Back in the late 1970s, when I was in my final year at law
school, I got a part-time job with a firm that specialized in corporate governance. Most of the work was pretty mundane, and
involved calling stockholders to make sure they’d received their proxy
materials, or in the case of a corporate takeover, whether they received the
information statement and understood how to tender their shares for either cash
or shares in the surviving company.
But once in a while things got heated, when a slate of
dissident shareholders tried to oust corporate management, or when a company launched
a takeover of another company that did not particularly want to be taken over by anyone.
I ended up staying with the firm for a few years after
graduation, at first keeping the part-time gig, then taking a full-time job at its
Manhattan headquarters, where I had an inside seat on such things as the leveraged
buyout era of the early 1980s, the savings and loan insolvency crisis, and a few
other newsworthy events. But perhaps the
most intense corporate fight I ever took part in involved Texas Air
Corporation taking over Continental Airlines.
It was a weird combination, as Texas Air was a union-busting
operator of low-cost airlines, while Continental was a highly-regarded full
service airline with a large, unionized workforce. But Texas Air offered a good enough price
that Continental stockholders were more than willing to sell a clear majority
of the outstanding shares, and grant an irrevocable proxies that ensured that
Texas Air could control the vote at any shareholder meeting.
Continental’s takeover seemed inevitable, but in a
desperate, last-minute effort to avoid it, Continental implored the Texas Congressional
delegation to introduce a private bill that would prevent the takeover from
taking place.
The effort failed, and Continental’s chairman, who
apparently had a little too much of his identity tied up in the company and in
his job, ended up shooting himself to death in his office.
Today, I can’t help but recall those days, when I see the
recreational fishing industry appealing to Congress to grant them an extended recreational
red snapper season in the South Atlantic, after they failed to make a credible
case using science or the law.
Science certainly didn’t help them.
The
best available data suggests that recreational fishermen landed about 36,000
South Atlantic red snapper over the course of a two-day season last year, exceeding
an
annual catch limit of 29,656 fish, and released
about 1,400,000. The landings number contains a significant
level of uncertainty, but the percent standard error—the measure of uncertainty—in
the release figure is 20, a reasonably low figure and one deemed completely
suitable for management work.
And that’s important, because the biggest cause of red
snapper fishing mortality is release mortality—the number of fish that die after
anglers return them to the water—which dwarfs the number of red snapper that
anglers actually take home. Since, in
recent years, the recreational red snapper season was closed for 363 or 364
days of the year, but fishing for other bottom fish that share the same habitat
continues, it’s reasonable that such release mortality can be very high. When
setting the recreational and commercial catch limits, the National Marine
Fisheries Service sets aside 475,000 red snapper solely for dead discards, and
then allocates the remaining fish—from an original annual catch limit of
509,000—between the two sectors, thus making recreational landings a very
small part of the entire mortality picture.
“the discard data comes from the Marine Recreational
Information Program (MRIP) survey and is the only non-validated data in the
catch survey. It is well-known that
these self-reported numbers are subject to digit bias and perhaps extreme digit
bias. When many fish are being caught
and released on a trip, people have a tendency to stop counting by individual
fish and start counting by number blocks (fives or tens) and they generally
round upwards. Additionally, recall bias
can exacerbate the digit bias. Whether
this bias runs high or low is unknown, although experts familiar with these survey
methods believe that this process and anglers’ natural behavior (exaggeration)
skews it in the high direction.”
While someone reading that statement might come away with
the impression that MRIP discard data is particularly unreliable—exactly the
impression that the industry spokesman wanted to create—let’s look at it a
little closer and see what it really going on.
First, the industry claims that the MRIP discard data is “non-validated.” Well, of course it is! The fish were returned to the water, so unless
there was a fishery observer on board, or cameras running throughout the trip,
placed in a way that they recorded every fish brought into the boat and so
could reveal whether those fish were kept or released, surveyors have no choice
but to take the anglers’ word about what was discarded.
Verification/validation is practically impossible.
But the thing to remember is that, absent observers or
cameras, discards will always be non-validated, even in the state data
systems that the industry touts.
There is no way to know for certain how many red snapper might have been
released offshore; even if the state creates an smartphone app that supposedly
tracks every fish, if the angler, whether forgetfully or intentionally, fails
to log a fish on the app, that app will undercount releases, and there is no sort
of validation that can detect the unreported fish.
So “non-validated” is just a red herring.
The industry comment also uses a lot of weasel words: “Perhaps extreme digit bias.” “People “have a tendency” to
stop counting, and “generally” round upward (although no support
for the latter assertion was ever provided).
“Recall bias can exacerbate the digit bias.” The industry comment never clearly states that
any of those things are actually occurring; instead, it merely raises
possibilities intended to sow doubt in people’s minds.
And, again, we’re not told how state-sponsored data
collection systems can avoid the same problems.
Similarly, we are told that “experts familiar
with these survey methods believe that this process and anglers’ natural
behavior (exaggeration) skews it in the high direction,” but what we’re never
told is precisely who the supposed “experts” are. And that matters, because the beliefs of PhD-level
statisticians familiar with the current survey process—folks like the people
who developed MRIP—are a lot more credible than a gaggle of industry-related “experts”
with an agenda. Without knowing the “experts’”
identities, and either reading their papers or knowing the context in which
their beliefs were expressed, the statement is essentially meaningless.
But one thing in the industry comment is meaningful, and
that’s the comment that “When many fish are being caught and released
on a trip, people have a tendency to stop counting by individual fish…” because
that comment is a tacit admission that people are catching, and releasing, a
lot of red snapper, and that admission certainly makes it more likely that
a lot of red snapper are being released, and that anglers are
generating a lot of dead discards, contrary to the industry’s
assertions. (An
industry press release, analyzed in detail later in this post, also states that
“Anglers bottom fishing in the region often find it difficult to avoid red
snapper due to their high abundance,” which seems to confirm that many, many
red snapper are being released each year.)
If we accept NMFS’ estimate of 1.4 million red snapper released
in the South Atlantic over the course of 2025, if we assume that every fish
released was released
with a descending device to counter barotrauma (which is a very generous
assumption, as it is likely that some percentage of the red snapper released—whether
a small percentage or a majority of the fish, it’s impossible to know—were
either vented or just tossed back into the water to float away and die),
and if we accept the findings of a
study published just a few months ago, which found that 29% of the red snapper
released with a descender (and 46.8% of the red snapper released without either
venting or a descender) die within 48 hours of release, then the
recreational sector probably generated about 406,000 dead discards, somewhat
below the 475,000 number predicted by NMFS.
However, given that the number of releases in 2025 was
unusually low, and that the average number of releases for the past five years,
2021 through 2025, was about 2.2 million, and given the conclusion of the previously-cited
study, that 29% of released fish (provided a descender is used) die within 48
hours of release, those 2.2 million releases would generate about 638,000 dead
discards, well over the 475,000 estimated by NMFS, and well above the
509,000 red snapper that constitute the annual catch limit.
The fishing tackle industry doesn’t like that dead discard
number, so it tries to raise doubt as to its validity, but the plain truth is
that the industry has not been able to produce any statistically valid data to
refute NMFS’s estimate that anglers produce about 475,000 dead, discarded red
snapper each year; it can only try to raise doubts about why that figure might
be wrong.
So the science is definitely not on the recreational fishing
industry’s side.
That makes it difficult to prevail on the law, since the
Magnuson-Stevens Fishery Conservation and Management Act is built around
science-driven fisheries management.
Thus, after
NMFS issued (or was ordered to issue) exempted fishing permits to the four
South Atlantic states, which would have allowed their anglers to ignore the annual
catch limit for South Atlantic red snapper, and so would have resulted in those
anglers overfishing the red snapper stock by as much as 2,000%, it was relatively
easy for a federal district court judge to issue a temporary injunction after
commercial fishing interests sued, challenging the exempted fishing permits’
validity.
“For years, anglers have faced extremely limited red snapper
seasons despite the stock rebuilding far ahead of schedule. These pilot programs represent a
transformational opportunity to improve recreational data collection, expand
reasonable public access and advance state-led management approaches that have
already proved successful in the Gulf.
ASA is intervening to protect that progress for recreational anglers and
the sportfishing industry.”
And
“These pilot programs are about creating an improved
recreational data collection and management framework for recreational
fisheries, while maintaining strong conservation standards. Recreational fishermen have waited for years
for management that reflects the stock’s rebuilt status and current abundance
trends. The states are stepping up with
more responsive management and better data collection, and we believe that
effort deserves strong support.”
But neither organization wanted to talk about the 475,000 (or
perhaps more) dead discards created by anglers every year, perhaps hoping that
one of the new state data collection programs might find a way to pretend the
discards didn’t occur. And neither organization
could come up with an answer to how eliminating the annual catch limit, and
allowing overfishing, would maintain “strong conservation standards.”
“There is nothing in the Magnuson-Stevens Act (MSA) that
dictates an EFP’s harvest be included in annual catch limits.”
The judge, however, disagreed, apparently believing, unlike
the recreational fishing industry, that overfishing, for any reason, is a bad
thing—not to mention illegal. In a long opinion
that stated, among other things, that
“at a minimum, each EFP the agency issues—including data
collection projects—must ‘address’ (i.e., ‘to give attention to or deal with a
matter or problem’) the ‘needs’ (i.e., ‘necessary dut[ies] or obligation[s]’)
Congress identified within Chapter 38 [of Magnuson-Stevens], several of which
emphasize the need to prevent overfishing.
This is evident from the plain language of the statutes concerning EFPs,
their titles, and their place within the overall scheme…
“Because Section 1867 requires EFPs to be consistent with the
MSA, as explained above, the NFMSA [sic] must consider whether granting
an EFP application would lead to overfishing or implicate other conservation
concerns. The regulations governing EFPs
require the NMFS to do the same.
Plaintiffs, however, contend that the government granted the States’ EFP
applications without grappling with the evidence that EFPs would lead to
overfishing. The Court agrees, the
Government ‘failed to consider an important aspect of the problem’ and thus ‘offered
an explanation for its decision that runs counter to evidence before the agency…’”
“[W]hile the Court agrees with the Government that Congress,
through Section 1867(d), authorized the NMFS to ‘create an expedited, uniform,
and regionally-based process to promote issuance, when practicable, of
experimental fishing permits, the Court does not find that Congress gave the
Government unbridled discretion to circumvent MSA and the fishery management
plan framework through the EFP process. ‘Congress
does not alter the fundamental details of a regulatory scheme in vague terms or
ancillary provisions—it does not, one might say, hide elephants in
mouseholes. And it is more than a little
doubtful that Congress would have tucked into this particular mousehole of
[Section 1867(b)] an elephant that tramples the work done by [the MSA and the
fishery management plans].’ As Amicus
Curiae aptly observes, ‘nothing in [Section 1867(b)]…gives the [NMFS] general authority
to exempt fishing activities from any legal requirements…let alone indicate[s]
that Congress meant for [EFPs] to become a vehicle to deregulate fisheries…’ As explained above, EFPs must ‘address’ the ‘needs’
identified under the MSA—not provide an escape hatch from them. Such needs include the overarching
requirement that fisheries be managed to prevent and end overfishing. [citations omitted]”
That’s powerful language, and it made it very clear that the
law was not on the fishing tackle industry’s side either.
Thus, while it might be a little unfair to restate Samuel
Johnson’s famed quote, to say that “Congress is the last refuge of a scoundrel,”
such aphorism is probably applicable here.
Because, while completely unable to prove that their
long-sought exempted fishing permits will not lead to significant overfishing
of the South Atlantic red snapper stock, and having also been completely unable
to convince a judge that the permits’ issuance complied with the law, the
recreational fishing industry is now turning its sights on Congress, hoping that
legislators will be willing to change the rules of the game so that anglers
might overfish South Atlantic red snapper with impunity, despite the provisions
of Magnuson-Stevens.
On
June 29, the American Sportfishing Association issued a press release
announcing that
“Recreational Fishing Leaders Visit Capitol Hill to Urge
Action on South Atlantic Red Snapper.”
The release went on to say,
“Recreational fishing and boating leaders from Florida,
Georgia, South Carolina, and North Carolina were in Washington, D.C. last week
for a South Atlantic red snapper fly-in hosted by the American Sportfishing
Association (ASA), Center for Sportfishing Policy (CSP), Coastal Conservation
Association (CCA), Congressional Sportsmen’s Foundation (CSF) and National
Marine Manufacturers Association (NMMA).
“Fly-in participants met with 30 congressional offices from
across the South Atlantic region to discuss the urgent need to secure a
meaningful 2026 Atlantic red snapper season and advance longer-term
reforms that improve recreational data collection and provide more
reasonable access for anglers and fishing dependent businesses. [emphasis added]”
In other words, they were speaking with congressional staff,
and perhaps with some of the members themselves, about how to overfish the
South Atlantic red snapper stock and ignore the 475,000 dead discards, despite
the clear language of Magnuson-Stevens.
And why they want to do that is pretty well spelled out in
the line, “more reasonable access for…fishing dependent businesses:” The companies that make up the American
Sportfishing Association and National Marine Manufacturers Association want to
sell more stuff.
Even if that means overfishing the South Atlantic red
snapper stock.
The American Sportfishing Association release claims that
“In recent days, the four South Atlantic states have moved to
withdraw the original EFPs to pursue revised proposals that account for the court’s
ruling and updated technical guidance,”
and if that were all that were happening, everything would
be fine. The states would have to
estimate how many red snapper would be killed as a result of the exempted
fishing permits, state seasons would be crafted to avoid overfishing, and the
annual catch limit of 509,000 red snapper would be respected. Presumably, the recreational red snapper
season would be closed once the recreational catch limit was reached.
But the very next words of the ASA were,
“The recreational fishing community is urging NOAA, the
states and Congress to work quickly to preserve a
meaningful 2026 fishing opportunity while retaining the core purpose of
the EFPs; testing better state data systems that can support improved
management and access.
[emphasis added]”
That pretty much undercuts the notion that the states were
just trying to comply with the court order and with NMFS’ regulations, because
you don’t need Congress stepping in to do that.
The only thing that you need Congress to do is change the applicable
law, so that something that would have been illegal—say, issuing EFPs knowing that
they would lead to overfishing—is suddenly deemed to be OK.
Once again, the industry makes its motivation clear, talking
about “a meaningful 2026 fishing opportunity” and “access,” with state
management systems included as a sort of afterthought.
All in all, the phrase “meaningful 2026 season,” or
something quite like it, appears in the release six separate times. At the same time, the release refuses to
accept any responsibility for the 475,000 dead discards and their impact on the
recreational season, saying
“Anglers bottom fishing in the region often find it difficult
to avoid red snapper due to their high abundance. In recent years, however, the recreational
season has often been limited to just one or two days, largely because of
persistent shortcomings in the recreational data. [emphasis added]”
Because that’s the industry’s primary, and perhaps only, strategy: Blame the data, even if you can’t prove that
it’s wrong. The only other option is
taking responsibility for the 475,000 dead discards, and taking responsibility for
harming the stock is something that the fishing tackle industry and the anglers’
rights groups like CCA have never, ever had the courage or the integrity to do.
And so they retreat to their last refuge, knowing that they
will lose on the science, and will lose on the law, but might still win in Congress,
where years of campaign contributions and political connections count far more
than science or law ever could.
Hopefully, their appeal is too late.
Hopefully, long congressional recesses, paired with the need
to raise campaign funds and the need to explain two years of inaction, political
cowardice, and occasional malfeasance to constituents back home ahead of the
mid-term elections, will leave the majority of the folks in Congress too busy trying
to save their jobs to get involved in red snapper issues.
But hope is not a plan, and there is still a discomfiting
chance that Congress might do the wrong thing and so allow the EFPs to go
through.
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