Herring Fishing, Education Law, and The New Frontier

Part 5 of the series “The Last Frontier facing the New Frontier.”

John M. Sedor, Sedor, Wendlandt, Evans & Filippi, LLC

Here in the “Last Frontier,” we are familiar with fishing – it is part of our shared experience be it sport fishing, commercial fishing, or the industry that provides a significant source of revenue toward the operation of our State and local government. (In 2019, the Alaska seafood industry collected more than $163 million of which $81 million went to the state government and $45 million went to local governments.)

But what does fishing have to do with education and school district legal decision-making?

As 2023 comes to an end and 2024 unfolds, we will find out. In less than one month, on January 17, 2024, the U.S. Supreme Court will hear oral argument in a case named Loper Bright Enterprises vs. Raimondo. The case is about commercial herring fishing in New England.

Fisheries across our country are managed and monitored by the National Marine Fisheries Service … created and authorized by the Magnuson–Stevens Fishery Conservation and Management Act of 1976. (As an Alaskan footnote, the law is named after U.S. Senators Magnuson and Ted Stevens of Alaska who were both the sponsors of the Act. And the Act was championed in the House by Alaska Representative Don Young.)

Agencies, including the Fisheries Service, are creatures of Congress – they cannot do more than what Congress authorized. This is easy to say but difficult to apply. Congressional authorization is famously vague (like directing the agency to implement “necessary rules”).

In furtherance of its Congressional mission, the Fisheries Service requires that the herring fishery be monitored. But monitoring is expensive. So, in 2020, the Fisheries Service issued a rule that required the herring fishermen to fund a significant portion of the at-sea monitoring program. Specifically, owners of the vessels selected to have a monitor on board by the Fisheries Service were required to pay the costs of the monitor.

The owners objected. The owners sued the Fisheries Service. The owners lost. They appealed. They lost again– this time at the U.S. Court of Appeals (District of Columbia). In each case, the courts ruled against the owners by relying on the “Chevron deference doctrine.” Fishermen in general – and our herring fishermen in particular – are a persistent and patient bunch; they appealed to the US Supreme Court.

What is the Chevron deference doctrine? It is a test established by the U.S. Supreme Court in 1984 to determine when a court must defer to administrative agency rulemaking. In short, Congress passes laws and directs agencies to implement and enforce the laws. Agencies do this by rulemaking (e.g. regulations or agency adjudications). Administrative agencies are often accused of “getting out of their lane” and exceeding their jurisdiction. When these complaints end up in court, the “Chevron deference doctrine” is the measuring stick as to whether and to what extent the agency can assert its jurisdiction and authority. At a surface level, the questions asked by the courts are whether the agency’s interpretation was within the scope of its jurisdiction (as intended by Congress) and whether the rule is based on a reasonable construction of the implementing statute.

I don’t want to get lost in the seaweed, so let’s get back to fishing. The herring fisherman agreed that that the Fisheries Service could require at-sea monitoring. Their complaint was that the Fisheries Service could not require the vessel owners to pay for the monitoring and, in addition, that the rules issued by the Fisheries Service requiring payment for monitors exceeded Congress’s intent when it passed the Magnuson-Stevens Act. Having been skunked in the district court and the appeals court, the herring fishermen cast their nets (called a petition for cert) in the Supreme Court … and the Supreme Court “bit.” It granted certiorari on the question of whether the Chevron deference doctrine should be overturned.

This might seem like an insignificant case (as herring actually are rather small) but overturning the Chevron deference doctrine would create a proverbial tsunami wave of challenges and change. This would occur at all agencies – including the U.S. Department of Education.  The U.S. Solicitor General has stated (in support of the Fisheries Service) that “overruling Chevron would be a convulsive shock to the legal system.”

The laws and rules that apply to education would not be immune to this shock. By way of example only, in Zuni Public School vs. Department of Education (2007), the U.S. Supreme Court relied on the Chevron deference doctrine to rule in favor of the way the U.S. Department of Education applied the disparity test in determining whether New Mexico could offset federal impact aid by reducing its aid to individual districts. (This is exactly what the State of Alaska does also.)

In addition, the much-delayed final rulemaking of the Department of Education on Title IX will no doubt bring attention and focus on the deference to be given to the Department of Education in defining or expanding the definition of “sex” in Title IX (Ted Stevens, by the way, was also the sponsor of Title IX).  

Practice Pointers

We end each of our commentaries with practice pointers. One practice pointer that rarely gets enough attention is … patience. Fishing teaches patience and that is what we should practice here as we wait to see what how the Supreme Court will “fillet” the Case of the Herring Fishermen. The Supreme Court’s decision should be issued by the end of the school year.

Happy Holidays from all of us at Sedor, Wendlandt, Evans & Filippi!

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