WHY DID A COURT DECIDE TO ENJOIN THE SOUTH ATLANTIC RED SNAPPER EFPS?

 

Bottom fishermen throughout eastern Florida felt growing excitement as Memorial Day weekend approached, and the state’s anticipated 39-day South Atlantic red snapper season.

For well over a decade, there had been few opportunities for anglers to target red snapper.  The fish were abundant and willing to bite, and It turned out that was a problem, because recreational fishermen kept catching, and unintentionally killing, red snapper while fishing for other species, even when the red snapper season was closed.  Things got so bad that, out of the 509,000-fish annual catch limit, 475,000 were allocated to dead discards (almost all of which were generated by anglers), while just 22,797 were set aside for anglers to keep and take home, with the remainder allocated to the commercial fishery.

Because they never managed to get their dead discards under control, the recreational red snapper season could only be open for one or two days.  Any longer, and overfishing would be the result.

Thus, the recreational fishing industry and the anglers’ rights community tried to win themselves an extended fishing season, and larger red snapper landings—even at the price of increased fishing mortality—by convincing state and federal regulators that the National Marine Fisheries Service should issue exempted fishing permits to the states, ostensibly to test new approaches to data collection, which would also allow anglers to ignore the annual red snapper catch limit, fish for an extended period, and bring more red snapper home.

Those permits were issued on May 1.  On May 5, members of the commercial fishing industry filed a legal action seeking to enjoin the operation of the permits, arguing that recreational fishing pursuant to the permits would cause the South Atlantic red snapper stock to be overfished, causing harm to those members of the commercial fishing industry who also harvest red snapper.  On May 21, just hours before Florida’s expanded recreational season for South Atlantic red snapper was to open, a judge sitting on the Federal District Court for the District of Columbia issued a preliminary injunction which halted fishing activity pursuant to the exempted fishing permits until the matter can be decided on its merits.

The injunction enraged many of the anglers hoping to fish the next day, along with charter boat operators who suffered last-minute cancellations not only for the scheduled opening day of the season, but for the month that followed.  Florida Governor Ron DeSantis was particularly vocal, saying

“I mean, think about it, how disrespectful is it to rule when people have already made plans to come down and do this…And look, a lot of it’s local, but there’s a lot of people that may have been the determining factor in them doing Memorial Day weekend and on the east coast of Florida, when maybe they would have gone someplace else.”

Elsewhere on the Internet, we saw anglers blame the judge, commercial fishermen, commercial fish dealers, and NOAA Fisheries.  One unhappy angler made the remarkable statement that

“The federal government nor the state government have a lawful right to restrict the gathering of food in state or federal water of individual citizens of the United States.”

However, he provided no legal citations to support his position, and a quick check of his profile confirmed that he was not an attorney, but rather the head of a company that earned its profits by cutting down trees, so his views on legal issues probably ought to be taken with at least one grain of salt.

Yet the question remains:  Who bears the real onus for any harm done by the eleventh-hour closure of Florida’s recreational season for South Atlantic red snapper?

A thoughtful look at the issue reveals that the true source of the damage isn’t who or what most anglers think.

Let’s look first at the judge’s decision granting the preliminary injunction. 

The Federal Bar Association, a professional organization of those who practice within the federal court system, notes that

“Through fair and impartial judgments, the federal courts interpret and apply the law to resolve disputes.  The courts do not enact the laws, that is the responsibility of Congress…The judicial branch…has the authority to decide the constitutionality of federal laws and resolve other disputes over federal laws.”

The judge’s responsibility in Southeast Fisheries Association v. Lutnick—the suit challenging the South Atlantic red snapper exempted fishing permits—was thus to “interpret and apply” the law governing the issues raised by the parties, and to “resolve [their] disputes over federal law.

The federal laws in question in the action were the Administrative Procedures Act, which governs agency action and the judicial review thereof, and the Magnuson-Stevens Fishery Conservation and Management Act, which among many other things, directed the Secretary of Commerce to

“promulgate regulations that create an expedited, uniform, and regionally-based process to promote issuance, where practicable, of experimental [not “exempted”] fishing permits.  [emphasis added].”

Magnuson-Stevens also includes a congressional finding that

“a national program for the conservation and management of the fishery resources of the United States is necessary to prevent overfishing,  [emphasis added]”

requires that

“Conservation and management measures shall prevent overfishing,  [emphasis added]”

states that every fishery management plan shall

“contain the conservation and management measures, applicable to foreign fishing and fishing by vessels of the United States, which are necessary and appropriate for the conservation and management of the fishery to prevent overfishing.  [emphasis added, formatting omitted]”

Another provision of Magnuson-Stevens requires regional fishery management councils, in each fishery management plan that they approve, to

“establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, of annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.  [emphasis added]”

Preventing or ending overfishing is mentioned in various other provisions of the law.  In passing Magnuson-Stevens, Congress established a very clear policy that overfishing was not to be tolerated in the fisheries of the United States.

So the question for the judge was whether the National Marine Fisheries Service could issue exempted fishing permits, under the experimental fishing permit provision, that might upend that policy against overfishing and allow overfishing to occur so long as the exempted fishing permit was in force.

NMFS acted as if it could, issuing exempted fishing permits that expressly exempted recreational red snapper fishermen in the four South Atlantic states from the regulation

“that specifies the annual catch limit and accountability measures applicable to the recreational harvest of red snapper.”

And the Florida Fish and Wildlife Conservation Commission argued that NMFS could, writing, in a letter to Commerce Secretary Lutnik, that

“there is nothing in the Magnuson-Stevens Act (MSA) that dictates an EFP’s harvest be included in annual catch limits.”

The plaintiffs, however, disagreed, and argued that

“The factual record establishes that under the challenged permits, red snapper landings in 2026 will substantially exceed the stock’s annual catch limit.  The record also establishes that under the challenged permits, fishing mortality in 2026 will be so high as to cause overfishing on South Atlantic red snapper…

“Preventing overfishing, managing stocks under annual catch limits, and ensuring fair and equitable allocations are core requirements of the Manguson-Stevens Fishery Conservation and Management Act…

“The Magnuson-Stevens Act nowhere allows Defendents to waive the statutory requirements for annual catch limit management, preventing overfishing, and fair and equitable allocations—whether through the use of ‘exempted fishing permits’ or otherwise.  [numbering omitted]”

Judge Rudolph Contreras’ job—his only job—was to apply the law to the undisputed facts in the case, and decide which side should prevail.

On May 21, he handed down his decision.

In that decision, he noted that

“Traditional tools of statutory analysis show that any EFPs the NMFS issues must comply with the [Magnuson-Stevens Act].  The MSA created a [c]ooperative research and management program…to address needs identified under [Chapter 38 of Title 16 of the United States Code and any other marine resource laws enforced by the Secretary [of Commerce].  Chapter 38, titled ‘Fishery Conservation and Management,’ identifies several such needs, one of which includes placing fishery resources ‘under sound management’ ‘before overfishing [causes] irreversible effects.’  It also identifies another need: [t]he collection of reliable data’ for ‘the effective conservation, management, and scientific understanding of the fishery resources of the United States.’  In turn, Section 1867(d) of the MSA authorizes the Secretary to issue ‘experimental permit[s].’  Under 50 C.F.R. [section] 600.745(b), the Secretary promulgated such a process.  Under that process, the NMFS may issue EFPs ‘for limited testing, public display, data collection, exploratory fishing, compensation fishing, conservation engineering, health and safety surveys, environmental cleanup, and/or hazard removal purposes,’ if a target or incidental harvest of a species managed under a fishery management plan or fishery regulations is prohibited (e.g., South Atlantic red snapper).

“Therefore, at a minimum, each EFP the agency issues—including data collection projects—must ‘address’ (i.e., ‘to give attention to or deal with a matter or problem’) the ‘needs’ (i.e., ‘necessary dut[ies] or obligation[s]’) Congress identified within Chapter 38, several of which emphasize the need to prevent overfishing.  This is evident from the plain language of the statutes concerning EFPs, their titles, and their place within the overall statutory scheme.

“It is also consistent with the NMFS longstanding practice and understanding of EFPs.  When Congress amended MSA to create a ‘[c]ooperative research and management program,’ and directed the Secretary to create an ‘[e]xperimental fishing permitting process,’ the NMFS explained that ‘[a]ny permit issued by NMFS is a Federal action, and as such must comply with any and all applicable laws…’

“…[A]s Amicus Curiae notes, in a prior EFP concerning red snapper, the NMFS has explicitly stated that this permit ‘does not exempt’ participants from the requirements of the MSA, including the requirement under 16 U.S.C. 1883(d), which prohibits the harvest of red snapper for the remainder of the fishing year if the red snapper recreational quota is met, even if the EFP participants have allocation remaining.  Therefore, in addition to the relevant statutes, the Government’ [sic] own practices indicate that EFPs must be consistent with the requirements of the MSA…

“Because Section 1867 requires EFPs to be consistent with the MSA, as explained above, the NFMSA [sic] must consider whether granting an EFP application would lead to overfishing or implicate other conservation concerns.  The regulations governing EFPs require the NMFD to do the same.  Plaintiffs, however, contend that the Government granted the States’ EFP applications without grappling with evidence that the EFPs would lead to overfishing.  The Court agrees, the Government ‘failed to consider an important aspect of the problem’ and thus ‘offered an explanation for its decision that runs counter to evidence before the agency.’

“In February 2026, the Government placed a notice on the Federal Register that it had received, and was considering, the States’ four exempted fishing permit applications.  In response to the notice, the Government received public comments, some of which expressed significant concern with the EFP applications…

“…[C]ommenters argued that the proposed EFPs would undermine existing federal protections for South Atlantic red snapper by allowing substantially more fish to be taken than current limits permit.  According to the commenters, the existing catch limits and overfishing thresholds are based on the amount of fishing-related mortality the stock can sustain and already reflect current fishing levels.  The commenters further argued that, whereas the recreational red snapper season had recently lasted only one to three days, the EFPs would extend the season to as many as 39 days in Florida and 62 days in the other states, thereby substantially increasing fishing mortality.  Thus, the commenters contended that the existing limits do not account for such dramatically expanded recreational seasons and would likely result in overfishing…

“Furthermore, the NMFS granted the States’ EFP applications, despite the applications being incomplete.  The regulations require ‘an applicant for an EFP to submit a completed application to the appropriate Regional Administrator or Director,’ and the ‘application package must include…[t]he species (target and incidental) expected to be harvested under the EFP, [and] the amount(s) of such harvest necessary to conduct the exempted fishing.’  And ‘[a]n incomplete application…will not be considered until corrected in writing.’  Despite this requirement, the NMFS granted the incomplete applications.

“The NMFS initially recognized this deficiency and requested that the applicants ‘throw out a number,’ for consideration, but Florida, for instance, refused, stating that ‘the EFP is not predicated on a number of fish, and for [NMFS] to request a number—even an estimated number—is inappropriate and unnecessary.  The other States also refused, some expressing concern that any harvest number would be used to shorten the season…

“But the agency’s own regulations require applicants to provide this information and an application without it ‘will not be considered.’  It is ‘axiomatic…that an agency is bound by its own regulations.’…So, if an ‘agency fails to comply with its own regulations,’ the relevant action ‘may be set aside as arbitrary and capricious.’  By granting the applications without the inclusion of harvest estimates, as required under the regulations, the Government acted arbitrarily and capriciously.

“Finally, while the Court agrees with the Government that Congress, through Section 1867(d), authorized the NMFS to ‘create an expedited, uniform, and regionally-based process to promote issuance, when practicable, of experimental fishing permits,’ the Court does not find that Congress gave the Government unbridled discretion to circumvent MSA and the fishery management plan framework through the EFP process.  ‘Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.  And it is more than a little doubtful that Congress would have tucked into the particular mousehole of [Section 1867(b)] an elephant that tramples the work done by [the MSA and the fishery management plans].’  As Amicus Curiae aptly observes, ‘nothing in [Section 1867(b)]…give[s] the [NMFS] general authority to exempt fishing activities from any legal requirements…let alone indicate[s] that Congress meant for [EFPs] to become a vehicle to deregulate fisheries.’…As explained above, EFPs must ‘address’ the ‘needs’ identified under the MSA—not provide an escape hatch from them.  Such needs include the overarching requirement that fisheries be managed to prevent and end overfishing.  [emphasis added, citations omitted]”

The decision appears well-reasoned, and seems to proceed logically from well-established law.  The Court was confronted with what appears to be an illegal agency action, which violates both the letter and the spirit of Magnuson-Stevens, and the agency’s own regulations as well.  In such an event, the preliminary injunction, although always issued at the discretion of the court, is a very appropriate remedy.

But the analysis of why the Plaintiffs prevailed shouldn’t stop there.

While the Exempted Fishing Permits were supposedly issued

“to pilot test state data collection and management strategies,”

the words of the EFP proponents themselves make it clear that the state EFP proposals were all about anglers being able to harvest more red snapper, and that testing new approaches to recreational data collection was, at best, a secondary consideration.

A press release issued by the Coastal Conservation Association, the largest and most aggressive of the anglers’ rights groups pushing for the EPFs, last November, describes their effort:

“The South Atlantic states are charting their own course.  For too long, federal management kept anglers tied to the dock, while a thriving red snapper population swam just outside reach.

“Frustrated red snapper anglers have waited a long time to see a light at the end of the tunnel and this week they got the news they’ve been waiting to hear.  All four South Atlantic states submitted exempted fishing permit applications yesterday to the  U.S. Secretary of Commerce to commence state management of South Atlantic red snapper.

“’If you look at what has happened to Atlantic red snapper in the last four years—two days for recreational red snapper in 2022.  Two days in 2023.  One day in 2024.  Two days in 2025.  This is not acceptable,’ Florida Gov. Ron DeSantis said in a press conference on Monday in Fernandina Beach, Fla.  ‘The problem is the states have not been given the responsibility to manage Atlantic red snapper…’

“South Atlantic red snapper is presently managed by NOAA through the South Atlantic Fishery Management Council.  The fishery has come under intense scrutiny in recent years as recreational fishing seasons have been limited to one or two days—and often closed entirely—despite the population being larger than any person alive has ever seen.  Draconian federal restrictions arise from high levels of uncertainty in recreational catch data collected by the federal government.

“The exempted fishing permits…from North Carolina, South Carolina, Georgia, and Florida outline state-based methodologies for improving recreational data and harvest access while still providing necessary conservation…  [emphasis added]”

Yes, recreational data collection is mentioned, but the thrust of the comments are not improving the data, but increasing the recreational season, so that anglers are no longer “kept…tied to the dock.”

Supporting comments quoted in the press release continue the theme.

Jeff Angers, president of the Center for Sportfishing Policy, complained that

“The South Atlantic has long been trapped in a broken federal bureaucratic system that limits opportunity to access a plentiful public resource.  [emphasis added]”

He didn’t mention data collection at all.

The American Sportfishing Association’s Martha Guyas did mention data, but only in a secondary way, saying

“ASA is incredibly thankful to the South Atlantic states for recognizing the importance of the red snapper fishery to anglers, coastal communities, and the economy of our region…The proposed EFPs are a critical step in not only restoring recreational harvest opportunities but also advancing much needed data collection improvements that can inform better management moving forward.  [emphasis added]”

The wolf-in-sheep’s-clothing nature of the EFP applications becomes even more evident in the language used by the South Atlantic states.  A letter from the executive director of the Florida Fish and Wildlife Conservation Commission to the Secretary of Commerce, Howard Lutnick, provides the best example, which noted that

“On November 10, 2025, FWC formally submitted Florida’s South Atlantic Red Snapper EFP that, upon approval, will allow for a 39-day season for Red Snapper in the South Atlantic, a clear improvement from the two-day federal season in 2025.”

Note what the letter does not say; it doesn’t say that the EFP, if granted, “will allow Florida to test a new data collection methodology.”  It says that the EFP “will allow for a 39-day season,” because that was the primary reason the EFP was being requested.  Testing improved data collection methods was only an excuse—an effort to cloak the state’s goal of killing more red snapper in an arguably more attractive disguise.

The letter goes on a bit later, telling Secretary Lutnick that,

“Given the social, economic, and cultural importance of recreational fishing in Florida, we greatly appreciate your leadership in seeing Florida’s application through to approval so Floridians can enjoy their God-given rights to recreate, and enjoy, our natural resources.  [emphasis in original]”

Still no mention of improving data collection.  Later on in the letter, as noted above, the Florida FWC argues that nothing in Magnuson-Stevens “dictates” that fish caught under an exempted fishing permit be “included in annual catch limits,” then argues that Florida should not be required to estimate the number of red snapper that will be killed pursuant to the EFP, because

“The Florida EFP limits harvest by number of fishing days and other fishery management tools, e.g. bag and aggregate bag limits.”

There would be no hard cap on the total number of red snapper killed.

Then, although the use of EFPs in the Gulf of Mexico red snapper fishery was frequently cited favorably by proponents of South Atlantic EFPs, Florida made it clear that it didn’t intend to adhere closely to the Gulf approach, because

“In the South Atlantic, dead discards are directly taken ‘off the top’ of the Red Snapper [annual catch limit], reducing allowable recreational harvest from 365,404 fish to 22,797 fish. In the Gulf of America, discards are not ‘taken off the top,’ providing significantly more harvest opportunities…Simply put, if Florida was to base our response on a ‘quota’, state-led management would be near impossible.  [emphasis added]”

And since the whole point of the Florida exempted fishing permit was to provide “significantly more harvest opportunities,” and escape the science-based annual catch limits imposed by NMFS, not being held to a quota of any kind was of prime importance.

Eventually, Florida’s letter did get around to mentioning data collection, first to complain that

“much of NOAA’s response [to the initial application for an exempted fishing permit] appears to potentially delay action under the guise of ‘data’ collection, [emphasis in original]”

and then to whine that

“based on…the continued reference to ‘data collection and research’ it is clear that NOAA’s initial review is not from the lens of flexibility.”

The Florida letter eventually criticized the federal data collection program and praised Florida’s counterpart, finally stating that the “primary impetus” behind the EFPs was

“to generate improved, regionally consistent information necessary to better quantify recreational fishing effort and discards for Red Snapper throughout the South Atlantic,”

before getting back to discussing

“The low recreational catch limit of 22,797 fish.”

That sort of language emphasizing longer seasons and higher landings, from both the EFP proponents and from the states, provides more than adequate reason to believe that the primary purpose of the EFPs was to create a mechanism that would allow recreational fishermen to exceed the annual South Atlantic red snapper catch limit with impunity.

And it was those states and EFP proponents who pulled the political levers necessary to convince—or, perhaps more accurately, compel—NMFS to issue the EFPs.  And it was those states and EFP proponents who are ultimately responsible for the chaos and any economic harm that followed the Court’s issuance of an injunction.

For as Judge Contreras determined, “EFPs must ‘address’ the ‘needs’ identified under the MSA—not provide an escape hatch from them.”

Since the South Atlantic red snapper EFPs did not address such needs, but were merely a ploy to allow anglers to overfish, they were illegal and thus were enjoined.

Those who initially supported the illegal EFPs now express outrage.

They should be expressing embarrassment instead.

 

 

 

 

TRUTH, THE FIRST CASUALTY: SOUTH ATLANTIC RED SNAPPER

 

Some have said that

“Truth is the first casualty of war,”

and that statement is as true of political battles over natural resources and it is of military conflicts.

And over the last couple of decades, along the southeastern coast—both the Gulf and the South Atlantic—there is probably no fish that has been a greater focus of political battles than the red snapper.

I’m not sure why that is.

I’ve caught the things, and they’re fun to catch, but nothing exceptional.  Amberjack pull a lot harder, and sails are quite a bit more fun.  I’ve eaten them, too, and the meat is OK, but in my view no better than yellowtail, mangroves, muttons, or some of the other fish I’ve caught off South Atlantic shores.

But for whatever reason, red snapper seem to be particularly good at inspiring fights, at least fights involving recreational fishermen, the recreational fishing industry, and just about everyone else, who the recreational folks repeatedly try to blame for the problems that they, themselves created.

The latest conflict has arisen over the National Marine Fisheries Service issuance of exempted fishing permits, that will allow red snapper anglers in Atlantic Florida, Georgia, South Carolina, and North Carolina enjoy fishing seasons 20 or 30 times longer than they were granted last year, and perhaps exceed their annual catch limit by as much as 2,000% or more, without suffering any consequences at all (outside of a possible decline in the red snapper population).

That latest conflict is where the truth about recreational red snapper fishing in the South Atlantic comes in.  Not just one truth, or two, but a few of them.

The first important truth is that there are a lot of red snapper in the South Atlantic.  Some big year classes have pushed up abundance, measured in numbers, although biomass is probably still significantly below what it was during the mid-20^th Century, because most of the fish are still relatively small.

The second is that anglers are catching lot of those red snapper.  As one typical recreational commenter noted on a charter boat’s Facebook page,

“giving REC guys two days [season] for a fish that there’s zero chance your [sic] not catching them, shit you probably going to burn a ton of gas money just to go throw away Red snapper all day.”

A third truth, as the above quotation’s “throw away” comment suggests, is that a lot of the South Atlantic red snapper caught by anglers aren’t being kept by anglers, due both to the 1-fish federal bag limit and the very short federal fishing season, which is open for a day or two and closed for the rest of the year.  Instead, all of those over-limit and out-of-season red snapper are returned to the water.

In that regard, it’s also true that anglers release a lot of red snapper, in absolute terms; over the past five years, 2021 through 2025, recreational fishermen in the South Atlantic released an estimated 2.2 millon red snapper every year.

But a very unfortunate truth is that many of the red snapper that anglers release don’t survive.  Release mortality occurs in a host of ways.  The simplest is that some fish simply die from the stress of being hooked and released; one study conducted off North Carolina, which employed descending devices to get the fish back down to the bottom quickly, found that almost 94% of red snapper hooded in the jaw survive, while nearly 88% of all deeper-hooked fish die.

Another study, just released this month, was conducted off northern Florida, and found that if red snapper were released on the surface, without the use of a descending device, barotrauma—the damaging effects of pressure changes experienced when the fish was reeled up from the bottom—would result in 46.8% of them dying after release; that study found that if a descending device was used, the release mortality rate fell to just 12.9% after six hours, and 29.0% after 48 hours had passed.

But even assuming that all of the anglers releasing red snapper employed descending devices—which is a vastly over-optimistic assumption—29.0% of 2.2 million red snapper is still a lot of dead fish.

Which leads us to the most unpleasant truth of all:  That recreational release mortality kills far more red snapper than either recreational or commercial harvest.  It probably makes up about 80% of all recreational red snapper fishing mortality.

And that truth is the biggest casualty of the current red snapper wars, both because some of the details are being twisted, and because the massive level of recreational red snapper discards is being completely ignored by recreational fishing advocates.

That is nothing new.

Consider, for example, a press release put out by the Coastal Conservation Association, perhaps the nation’s largest, and very likely its most militant, anglers’ rights organization, last September.  Announcing that “South Atlantic States Unveil Road Map to Snapper Management;” the substantive portion of that release stated,

“South Atlantic red snapper is currently managed by NOAA Fisheries through the South Atlantic Fisheries Management Council.  The fishery has come under intense scrutiny in recent years as recreational fishing seasons have been limited to one or two days—and often closed entirely—despite the population being larger than at any time in recorded history.  Draconian federal restrictions arise from high levels of uncertainty in recreational catch data collected by the federal government.

“In just the last four months, the governors of Florida, Georgia, and South Carolina voiced their support for a shift to state-led management of red snapper in the South Atlantic in a joint letter to U.S. Secretary of Commerce Howard Lutnick.  That was quickly followed by formal letters from congressional delegations from each of the three states reinforcing the call for reform…

“’This is an incredibly important step in the future of recreational red snapper management in the South Atlantic,’ said Ted Venker, vice president of conservation for Coastal Conservation Association.  ‘We are grateful to the South Atlantic states for taking on this added responsibility and for their commitment to bring rational, reliable data and management to this fishery.  As we have seen in the Gulf under this approach, we are confident that management outcomes will begin to align with the health of the resource and enhance anglers’ access to it.’

“The process in the South Atlantic is expected to follow roughly the same path as state management in the Gulf, with each state implementing and testing data collection programs through Exempted Fishing Permits…”

Nowhere is the reader told of the huge waste of red snapper—estimated at approximately 475,000 dead fish—that results from recreational fishermen releasing red snapper during the closed season. 

Instead of admitting to that incontrovertible fact, the Coastal Conservation Association tries to pull out its favorite canard, that the 1- and 2-day red snapper seasons were due to “high levels of uncertainty in recreational catch data collected by the federal government,” although that’s not even close to true; the percent standard error—the measure of uncertainty—in the release data (used to calculate release mortality) for four out of the last five years was well within the parameters for acceptable data.  Admittedly, the uncertainty in the landings data was high, but the actual recreational landings are an order of magnitude smaller than the number of red snapper tossed overboard to die by recreational fishermen. 

That’s the truth that the Coastal Conservation Association, the American Sportfishing Association, and all of the other advocates of the exempted fishing permits and extending the South Atlantic red snapper season are trying to sweep under the rug.

They try to pretend that anglers are somehow the victims of an incompetent or uncaring federal government, and hope that the public (because the federal government already knows) never figures out is that those 475,000 red snapper dumped and wasted by recreational fishermen represent more than 42 times the number of red snapper landed by the entire commercial fishery in the South Atlantic (102,951 pound commercial quota divided by an average 9.19 pounds per commercially-landed red snapper equals 11,203 fish landed commercially).

About the only time that the angling industry and anglers’ rights crowd even admitted to all the dead discards was in a May 22 press release issued by the American Sportfishing Association, after a federal district judge in the District of Columbia enjoined the so-called “pilot programs” associated with the South Atlantic red snapper exempted fishing permits.  And even then, the release presented things backward, saying that

“the recreational fishery in recent years has been limited to one- or two-day recreational harvest seasons, which has led to excessive discard mortality estimates,”

instead of presenting the unvarnished truth, which is that

“because it produces so many dead red snapper discards when the season is closed, the recreational fishery in recent years has had to be limited to one- or two-day recreational harvest seasons.”

And we should note that, when stating a truthful case, one normally states the cause before the effect instead of, as the ASA did, stating the effect before the cause, to sort of hide what’s really going on.

But any way one chooses to word things, the truth is the same:  the estimated 475,000 red snapper discarded dead by recreational fishermen outnumber the 22,797 annual recreational catch limit that anglers are allowed to bring home by a ratio of more than 20 to one.

I can understand why the angling industry and anglers’ rights crowd might not want that truth circulating too widely.

After all, they came up with the exempted fishing permit plan in an effort to kill even more fish, and if the public became aware that something like 95% of the South Atlantic red snapper that anglers are killing now are just feeding the sharks and the crabs, they might try to keep them from killing too many more.

Which brings us to the final truth that the organized red snapper anglers don’t really want you to know: That at least some of the waste could have been avoided, and both commercial and recreational landings could have been more than tripled, with no negative impact on the red snapper stock at all.

And NMFS knew how to do it.

On January 14, 2025, the agency issued a proposed Amendment 59 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic.  The proposed amendment would have resulted in a commercial quota of 346,000 pounds, instead of the current 102,951, and a recreational catch limit of 85,000 fish, instead of just 22,797.  The tradeoff was that it would close all fishing for species in the snapper-grouper complex, in all waters north of Cape Canaveral, Florida and south of the Florida-Georgia line, from December 1 to February 28; that three-month closure, in just that one area off northern Florida, was expected to reduce red snapper discard mortality by at least 24%.

The proposed amendment was no panacea.  It’s impossible—or at least very difficult—to fish one’s way out of the sort of discard mortality trap that has snagged South Atlantic red snapper anglers, for so long as fishing is still going on while the red snapper season is closed, some level of discard mortality will occur.  Even during the 39-day (Florida) and 62-day (Georgia, South Carolina, North Carolina) seasons proposed in the now-enjoined exempted fishing permits, the season would have remained closed, and discard mortality would still have occurred, for 10 or 11 months of the year.

But the proposed amendment was at least way to cut down the waste, and turn some of the discards into landings.

One would like to think that the angling community would have had a well-enough developed sense of responsibility that it might have at least tried to mitigate some of the waste of the red snapper resource that it had been perpetuating for years, and supported the proposed amendment.

But that sort of integrity was apparently lacking, for the various recreational organizations went all-out to defeat it, instead. 

The American Sportfishing Association called for everyone to “Protect Access to Bottomfishing in the South Atlantic,” which wasn’t surprising, since the ASA’s members can always sell more stuff if the season is open, and the American Sportfishing Association’s overriding job is to help its members sell as much stuff as they can.

Florida Sportsman magazine came out against the amendment.  Its advertisers were probably pleased.

And the Coastal Conservation Association came out strongly against, perhaps a little unnerved at being asked to actually conserve something, when creating artificial reefs for anglers to fish on and supporting hatcheries that pump out fish for anglers to catch are more in its wheelhouse these days.

Their efforts were successful.  Anglers’ waste of nearly half a million red snapper goes on, while the recreational fishing organizations still try to find new and creative ways to kill more of them.

That’s why it’s important to keep the truth front and center, and not let it be buried alive.

 

 

 

 

 

 

 

BIOLOGISTS CONSIDER SHARK DEPREDATION

 

Shark depredation—the act of sharks stealing fish from anglers or commercial fishermen—is nothing new.

Ernest Hemingway wrote about sharks “apple coring” bluefin tuna—attacking a hooked fish so relentlessly that an angler was left with little more than a head, a tail, and a near-fleshless backbone in-between—in the mid-1930s, and when I began fishing for cod from Rhode Island party boats three decades later, it was pretty well understood that we’d lose a few on every trip to the sharks that would inevitably be attracted to the struggling fish we reeled up from the ocean’s floor.

Offshore sportfishing is a relatively new sport, not much more than a century old, but it’s a pretty good bet that the fishermen who first set a net or threw a spear into the ocean, hoping to drag some food from the sea, learned first-hand about shark depredation, long before anyone gave it a name or developed the alphabet needed to record its occurrence.

Still, shark depredation has been getting a lot more press during the last few years, and there is little doubt that depredation events are becoming more common, both in northern and southern waters.

The big question is “Why?”

A team of biologists set about trying to answer that question.  The result was the recent paper, “Characterizing a century of shark depredation in US Atlantic recreational fisheries,” which was published in the April 2026 edition of the ICES Journal of Marine Science.

The researchers came up with a correlation between shark abundance, prey fish abundance, and angling activity that suggests why rates of shark depredation have varied over the years, which seems to make intuitive sense and corresponds with what I’ve observed on the water over the past 60 or so years.

Early in the paper, its authors note that

“At its essence, shark depredation is the result of human-wildlife overlap; in this case, spatially and temporally dynamic overlap between recreational anglers and sharks competing for a shared resource.  Navigating the challenges associated with recent increases in shark depredation (real or perceived) requires a broader understanding of how this overlap has evolved over time.  Therefore, we present a conceptual model incorporating historical information to broadly characterize a century of overlap between US Atlantic recreational anglers, target fisheries species, and sharks…  [citations omitted]”

One of the more interesting aspects of the analysis is that shark depredation, along with the factors that cause it, ebbs and flows over time; it does not follow a consistent trajectory. 

In the beginning—meaning the beginning of the 100-year span analyzed in the paper, not the beginning of all interactions between fishermen and sharks—depredation occurred, but there wasn’t too much overlap between anglers, sharks, and their shared target species in the quarter-century between 1925 and 1950.  Angler populations were certainly far lower than they are today, and target fish populations, being under far less pressure, were almost certainly much higher.  But what might be the most surprising aspect of the latter half of that period is that the shark population was probably somewhat depressed, at least in the waters off Florida, where some of the highest levels of shark depredation reportedly occur today.

That was due, as the paper notes, to the need to find a substitute for cod liver oil, which was then one of the most-used vitamin supplements.  Once the start of the Second World War, and the threat of German U-boats, cut off cod liver oil shipments from Europe, shark livers, processed at a plant in Port Salerno, Florida, provided a viable substitute.

It’s probably important to note a description of the then-new commercial shark fishery that was quoted in the paper:

“Thus the shark, a pest and a menace to Florida fishermen and sport lovers, the scourge of Florida waters, is being transformed into one of the most valuable creatures of the sea,  [emphasis added]”

because when we hear fishermen complain about current levels of shark abundance, we often hear them say that sharks “need to be controlled,” or that shark populations are “out of control.”  The supposed overabundance of sharks is blamed on the National Marine Fisheries Service’s efforts to manage shark populations, with one charter boat captain whining that

“The sharks have been protected for decades, and I believe it’s time that we need to control these predators as their population is spiraling out of control.”

But the early-1940s comment about sharks being “a pest and a menace to Florida fishermen and sport lovers” confirms that there is nothing new about shark depredation; it was going on long before NMFS began regulating shark landings, and long before “depredation” became the buzzword that it is today.

In the next quarter-century—1951 through 1975—the paper suggests that the overlap between anglers, sharks, and the various prey species increased substantially.  The number of recreational fishermen increased as the typical worker had more leisure time, as well as a better selection of affordable fishing boats, while the availability of fish traditionally targeted by recreational fishermen began to decline due to increased landings, largely by the commercial fishery; at the same time, shark abundance was generally stable, as the commercial fishery declined while recreational shark fishing, spurred on by the book, and later the movie, Jaws, became more and more popular.

This was the era in which I was born, began angling, saw my first recreationally caught sharks, and had my first experiences with shark depredation.  It was also the time when I first experimented with recreational shark fishing, and the time that created my personal baseline for shark depredation.

At that point, sharks were generally cursed at by anglers when they stole a tuna, billfish, or cod, but shark depredation was not the cause celebre that it is today.  It was merely a nuisance that fishermen learned to live with when they ventured out onto the sea.

That being said, it could easily be argued that today’s discontent over shark depredation was born in the third quarter-century defined in the paper, the years 1976 through 2000.  They were years when the angling population continued to increase, while the populations of both sharks and the various target fish species were both in decline.  There was relatively little overlap between the three groups.  In fact, according to the paper’s authors, the years between 1976 and 2000 resulted in the least overlap of any period during the past hundred years.

As the paper observes, during this period,

“commercial shark fisheries were explored as an underutilized resource, and public interest in recreational shark fishing continued to grow.  Expanding trade relations with China during this period also offered massive new markets for US seafood exports, including shark fins.  Consequently, commercial shark landings escalated by an order of magnitude, from 135 tons in 1979 to 7172 tons in 1989, yet it wasn’t until 1993 that the first fishery management plan for US Atlantic sharks was enacted.  By then, most primary targets of commercial shark fisheries…were overfished…  [citations omitted]”

Some species of shark saw their abundance fall to historic lows.

This was the time when I became an active recreational shark fisherman, catching, killing, and eating my first sharks in the late 1970s, then buying my first (more-or-less) offshore-capable boat in 1982, catching my first sharks from that boat a year later, when I also ended up moving from my original home in Connecticut, where fishing was restricted to a shark-starved Long Island Sound, to the South Shore of New York’s Long Island, a move motivated by my desire for ready access to the ocean and the sharks and tuna that roamed within.

During those years, I became an active tournament fisherman, and saw anglers fishing from my boats place a number of prize-winning sharks on the scales.  But I also saw some species of shark fall into notable decline, dusky and sandbar (“brown”) sharks foremost among them.  The big tiger sharks that were once relatively common off New York during the summer became far less abundant, and even the shortfin mako, the most popular species in our local shark fishery, appeared to grow somewhat scarcer and trend smaller in size as the 20^th Century reached its end.

Anglers became accustomed to an ocean where sharks were fewer and farther between than was the case in previous decades.

Thus, they were mentally unprepared for what happened over the last 25 years.

The paper refers to the years 2001 through 2025 as a time of

“Greatest overlap and lifting baselines,”

when

“there are more anglers than ever before, shark populations are rebuilding following three decades of management, and many target fishery species are recovering from overfishing.”

Dr. J. Marcus Drymon, the lead author of the paper, previously characterized what can happen next as a sort of “lifting baseline” situation, in which

“Instances where populations have been overfished and then rebuilt can create a perception of overabundance.  When the species that’s recovering is a predator, that can lead to human-wildlife conflict.”

That’s arguably what we’re seeing with shark depredation today.

Still, the shark depredation issue can’t be ignored, because sharks do steal fish from anglers, and anglers do get upset when that happens.

The paper, relying on input from various sources, identified 22 species of shark that engage in depredation, and 51 target fish species that suffered from the events.  The depredation events involved 207 different combinations of shark and target fish species, with bull sharks and sandbar sharks named as the most frequent depredators.  Those figures probably underestimate the number of possible shark/target fish combinations that actually occur, as I recall that my early recollections of depredation on the Rhode Island cod boats involved blue, shortfin mako, and dusky sharks, although duskies were not listed as one of the reported cod depredators in the study.

Perhaps most significantly, the paper stated that

“There are no ‘silver bullet’ shark depredation solutions that will work across all of the fishery scenarios identified in our analysis.  Ideally, any approach should simultaneously maximize access to target fishery species while minimizing shark interactions.  Yet, in reality, potentially available mitigation options may only marginally reduce conflict, not eliminate it.  Depredation mitigation options currently include three primary mechanisms: (1) using technical/physical deterrents, (2) modifying fishing behaviors, or (3) reducing shark populations.”

It notes that

“researchers are testing the efficacy of technical/physical deterrents with promising results,”

while also observing that

“Shark population reduction, either through targeted removal or optimizing sustainable harvest of sharks, is often proposed by anglers as the preferred mitigation option,”

although such population reduction might prove impractical because

“Killing prohibited species…is illegal, while targeted removal of authorized species…without widely marketable products is wasteful and inconsistent with US fisheries law.”

As an angler who has fished on every coast of the United States, and is more than familiar with the Atlantic coast shark fishery and other Atlantic coast fisheries, I would argue that the second option, modifying fishing behaviors, probably holds the greatest promise.  While the paper merely states that

“modifications to fishing behaviors such as changing locations and using electric reels are likely to reduce depredation,”

I would argue that the best way to minimize shark depredation is to get a hooked fish up to the boat as quickly as possible, and either land it or release it in the shortest practicable time.

That is not a new or nor a controversial opinion.  Hemingway had already figured it out nearly 100 years ago.

“We try to fight them fast but never rough.  The secret is for the angler never to rest.  Any time he rests, the fish is resting.  That gives the fish a chance to get strong again…You don’t have to kill a horse to break him.  You have to convince him…”

Dr. Andrew J. Danylchuk, another of the paper’s authors, once wrote something similar, with respect to avoiding shark depredation of tarpon in the Florida Keys.

“The longer an angler fought a tarpon on the line, the greater the chances for depredation…

“There is a quick solution…Fight tarpon harder, and get ‘em landed and released in under 10 minutes.  Of course, a shark could still go after it once released, but at least the fish has a fighting chance of survival.”

It’s only common sense.  The less time a fish is struggling in the water, the less time there is for its struggles to attract a shark, and even if they do, the less time the shark will have to locate and depredate the fish.

But a lot of current angling trends work counter to those truths.

There has been a trend over the years to use spinning tackle to catch larger fish, including tuna, sailfish, and larger reef fish such as amberjack and big groupers.  While anglers might find such gear more enjoyable to use, from an ergonomic standpoint, it is far less efficient than the traditional, conventional rod and reel, either paired with a belt and stand-up harness or, when the fish are particularly large, a bucket harness, footrest, and fighting chair, either of which allow the angler to bring the full force of their shoulders, back, and legs into the fight.  A spinning rod, on the other hand, doesn’t take full advantage of all of an angler’s muscle, and so adds extra time—with tuna, sometimes an hour or more—to the battle, time which makes depredation all the more likely.

In recent years, we have also seen trends like slow-pitch jigging, which employ rods that lack any meaningful backbone, and are largely useless for pumping a big fish up from the bottom; instead, the angler just slowly cranks the reel until the fish finally gives up the ghost, again extending fighting times.  Another relatively recent trend, deep-dropping, sees anglers lower baits to the bottom in 800, 900, or even in more than 1,000 feet of water, giving cruising sharks more than enough time to intercept hooked fish somewhere between the bottom and the boat.

Yet anglers blame the sharks for depredation, rather than blaming themselves for setting up what amounts to an all-you-can-eat shark buffet.

Thus, while the new paper provides valuable insights into why and how shark depredation occurs, preventing depredation remains a challenge.  Science can only go so far in addressing that challenge; anglers must be willing to do their part as well.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WELL, THAT WAS CERTAINLY QUICK: NEW LAWSUIT CHALLENGES SOUTH ATLANTIC RED SNAPPER EFPS

 

Just ten days ago, I wrote about the National Marine Fisheries Service’s less-than-wise decision to issue exempted fishing permits that will allow the four South Atlantic states to set their own red snapper regulations, even for anglers fishing in federal waters, and how those permits will allow anglers to severely overfish the red snapper stock.

The exempted fishing permits were issued on May 1^st. 

On May 5^th, a lawsuit challenging their issuance was filed in the United States District Court for the District of Columbia.  So far, the lawsuit hasn’t gotten much mention in the press, but I obtained a copy of the complaint, and so know the basic details. 

The action was brought by the Southeastern Fisheries Association, Inc., a commercial fishing trade association, as lead plaintiff.  Two commercial fishing companies in North Carolina, along with two North Carolina commercial fisherman and another from Florida, are also listed as plaintiffs.  Defendants are, as one would expect, Howard Lutnick as Secretary of Commerce and the National Marine Fisheries Service.

The list of parties will inevitably grow.  The recreational fishing industry, in the form of the American Sportfishing Association, the largest angling industry trade group, and the Coastal Conservation Association, an “anglers’ rights” organization that walks in lockstep with the ASA and conforms to the trade group’s decisions, has already announced its intention to intervene in the action in support of the exempted fishing permits.  It is reasonable to believe that one or more marine conservation groups may eventually intervene on behalf of the plaintiffs.

The premise of the complaint is simple and straightforward, expressed in its first five paragraphs:

“The case challenges an illegal fishery management action taken by the Defendants Howard Lutnick, in his official capacity as Secretary of Commerce, and the National Marine Fisheries Service (“NMFS”).  Specifically, on or about May 1, 2026, Defendants issued so-called ‘exempted fishing permits’ to the states of Florida, Georgia, South Carolina, and North Carolina, which would allow a massive amount of recreational fishing for South Atlantic red snapper in 2026 and beyond.

“The factual record establishes that under the challenged permits, red snapper landings in 2026 will substantially exceed the stock’s annual catch limit.  The record also establishes that under the challenged permits, fishing mortality in 2026 will be so high as to cause overfishing on South Atlantic red snapper.  Furthermore, the record establishes that actual recreational landings of red snapper in 2026 will not even come close to following the stock’s governing allocation ratio.

“Preventing overfishing, managing stocks under annual catch limits, and ensuring fair and equitable allocations are core requirements of the Magnuson-Stevens Fishery Conservation and Management Act… (‘Magnuson-Stevens Act’ or ‘the Act’).

“The Magnuson-Stevens Act nowhere allows Defendants to waive the statutory requirements for annual catch limit management, preventing overfishing, and for fair and equitable allocations—whether through the use of ‘exempted fishing permits’ or otherwise.

“Excessive catch of South Atlantic red snapper in 2026 will harm the stock.  Stock abundance and biomass will be depleted, and its rebuilding progress will be set back.  [formatting omitted]”

Those allegations seem to present legitimate grievances, particularly in view of an Ocean Conservancy analysis which noted that

“The EFP proposals failed to include estimates of the number of fish they anticipate catching or how many people will be allowed to catch them, even though such estimates are required as art of the EFP application/approval process.  Ocean Conservancy has used available data to estimate the number of fish that could be caught.  The annual catch limit, or ACL, for the recreational sector is 22,797 fish.  A recent two-day red snapper fishing season in Florida alone resulted in 24,885 landed fish, which exceeds that limit.  A simple expansion using this Florida landings rate and ignoring the contribution from other states who will have even longer fishing seasons, suggests that as many as 485,000 fish could be landed in a 39-day season.  This is over 20 times the annual catch limit—a clear violation of the Magnuson-Stevens Act.”

Still, there are two sides to every lawsuit, and particularly when challenging administrative actions, wins rarely come easily.

The exempted fishing permits and resultant lawsuit test the boundaries of exempted fishing permits.  Magnuson-Stevens states that

“…the Secretary [of Commerce], in consultation with the [regional fishery management] Councils, shall promulgate regulations that create an expedited, uniform, and regionally-based process to promote issuance, where practicable, of experimental fishing permits.  [What are called “experimental” fishing permits in Magnuson-Stevens are deemed “exempted” fishing permits by NMFS.]”

The result was 50 C.F.R. 600.475, titled "Scientific research activity, exempted fishing, and exempted educational activity."  Subsection (b)(1) of that regulation provides,

“A NMFS Regional Administrator or Director may authorize, for limited testing, public display, data collection, exploratory fishing, compensation fishing, conservation engineering, health and safety surveys, environmental cleanup, and/or hazard removal purposes, the target or incidental harvest of species managed under [a fishery management plan] or fishery regulations that would otherwise be prohibited…Data collection designed to capture and land quantities of fish for product development, market research, and/or public display must be permitted under exempted fishing procedures.  An EFP exempts a vessel only from those regulations specified in the EFP.  All other applicable regulations remain in effect…  [emphasis added]”

Usually, EFPs are issued to a small number of parties, perhaps even to a single vessel, that will be conducting focused research, and usually result in relatively small levels of exempted landings.  However, in this case, NMFS needed to somehow shoehorn the South Atlantic red snapper EFPs issued to the four states, which would affect many thousands of anglers and potentially hundreds of thousands of fish, into that authorization language.  They are attempting to do that by characterizing the exempted fishing as a new data collection effort, titling the Florida permit (and using similar language in all four EFPs)

“Exempted Fishing Permit to Test a State-based Data Collection and Management System for the Recreational Harvest of Red Snapper off Florida for 2026,”

and stating in the permit that

“[The Florida Fish and Wildlife Conservation Commission] is pilot testing the use of its State Reef Fish Survey (SRFS) and a voluntary smartphone application (phone app) during an extended recreational fishing season for red snapper in state and federal waters of the South Atlantic.  FWC intends the activities conducted under the EFP to improve data on recreational fishing effort, catch, and discards of red snapper, and to inform the development of a long-term state-led management strategy for the recreational fishery.”

However, that hardly seems to be the sort of limited testing that the regulation contemplates.

Everyone who fishes recreationally under the permit—which as a practical matter means every angler who fishes for South Atlantic red snapper—is subject to the “EXEMPTIONS AND FISHING RESTRICTIONS” section of the permit, which provides, in part,

“Unless specifically exempted or required by this EFP, all other federal regulations continue to apply.  During the 2026 recreational fishing season only, this EFP exempts participants conforming to these terms and conditions from the following regulations.

1)     50 CFR 622.181(c)(2) that restricts combining harvest limits of red snapper in federal waters with any harvest limitations in state waters, limits the harvest and possession of red snapper to the specified season, and applies these limitations to a federally permitted for-hire vessel in both state and federal waters.

2)     50 CFR 622.183(b)(5) that specifies when the recreational season will occur each year.

3)     50 CFR 622.193(y)(2) that specifies the annual catch limit and accountability measures applicable to the recreational harvest of red snapper.”

Florida argued that such exemptions were needed because

“short fishing seasons that drive an artificially compressed level of fishing effort, and therefore a lack of reliable catch and discard information, have compounded management of the Atlantic red snapper fishery into an untenable situation.  To gather baseline data that is reflective of catch, effort, and discard rates associated with an expanded fishing season, FWC is proposing to monitor the recreational red snapper fishery through an extended 2026 fishing season…Due to the issues listed above regarding the need for baseline data due to the lack of adequate data currently being used to manage Atlantic red snapper, FWC will not submit projected landings for year 1, as any estimate would be highly uncertain and not scientifically defensible…”

Florida made that claim even though the current annual catch limit for the recreational red snapper fishery was derived from data collected on an annual, regional basis, not on landings in any one state or during a particular time period (which finer-scale data tend to be more uncertain), and despite the fact that most angling-linked fishing mortality is attributed to red snapper that die after release; the uncertainty associated with the release estimate, at least for four of the past five years, was acceptably low under NMFS guidelines for data quality, although the data related to the much smaller number of red snapper that are intentionally harvested is plagued by higher level of uncertainty.

Why the data collection study could not have been truly limited, and accomplished with a smaller number of anglers, rather than the entire red snapper angling community, fishing under the EFP remains unclear.

While allowing widespread recreational fishing under an exempted fishing permit occurred once before, when red snapper anglers were allowed to do so in the Gulf of Mexico, the Gulf EFPs restricted anglers to the federally established annual catch limit.  The South Atlantic EFPs apparently don’t include that requirement because, as Roger Young, the executive director of the FWC, whined to Secretary Lutnick,

“Florida’s EFP did not mirror the Gulf of America exactly because of decades of mismanagement in the South Atlantic.  For example, consider the way NOAA Fisheries manages Red Snapper in the South Atlantic in comparison to the Gulf of America.  In the South Atlantic, dead discards are directly taken ‘off the top’ of the Red Snapper ACL, reducing allowable recreational harvest from 365,404 fish to 22,797 fish.  In the Gulf of America, discards are not ‘taken off the top,’ providing significantly more harvest opportunities…”

While that may be true, South Atlantic anglers are still killing far more red snapper than they land as a result of release mortality, and those fish need to be considered when calculating overall removals and how such removals impact the health of the stock.

Florida, and all of the EFPs, seem to be ignoring those discards entirely.

So, there is no reason to assume that the EFPs will result in lower overall fishing mortality.  After all, even if release mortality is high, and leads to hundreds of thousands of dead South Atlantic red snapper, some percentage of the released fish survive, while the mortality rate of retained fish is always 100%.  So while the EFPs will allow some current discards to be converted into landings, unless anglers stop fishing entirely once they put their first red snapper in the boat—and I don’t think any of us are naïve enough to expect them to do that—the overall impact on red snapper discard mortality will probably be close to nil.

And given that we’re still talking about a 326-day closed season off Florida, and a 303-day closed season off the rest of the South Atlantic states, when people are still going to be fishing for other bottom fish, and incidentally catching, releasing, and killing large numbers of red snapper in the process, anyone who believes that the EFPs will lead to lower overall fishing mortality is only kidding themselves.

Which leads to what may be the key question in the lawsuit.

Can an exempted fishing permit which will inevitably lead to severe overfishing be validly issued by NMFS?

Florida’s Roger Young contends that it can, arguing that

“there is nothing in the Magnuson-Stevens Act…that dictates an EFP’s harvest be included in annual catch limits.”

While that may be true, Magnuson-Stevens does state that

“Conservation and management measures shall prevent overfishing,”

and also requires that any fishery management plan

“shall contain the conservation and management measures…which are necessary and appropriate for the conservation and management of the fishery to prevent overfishing…  [formatting omitted]”

The law contains multiple provisions relating to ending overfishing, but nowhere states that overfishing pursuant to an exempted fishing permit is acceptable.  Considering Magnuson-Stevens’ general policy of preventing overfishing from occurring, the legality of issuing an exempted fishing permit that will inevitably cause substantial levels of overfishing is certainly open to question.

Whether the South Atlantic red snapper EFPs, with their broad application to all red snapper anglers and the certainty that they will lead to extreme overfishing of the red snapper stock, can escape legal sanction merely by stating that the annual catch limit and accountability measures will not apply to any red snapper fisherman in the South Atlantic this year is a question that only a court can decide.

We can only hope that the court deciding this action recognizes that the South Atlantic red snapper EFPs are not about experimental fishing at all, and that the motivation for their issuance was less about data collection than about finding a creative way for recreational fishermen to kill more fish while escaping any accountability for overfishing the red snapper stock.

The Magnuson-Stevens Fishery Conservation and Management Act has already been weakened by court decisions like the one in Natural Resources Defense Council, Inc. v. Raimondo, which allowed recreational fishermen to sidestep some of the conservation provisions of federal law, and decided that an annual catch limit was not, in itself, an absolute limit on anglers’ landings.

Should the farce that is the South Atlantic red snapper EFPs be adjudged a legal management action, the court’s decision will inevitably encourage other assaults on Magnuson-Stevens, which could easily leave the law so weakened and vulnerable to further attack that regulators will no longer be able to effectively manage recreational fisheries.

That would constitute a temporary victory for the recreational fishing industry and the anglers’ rights crowd, but the fish, and all fishermen, would only lose in the end.