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.