Thursday, January 7, 2016


Gulf of Mexico red snapper anglers lost in court again this week. 

The case, Coastal Conservation Association v. United States Department of Commerce, was decided on January 5 by the United States District Court for the Eastern District of Louisiana, sitting in New Orleans. 

The Coastal Conservation Association said that the National Marine Fisheries Service improperly reserved a portion of the recreational red snapper quota for federally-licensed party and charter boats, rather than leaving it a part of a common pool that could also be accessed by private vessels and for-hire vessels without a federal reef fish permit.

The judge said that CCA was wrong. 

I’ve written about Gulf red snapper now and again over the past couple of years.  For those new to the topic, the issue is effectively this:  Red snapper were badly overfished by both the recreational and commercial sector, but beginning about a decade ago, the National Marine Fisheries Service began to turn that around, and the stock is now rebuilding nicely

Commercial overfishing ended in 2007, after the Gulf of Mexico Fishery Management Council replaced the historic, free-for-all “derby” fishery with a “catch share” program in which each commercial fishermen was granted a percentage of the overall commercial quota, based on past reported landings.  Fishermen were then free to either catch their share of the quota themselves or, if they chose not to fish, to lease or sell it to another fisherman willing to pay the requested price.

Recreational overfishing, however, continued apace.

“Conservation” might be CCA’s middle name, but neither it nor the red snapper anglers that it represented cared enough about conservation to accept regulations strict enough to prevent recreational fishermen from exceeding their share of the overall harvest. 

Instead, they proposed that the NMFS change the commercial/recreational allocation, to effectively take fish away from the commercial guys, who were not overfishing, and give them to the recreational folks, who were.  To some, that might seem like rewarding folks for their bad behavior, but CCA argued that

“Using 30-year-old landings to set a modern allocation is inappropriate.  The current allocation was set using the first nine years of MRFSS recreational data collection, 1979-1987, which we now know to have a significant bias.  Reallocating red snapper increases to the recreational sector would increase fairness by righting the wrongs of this flawed initial allocation.”
As often happens when folks challenge NMFS data, CCA didn’t offer up any hard numbers in support of its claim; instead, it tried to impeach NMFS’ figures by bringing up reasons why they just might be wrong.  To be fair, a recent review of the data did show that recreational landings were undercounted, and as a result, the recreational share of the fishery was increased from 49% to 51.5%, although that increase is probably somewhat less than CCA desired. 

In the meantime, red snapper anglers allied with CCA realized that they didn’t have to venture out into federal waters to catch red snapper; they could catch them in state waters, too.  Since federal rules didn’t apply in state waters, they encouraged the states to adopt far more liberal regulations than federal managers, who are legally bound to prevent overfishing, could ever consider.

“…the states did an end-run by creating relaxed snapper rules in their jurisdictional waters.  This threatens to derail the current rebuilding trend.
“State defiance or denial has resulted in expanded or newly-created state-water seasons in Florida, Louisiana, Mississippi and Alabama.  Remember that Texas already had a year-round season, with a four-fish daily bag.  Extending state seasons backfired by hastening the annual harvest pace, which resulted in reaching the gulf’s quota more quickly.
“In turn, this forced the feds to shave days off the federal season, to abide by a rebuilding schedule mandated by Congress.  I should point out that the 365-day state season in Texas is a farce, wink-wink, because it essentially allows anglers to ignore the invisible jurisdictional boundary and remove fish from federal waters out of season…”
Such a result might make the state-waters fishery sound problematic, and to biologists trying to rebuild the red snapper stock, it is.  However, it put CCA and its allies in a no-lose position.

On one hand, red snapper anglers could still catch plenty of fish in state waters—and maybe federal waters, too—when the federal season was closed. 

On the other hand, NMFS was forced to shorten the federal season to just a few days as a result of all of the snapper being killed in state waters.  That short season gave CCA a reason to claim that the federal management system was so badly “broken” that the only way to fix things is to hand red snapper management over to the states.

The states, of course, would not be bound by the Magnuson-Stevens Fishery Conservation and Management Act, which prohibits overfishing and requires stocks to be rebuilt within a time certain.  So if management was handed over to the states, red snapper anglers could kill even more fish.

Machiavelli would have been proud…

The only problem with that approach was that it hurt quite a few people, and those people weren’t willing to pay the price for someone else’s bad conduct.

Commercial fishermen, who had seen their earnings increase as red snapper grew more abundant, went to court, and on March 26, 2014, in the case of Guindon v. Pritzker, a federal judge decided that NMFS had a duty to “require whatever accountability measures are necessary” to prevent anglers from overfishing the red snapper stock.

CCA was not pleased, and predictably blamed the federal management system, “elite commercial businesses” and the Environmental Defense Fund, rather than their members’ overfishing, for the court’s decision.

But commercial fishermen were not the only ones being hurt by recreational overharvest.  Federally-permitted charter and party boats were only allowed to fish when the federal waters were open.  They could not participate in the longer state seasons.  That hurt their businesses badly.

In order to protect themselves from the consequences of private boat anglers’ excessive harvest in state waters, they asked the Gulf Council to separate the federally-permitted for-hire sector from the rest of the for-hire fleet.  They asked for a portion of the recreational quota, based on the for-hires’ historical proportion of recreational landings, which they could land unaffected by the private boats’ actions.  That request was granted, and upheld in the court decision described at the beginning of this post.

“The great risk in these kinds of cases is that the court will simply defer to the federal agency charged with managing public resources and, unfortunately, that is what the court chose to do in this case.”
Of course, Bird probably should have mentioned that is exactly what the court is supposed to do, unless the agency’s action was arbitrary, capricious or contrary to law; the Supreme Court said that such deference is required in the case of Chevron U.S.A. Inc. v. Natural Resources Defense Council

And yet again, CCA blamed federal managers for doing their job, and claimed that state managers would have done something better.

Such an extension of state jurisdiction is likely to increase the number of red snapper killed when the federal season is closed, and thus cause the federal season to become even shorter.  It’s possible that federal waters won’t open at all.

And one can’t help but wonder who CCA and the rest will blame if that ever happens.  It won’t be the state, and it won’t be themselves.  They don’t want to address the real problems.

However, there are anglers on the Gulf Coast who are willing to work with fisheries managers to find real solutions that will allow anglers to fish for red snapper without putting the rebuilding effort in jeopardy.  Anglers who are willing to accept responsibility for their own actions, and recognize the need for regulations that adequately constrain their catch.

The Gulf Council has considered convening a private recreational advisory panel that would allow such anglers to air their views and, without rancor, work toward a viable solution.

However, there is one problem.

The same militant red snapper anglers who gave birth to many of the current problems, the same people who are trying to overthrow the federal management system in order to increase their kill, are trying to prevent that panel from meeting.

They have lost at the council level, they have lost at the highest levels at NMFS, they have lost in the courts.  But still they refuse to admit that they may be on the wrong side of the issue.

So like the “Vanilla ISIS” militants out in Oregon, who have staged an armed occupation of a bird sanctuary to protest federal resource management policies, the red snapper militants have taken the recreational advisory panel hostage, and will not let anglers who might be opposed to their views have a say (they justify their actions by saying that such anglers’ actions might be orchestrated by various organizations, conveniently ignoring the fact that, even if that were so, their own actions are orchestrated by various organizations as well.)

Perhaps they feel that the only way they have a prayer of winning is if no one else shows up at the fight.

But the responsible anglers aren’t backing down.  They have started a petition on, demanding that an advisory panel meeting be held.

Anyone who would like to see this long, dismal fight reach a conclusion might want to sign—now.


  1. Obviously the "catch-share" system is not a workable solution in the real world!

    Ditch it!

    Bruce White

    1. Given that the commercial sector hasn't overharvested once since catch shares were put in place, it seems like it's actually working very well. What doesn't work is state regulators going out of compliance with federal regulations, which is leading to overharvest and constantly shortening federal seasons.

  2. WOW!, the author portrays the facts very accurately, at the upcoming Council meeting Regional management will unravel as will any chance for a state controlled fishery. The reason is simple,for example, Florida will vote no because the Charter for hire will not be included in the amendment and thus they as with other states can't take from accountable Charter for Hire to feed the Recreational black hole that consists of culling and excessive dead discards.

  3. This article overlooks several excellent points made by the Fishing Rights Alliance whose challenge to Amendment 40 in Tampa remains pending. The FRA's lawyer posted those arguments online.

  4. In the end, it's still a question of whether the decision was arbitrary, capricious or contrary to law. FRA alleges economic allocation, but there's enough on the record to make it a simple matter of equity--anglers without boats, who depended on the for-hire fleet, were effectively locked out of the fishery because most for-hires have federal reef fish permits and couldn't fish in state waters when federal waters were closed, although private boat anglers had those state fish. I don't believe that the FRA complaint and the arguments therein are any more persuasive than those put forward by CCA, and those were pretty decisively shot down by the court.

  5. Replies
    1. You sound like a reasonable guy. I'd like to hear more voices like yours, who support Charles' views on this issue.
      David Sikes
      Outdoors Columnist
      Corpus Christi Caller-Times
      USA Today Network
      Texas Outdoor Writers Association
      Chairman of the Board