The Supreme Court can save working fishermen from Biden regulators
When I woke up, I was lying on the cabin ceiling.
The crew and I had been trawling the Gulf of Maine for several days aboard the F/V Teresa Maria IV, the commercial fishing vessel I captained for 14 years. I had only just settled into my bunk for a few hours of sleep. That’s when the rogue wave hit.
Life at sea is never predictable. A promising forecast could give way at any time to a squall with heavy swells. Essential navigation components might break. On that night, circumstances coalesced such that a rogue wave knocked my boat clean over. We were capsized in the black of night.
I crept across a rail toward the helm. These were some of the most frenzied moments of my life. Thankfully, a second large wave was tailing the first one. It slammed into the hull and knocked the boat upwards again.
This unsettling experience was front of mind when my organization, the New England Fishermen’s Stewardship Association (NEFSA) filed an amicus brief in an upcoming Supreme Court case about the Biden administration’s power over the fishing industry.
The National Oceanic and Atmospheric Administration (NOAA) places monitors aboard select commercial fishing voyages and passes the expense on to fishermen. The intrusion is most unwelcome. Imagine doing your job with a government agent peering over your shoulder, taking notes, waiting on a mistake.
Worse yet, as NOAA concedes, the observers cost at least $700 per day. That’s thousands of dollars over a multi-day voyage that comes out of the fishermen’s end.
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The Supreme Court will decide whether NOAA has a legal basis for passing the expense of the monitors on to us. NEFSA’s brief adds a simple point – the observer program is unsafe for observers and fishermen alike. A commercial fishing vessel is one of the most stressful and dangerous working environments in our country.
A fishing vessel is a crucible. There is very little space and absolutely no privacy. We work grueling shifts and routinely go days without sleeping – once you’re on the fish, there’s really no stopping.
Many people do not have the mental fortitude for this kind of environment. I have seen even experienced fishermen break under the pressure. I once had to return to port early because two members of my crew got into a fight.
There’s no stress test like weather. We regularly encounter storms and heavy swells, especially in the winter. Most people, and it’s no strike against them, do not want to face 20-foot swells for hours on end.
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There is no preparing an at-sea monitor for this kind of experience. It requires an all-hands-on-deck response, with crew and captain working in perfect sync to protect the vessel.
In these critical moments, I’ve seen monitors get violently ill or have mental health episodes, like panic attacks. I can’t call on them for assistance. And helping them through a crisis is a dangerous distraction in itself.
It doesn’t take much to become a NOAA at-sea monitor. A person only needs a high school diploma and 12 days of agency training. My experience of at-sea monitors is that they are mostly young, newly minted college graduates with an earnest outlook but little experience of hard work.
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A commercial fisherman, by contrast, has spent a lifetime at sea. Our trade is plied within families, passing from generation to generation. I’ve been fishing for decades.
These stories are worth recounting because NOAA maintains that the courts should defer to their "expertise" and not interfere with fisheries policy. Agencies invoke these "deference doctrines" to shield their activities from judicial scrutiny all the time.
My stories expose a fundamental problem with the deference regime – what if the agency isn’t expert? What if the agency’s choices are inapposite with the industry it regulates? What if an agency fails to account for a paramount concern, as NOAA did here?
Fishermen are unruly and uncooperative, but I think we’d all agree NOAA’s rules and regulations badly miss the mark on a range of issues. The monitor program is just the start.
Ending judicial deference to agency legal interpretations is a good first step toward establishing safe and sustainable fisheries.