FACTS ASSAIL FOES OF NMFS' RED SNAPPER MANAGEMENT

I was skimming some fishery management headlines the other day, when one caught my eye.

It was from the Louisiana Record, and announced that “Environmental groups’ suit over extended red snapper season lacks facts, policy expert says.”

That struck me as interesting, because I’m a lawyer who tends to follow fisheries-related lawsuits when they arise.  

I’ve read the complaint in the lawsuit in question, which challenges the National Marine Fisheries Service’s decision to reopen the private-boat recreational red snapper season in the Gulf of Mexico, and am generally familiar with the standards that apply to judicial review of agency actions, so I thought that I’d read a bit further.

It turns out that the “policy expert” in question was Jeff Angers, the president of a group called the Center for Sportfishing Policy, which has enthusiastically supported the extended red snapper season, Angers saying that such extension

“is a fix—albeit a short-term fix—that will allow millions to enjoy one of America’s greatest pastimes and boost economies far beyond the Gulf of Mexico—including the manufacturing and retail sectors in non-coastal states.”

So it’s pretty clear that Angers, in making his statement to the Record, wasn’t speaking so much as an independent “expert,” but rather as an advocate for an organization that represents the fishing tackle industry, the boatbuilding/marine trades industry and some anglers’ rights groups, none of which want to see the lawsuit succeed.

And that’s probably a good thing because, throughout the article, Angers sounded like many advocates in today’s post-truth world, who make a host of assertions—some self-contradictory—in an effort to sway public emotion, and thus public opinion as well.

According to the Louisiana Record, Angers criticized the lawsuit brought against NMFS because

“We do not know if the Gulf states are going to exceed their historical catch, and the plaintiffs do not know that either.”

It’s a simple sentence that’s worth a more complex discussion. 

Let’s pick the lowest-hanging fruit first.  “Historical catch” is a red herring. 

Whether or not overfishing occurs does not depend on whether anglers in the Gulf states exceed their “historical catch,” but whether they exceed the annual catch limit established by NMFS which, for 2017, is 3,755,094 pounds (the annual catch target, set 20% below the catch limit to account for management uncertainty, is slightly more than 3 million pounds). 

Furthermore, anglers have chronically overfished their annual catch limit, so badly that in 2014, a federal judge in the matter of Guindon v. Pritzker ordered NMFS to adopt measures to hold anglers accountable for their incessant overfishing.  Even such accountability measures failed to adequately address the problem; last year, recreational private-boat fishermen exceeded their annual catch limit by 25% and their annual catch target by 56%.

So even if the Gulf states’ anglers only managed to equal, but not exceed, their historical landings, they’d still be overfishing.  Angers’ comment re historical landings is thus nothing more than a factually and legally irrelevant distraction.

The rest of his statement is no better.  

When someone challenges a NMFS decision, such as the reopening of the Gulf red snapper season, a court is not allowed to substitute its judgment for that of the agency, and the plaintiff is not required or permitted to produce new evidence to prove its case.  Instead, pursuant to the relevant provisions of the Administrative Procedures Act, the court must review that administrative record and set aside any agency action that is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Thus, it’s irrelevant that no one currently knows for certain what the final 2017 landing might be.  All that matters is that the National Standard 1, contained in the Magnuson-Stevens Fishery Conservation and Management Act, says that

“Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield for each fishery for the United States fishing industry.  [emphasis added]”

and that, in issuing the temporary regulation that reopened the private-boat recreational red snapper season, NMFS admitted that

“this approach will necessarily mean that the private recreational sector will substantially exceed its annual catch limit, which was designed to prevent overfishing the stock.”

The record shows that NMFS took an action that it clearly believes will “necessarily” lead to overfishing, something that federal law expressly prohibits.  Angers’ “expert” opinion to the contrary, those are the only “facts” the plaintiffs need to succeed in their lawsuit, as NMFS’ action is clearly “not in accordance with law” and must be held improper by the reviewing court. 

But, it’s possible--although impossible to know with any certainty--that, deep in his heart, Jeff Angers really knows that the reopening will lead to overfishing.  

After all, in the statement that he issued as president of the Center for Sportfishing Policy, he celebrated the fact that the reopening “will allow millions to enjoy one of America’s greatest pastimes [emphasis added].”  And by “one of America’s greatest pastimes,” he clearly was making a specific reference to red snapper fishing, rather than fishing in general, because the reopening only affected that particular species.  

So let’s think about the implications of that…

“Millions” is a plural noun; while it could be used for an infinite number of values, the very smallest value it can represent is 2,000,000.  So to avoid any exaggeration, let’s assume that only 2,000,000 anglers, and no more, will engage in red snapper fishing during the extended season.

Next, consider that the mean weight of all red snapper caught in the Gulf of Mexico last year was around 7 pounds, and that such mean weight has been increasing in the most recent years.

Finally, remember that the 2017 catch limit for private-boat recreational red snapper fishermen in the Gulf of Mexico is around 3.75 million pounds, with an annual catch target of 3 million pounds.

Simple arithmetic demonstrates that if “millions” of anglers allowed to participate in the red snapper fishery during the extended season catch just one average-sized snapper each—not hard to do, since red snapper are usually more than willing to eat whatever is dropped down in front of them; they don’t call them “snappers’ for nothing—the total recreational landings during the extended season will be around 14 million pounds, four times the annual catch limit.

And that doesn’t count any fish caught before the reopening occurred in mid-June.

Everyone won’t necessarily catch a red snapper, so we have to admit that if only half of those “millions” of anglers land one, they’ll land only 7 million pounds, and only overfish the recreational catch limit by 100%.

Thus, while Angers alleges that the plaintiffs in the conservation groups’ lawsuit don’t know the facts about red snapper landings, it seems that it may be he and the other critics of NMFS' red snapper management program who are factually challenged. 

It’s possible that they really don’t know whether the red snapper stock is going to be overfished during the extended season, because they do know that their claims of “millions” taking advantage of the reopening is a gross exaggeration, which they used solely for emotional impact, even though it was probably wrong.

On the other hand, they really might believe that “millions,’ or at least something close to a million, additional trips will be made, in which case it's hard to believe that they don't also realize that the private-boat angling sector will, as NMFS has predicted, “substantially exceed its annual catch limit.”  If that is the case, the protestation quoted in the Record was nothing but smoke that might further befuddle the public.

And that’s the problem that all of the folks who keep attacking NMFS’ red snapper management have with the facts.  Those facts just don’t point in the same direction that the folks want to go.

And that’s why “alternative facts” can prove so useful.  They can point in any direction.

They can even point in two different directions at the same time.