SOUTH ATLANTIC RED SNAPPER: A DEAL IS A DEAL

 

About two months ago, I wrote a blog post about the impact recreational bycatch and discard mortality is having on the South Atlantic red snapper population, and how the National Marine Fisheries Service has entered into an agreement to settle litigation aimed at ending overfishing, caused by such bycatch.

The story is a little unusual, for while recreational fishermen often complain about commercial bycatch—whether it’s red drum supposedly killed by menhaden purse seines or striped bass floating on the sea’s surface after a trawler passes through—it’s not every day that commercial fishermen sue NMFS because anglers are harming their livelihoods.

But in the case of South Atlantic red snapper, that’s just what went on.

And NMFS, recognizing that the commercial fishermen’s claims were valid, decided not to fight the lawsuit, but to instead settle the matter by agreeing to

“complete and submit to the Office of the Federal Register for publication by June 6, 2025, a final rule implementing a Secretarial Amendment to stop overfishing on the South Atlantic red snapper stock, under 16 U.S.C. [section] 1854(c) & (e).”

The settlement provides that NMFS’ obligation to prepare the Secretarial Amendment would also be satisfied if the South Atlantic Fishery Management Council prepared an amendment to the relevant fishery management plan, which would end the overfishing, and NMFS submits such amendment, in the form of a final rule, before the June 6 deadline.

Since just about all of the recreational bycatch leading to the overfishing of red snapper takes place when the recreational red snapper season is closed, merely tightening recreational red snapper regulations, which already include a 1-fish bag limit and, in 2024, a 1-day-long open season, will not do anything to solve the problem.  Instead, NMFS is going to have to find a way to prevent anglers from accidentally catching and unintentionally killing red snapper when the red snapper season is closed.

As NMFS described the problem,

“The most recent scientific information indicates the South Atlantic red snapper stock is recovering consistent with rebuilding goals owing to higher than average recruitment of young fish in recent years, yet too many red snapper are being caught and discarded dead to sustain this recovery if recruitment decreases back to more historical levels.  The magnitude of these dead discards is causing overfishing of the red snapper stock and preventing the more abundant, younger fish from surviving to the older ages necessary to sustain the population in the long term.  Management measures that reduce dead discards may serve to both end overfishing of the stock and increase the number of red snapper that can be retained by fishermen.”

NMFS has published a notice announcing its intention to prepare the agreed-to Secretarial Amendment.

An amendment that would both end overfishing and allow anglers to put more red snapper in their coolers would seem like a win for all concerned, but that’s not necessarily so.  That’s because, with tightened red snapper regulations out as a practical option, the only way to reduce recreational red snapper bycatch and discard mortality is to tighten regulations for other species that live in the same places that red snapper do, and more particularly, by further restricting the times when and perhaps the places where anglers can target such other species, and so sharply reducing the opportunities for anglers to catch out-of-season red snapper.

While such restrictions wouldn’t necessarily reduce the overall recreational harvest of such other species, as a shorter season can be offset by a larger bag limit and/or lower minimum size, it would reduce the recreational bycatch and dead discards of out-of-season red snapper, and convert some of the current dead discards into landings.

The South Atlantic Council’s Scientific and Statistical Committee observed that

“To significantly reduce discard mortality, reducing encounters and effort is paramount.  Long-term management strategies need to focus on these reductions in order to enable greater harvest to occur.

“In the short term…the SSC recommends pursuing temporal/spatial reductions (possibly wave-based) in bottom fishing…The bulk of recreational discards of red snapper are occurring off the East Coast of Florida; thus, spatial closures may be most effective in this area.  [formatting omitted]” 

The Council almost followed its SSC’s advice.  It prepared an amendment that would have adopted measures needed to significantly reduce the recreational bycatch of red snapper, but in the face of strong opposition from recreational fishing organizations and the recreational fishery, never submitted it to NMFS for approval.

And so NMFS was sued, and decided that it was prudent to enter into a binding legal settlement with the plaintiffs, agreeing to develop management measures to end the recreational overfishing of South Atlantic red snapper, and publish those measures, in the form of a final regulation, on or before June 6 of next year.

It’s inevitable that the final regulation will include a closed season for all bottom fish, in order to avoid recreational red snapper bycatch, in a substantial swath of the waters managed by the South Atlantic Fishery Management Council.

And so some folks who have seemingly forgotten how a binding legal settlement works are trying to convince NMFS to dishonor the agreement that it made, in good faith, with the plaintiffs in the recent red snapper lawsuit.

In a recent edition of its “Policy Watch” newsletter, the American Sportfishing Association, which represents the fishing tackle industry, announced with apparent approval that

“On Thursday, U.S. Congressman John H. Rutherford (R-FL), along with 22 fellow House colleagues, sent a letter to National Oceanic and Atmospheric Administration (NOAA) Administrator Richard Spinrad to oppose bottom closures and shorter red snapper seasons for recreational anglers in the South Atlantic.

“The members urged NOAA to suspend consideration of area closures and other significant management decisions until the South Atlantic Great Red Snapper Count and other ongoing data collection programs are completed and integrated into the stock assessment process.”

While the American Sportfishing Association would probably be very happy to see NMFS comply with that request, as avoiding time and area closures would likely allow ASA members to sell more fishing tackle to, and so make more money from, bottom fishermen in the South Atlantic, collecting the relevant data and incorporating it into a new stock assessment just isn’t going to happen by June 6, 2025, and NMFS has a legally-enforceable obligation to issue regulations ending recreational overfishing of South Atlantic red snapper by that date.

Rep. Rutherford’s letter to NOAA said

“We write to share our concerns with the advancement of a Secretarial Amendment to alter management of red snapper in the South Atlantic.  We urge you not to consider area closures or other significant management decisions until the ongoing surveys are completed and their data is integrated into the stock assessment process.

“While we agree that our fisheries must be managed in a sustainable way, we currently lack sufficient data to support area closures, which would have immense economic implications on our states.  Current methods used to determine the health of the stock, and ultimately inform management decisions, do not provide an accurate picture of the red snapper stock.  In fact, NOAA recently stated that the recreational data effort estimates could be off by as much as 40 percent.

“Over the last 12 years, anglers and fishery managers have worked diligently to rebuild the red snapper stock, and by all accounts these efforts have been successful.  The most recent scientific information indicates that the South Atlantic red snapper stock has had strong recruitment of young fish in recent years and is and is recovering consistent with rebuilding goals.  Anyone who has been out on the water recently will tell you that red snapper is plentiful.

“We regularly hear from our constituents that red snapper is so abundant it is all they can catch.  As the stock grows, more encounters occur out of season, which leads to increased discards.  These discards ultimately count against fishermen, leaving them with short or non-existent seasons even after complying with all the rules.  This is a frustrating cycle that prevents fishermen from accessing this important resource.

“Red snapper seasons, even short ones, help support our coastal economies.  The six-day 2018 recreational season added $13 million to the Gross Domestic Product (GDP) for the region.  As red snapper seasons shrink, however, so does their economic benefit.  Area or season closures of bottom fishing would be an economic disaster for our states which rely heavily on our coastal economy and the businesses that support our robust fishing industry.

“Any secretarial amendment decisions for the red snapper fishery must be made using the best and most up-to-date science.  Congress has provided $8.7 million to improve management and available fishery data, $3.3 million of which was used to fund the South Atlantic Great Red Snapper Count.  This study, which began in 2021, will provide independent data on the red snapper population and will be completed in the second half of next year, right after NOAA intends to implement a final rule.  Taking secretarial action without incorporating the soon-to-be available data from the Great Red Snapper Count and the ongoing state surveys would be precipitous and irresponsible.

“For these reasons, we urge you to suspend consideration of area closures and other significant management decisions for the South Atlantic until the Great Red Snapper Count and the other ongoing surveys are completed and integrated into the stock assessment process.”

Rep. Rutherford's letter admits that the problem the Secretarial Amendment is intended to address exists:  “As the stock grows, more encounters occur out of season, which leads to increased discards.”

It admits that the current rules are inadequate to address the discard problem, saying “These discards ultimately count against fishermen, leaving them with short or non-existent seasons even after complying with all the rules.  [emphasis added]”

Yet it makes no effort to link recreational bycatch and dead discards with the health of the stock, nor does it acknowledfge how such discards might negate the impact of the “strong recruitment of young fish in recent years,” a concern clearly expressed by NMFS.

And, most significantly, it ignores the fact that NMFS no longer has the unbounded discretion to suspend action on the Secretarial Amendment until all the yet-uncollected data is in place, peer reviewed, and included in a stock assessment, a process likely to take years.  It completely disregards the fact that NMFS has already entered into a binding commitment to finalize regulations calculated to end overfishing by a date certain, and cannot merely change its mind now and delay any action to some indefinite point in the future.

In writing his letter, Rep. Rutherford suggests that NMFS wait for data that won’t arrive until after the Secretarial Amendment must be finalized and published in the Federal Register.

But that June 6 deadline cannot be casually ignored.  NMFS has a binding obligation to finalize the rule by that date, and if it fails to do so, legal consequences may, and almost certainly will, ensue.

Politicians may be used to committing to one thing before doing another.  They may make promises that they have no intention of honoring.  But most of us, particularly those of us who negotiate legal agreements, are expected to stand by our word.  Our professional reputations stand or fall on our willingness and our ability to deliver on what we have promised.

We understand that a deal is a deal, and it’s well past time for the politicians who interfere with the fishery management process to understand that basic truth as well.