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 overallbenefit 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, asreduced 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.
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This post first appeared in “From the Waterfront,” the blog
of the Marine Fish Conservation Network, which can be found at
http://conservefish.org/blog/
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