A COURT CONSIDERS ALLOCATION

Allocation is arguably the topic that fisheries managers like least—and do their best to avoid.

It’s hard to blame them.

In the end, fisheries management is a zero-sum game.  The Magnuson-Stevens Fishery Conservation and Management Act requires that an annual catch limit be established for each managed species.  In a mixed-use fishery—that is, a fishery that includes both commercial and recreational fishermen—annual catch limits are established for each sector, and the overall catch limit allocated between them.

Increasing the allocation for one sector necessarily means that the other sector shall get less.

It’s thus only natural for the folks who stand to get more to support the reallocation process, and for the folks who stand to get less to fight reallocation as hard as they can.

Recreational fishermen often believe that the allocation process has historically favored commercial fishermen, and have sought a reallocation of the overall harvest of several species. 

A 2014 report titled “A Vision for Managing America’s Saltwater Recreational Fisheries”, which might be considered the manifesto of the recreational fishing industry and anglers’ rights community, had this to say about allocation:

“The Magnuson-Stevens Act should require the NMFS, in conjunction with the National Academy of Sciences (NAS), to develop guidelines and criteria that the regional fishery management council must consider for allocation of all mixed sector fisheries.  The allocation decisions must consider conservation and socioeconomic output..”

Perhaps in response to such comments, NMFS issued its “Fisheries Allocation Guidelines” in 2015 and the more formal Fisheries Allocation Review Policy in 2016.   However, the guidance contained in such NMFS guidelines was so vague—on one hand, they laid out a set of criteria to be used in making allocation decisions, and on the other, they stated that in any given situation, all such criteria may not apply and others, not included in the documents, might be relevant—that they provided little or no practical guidance at all.

Overriding every other consideration is National Standard 4 of Magnuson-Stevens, which requires that

“Conservation and management measures shall not discriminate between residents of different States.  If it becomes necessary to allocate or assign fishing privileges between among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen, (B) reasonably calculated to promote conservation, and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.”

Once again, the law provides no clear guidance, but rather provides a set of vague standards that must be interpreted, first by fishery managers, and later, perhaps, but the courts.

Recently, we had a chance to see how a court might approach such standards, at least in the context of one particular case.

The matter was Guindon v. Pritzker, decided by the United States District Court for the District of Columbia on March 3, 2017 (and so not to be confused with a case of the same name, decided by the same court, in May 2014).  It arose, as so much fisheries legislation has in recent years, out of the recreational Gulf of Mexico red snapper fishery, and problems related thereto.

More specifically, the matter represented a challenge to Final Amendment 28 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, which was released in August 2015.  Amendment 28 changed the allocation of Gulf of Mexico red snapper from 51% commercial, 49% recreational to 48.5% commercial, 51.5% recreational, a 2.5% change.  

The 48.5%/51.5% reallocation was made in an effort to correct what the Gulf Council believed was an error in the original allocation, which was revealed when data collected using the methodology of the new Marine Recreational Information Program (MRIP), used to estimate anglers’ landings, indicated that MRIP’s predecessor, the Marine Recreational Fishing Statistics Survey, underestimated recreational harvest

The challenge was brought by a group of commercial fishermen and commercial fishing organizations, who argued that such reallocation was illegal.

The Court, in the end, agreed.  However, the written decision made it clear that the argument was a close one; it is thus worthwhile to take a long look at such decision, to understand what considerations ultimately swayed the judge to rule as she did.

The plaintiff commercial fishermen argued that Amendment 28 did not meet the allocation standards set out in National Standard 4. 

They also argued that it failed to conform to various sections of Magnuson-Stevens, including Section 407(d), which is specific to the Gulf red snapper fishery; Section 303(a)(1)(A), which requires federal management actions to promote the long-term health and stability of the relevant fishery; National Standard 1, which requires that conservation and management measures prevent overfishing while producing optimum yield;  Section 303(a)(14), which requires that the economic impacts of an allocation decision be considered, and that they be shared fairly among the different sectors; and Section 303(a)(9), which requires a fishery management plan to assess the conservation, economic and social impacts of management measures.

The plaintiffs prevailed only on the National Standard 4 count, but that was enough to have Amendment 28’s allocation change vacated by the Court.

So the question is, why did Amendment 28 fail to meet National Standard 4’s requirements?

Quoting parts of a decision in a 1991 case, C & W Fish Company v. Fox, the Court in Guindon noted that to pass National Standard 4 muster, there are

“three requirements that must be met whenever [a fishery management plan] allocates fishing privileges:  (i) the allocation must be fair and equitable; (ii) it must be reasonably calculated to promote conservation; and (iii) it must not allocate an excessive share of privileges to any particular group.”

The Court recognized that the fact that one sector might be disadvantaged in relation to another does not, by itself, invalidate an allocation, for

“inherent in an allocation is the advantaging of one group to the detriment of another.”

It also pointed out that a court even found that a fishery management plan which completely outlawed the sale of billfish, and effectively allocated all of the billfish resource to the recreational sector at the expense of commercial fishermen, complied with National Standard 4 because such action would benefit the fishery as a whole.

Yet it still found that Amendment 28 was fatally flawed, and failed to meet the “fair and equitable” requirement of National Standard 4.  The failure occurred because

“Amendment 28 enables the recreational sector to catch more fish in the future because they caught more fish in the past, in excess of applicable restrictions…Consequently, Defendants create a system in which one sector must demonstrate an increase in landings in excess of their quota in order to obtain an increase in their allocation.  The flaw in this system is that the commercial sector can never obtain an increase in their allocation because the commercial sector can never exceed their quota due to the [individual fishing quota] program…Amendment 28 therefore places the commercial sector at a permanent disadvantage by failing to take into account the [individual fishing quota] program and its impact on reallocation.  The Court cannot deem such a scenario fair and equitable as required by National Standard Four.”

In other words, recreational fishermen can’t repeatedly overfish their allocation, and then use that misconduct to justify a bigger allocation.

Amendment 28 only appears to consider fishing years between 1986 and 2014, when there was a lot of recreational overfishing.  In the context of those years, the Court’s logic is difficult to challenge.

However, the base years used to set the original 51% commercial/49% recreational allocation were, as the Court in Guindon acknowledges, 1979 to 1987.  There is nothing in Amendment 28 to suggest that the MRIP methodology was applied to such base years.  If it had been, there is the real possibility that such calculation would have shown that the recreational landings during the base years were higher than originally believed.  If that were the case, such data might have provided more robust grounds for reallocation.

But that is all speculation.

For now, Guindon v. Pritzker stands for the proposition that a sector which overfishes a public fishery resource can’t use its own misdeeds to justify a reallocation, particularly when the other sector has adopted a system that makes overfishing all but impossible.

That seems like plain common sense, but in this case, at least, it took a federal judge to figure it out.