Whether a court should defer, under Chevron, to an interpretation made by an advisory council that is not itself a federal agency, as part of that court's review of regulations issued by the Secretary of Commerce

QUESTION PRESENTED The Ninth Circuit below applied deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to a statutory interpretation that was not made by a federal agency. The Pacific Fishery Management Council—an entity that advises the Secretary of Commerce on the management of fisheries under the Magnuson-Stevens Fishery Conservation and Management Act—adopted an interpretation of the statutory term “excessive share” to mean a limit on the fishery quota that guarantees every fishery participant “a chance at generating a reasonable profit.” The Pacific Fishery Management Council then proposed regulations setting the excessive share limit at 2.7% based on that interpretation, and the Secretary adopted the 2.7% limit without discussing the statutory interpretation underlying that percentage. The Ninth Circuit then deferred to the Pacific Fishery Management Council’s “excessive share” interpretation. Petitioners, who collectively owned approximately 5% of the quota, were forced to divest their quota shares to meet this excessive share limit. The question presented is whether a court should defer, under Chevron, to an interpretation made by an advisory council that is not itself a federal agency, as part of that court’s review of regulations issued by the Secretary of Commerce. ii RULES 14.1 AND 29.6 STATEMENT below and Petitioners here are Sea Princess, LLC, Pacific Fishing, LLC, and Pacific Choice Seafood Company. Plaintiff-Appellant Sea Princess, LLC is wholly owned by Plaintiff-Appellant Pacific Fishing, LLC. Plaintiff-Appellant Pacific Fishing, LLC is wholly owned by Frank Dulcich. PlaintiffAppellant Pacific Choice Seafood Company is now Pacific Seafood—Eureka, LLC (d/b/a Pacific Choice Seafood Company). Pacific Seafood—Eureka, LLC is wholly owned by Pacific Seafood Processing, LLC. Pacific Seafood Processing, LLC is wholly owned by Dulcich, Inc. Dulcich, Inc. is wholly owned by Frank Dulcich. RELATED CASES e Pacific Choice Seafood Company v. Ross, No. 4:15cv-005572-HSG, U.S. District Court for the Northern District of California. Judgment entered February 21, 2018. e Pacific Choice Seafood Company v. Ross, No. 1815455, U.S. Court of Appeals for the Ninth Circuit. Judgment entered September 25, 2020.