment. The New England Marine Fishery Management Council is considering options to recommend, including enlarged trawl exclusion areas. The observer program, however, remains on hold.

The complaint to the court does not challenge all management options, but it does challenge any part of any regulation that is not specifically authorized by law passed by Congress and signed by the President. For instance, Atlantic herring fisheries observers are authorized but Congress did not specifically state who would be responsible for paying for the observers. Similar issues involve COVID vaccination requirements, climate change/clean air regulations, Affordable Care Act tax credits, etc.  The precedent that now gives deference to federal agencies on such aspects of regulations (the Chevron case) is the most cited decision in all of public law.

Managing to save Atlantic herring is a tall order. But that, and many other issues, could be made much more difficult and chaotic by the court’s decision.

Donald E. Pryor

Providence

The writer is a retired federal employee who served in NOAA and the White House Science Office on ocean issues.