On December 20, the parties in a federal lawsuit challenging the
Department of Commerce’s (Commerce) decision to reopen the 2017 private boat
red snapper season in the Gulf of Mexico reached a settlement that
should bring an end to the litigation while protecting the red
snapper resource.
For those unfamiliar with the facts leading up to the
lawsuit, anglers have chronically overfished their red snapper
allocation in the Gulf of Mexico. In recent years, federal fisheries managers
have tried to prevent such overfishing by shortening the recreational fishing
season, but have been frustrated by the five Gulf states, which adopted
regulations that are much less restrictive than those that apply in federal
waters.
In Texas, for example,
the recreational red snapper season never closes; the bag limit is twice what
it is in federal waters, and the size limit is two inches shorter. While the
other Gulf states haven’t gone to Texas’ extreme, and still adhere to the
federal size and bag limits, their seasons are long enough that managers expected 81 percent of
all 2017 recreational red snapper landings to be caught in state waters.
They predicted that it would
only take three days for anglers fishing in federal waters to land the other 20
percent.
The three-day federal red snapper season was heavily criticized by Gulf of Mexico
red snapper anglers and the local outdoor press.
It was turned into a rallying cry by
recreational fishing groups trying to weaken the conservation and stock
rebuilding provisions of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens), who constantly railed against the short
federal season, while conveniently ignoring the lax state rules and
recreational overharvest that made such a short season necessary.
Representatives of the
recreational fishermen met with elected officials and the
Department of Commerce; in the end, Commerce gave in to their requests to
reopen the season, even though agency officials knew that it would result in
overfishing and delay the red snapper stock’s recovery.
Emails documenting the internal discussions at Commerce are both
enlightening and troubling. One, sent to Commerce Secretary Wilbur Ross by Earl
Comstock, Director of Commerce’s Office of Policy and Strategic Planning,
expresses a particular cynicism. In it, he notes that reopening
the season “would result in overfishing the stock by six million pounds (40%),
which will draw criticism from environmental groups and commercial fishermen.”
However, he dismisses any
opposition to the reopening by observing that “Under the Magnuson Stevens Act a
court can’t issue a temporary restraining order, so your action would remain in
effect for at least 45 days before a court could act.”
He effectively acknowledged
that reopening the recreational season would lead to overfishing, and that
people would probably object, but then dismissed such concerns because a
loophole in the law would let the agency get away with such an illegal act.
And he had good reason to
believe that was true. As he noted, Magnuson-Stevens doesn’t allow courts to
issue temporary restraining orders to delay fishery management actions, and it
gives the agency 45 days to reply to any legal challenge. By the time a court
could act, much of the damage caused by the reopened season would already have
been done.
Furthermore, federal litigation takes time, and it was highly
unlikely that a judge would be able to render a decision on the merits of any
lawsuit before the end of the extended season. Once the season closed, Commerce
could rely on the legal concept of “mootness,” arguing
that once the 2017 season ended, there would no longer be an active “case or controversy” for
the court to decide.
However, there is an exception to the mootness doctrine, which
allows a case to proceed if the contested matter is “capable of repetition, yet evading review.” When
the duration of the defendant’s action is so short that the action in question
concludes before a court can take action, as was true of the reopened season,
and there is a reasonable expectation that the defendant will do the same thing
again, courts will allow a matter to proceed, to prevent a future wrong from
occurring.
If they didn’t allow such litigation, defendants such as
Commerce could continually engage in illegal actions, knowing that the affected
parties would have no legal recourse. So when the Ocean Conservancy and the
Environmental Defense Fund (Plaintiffs) brought suit against Commerce, they explicitly relied on that
exception in their complaint, which was intended to stop Commerce
from acting illegally again, with respect to red snapper, in future years.
In the end, Commerce never
even tried to argue that reopening the red snapper season had been legal.
Instead, it filed a motion for summary
judgment, arguing that even if everything that the Plaintiffs
claimed was true, Commerce should still win the suit because “the temporary
rule has expired under its own terms, and the Federal recreational season is
closed. Plaintiffs’ claims are moot, and the Court should enter judgment in
favor of [Commerce] on jurisdictional grounds. Alternatively, if the Court concludes
that Plaintiffs’ claims are not moot, the only appropriate course is for the
Court to remand this matter to [the National Marine Fisheries Service] for
further proceedings consistent with the agency’s duties.”
Translated from legalese,
they said that “Even if we did illegally reopen the season, it’s too late to do
anything about it now. And even if it isn’t too late, the only thing the Court
can do is tell us to think about what we did, and whether we should do
something more.”
Commerce also argued that the reopening was not “capable of
repetition” because Chris Oliver, the National Oceanographic and Atmospheric
Administration’s Assistant Administrator for NOAA Fisheries, “proffered a sworn
declaration…that ‘NOAA does not intend to reopen the private angler season in
the same manner in 2018. [emphasis added]” Commerce
contended that such statement, “combined with the fact that multiple
contingencies will inform the setting of future seasons undermine any notion
that this scenario is likely to recur.”
However, the one thing that Commerce did not represent
to the Court was that it would follow all of the dictates of Magnuson-Stevens
when managing Gulf of Mexico red snapper.
Commerce, the Plaintiffs and
the Court held a conference to discuss the case in November. During that
conference, something apparently occurred that made Commerce rethink its
position, because it ultimately entered into an agreement with the Plaintiffs
that will help to protect Gulf red snapper in 2018.
On December 20, the Court
filed an Order memorializing that agreement, in which Commerce acknowledged
that
a) “The
re-opening of the private angler fishing season for Gulf of Mexico red snapper
in 2017 was a one-time action that the federal defendants have not elected to
defend on the merits in the briefing filed in this cases to date;
b) The deadline
for rebuilding the red snapper population in the Gulf of Mexico is currently
2032 as established under Amendments 22 and 27 to the Reef Fish Fishery
Management Plan; and
c) The federal
defendants anticipate publishing a Temporary Rule announcing the 2018 private
angler fishing season for red snapper in the Gulf of Mexico (the “2018
Temporary Rule”) on or around April 20, 2018.”
Based on such
acknowledgements and the agreement of the parties, the Court ordered that no
further action be taken in the matter, provided that
“…2) The Federal
Defendants must file a notice informing the Court at the time the 2018
Temporary Rule is issued. The notice must include a citation to the Temporary
Rule, and it must inform the court of the date the 2018 season is scheduled to
begin.
3) Plaintiffs may
file a supplemental complaint…challenging the 2018 Temporary Rule, or any other
rule issued by Federal Defendants that affects the 2018 season for the private
angler component of the red snapper fishery in the Gulf of Mexico no later than
seven (7) days after publication in the Federal Register of the rule being
challenged.
4) Within three
(3) days of the filing of any supplemental complaint, the parties must confer about
a proposed schedule for further proceedings and submit a status report to the
Court setting forth their joint proposal, or if they cannot agree on a
schedule, their individual proposals for the Court’s consideration…”
Nothing in the Order prevents
either of the Plaintiffs from filing a separate legal action or asserting a
separate claim against Commerce with respect to any matter.
Notwithstanding the fact that
the Order was the result of a negotiated agreement, it represents a complete
vindication of the Plaintiffs’ claims.
The Court’s order prevents
Commerce from again issuing illegal regulations that take advantage of the time
limits built into Magnuson-Stevens, and that law’s prohibition on the issuance
of temporary restraining orders. Because the Court retained jurisdiction in the
matter, if Plaintiffs believe that Commerce’s 2018 recreational red snapper
regulations violate the law in any way, they won’t have to begin a new lawsuit
in order to challenge them. The suit that they filed this year could be
immediately revived to address those regulations as well.
Andrea Treece, an attorney with Earthjustice, which conducted
the litigation on behalf of the Plaintiffs, observed that “The
Department of Commerce essentially conceded the illegality of its actions by
failing to defend the case on the merits. With judicial oversight, this action
won’t be repeated next year—Commerce is now on notice that it cannot play fast
and loose with the future of our fisheries. We will be watching Commerce’s
actions carefully to make sure they respect the law and make fishery management
decisions based on science—in this fishery and around the country.”
Thus, the Plaintiffs won Gulf
red snapper meaningful protection from future arbitrary and illegal actions
that might otherwise have been taken by Commerce.
However, the threat to the stock hasn’t ended. It has merely
shifted arenas, from Commerce to Congress, where a host of bad legislation has
put not only red snapper, but all federally-managed fisheries, in serious
peril.
The Plaintiffs won an
important fight, but the biggest battles still lie ahead.
-----
This essay first appeared in “From the Waterfront,” the blog
of the Marine Fish Conservation Network, which may be found at http://conservefish.org/blog/
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