The plaintiffs argued
that, in making the reallocation, the National Marine Fisheries Service relied
on an economic analysis that it had rejected when the previous allocation was
made, and that the reallocation was inconsistent with two
of the national standards for fisheries conservation and management contained
in the Magnuson-Stevens Fishery Conservation and Management Act, including National Standard 4, which requires, among other things, that
allocation measures
“shall be…reasonably calculated to promote
conservation,”
and National Standard 9, which
states that
“Conservation and management measures
shall, to the extent practicable, (A) minimize bycatch and (B) to the extent
bycatch cannot be avoided, minimize the mortality of such bycatch.”
Relevant
to those national standards, one of the commercial plaintiffs commented that
“Reallocation to the recreational sector
under Amendment 53 increases dead discards and commercial fishermen are forced
to fish under a reduced catch limit to cover those discards. So commercial fishermen are penalized twice: first
by the reallocation and second, by lower overall catch limits to offset
increased recreational discards. In
essence, commercial fishermen now have a smaller piece of a smaller pie as a
result of Amendment 53.”
The
trial court that first addressed the challenge decided against the plaintiffs,
finding that Amendment 53 complied with all the requirements of Magnuson-Stevens,
and that the underlying decisions found adequate support in the administrative
record. However, the Court of
Appeals, in a unanimous decision, disagreed.
While it did not vacate the rule that implemented Amendment 53, it did remand
the matter to NMFS,
“so the Fisheries Service can address
whether the economic analysis underlying Final Amendment 53 was sufficiently
different from that discredited in adopting Final Amendment 28 in 2016 and the
implications of further analysis for National Standards 4 and 9.”
While the ultimate fate of Amendment
53, and the reallocation established therein, will hinge on how NMFS responds
to the remand, some of the most interesting language in the Court’s opinion
lies not in the finding that led to the remand, but rather in the language that
addresses challenges based on the National Standards.
With respect to National Standard
4, plaintiff argued that the reallocation itself, rather than the entirety of
Amendment 53, must be “reasonably calculated to promote conservation,” a
standard that a reallocation favoring the discard-prone recreational
sector was unlikely to meet.
The Court of Appeals disagreed, noting that
“it is not clear that Final Amendment 53
was an allocation for purposes of National Standard 4. Final Amendment 53 relies on the same
historical landings as Final Amendment 30B.
The only difference is that Final Amendment 53 uses more accurate survey
data to extrapolate the historical recreational catch and enforce the
recreational catch limit. It is unclear
such a methodological change effects a new allocation of fishing rights. [citations omitted]”
In
other words, as I argued in a post that appeared in this blog shortly after the
lawsuit began,
“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.”
In the end, the question of
whether Amendment 53 actually reallocated the red grouper resource, or merely
corrected a past error, might not matter, since the Court ultimately determined
that
“National Standard 4 applies to Final
Amendment 53 as a whole and not just to the quota allocation component…Final Amendment
53 might be sufficient to promote conservation by substantially reducing catch
limits and promoting wise use. This may
well depend on how the Fisheries Service addresses its reliance on the analysis
it rejected in Final Amendment 28.
[citations omitted].”
The Court’s finding that National
Standard 4 applied to the Amendment as a whole, and not merely to that portion
which addressed the allocation, may well be relevant to future litigation. However, the question of whether the supposed
reallocation was really an allocation subject to the language of National
Standard 4, or was merely a methodological change that did not rise to the
level of a reallocation, could cause some discomfort for the recreational
sector.
Amendment 53’s reallocation—if that’s what it was—was based upon data provided by the Marine Recreational Information Program, which revealed that anglers had been, and are, catching far more fish than managers had previously thought. The increase in recreational landings estimates was largely due to MRIP’s use of the Fishing Effort Survey to estimate the number of trips made by recreational fishermen, as such survey found that the number of trips taken by anglers was at least 2 ½ times higher than estimated by the older and badly flawed Coastal Households Telephone Survey.
After the recreational landings for the years 1996-2005 were recalculated using the Fishing Effort Survey methodology, and managers learned that such landings had been badly underestimated before, the Gulf of Mexico Fishery Management Council initiated Amendment 53, in part to correct that problem.
But now, a new issue has
emerged. A
preliminary study, unveiled last year, now suggests that the Fishing Effort
Study is overestimating the number of recreational fishing trips, perhaps by as
much as 30 or 40 percent. NMFS
has embarked on a large-scale study to determine whether, and to what
degree, the error in the Fishing Effort Study exists in all regions and in all
fisheries. Should that study find
that recreational effort in the Gulf red grouper fishery was overestimated, and
that recreational landings were thus overestimated as well, and should the
logic that drove the allocation provisions of Amendment 53 still prevail, the Gulf Council could revisit the allocation question in a new amendment, and once again adjust each sector’s shares
to match the newly available data.
Of course, any such action would whipsaw the “anglers’ rights” organizations that consistently support larger allocations for the recreational sector. For example, the Coastal Conservation Association, speaking out of one side of its mouth, intervened in the red grouper litigation as a defendant supporting the validity of Amendment 53 and its increased recreational allocation based on Fishing Effort Survey data.
The
same CCA, speaking out of the other side of its mouth, aggressively rails
against
“a federal management system…struggling to
function due to uncertainty in the federal recreational data,”
and notes that
“errors in [NMFS’] recreational data
program…is causing the over-estimation of recreational harvest by up to 40
percent for some species…managers will be forced to use the flawed data for management
for several years as the system is analyzed.”
So, that organization already finds
itself in the unenviable position of supporting an allocation that, if its own
spokesman is to be believed, is based on flawed and uncertain data that may
have overestimated recreational red grouper landings by as much as 40%. If the supposedly faulty data is now revised so that it no
longer overstates recreational landings, and the Gulf Council seeks to revise
the red grouper allocation accordingly, the CCA will have to choose between
accepting a smaller allocation based on revised and more accurate recreational landings
estimates, or fighting to maintain a Amendment 53 allocation that, by its own
admission, was based on “flawed data.”
One doesn’t need the gift of prophesy
to accurately predict which option they’d select.
The court’s discussion of the bycatch
issue should also give recreational fishermen pause. It notes that
“in balancing the practical constraints
[of limiting bycatch] and the Act’s competing objectives, the Fisheries Service
had relied on the conclusion that [Amendment 53’s preferred] Alternative 3 ‘results
in the smallest reduction in net economic benefits to the Nation of all the
alternatives considered.”
Yet that conclusion was based on
the same questionable economic analysis that caused the Court to remand Amendment
53 to NMFS, so
“the Fisheries Service may need to revisit
whether further bycatch minimization is not practicable and provide additional
support.”
That could further endanger
Amendment 53’s allocation provisions, for as the Court notes,
“The Fisheries Service admitted that it
did not consider measures to ‘directly reduce the bycatch of red grouper and
other species.’ Instead, it referenced
the potential future use of measures that had already proved insufficient, including
‘catch limits, in-season and post-season accountability measures, season and
area closures, a minimum size limit, and a recreational bag limit,’ as well as
gear requirements. Beyond that, the
Fisheries Service reasoned that bycatch will decrease because overall catch
limits are being reduced. But this
approach suggests that virtually any allocation that reduces a catch limit will
satisfy National Standard 9, at least so long as the Fisheries Service
reasonably concludes that additional measures were not practicable. The Fisheries Service appears not to have explained
how that is a reasonable application of National Standard 9. [citations omitted]”
Given that recreational hook-and-line
fisheries, because of their size limits, bag limits, closed seasons and high
levels of effort, often produce more bycatch, in the form of regulatory
discards, than do related, quota-governed commercial fisheries, such language
could easily bode ill for future reallocations in favor of the recreational sector.
At this point, it’s difficult to
say which side will prevail in A. P. Bell Fish Company, Inc. v. Raimondo. The opinion gives both appellants and
appellees reasons for hope, and reasons for concern.
The important thing is that, so long as science-based catch limits
remain in place, the final allocation will not put the red grouper at risk.
However, the Court’s decision
makes it clear that setting allocations is not as simple as looking at past
landings patterns and perpetuating them into an indefinite future. The National Standards still apply, and the
need to promote conservation and minimize bycatch, among other considerations,
can still influence how regional fishery management councils make allocation decisions.
For, as I’ve noted many times before, allocations
provide an opportunity to provide a better future for America’s fisheries. They don’t require managers to preserve the
mistakes of the past.
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