Court Watching Over Red Snapper In Gulf

Red Snapper

On December 20, the parties in a federal lawsuit challenging the Department of Commerce’s (Commerce) decision to reopen the 2017 private boat red snapper season in the Gulf of Mexico reached a settlement that should bring an end to the litigation while protecting the red snapper resource.

For those unfamiliar with the facts leading up to the lawsuit, anglers have chronically overfished their red snapper allocation in the Gulf of Mexico. In recent years, federal fisheries managers have tried to prevent such overfishing by shortening the recreational fishing season, but have been frustrated by the five Gulf states, which adopted regulations that are much less restrictive than those that apply in federal waters.

In Texas, for example, the recreational red snapper season never closes; the bag limit is twice what it is in federal waters, and the size limit is two inches shorter. While the other Gulf states haven’t gone to Texas’ extreme, and still adhere to the federal size and bag limits, their seasons are long enough that managers expected 81 percent of all 2017 recreational red snapper landings to be caught in state waters.

They predicted that it would only take three days for anglers fishing in federal waters to land the other 20 percent.

The three-day federal red snapper season was heavily criticized by Gulf of Mexico red snapper anglers and the local outdoor press. It was turned into a rallying cry by recreational fishing groups trying to weaken the conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), who constantly railed against the short federal season, while conveniently ignoring the lax state rules and recreational overharvest that made such a short season necessary.

Representatives of the recreational fishermen met with elected officials and the Department of Commerce; in the end, Commerce gave in to their requests to reopen the season, even though agency officials knew that it would result in overfishing and delay the red snapper stock’s recovery.

Emails documenting the internal discussions at Commerce are both enlightening and troubling. One, sent to Commerce Secretary Wilbur Ross by Earl Comstock, Director of Commerce’s Office of Policy and Strategic Planning, expresses a particular cynicism. In it, he notes that reopening the season “would result in overfishing the stock by six million pounds (40%), which will draw criticism from environmental groups and commercial fishermen.”

However, he dismisses any opposition to the reopening by observing that “Under the Magnuson Stevens Act a court can’t issue a temporary restraining order, so your action would remain in effect for at least 45 days before a court could act.”

He effectively acknowledged that reopening the recreational season would lead to overfishing, and that people would probably object, but then dismissed such concerns because a loophole in the law would let the agency get away with such an illegal act.

And he had good reason to believe that was true. As he noted, Magnuson-Stevens doesn’t allow courts to issue temporary restraining orders to delay fishery management actions, and it gives the agency 45 days to reply to any legal challenge. By the time a court could act, much of the damage caused by the reopened season would already have been done.

Furthermore, federal litigation takes time, and it was highly unlikely that a judge would be able to render a decision on the merits of any lawsuit before the end of the extended season. Once the season closed, Commerce could rely on the legal concept of “mootness,” arguing that once the 2017 season ended, there would no longer be an active “case or controversy” for the court to decide.

However, there is an exception to the mootness doctrine, which allows a case to proceed if the contested matter is “capable of repetition, yet evading review.” When the duration of the defendant’s action is so short that the action in question concludes before a court can take action, as was true of the reopened season, and there is a reasonable expectation that the defendant will do the same thing again, courts will allow a matter to proceed, to prevent a future wrong from occurring.

If they didn’t allow such litigation, defendants such as Commerce could continually engage in illegal actions, knowing that the affected parties would have no legal recourse. So when the Ocean Conservancy and the Environmental Defense Fund (Plaintiffs) brought suit against Commerce, they explicitly relied on that exception in their complaint, which was intended to stop Commerce from acting illegally again, with respect to red snapper, in future years.

In the end, Commerce never even tried to argue that reopening the red snapper season had been legal.

Instead, it filed a motion for summary judgment, arguing that even if everything that the Plaintiffs claimed was true, Commerce should still win the suit because “the temporary rule has expired under its own terms, and the Federal recreational season is closed. Plaintiffs’ claims are moot, and the Court should enter judgment in favor of [Commerce] on jurisdictional grounds. Alternatively, if the Court concludes that Plaintiffs’ claims are not moot, the only appropriate course is for the Court to remand this matter to [the National Marine Fisheries Service] for further proceedings consistent with the agency’s duties.”

Translated from legalese, they said that “Even if we did illegally reopen the season, it’s too late to do anything about it now. And even if it isn’t too late, the only thing the Court can do is tell us to think about what we did, and whether we should do something more.”

Commerce also argued that the reopening was not “capable of repetition” because Chris Oliver, the National Oceanographic and Atmospheric Administration’s Assistant Administrator for NOAA Fisheries, “proffered a sworn declaration…that ‘NOAA does not intend to reopen the private angler season in the same manner in 2018. [emphasis added]” Commerce contended that such statement, “combined with the fact that multiple contingencies will inform the setting of future seasons undermine any notion that this scenario is likely to recur.”

However, the one thing that Commerce did not represent to the Court was that it would follow all of the dictates of Magnuson-Stevens when managing Gulf of Mexico red snapper.

Commerce, the Plaintiffs and the Court held a conference to discuss the case in November. During that conference, something apparently occurred that made Commerce rethink its position, because it ultimately entered into an agreement with the Plaintiffs that will help to protect Gulf red snapper in 2018.

On December 20, the Court filed an Order memorializing that agreement, in which Commerce acknowledged that

a) “The re-opening of the private angler fishing season for Gulf of Mexico red snapper in 2017 was a one-time action that the federal defendants have not elected to defend on the merits in the briefing filed in this cases to date;

b) The deadline for rebuilding the red snapper population in the Gulf of Mexico is currently 2032 as established under Amendments 22 and 27 to the Reef Fish Fishery Management Plan; and

c) The federal defendants anticipate publishing a Temporary Rule announcing the 2018 private angler fishing season for red snapper in the Gulf of Mexico (the “2018 Temporary Rule”) on or around April 20, 2018.”

Based on such acknowledgements and the agreement of the parties, the Court ordered that no further action be taken in the matter, provided that

“…2) The Federal Defendants must file a notice informing the Court at the time the 2018 Temporary Rule is issued. The notice must include a citation to the Temporary Rule, and it must inform the court of the date the 2018 season is scheduled to begin.

3) Plaintiffs may file a supplemental complaint…challenging the 2018 Temporary Rule, or any other rule issued by Federal Defendants that affects the 2018 season for the private angler component of the red snapper fishery in the Gulf of Mexico no later than seven (7) days after publication in the Federal Register of the rule being challenged.

4) Within three (3) days of the filing of any supplemental complaint, the parties must confer about a proposed schedule for further proceedings and submit a status report to the Court setting forth their joint proposal, or if they cannot agree on a schedule, their individual proposals for the Court’s consideration…”

Nothing in the Order prevents either of the Plaintiffs from filing a separate legal action or asserting a separate claim against Commerce with respect to any matter.

Notwithstanding the fact that the Order was the result of a negotiated agreement, it represents a complete vindication of the Plaintiffs’ claims.

The Court’s order prevents Commerce from again issuing illegal regulations that take advantage of the time limits built into Magnuson-Stevens, and that law’s prohibition on the issuance of temporary restraining orders. Because the Court retained jurisdiction in the matter, if Plaintiffs believe that Commerce’s 2018 recreational red snapper regulations violate the law in any way, they won’t have to begin a new lawsuit in order to challenge them. The suit that they filed this year could be immediately revived to address those regulations as well.

Andrea Treece, an attorney with Earthjustice, which conducted the litigation on behalf of the Plaintiffs, observed that “The Department of Commerce essentially conceded the illegality of its actions by failing to defend the case on the merits. With judicial oversight, this action won’t be repeated next year—Commerce is now on notice that it cannot play fast and loose with the future of our fisheries. We will be watching Commerce’s actions carefully to make sure they respect the law and make fishery management decisions based on science—in this fishery and around the country.”

Thus, the Plaintiffs won Gulf red snapper meaningful protection from future arbitrary and illegal actions that might otherwise have been taken by Commerce.

However, the threat to the stock hasn’t ended. It has merely shifted arenas, from Commerce to Congress, where a host of bad legislation has put not only red snapper, but all federally-managed fisheries, in serious peril.

The Plaintiffs won an important fight, but the biggest battles still lie ahead.

About Charles Witek

Charles Witek is an attorney, salt water angler and blogger. Read his work at One Angler’s Voyage.

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