APPELLATE COURT UPHOLDS SOUTH ATLANTIC RED SNAPPER MANAGEMENT PLAN

 

On Tuesday, the United States Court of Appeals for the District of Columbia Circuit confirmed a lower court’s ruling that the National Marine Fisheries Service’s fishery management plan for South Atlantic red snapper did not violate the provisions of the Magnuson-Stevens Fishery Conservation and Management Act.

In doing so, the Court relieved NMFS of any duty to address the extremely high level of dead discards in the recreational fishery.

The lawsuit in question, Slash Creek Waterworks v. Raimondo, sought review of a regulation implementing Amendment 43 to the Fishery Management Plan for the Snapper Grouper Fishery of the South Atlantic Region, which was finalized on July 26, 2018.  Background information provided by NMFS, which accompanied the final rule, noted that

“Though limited red snapper harvest was allowed in 2012-2014, a large majority of the estimated fishing mortality was attributed to very large and uncertain dead discard estimates where fishermen were targeting red snapper and species that co-occur with red snapper, such as vermillion snapper, gag, red grouper, black sea bass, gray triggerfish, greater amberjack, and scamp.  The [South Atlantic Fishery Management] Council’s Scientific and Statistical Committee (SSC) reviewed the SEDAR 41 (2017) stock assessment and indicated the estimate of recreational discards was the greatest source of uncertainty in the stock assessment…Most of the catch is now discarded, the number of discards is dependent on fisher recall, and these estimates are expanded based on small sample size; thus, the quality of total fishery removals estimates are poor and uncertain, which will impact estimation of stock size and fishing mortality.  [emphasis added]”

The high level of uncertainty made it difficult for the SSC to set an Acceptable Biological Catch (ABC), which is defined as

“a level of a stock or stock complex’s annual catch, which is based on an ABC control rule that accounts for the scientific uncertainty in the estimate of [the Overfishing Limit], any other scientific uncertainty, and the Council’s risk policy.”

That created a problem, as the ABC is needed to set the upper bound for the Annual Catch Limit,  and as NMFS reported,

“The SSC stated that the assessment was based on the best scientific information available, but noted the assessment findings were highly uncertain regarding to what extent overfishing was occurring (i.e., the actual numerical value of the current fishing mortality estimate), and regarding the measures of discards…The SSC developed its ABC recommendations based on SEDAR 41, and the total ABC recommendation for 2018 is 53,000 red snapper.

“The projections of yield streams used in SEDAR 41 (2017) included both landings and dead discards, which were added to obtain an estimate of total removals.  The SSC’s 53,000 fish ABC recommendation is based on the sum of landed fish (18,000) and dead discarded fish (35,000)…

“…NMFS has determined that allowing the same amount of harvest as harvest that occurred in 2014 is unlikely to result in overfishing or to change the red snapper rebuilding time period…”

Based on the SSC’s ABC recommendation, NMFS announced that

“Limited commercial and recreational harvest of red snapper would be allowed by implementing a total [Annual Catch Limit] of 42,510 fish, based on the landings observed during the limited red snapper season in 2014.  This ACL is less than the SSC’s most recent total ABC recommendation for 2018 of 53,000 red snapper…”

While that latter statement was true, it ignored the NMFS’ guidelines that say

“Annual catch limit (ACL) is a limit on the total annual catch of a stock or stock complex, which cannot exceed the ABC…”

and

“Catch is the total quantity of fish, measured in weight or numbers of fish, taken in commercial, recreational, subsistence, tribal, and other fisheries.  Catch includes fish that are retained for any purpose, as well as mortality of fish that are discarded.  [emphasis added]”

Thus, if the NMFS guidelines are followed, the ACL must set an upper limit on both landings and dead discards, in combination, and accountability measures would be triggered if any combination of landings and dead discards exceeded the ACL.

But that’s not what NMFS did in the case of the Amendment 43 regulations.  Instead, it increased possible landings from 18,000 red snapper in 2014 to 42,510 in 2018, and made no allowance at all for dead discards, which totaled 35,000 in 2014, accounted for the majority of South Atlantic red snapper fishing mortality in the recent past, and could be expected to continue at levels at least as high as those experienced in 2014.

That struck Slash Creek Waterworks, some other commercial fishermen, and some attorneys willing to represent them, as illegal, and so a lawsuit was brought.

The plaintiffs alleged that, in adopting the Amendment 43 regulation, NMFS set an annual catch limit that only addressed one aspect of “catch”—commercial and recreational landings—and completely ignored dead discards, even though they accounted for the lion’s share of South Atlantic red snapper fishing mortality.

It seemed like a very viable argument, but the trial court disagreed, upholding the Amendment 43 regulation.  The plaintiffs appealed to the D.C. Circuit, and last Tuesday, that court, too, ruled against them.

One of the problems is that the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which introduced the idea of Annual Catch Limits to Magnuson-Stevens, didn’t do a particularly good job of defining what ACLs are.  So current law just says that regional fishery management councils must

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process established [elsewhere in the law],”

and that fishery management plans must

“establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.”

 That’s it.  Nowhere in Magnuson-Stevens are Annual Catch Limits defined.  Nowhere does the law state just how NMFS is expected to deal with ACLs nor, more importantly, what NMFS must do when an ACL is exceeded, or is likely to be exceeded, in any fishing year.  That sort of guidance is provided in the National Standard Guidelines that NMFS is required to publish in the Federal Register, and thence in the Code of Federal Regulations.  The only problem with that is, while Magnuson-Stevens requires such publication, it also clearly states that the Guidelines don’t have the force of law, meaning that NMFS may ignore its own Guidelines at will.

That has led to some fumbling by courts who have had to deal with the Annual Catch Limit concept.  In Natural Resources Defense Council v. Raimondo, a matter brought in the United States District Court for the District of Columbia, we saw the Court find that Annual Catch Limits were not necessarily a “limit,” as that term is commonly understood, on catch at all.

Instead, the Court in that matter said,

“Plaintiff’s principal argument is that the MSA’s section 1833 means what it says: providing for ‘annual catch limits’ means setting ‘caps not to be exceeded.’  By focusing primarily on the definition of ‘annual catch limit,’ plaintiff ignores that the question in dispute concerns not the ACL itself, but the means that NMFS and the Mid-Atlantic Council must adopt to achieve the ACL; specifically, whether recreational management measures must be calibrated exclusively to the ACL.  The three words ‘annual catch limits’ do not answer this question.

“Section 1853(a)(15) requires fishery management plans, or FMPs, to ‘establish a mechanism for specifying annual catch limits…at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.’  This text is unambiguous.  Section 1853(a)(15) mandates a mechanism for specifying ACLs at a level such that overfishing does not occur.  That the Summer Flounder, Scup, and Black Sea Bass FMP has satisfied this requirement is undisputed…

“Section 1853(a)(15) also mandates that ‘measures’ be enacted ‘to ensure accountability.’  No further specificity is provided on how ‘accountability’ must be ‘ensure[d].’

“Given the text of statute, having concluded that defendants have established a mechanism for specifying ACLs and have enacted measures to ensure accountability, the analysis of whether defendants have satisfied section 1853(a)(15) should end here.  Plaintiff, however, tries to take section 1853(a)(15) a step further, seizing on the three words, ‘annual catch limit,’ as the lynchpin to argue, based purportedly on the phrase’s plain meaning and legislative history, that every fishery management tool must set the ACL as its ‘north star,’ such that every fishery management tool must set the ACL as its one and only goal.  The phrase ‘annual catch limit’ is not defined, and plaintiff is certainly correct that when a term is not defined, the plain meaning controls.  Discerning the plain meaning of ‘annual catch limit,’ however, does not end this instant dispute, where the question is not how to define ACL, but what relationship, if any, the MSA requires between the ACL and season-specific recreational management measures…

“National Standard 1 is the only MSA provision cited by the parties that addresses management measures and provides that ‘[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.’  By its terms, rather than mandate that management measures exclusively target the ACL, NS1 sets different targets for management measures: (1) to prevent overfishing, and (2) to achieve optimum yield (or OY), on a continuing basis.  While the ACL serves as a proxy for preventing overfishing, NS1 requires more than simply achieving that goal and, thus, the ACL is not the exclusive guidepost in assessing the adequacy of management measures.  [citations omitted]”

So while the court in Natural Resources Defense Council v. Raimondo found that the Annual Catch Limit wasn’t really a hard limit on catch, the court in Slash Creek Waterworks v. Raimondo found that the Annual Catch Limit didn’t have to expressly limit all forms of catch.

It should be noted, before beginning the discussion, that by the time the appellate court got around to hearing arguments in Slash Creek, the Amendment 43 regulations had been replaced by a new regulation implementing the provisions of Amendment 59, which was adopted in June 2025.  And Amendment 59 wasn’t quite as dismissive of dead discards as its predecessor, as it did set a overall ACL of 509,000 red snapper, and set aside 475,000 of that total as a dead discard allowance, although the actual number of recreational dead discards may well have exceeded that figure by a substantial amount.

However, the issue of an annual catch limit that didn’t adequately address dead discards was common enough to both sets of regulations that the Court allowed the original appeal to cover Amendment 59’s management measures as well.  The Court noted that

“While the preamble describes the annual catch limit is derived from total figures that account for dead discards, the resulting annual catch limit continues to be measured and enforced based solely on landings, without, restricting dead discards.”

The Court later went on to say that

“To the extent the Service may have given some sort of consideration to the effect of dead discards in calculating the annual catch limits, that has no bearing on whether the result of its analysis—a regulation again establishing a landings-only limit—contravenes [section] 1853(s)(15) in the alleged ways.  Even if Amendment 59’s preamble purports to consider a ‘total ACL [i.e., annual catch limit]’ that includes both landings and dead discards, only the regulatory text is binding on regulated parties and enforced by the Service—so, only the regulatory text carries the force of law.  And the regulatory text makes no mention of a ‘total ACL,’ instead containing only the landings-only annual catch limits applicable to the commercial and recreational sectors.  In fact, the regulatory text under Amendment 59 is identical to the text under Amendment 43, except that the annual catch limits have been updated with new numerical values.  [citations omitted]”

And the Court recognized that the number of red snapper that are discarded dead by the recreational fishery is substantial, noting that

“Estimates suggest that dead discards comprise approximately 90% of the catch of red snapper, likely because they are incidentally caught when fishermen target other species in the same area.  Those estimates are somewhat uncertain because they rely on fishermen’s recall and are extrapolated from a small sample size, but the number of red-snapper dead discards appears significant and growing.”

However, the Court also noted that

“In setting the annual catch limit, the [National Marine Fisheries] Service acknowledged it had been unable to calculate an acceptable biological catch due to uncertainty about dead-discard estimates.  The annual catch limit was instead based on the number of observed landings inn 2014, and was set below the most recent acceptable biological catch.  That annual catch limit, the Service determined, would not lead to overfishing because the red-snapper stock had increased in 2014.  From 2019 to 2024, the Service published temporary rules setting the landings-based annual catch limit for red snapper.”

In making its decision, the Court observed that the plaintiffs challenged the red snapper management measures

“for two reasons:  first, that the rules have ‘failed to establish a limit on the annual catch of South Atlantic red snapper,’ because they restrict only landings, and not dead discards; and second, that the rules more generally ‘have failed to establish a mechanism for specifying annual catch limits for South Atlantic red snapper that prevents overfishing.”

The Court then noted that its decision was dictated by existing precedent, in the form of its earlier, 2023 decision in A.P. Bell Fish Company v. Raimondo, which addressed similar issues arising out of the red grouper fishery in the Gulf of Mexico.  The Court in that case found that an Overfishing Limit based solely on landings, and not dead discards, still complied with the mandates of Magnuson-Stevens, because

“The overfishing limit recommended by the Council ‘accounts for all sources of mortality, including bycatch, because the stock assessment factors in that mortality.  Because the annual catch limits are based on the overfishing limit, the annual catch limits account for bycatch in the same fashion.  Section 1853(a)(15) requires ‘only the establishment of [annual catch limits and accountability measures] such that overfishing does not occur,’ and does not require ‘the further step of setting an overfishing limit…that more directly accounts for bycatch.  [citations omitted]”

It was not, perhaps, the most strongly reasoned decision, and it disposed of the issue in a single short paragraph, but it nonetheless compelled the Court in Slash Creek to decide that

“the Service could permissibly set the overfishing limit [and thus the acceptable biological catch and the annual catch limit] in terms of landings without directly restricting bycatch (of which dead discards are a subset).  With respect to whether Amendment 43’s landings-only approach is conceptually incapable of preventing overfishing, the court found ‘no reason’ to believe that it is impossible to address overfishing if dead discards are excluded from the annual catch limit.”

Thus, the decision in Slash Creek, although perhaps inevitable given the A.P. Bell precedent, perpetuates the problems created by the vast numbers of dead discards generated by the recreational red snapper fishery, which not only have the potential to delay, if not prevent, the full recovery of the red snapper stock, but also unfairly limit the commercial fishery’s access to the South Atlantic red snapper resource.

After all, if the 28.07% commercial/71.93% recreational allocation was applied to the 509,000 fish annual catch limit before the 475,000 dead discard allowance was subtracted from that amount, the commercial catch limit would be just over 140,000 fish—about 1.3 million pounds—instead of the mere 102,951 pounds that they may land today, and the recreational sector would be held fully responsible for the hundreds of thousands of red snapper that they kill, but fail to utilize, due to discard mortality.

Instead, under today’s management approach, the commercial sector is forced to pay a large share of the price for the recreational sector’s improvidence, and its refusal to take even the smallest and most obvious steps to reduce the number of red snapper that anglers waste every year.

It’s a situation that, in the name of basic justice, cries out for some sort of fix, but given the recreational fishing industry’s dominance on the South Atlantic Fishery Management Council, and given the decision in Slash Creek Waterworks v. Raimondo, that fix isn’t coming any time soon.