RED GROUPER IN THE GULF: DON'T LOOK BACK

 

Let’s start off with a basic truth:  I hate allocation debates.

I am even less enamored of people who try to disguise allocation debates in a tattered and threadbare cloak of alleged conservation.  Allocation debates always boil down to two basic themes.  One is “I’ve got my fish, and I don’t intend to share.”  The other is “I want more fish, so I’m taking yours.”  

People can try to pretty up their claims all that they want, but in the end, they are doing little more than putting lipstick on their piggishness.

But people will always want more, and will never voluntarily give up what they have, even if they have more than they can reasonably use, so allocation fights are an ever present, and ever irritating, part of the fishery management process.

A lot of the problem stems from the fact that allocations are too often based on what a fishery looked like in the past, not what it looks like at present or, even more important, what—based on the overall benefits to the nation—it ought to look like in the future.

Consider the current, acrimonious debate over allocating red grouper landings in the Gulf of Mexico.

On November 18, 2008, the National Marine Fisheries Service proposed regulations that would allocate 76% of Gulf red grouper landings to the commercial sector, and 24% to anglers.  The rationale provided for such allocation not particularly pursuasive, but was typical of just about every allocation we see;  NMFS explained,

“National standard 4 of the Magnuson-Stevens Act requires that fisheries be managed in a fair and equitable manner across all sectors.  This is true of both the commercial and recreational components of…red grouper.  However, management measures differ between commercial and recreational sectors, due to differences inherent in the fisheries (e.g., fishing gear, fishing effort).  Recognizing the difficulties involved in allocating resources across fishery sectors, the Council appointed an Ad Hoc Allocation Committee composed of Council members to examine fair and equitable ways to allocate reef fish resources…”

 It’s not particularly clear what the Ad Hoc Committee’s discussions looked like.  Maybe its discussions were calm and collegial; maybe they were hostile and tense.  Perhaps they really did consider things like how fishing gear and fishing effort ought to play into the final recreational/commercial allocation, and perhaps, somewhere out in the electronic maze of the Internet, there is a transcript that reveals just what those discussions looked like.

But none of that really matters, because the Ad Hoc Committee ultimately did what such committees, and Councils, and other management bodies almost always do:  They looked back over their shoulders—in the case of Gulf red grouper, back to the years 1986 through 2005—and decided that the immutable past ought to dictate what occurs in the yet-unformed future, and thus that the future recreational/commercial split ought to be the same as it was in those twenty years.

The final rule, issued by NMFS on May 18, 2009, confirmed the proposed allocation.  In announcing the final regulation, NMFS noted that it received 30 comments on the proposed rule from various members of the public; while some comments made by the recreational sector objected to the proposed allocation, no similar objections were received from commercial fishermen.  It seemed that they were completely content with using the 1986-2005 base years; since such base years gave the commercial sector more than three-quarters of all Gulf red grouper landings, it would probably have been surprising if they had complained.

But somehow, over the intervening 14 years, the use of those base years became problematic, at least in the commercial fishermen’s eyes.

The problem began with a change in the way that recreational catch, landings, and effort were estimated.

For many years, such estimates came from something called the Marine Recreational Fishing Statistics Survey, a program that went into effect in 1981.  While that survey was far better than the haphazard estimation efforts that went before, it nonetheless had serious flaws.  

About five years ago, the Marine Recreational Fishing Statistics Survey was replaced by the Marine Recreational Information Program, which had a far sounder statistical foundation, and took a very different approach to estimating recreational fishing effort.  When applied across all of the nation’s saltwater recreational fisheries, including Gulf red grouper, and after its methodology and results were calibrated against the old MRFSS estimates, it turned out that MRFSS had substantially underestimated past years' recreational catch, landings, and effort.

When the recalibrated MRIP estimates were applied to the base years used to establish the Gulf red grouper allocation, it turned out that the old 76% commercial/24% recreational allocation did not reflect the sectors’ actual landings during the 1986-2005 period.  The actual base year landings proved to be 59.3% commercial/40.7% recreational.  On June 1, 2022, NMFS published a final regulation that, among other things, changed the commercial/recreational allocation to reflect that reality.

The commercial fishermen were not pleased.

It’s easy to argue that the new regulation didn’t really represent a reallocation, but merely a recalculation that corrected an error made 14 years ago.  After all, the base years used to calculate the allocation—the same base years that were completely acceptable to the commercial sector back in 2009, when it was granted 76% of all Gulf red grouper landings—did not change.  All that NMFS did was change the percentage of the landings allocated in each sector, to correct an error it made well over a decade ago.

Because of that error, the commercial sector was never really entitled to 76% of the red grouper landings; given the decision to use the base years 1986-2005.  The fact that commercial fishermen were mistakenly allowed to harvest such a large proportion of red grouper landings for so many years is somewhat analogous to the legal concept of unjust enrichment; with respect to which, the Florida Supreme Court (quoted here because so much of the red grouper harvest is landed in Florida) has noted that

“The elements of an unjust enrichment claim are ‘a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof’  [citation omitted]”

Placing those elements in a red grouper context, we have the commercial sector receiving, until recently, 76% of landings instead of 59.3%, the 16.7% difference representing fish that should have been allocated to the recreational sector (analogous to “a benefit conferred upon a defendant by the plaintiff”); MRIP data making it clear that the recreational sector was responsible for 40.7% of the landings during the years 1986-2005 (“the defendant’s appreciation of the benefit”); and the commercial sector seeking to retain its 76% allocation (“the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it”).

While such facts wouldn’t entitle the recreational sector to make an unjust enrichment claim--commercial fishermen would never, and certainly should never, be held liable for cash damages because NMFS got the commercial/recreational allocation wrong--they do strongly support the idea that the commercial sector has long received an unjustly large proportion of the red grouper landings, and that the NMFS action to correct the allocation was totally justified.

However, allocation debates don’t abide by that sort of logic. 

Hell may freeze over and the world may go up in flames, but an allocation, once made, is forever—at least that’s the typical view of those who originally receive the majority of the fish, and have no intent of allowing any of “their” fish to be allocated away by fishery managers, regardless of the equities involved.

That’s particularly true in the case of the commercial fishery for Gulf of Mexico red grouper, which are managed under a catch share program.  Thus, a fisherman may not only be entitled to harvest, for example, one half of one percent of the commercial red grouper quota, but he or she may have purchased some or all of that entitlement from someone else; in such case, any reduction in the commercial quota would translate into a corresponding reduction in the value of the fisherman’s investment.

It's not hard to understand why a fisherman would fight an allocation change, rather than meekly accept such a loss.

Thus, although it stayed quiet in 2009, the commercial sector came out in force to oppose NMFS’ recalculation of the commercial/recreational red grouper allocation. 

It opposed the recalculation on procedural grounds, making claims that NMFS quickly dismissed. 

It argued that increasing the recreational share of the landings would lead to unacceptably high levels of discards, an argument that NMFS admitted was partly true—a higher recreational quota would lead to more discards—but also dismissed as irrelevant, as what mattered was overall fishing mortality, not how or why some fish died, and both the old allocation and the new one kept the fishing mortality rate about the same.

It argued that MRIP didn’t represent the best available scientific information about recreational landings, a claim that was, according to NMFS, just plain wrong.

It also claimed that the new allocation was inequitable, because it

“forces the commercial sector subsidize dead discards in the recreational sector,”

a claim that NMFS rejected because

“the overall goal of the [fishery management plan] is to attain the greatest overall benefit to the Nation with particular reference to food production and recreational opportunities…

“The commercial sector is not subsidizing dead discards from the recreational sector…the Magnuson-Stevens Act includes recreational opportunities in its definition of [optimum yield].  In pertinent part, the Magnuson-Stevens Act defines the optimum yield as the amount of fish which will provide the greatest overall benefit to the nation with respect to food production and recreational opportunities.  The allocation implemented through this final rule does result in less total annual harvest by both sectors.  However…the two sectors have different objectives, and operate differently to achieve those objectives.  Participants in the commercial sector tend to seek to maximize harvest and efficiency while participants in the recreational sector tend to seek to maximize access and opportunities.  These different goals and objectives impact fishing behavior, which generally results in more discards for the recreational sector.  The Council and NMFS must consider and account for these differences when determining whether an allocation fairly and equitably allocates fishing privileges and provides the greatest overall benefit to the Nation…”

In addition, the commercial sector claimed…

Well, it claimed a lot of things, seemingly employing the timeworn approach of throwing everything they could reach at the wall, and hoping that something might stick.  But when all was said and done, all of the comments boiled down to little more than a concerted effort to avoid sharing some grouper with recreational fishermen.

Not once did a commercial fishermen commit the heresy of abandoning the past, and seek to create a new allocation that might maximize the social and economic benefits that could be gleaned from Gulf red grouper in the future.  The concept of “catch history” is just too ingrained in the commercial fishermen’s—and fishery managers’—psyches for any of them to turn around and look ahead, instead of staring into the years gone by.

Yet there are arguments that could be made for allocating more red grouper to the commercial sector. 

For example, a study prepared by fisheries economist Brad Gentner for the Coastal Conservation Association, a prominent anglers’ rights organization, admitted that the commercial red grouper fishery generated more income ($23.7 million vs. $20 million), contributed to higher value added ($49 million vs. $35.2 million), and supported more jobs (988 vs. 501) than does the recreational fishery—although the same analysis argued that the greatest economic benefit was generated by the recreational sector.

But the commercial sector is so stubbornly stuck in the past that it is now challenging the recalculated allocation in court.  While commercial representatives criticize, and try to invalidate, the new commercial/recreational allocation, they make no effort to explain why a 76%/24% split was the right one, particularly given the revision of recreational landings estimates, which seem to render the old allocation not only obsolete, but completely arbitrary.

As noted by Louisiana Attorney General Jeff Landry, in a motion seeking to make the State of Louisiana an intervening defendant in the action brought by Gulf commercial fishermen,

“These arguments [made by the commercial representatives] would preclude any allocation to the recreational sector, even if based on better scientific information than was originally available, because the recreational sector inherently involves bycatch (since the goal of recreational fishing is the experience of fishing as well as the actual catching of fish) and does not directly report catch or bycatch (since this cannot practically be done for the enormous number of private anglers)…

“…Recreational and commercial fishing have coexisted in Louisiana for ages; we cannot allow one to be preserved at the expense of the other.”

Yet benefitting one sector at the expense of the other is what allocation debates are all about.  There are only so many fish to go around, making allocation a zero sum game; one sector cannot get more unless another sector ends up with less.

With so much at stake, it would make sense for fishery managers to take time to stop and consider what would be best for fishermen, fish stocks, and the public at large in the long term.  The problems with today’s fisheries can often be traced back to mistakes that we’ve made in the past.  Perpetuating those errors, in the name of “catch history,” could be the biggest mistake of all.