SOUTH ATLANTIC RED SNAPPER--WHAT'S THE "EMERGENCY"

This month, bottom fishermen along the South Atlantic coast are going to be able to do something that they haven’t been able to do for a few years—legally harvest red snapper.

Back in 2008, managers determined that South Atlantic red snapper were both overfished and subject to overfishing.  That determination gave rise to a series of red snapper management measures that culminated in a closure of the commercial and recreational fisheries.

The management measures appear to have worked.  While the stock remains overfished, fishery-independent surveys, in the form of traps placed on the reef to sample the fish that are present, have shown “a steep upward trend” in the relative abundance of red snapper, with sampling done in 2016 showing the greatest abundance.

Roy Crabtree, the regional administrator at the National Marine Fisheries Service’s Southeast Regional Office, reportedly said that

“When I look at the…data and see the upward trajectory, yeah, I have a hard time continuing justifying the closure.  I would view it that the management has been working over the last seven to eight years.  I know fishermen have sacrificed.”

So far, that’s all fine.  Based on the increasing abundance, it makes perfect sense that NMFS would begin moving toward reopening the South Atlantic red snapper fishery.

The problem is, there’s a lot of important data that they still don’t have a firm grasp on.  According to NMFS,

“The [South Atlantic Fishery Management Council’s Science and Statistical Committee] indicated that the most significant sources of uncertainty include: the stock-recruitment relationship, natural mortality at age, the age structure of the unfished population, the composition and magnitude of recreational discards (where dead discards vastly outnumbered the landings during 2012-2014), potential changes in catch per unit effort catchability, and the selectivities for the various fisheries fleets.”

That’s a lot of things—a lot of important things, from a manager’s perspective—to be uncertain about, and provides plenty of reason for red snapper managers to move ahead cautiously as they move to reopen a red snapper season.

They seem to be doing that with respect to future years, drafting a proposed Amendment 43 to address the issue.  Such Amendment 43 will move through the rulemaking process in an orderly fashion, with input from the public, from fishery managers and from the South Atlantic Council’s Science and Statistical Committee, who will advise on the data.  If all is in order, it should be adopted in time to permit a red snapper fishing season in 2018.

Unfortunately, it seems that there are a lot of folks in the South Atlantic region who don’t want to wait that long, and who have prevailed upon the South Atlantic Council to support an “emergency” opening of the red snapper season in 2017, despite the many uncertainties. 

NMFS has a limited ability to amend fishery regulations on an emergency basis.  Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act provides

“If the Secretary [of Commerce] finds that an emergency or overfishing exists or that interim measures are needed to reduce overfishing in any fishery, he may promulgate emergency regulations or interim measures necessary to address the emergency or overfishing, without regard to whether a fishery management plan exists for such fishery.”

NMFS found that such section authorized the opening of a 2017 red snapper season in the South Atlantic; however, in looking at the agency’s justifications, the argument appears to be a bit of a stretch.  NMFS’ own standards, published in the Federal Register back in 1997, only justify taking emergency action when

“(1)  Results from recent, unforeseen events or recently discovered circumstances;

 (2)  Presents serious conservation or management problems in the fishery; and

 (3)  Can be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rulemaking process.”

NMFS claims that

“The new red snapper abundance and [catch per unit effort] information collected through the [Southeast Reef Fish Survey] program and [Florida Fish and Wildlife Conservation Commission’s] study constitutes recently discovered circumstances, since it was presented to the Council at its June 2017 and September 2017 meetings.  In addition, the continued harvest prohibition of South Atlantic red snapper poses significant management problems to NMFS and the Council.  Fishery closures result in the limited collection of fishery-dependent data, and that negatively impacts the stock assessment process.  Additionally, the harvest prohibition of red snapper results in adverse socio-economic effects to fishermen and fishing communities through lost opportunities among the commercial and recreational sectors to fish for and possess red snapper during the fishing year…”

But even assuming that all that is true, it’s not clear why the red snapper situation is so different from any other fishery management issue that it justifies emergency regulations.

Whatever the species being managed, regional fishery management councils are frequently provided with new information.  It might come in the form of a new or updated stock assessment, new landings data or something similar.  But if the same standard that NMFS seems to be applying in the case of South Atlantic red snapper is applied elsewhere, then any such new information creates “recently discovered circumstances” that might justify emergency action when first presented to a council.

That would make the emergency criteria meaningless, and just doesn’t make sense.

And yes, the provision of fishery-dependent data would probably help the stock assessment process, but is such data so critical to the assessment of the stock that it justifies taking regulatory action without public comment and due deliberation?  Would obtaining such data in late 2017, rather than sometime next year, have a meaningful impact on the quality of the assessment?  Or is obtaining data merely a weak justification for harvesting some fish in 2017?

The parallels to the justification for Japan’s “scientific” whale harvest are impossible to ignore...

Finally, allowing fishermen to harvest some red snapper would certainly provide some immediate socio-economic advantages (or, to use NMFS language, would alleviate some “adverse socio-economic effects to fishermen”).  But there is no discussion of whether allowing some snapper—or, perhaps, too many snapper—to be harvested this year might lead to more “adverse socio-economic effects to fishermen” in the seasons to come.

And that may very well be because NMFS doesn’t know, which is exactly the problem.

It’s very possible—it is probably even likely—that the harvest of a few red snapper won’t prevent the timely recovery of the South Atlantic population.  But what, exactly, is “a few?”

And, more importantly, what is “too many?”

NMFS can’t answer those questions.

It admits that the emergency action

“might result in negative biological effects over the status quo since it is not known how the stock might be impacted and whether such levels of harvest could result in overfishing.  [emphasis added]”

Given that lack of knowledge, given that Magnuson-Stevens’ National Standard One requires that

“Conservation and management measures shall prevent overfishing…”

and given that the federal courts have determined that any fishery management measure must have no less than a 50-50 chance of succeeding in that goal, it’s not clear how the emergency opening of the South Atlantic red snapper season meets even the most basic legal standards for a fishery management action, much less justifies NMFS declararing an emergency and bypassing of normal rulemaking procedures.

It’s very possible that the biologists on the South Atlantic Council’s Science and Statistical Committee could have provided guidance on the regulations needed to safely harvest South Atlantic red snapper, but the emergency action was never passed by them for review.

As noted by a writer for the Pew Charitable Trusts,

“In explaining their vote to reopen fishing, council members said they believe red snapper’s numbers are increasing and cited concerns from fishermen about the continued moratorium.  But they fast-traced the reopening without consulting their scientific advisers—a risky move that undermines legal requirements to let science guide decisions about fish and fishing.”

That’s really the crux of the matter.

The most important issue isn’t the fact that the South Atlantic red snapper season is going to be opened.  That may be a good thing, which lets people catch and eat a few fish without harming the stock.

The key issue is that the reopening is being rushed through by a fishery management council and a federal agency that isn’t giving due consideration to the scientific issues involved, and is failing to obtain the needed input from their science advisers.

2017 is almost over.  No one fished for South Atlantic red snapper in 2015 or 2016, and no serious harm will be done if no one fishes for them again until sometime next year, after any proposed opening receives the best possible scientific review.

For right now, there is no real emergency. 

But if NMFS foregoes caution, it could always create one.