Recently, the National Marine Fisheries Service (NMFS) issued a rule which reopened the federal red snapper season for private-boat anglers in the Gulf of Mexico (Temporary Rule). While such Temporary Rule was welcomed by many participants in the red snapper fishery, it is in serious conflict with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which governs all fishing in the federal waters of the United States.
Magnuson-Stevens enumerates ten “national standards for fishery conservation and management,” which establish the nation’s fishery management policy.
National Standard One states that “Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.” A federal appellate court decision, Natural Resources Defense Council v. Daley, handed down in 2000, determined that a fishery management plan which does not have at least a 50% chance of preventing overfishing does not comply federal law.
In addition, Section 303(a) of Magnuson-Stevens requires that “Any fishery management plan, which is prepared by any Council, or by the Secretary, with respect to any fishery, shall…establish a mechanism for specifying annual catch limits in the plan (including a multi-year plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to assure accountability” [emphasis added].
Despite such clear mandates that prohibit overfishing, when NMFS filed a notice in the Federal Register announcing the Temporary Rule, it stated that the extended season “will necessarily mean that the private recreational sector will substantially exceed its annual catch limit, which was designed to prevent overfishing the stock.” Thus, NMFS clearly admits that the Temporary Rule violates both National Standard One and the provisions of Section 303(a).
The Temporary Rule may also impermissibly extend the rebuilding period for the Gulf red snapper stock.
NMFS admitted that, “if employed for a short period of time, this approach may delay the ultimate rebuilding of the stock by as many as 6 years. This approach likely could not be continued through time without significantly delaying the rebuilding timeline.”
Section 304(e)(4) of Magnuson-Stevens requires,
“For a fishery that is overfished, any fishery management plan, amendment or proposed regulations…for such fishery shall specify a time period for rebuilding the fishery that shall (i) be as short as possible, taking into account the status and biology of any overfished stocks of fish, the needs of fishing communities, recommendations by international organizations in which the United States participates, and the interaction of the overfished stock of fish with the marine ecosystem; and (ii) not exceed 10 years, except in cases where the biology of the stock of fish…dictate otherwise” [emphasis added, some internal numbering deleted].
Because of its biology, the red snapper stock could not be rebuilt within ten years, so when the Gulf of Mexico Fishery Management Council (Council) finalized its rebuilding plan in 2004, after considering the relevant factors, it determined that rebuilding should be completed by 2032. By adopting the Temporary Rule, NMFS effectively extended that rebuilding period by as much as six years, but provides no explanation of why such extended rebuilding period satisfies the “as short as possible” criterion.
NMFS also fails to explain how the increased harvest attributable to the Temporary Rule can be considered the optimum yield for the red snapper stock.
Magnuson-Stevens provides that
“The term “optimum”, with respect to yield from a fishery, means the amount of fish which (A) will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems, (B) is prescribed as such on the basis of maximum sustainable yield from the fishery, as reduced by any relevant economic, social or ecological factor, and (C) in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery” [emphasis added].
Thus, optimum yield may never exceed maximum sustainable yield (MSY). In 2017, MSY for Gulf red snapper was 14.80 million pounds, which is divided between the commercial and recreational sectors. If some current estimates are correct, the Temporary Rule could lead to private-boat anglers exceeding their 2017 catch limit by as much as seven million pounds, which would lead to overall harvest exceeding MSY by nearly 50%.
NMFS justified the Temporary Rule, and its de facto extension of the rebuilding period by stating “Given the precipitous drop in Federal red snapper fishing days for private anglers notwithstanding the growth of the stock, the increasing harm to coastal economies of Gulf States, and that the disparate [state] approaches to management are undermining the very integrity of the management structure, creating ever-increasing uncertainty in the future of the system, the Secretary of Commerce has determined that a more modest rebuilding pace for the stock is a risk worth taking.”
Those are essentially social and economic arguments. Setting optimum yield above MSY in response to social and/or economic considerations has been outlawed ever since the Sustainable Fisheries Act of 1996 became law.
There is also reason to question the overall benefits that the Temporary Rule provides to the nation. While it does provide at least a short-term benefit to private-boat anglers, slowing down the red snapper’s recovery can only harm commercial fishermen and charter and party boats, as both will be forced to endure smaller catch limits, and consequently reduced income, throughout the extended rebuilding period.
Thus, a number of conservation and charter/party boat organizations have thus criticized the Temporary Rule. However, despite the Temporary Rule’s apparent illegality, its opponents seem to have little recourse.
Judicial review of NMFS’ regulations is governed by Section 305(f) of Magnuson-Stevens, which allows the agency 45 days to reply to any petition that challenges a regulation. Such long response period, coupled with the time typically consumed by the litigation process, makes it certain that no court decision could be issued before the red snapper season, extended by the Temporary Rule, closes on September 4.
Section 305(f) also prohibits a court from suspending application of the Temporary Rule until it had an opportunity to decide on its legality, which forecloses the only other possible remedy.
Yet, although some anglers’ rights groups are praising the Temporary Rule today, they may well have reason to curse it a year from now.
The 2017 recreational catch limit for Gulf red snapper is about 6.6 million pounds. Existing accountability measures require that, if anglers exceed such limit, the overage would be deducted from the 2018 recreational catch limit. Should the predictions of a seven million pound overharvest turn out to be true, it is very likely that the 2018 recreational catch limit will, as a result, be at or very close to zero, and there will be no federal season at all.
If that occurs, the problem won’t be limited to 2018. Even if accountability measures resulted in a federal catch limit of zero next year, state seasons would remain open. Any fish caught during those state seasons would then be deducted from the permissible 2019 catch, launching recreational fishery management into a downward spiral that has no obvious end.
That would have a real and undeserved impact on the federally-permitted charter and party boats, which may only fish for red snapper when the federal season is open, and are allotted 42.3% of the overall recreational catch limit. A small, or nonexistent, recreational catch limit would thus completely shut down the charter/party boat fishery, even if it did not overfish in 2017, while the private-boat anglers responsible for the problem would still be able to land red snapper caught during state seasons.
For all of the reasons set out above, the Temporary Rule is both illegal and ill-advised, a threat to both the health of the red snapper stock and the integrity of the fishery management system.