Kollross and Sampen’s Loper Filing Selected As “Amicus Brief of the Month”

Each month Capital Appellate Advocacy’s All Things Amicus features an “Amicus Brief of the Month”—an amicus brief that was authored by other attorneys.

This month the site features the Supreme Court amicus brief that Melinda Kollross and Don Sampen of Clausen Miller, P.C. have filed in Loper Bright Enterprises v. Raimondo, No. 22-451 on behalf of the DRI Center for Law and Public Policy. The Court has granted certiorari to decide whether to overrule “Chevron deference” to federal administrative agencies’ interpretations of ambiguous statutory provisions, or whether to clarify that statutory silence on a subject is not equivalent to statutory ambiguity requiring deference.

The Loper Bright case involves the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801-1884, which is administered by the National Marine Fisheries Service (NMFS). The Petitioners, which fish for Atlantic herring, are challenging an NMFS regulation requiring them to hire, quarter on board, and compensate, at-sea regulatory compliance “monitors.” Although the Act is silent as to whether industry-funded monitoring is permissible in the Atlantic herring fishery, NMFS not only interprets the Act as allowing it, but also contends that its interpretation is entitled to Chevron deference on the theory that statutory silence is the same as statutory ambiguity.

Most of the amicus briefs supporting the Petitioners address Chevron deference directly. For example, the brief that I filed on behalf of the Atlantic Legal Foundation argues that Chevron deference should not enable an agency to engage in unconstitutional regulatory activity. See ALF Argues No Chevron Deference For Unconstitutional Interpretations.

The DRI Center’s brief, however, takes a different tack. It urges the Court to decide the appeal in accordance with the major questions doctrine rather than the Chevron doctrine. Under the major questions doctrine, Congress is assumed not to have vested an agency with authority to regulate extraordinary or highly consequential matters involving major policy decisions in the absence of clear statutory authorization. The DRI Center’s brief argues that “the [major questions] doctrine squarely addresses the [NMFS] regulation seeking to standardize industry-funded monitoring in fishery management plans under the MSA. Because the major questions doctrine is dispositive, no occasion arises for review under Chevron.”