AFP Foundation Files Amicus Brief in Relentless v. Department of Commerce

Americans for Prosperity Foundation (“AFPF”) has filed an amicus brief in Relentless v. Department of Commerce—the companion case to the historic Loper Bright Enterprises v. Raimondo.  With Loper Bright held in abeyance on remand, the outcome in Relentless may have significant implications for proper implementation of the Magnuson-Stevens Act (“MSA”), as well as the understanding of de novo review in the post-Chevron administrative‑law landscape.

A Case Shaped by Loper Bright

Relentless returns to the First Circuit following the Supreme Court’s 2024 decision in Loper Bright, which ended Chevron deference and restored to federal courts their proper role of providing independent, best readings of the law.  Because the Court vacated the First Circuit’s earlier decision upholding the legality of industry-funded monitoring in the Atlantic herring fishery, the case was sent back to the district court for reconsideration under Loper Bright’s de novo standard of review. 

Even without the benefit of Chevron deference, however, the government again prevailed.  The district court ruled the agencies’ position “reflect[ed] reasoned decisionmaking” and was consistent with their discretionary authority to implement regulations “necessary and appropriate” for the conservation of the fishery.

The District Court Failed to Undertake Meaningful De Novo Review

As AFPF’s brief explains, courts must now provide their best reading of a statute and not merely rubber-stamp a “reasonable” one advanced by an agency.  The district court in Relentless relied on its old Chevron Step Two reasoning and failed to provide an independent reading of key statutory terms like “carry,” “necessary,” and “appropriate.”  In doing so, it ignored important clarifications in the Supreme Court’s recent opinion in Seven County Infrastructure Coalition v. Eagle County.  Rather than police the boundaries of Congress’s delegation to the government, the district court assumed, without explanation, that industry-funded monitoring was the kind of measure that could be justified either as a compliance cost or something falling within the bounds of the government’s discretionary authority to implement “necessary and appropriate” rules in the fishery.

The Magnuson–Stevens Act Does Not Authorize Industry Funding

The underlying legal dispute in Relentless, like Loper Bright, turns on two provisions of the MSA: (1) Section 1853(b)(8), which permits regulators to require observers or monitors “be carried” aboard fishing vessels, and (2) Section 1853(b)(14), a residual catch-all clause that provides authority for certain “necessary and appropriate” regulations.  AFPF argues that neither provision authorizes the government to force fishermen to finance supplemental at-sea monitoring programs.

First, the original public meaning of “carry,” as used in Section 1853(b)(8), is restricted to physical conveyance and related incidental costs.  Nothing in the text or its common usage suggests Congress authorized regulators to oblige fishermen to pay monitors’ salaries, which could consume up to 20% of their returns.

Second, Section 1853(b)(14)’s “necessary and appropriate” language cannot bear the weight the government places on it.  Drawing on the Supreme Court’s 2024 decision in Harrington v. Purdue Pharma, AFPF emphasizes that catch-all provisions must be read in context.  They only provide authority for regulatory measures similar to those expressly listed in the surrounding statute—not sweeping funding mechanisms Congress never contemplated.

So What?

Allowing agencies to invent funding schemes without clear statutory authority would dangerously erode Congress’s power of the purse.  As AFPF notes, if regulators can require fishermen to pay government monitors, what stops them from imposing even more burdensome financial mandates?  The government and courts have never offered any limiting principle.

More importantly, the district court’s reconsideration of Relentless failed to engage in the sort of robust textual analysis anticipated under Loper Bright and a de novo standard of review.  The First Circuit cannot allow the lower court’s veering into arbitrary-and-capricious review, and its focus on “reasonableness,” as if Chevron were still good law, to stand.  In this sense, Relentless presents a crucial (and high-profile) test of the impact and durability of Loper Bright.

Ryan P. Mulvey is senior policy counsel at AFPF and authored AFPF’s amicus brief in Relentless.  In his role at Cause of Action Institute, Mr. Mulvey is lead counsel in Loper Bright Enterprises v. Raimondo.