However,
three of the states—South Carolina, Georgia, and Florida—quickly revised their permit
applications, in an effort to address the issues raised by the court, and
resubmitted them to NMFS. NMFS,
to no one’s surprise, issued the new exempted fishing permits in September,
which will result in a 14-day red snapper season for anglers in each of the
three states.
And once again, members of the commercial fishing sector,
who feel their interests in the South Atlantic red snapper fishery is
threatened by the issuance of the permits, are challenging NMFS’ action in
court.
The new legal challenge is titled Ariel Seafoods of
Florida, Inc. v. Howard Lutnick, and like the previous action, has been
brought in the United States District Court for the District of Columbia. However, unlike the first action, where NMFS’
failures to comply with the law were obvious, the arguments in Ariel Seafoods
are somewhat more nuanced, but nonetheless compelling.
In both cases, the key questions are essentially the
same: Do the terms of the exempted
fishing permits conflict with the explicit language of the Magnuson-Stevens
Fishery Conservation and Management Act and existing NMFS regulations? And if they do, does that conflict invalidate
the permits?
In May, the Court answered both questions in the
affirmative. Whether that will again be
the case is difficult to predict.
The complaint in Ariel Seafoods makes three claims
for judicial relief.
The first claim is that
“DEFENDANTS LACK THE AUTHORITY TO ISSUE EXEMPTED FISHING
PERMITS FOR SOUTH ATLANTIC RED SNAPPER THAT VIOLATE STATUTORY REQUIREMENTS
AND/OR DOING SO WAS ARBITRARY AND CAPRICIOUS.”
“Traditional tools of statutory analysis show that any EFPs
the NMFS issues must comply with the [Magnuson-Stevens Act]. The MSA created a [c]ooperative research and
management program…to address needs identified under [Chapter 38 of Title 16 of
the United States Code and any other marine resource laws enforced by the
Secretary of Commerce]. Chapter 38, titled
‘Fishery Conservation and Management,’ identifies several such needs…Section
1867(d) of the MSA authorizes the Secretary to issue ‘experimental permit[s].’ Under 50 C.F.R. [section] 600.745(b), the
Secretary promulgated such a process.
Under that process, the Secretary may issue EFPs ‘for limited testing,
public display, data collection, exploratory fishing, compensation fishing,
conservation engineering, health and safety surveys, environmental cleanup, and/or
hazard removal purposes,’ if a target or incidental harvest of a species
managed under a fishery management plan fisheries regulation is prohibited (e.g.,
South Atlantic red snapper).
“Therefore, 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…This is evident from the plain language
of the statutes concerning EFPs, their titles, and their place within the
overall statutory scheme…
“…When Congress amended MSA to create a ‘[c]ooperative research
and management program,’ and directed the Secretary to create an ‘[e]xperimental
fishing permitting process,’ the NMFS explained that ‘[a]ny permit issued by
NMFS is a Federal action, and as such must comply with any and all applicable
laws…
“…the NMFS has explicitly stated that this permit ‘does not
exempt participants from the requirements of the MSA…Therefore, in addition to
the relevant statutes, the Government’ [sic] own practices indicate that
EFPs must be consistent with the requirements of the MSA…”
The plaintiffs in Ariel Seafoods allege that
“Under the Exempted Fishing Permits challenged in this case,
South Atlantic red snapper landings in 2026 will increase substantially. All of the increase will be recreational
landings.
“Due to the increased amount of recreational landings, the
commercial sector will receive around 10% of the total red snapper landings in
2026, while the recreational sector will receive around 90% of the total.
“The governing allocation ration for this fishery requires
28.07% of all landings to go to the commercial sector, and 71.93% to go to the
recreational sector. So under the
Exempted Fishing Permits, the actual ratio of landings between the recreational
sector and the commercial sector will depart significantly from the allocation
ratio established in the [fishery management plan].
“The Magnuson-Stevens Act requires Defendants to acknowledge
and analyze all allocations and reallocations, ensuring among other things that
they are ‘fair and equitable…’”
The latter paragraph refers to National
Standard 4, one of the National Standards for Fishery Conservation and
Management contained in Magnuson-Stevens, which states, in part, that
“If it becomes necessary to allocate or assign fishing
privileges among various United States fishermen, such allocation shall be fair
and equitable to all such fishermen…
[formatting omitted]”
It is often difficult to determine what “fair and equitable”
might mean—generally, one’s view of “fair and equitable” depends on whether the
allocation provides you with more fish or less, regardless of the context—but in
the case of the South Atlantic red snapper EFPs, there’s an interesting twist.
Whether that allocation to the recreational sector is an
impermissible violation of NMFS’ fishery management plan, and/or an “unfair”
reallocation of red snapper that is prohibited by National Standard 4, is one
of the issues that the Court will have to decide.
Plaintiff’s second claim for relief is that
“DEFENDANTS LACK THE AUTHORITY TO MAKE SUBSTANTIVE
MODIFICATIONS TO THE ANNUAL CATCH LIMIT MECHANISM FOR SOUTH ATLANTIC RED
SNAPPER VIA EXEMPTED FISHING PERMITS AND/OR DOING SO WAS ARBITRARY AND CAPRICIOUS.”
Here, Plaintiffs allege one of the points noted above, that
“Defendants have changed the recreational dead discard
component of the Amendment 59 annual catch limit mechanism from an off-the-top
set-aside to into a pool of available landings for the recreational sector,
apparently accompanied by the rule that the pool can be accessed to the extent
estimated recreational dead discards from the prior year came out below the
projected recreational dead discard component of the Amendment 59 annual catch
limit mechanism…
“This change appears to apply for only one year, insofar as it
was enacted via the Exempted Fishing Permits.
“The Magnuson-Stevens Act requires annual catch limit
mechanisms to be codified in fishery management plans…
“Because Defendants’ Exempted Fishing Permits make major
changes to the South Atlantic red snapper annual catch limit mechanism outside
the fishery management plan, the permits are ‘in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right…
“Moreover, because Defendants’ temporary revision to the
annual catch limit mechanism was invalid, the Exempted Fishing Permits end up
allowing far more landings than allowed by the governing Recreational [annual
catch limit], as established in Amendment 59—and in turn violate the statutory
requirement for annual catch limits… [citations
and formatting omitted]”
Plaintiff’s third and final claim for relief is that
“DEFENDANTS IN ISSUING THE EXEMPTED FISHING PERMITS RELIED ON
ASSUMPTIONS AND REASONING THAT DID NOT REPRESENT THE BEST SCIENTIFIC
INFORMATION AVAILABLE, FAILED TO ENSURE OVERFISHING IS PREVENTED, AND/OR WERE
ARBITRARY AND CAPRICIOUS.”
This claim is based on two more National Standards for
Fishery Conservation and Management, National Standard 2, which requires that
“Conservation and management measures shall be based upon the
best scientific information available,”
and National Standard 1, which states, in relevant part,
that
“Conservation and management measures shall prevent
overfishing.”
While it’s usually folly to predict what any judge will do,
and what arguments might capture a judge’s attention, and while the Plaintiff’s
first two claims for relief certainly make valid and viable arguments, it may
be that this third claim has the best chance of convincing the Court that the
exempted fishing permits were issued in error.
Perhaps the most egregious flaw in the exempted fishing
permit process was the fact that, in setting the catch limits for Florida,
Georgia, and South Carolina, and so also in setting the 14-day season, NMFS
never considered the fish that were caught in Florida earlier in the year, and there is reason
to believe that the number already caught might be substantial. As reported in an article on the website
floridatrib.org,
“In years past, recreational anglers have hit the annual red
snapper catch limit in one weekend of fishing.
This summer’s state season ran from May 22 to July 31, and the fall season
will open September 1.
“’They’ve been fishing since Memorial Day weekend, so they’ve
probably blown through that limit a couple of times over if they’re fishing as
hard as they could be,’ [Andrea] Treece [an attorney for Earthjustice, a non-governmental
organization that specializes in environmental litigation] said.
“The legal limit has been frustrating for [Christine] Shaffer,
who manages the [party boat] Canaveral Princess. She said private anglers and other charter boat
operators are landing red snapper in federal territory, and pretending they
came from state waters [which may remain open for fishing when federal waters
are closed].
“’They’re not even hiding it,’ she said. ‘They’re posting it all over social media.’
“Some of her customers are demanding she do the same. But Shaffer won’t break the rules, even
though it’s costing her business.
“’You’ve got the president, the governor, all trying to say, ‘Yeah,
go for it,’ but that doesn’t help people like us that are in business here 365
of the year,’ Shaffer said. ‘We’ve got a
federal fishing permit that we have to abide by, and we can’t go out and break
the law like everybody else.’”
Given
that NMFS, in issuing the exempted fishing permits, predicted a Florida recreational
catch rate of 5,960 red snapper per day, it’s not unreasonable to assume
that Florida anglers caught as many as 423,000 red snapper between May 22 and
July 31, and even more after the season reopened in September, far exceeding even
NMFS’ most optimistic annual catch limit for the entire year—before
the exempted fishing permits ever went into effect.
Even if that figure was reduced by 75%, on the assumption
that most anglers chose not to violate the law and fish in federal waters, it
would still just about equal the
112,787-fish recreational catch limit for 2026.
Since that limit was set right at the Overfishing Limit, any
additional red snapper caught pursuant to the exempted fishing permit would
cause overfishing to occur.
Florida apparently has data that sets out the number of red
snapper caught during the state’s open season but, as the Plaintiff’s complaint
alleges,
“Upon information and belief, a substantial quantity of red
snapper has been landed on Florida’s East Coast since May 22, 2026, whether
taken in state waters or taken in federal waters and reported as state waters
catch. The annual catch limits for South
Atlantic red snapper are stock-based, and include fish landed from both state
and federal waters.
“Florida has acknowledged that catch estimates for this
period exist from its [State Reef Fish Survey], but has refused to releuase
them. [citations and formatting omitted]”
That likelihood of overfishing probably should, in itself,
be enough to cause the Court to invalidate the exempted fishing permits but, as
noted earlier, it’s always difficult to predict what any court might do.
The fact that the exempted fishing permits base the 2026
annual catch limit on the Overfishing Limit, rather than on the Acceptable
Biological Catch (the Overfishing Limit reduced to account for scientific
uncertainty and, in this case, the South Atlantic Fishery Management Council’s
risk policy) is another red flag.
“While the [Acceptable Biological Catch] is allowed to equal [the
Overfishing Limit], NMFS expects that in most cases [the Acceptable Biological
Catch] will be reduced from [the Overfishing Limit] to reduce the probability
that overfishing might occur.”
Moreover, the same guidelines direct that
“If a Council recommends an [Annual Catch Limit] that equals
[the Acceptable Biological Catch], and [the Acceptable Biological Catch] is
equal to [the Overfishing Limit], the Secretary may presume that the proposal
would not prevent overfishing, in the absence of sufficient analysis and
justification for the approach.”
While those guidelines don’t precisely address the current
situation, where NMFS issues exempted fishing permits that include an annual
catch limit equal to the Overfishing Limit, such situation is analogous enough
that it is reasonable to assume that the exempted fishing permits—even without considering
the Florida “state waters” landings—will also create an unacceptable risk of
overfishing.
NMFS
tried to justify its decision to base the annual catch limit on the Overfishing
Limit, saying
“Setting the harvest level consistent with the [Overfishing
Limit] would increase the risk of overfishing.
However, the stock is currently not overfished and not undergoing
overfishing and at abundance levels not seen in decades. If overfishing did occur, the risk to the
stock is small because the stock is above the Minimum Stock Size Threshold
(albeit not rebuilt) and a pending stock assessment will allow for new catch
levels to be set in [State Reef Fish Survey] currency as early as next year,”
which may all be very good, but still fails to meet the
National Standard 1 requirement that “Conservation and management measures shall
prevent overfishing. [emphasis
added]”
The complaint also raises other data issues, including
“assuming that recreational dead discards in 2026 will equal
the amount of dead disards in 2025; assuming an avoided dead discard can be
substituted with a landed fish…and completely ignoring the fact that the
Exempted Fishing Permits do nothing to address the central problem with
recreational fishing data, which is out-of-season dead discards,”
but given the importance of the exempted fishing permits’
failure to ensure that overfishing does not occur, those other issues won’t be
examined in detail here.
Thus, the stage is set for another last-minute intervention
by the Court, although one must wonder whether the Court will have time to
analyze the issues and intervene before the exempted fishing permits take effect.
In the matter of Southeast Fisheries Association v.
Lutnick, the exempted fishing permits were issued around May 1, the legal
challenge was filed on May 5, and the Court issued its injunction on May 21, just
hours before Florida’s red snapper season was to begin.
In the case of Ariel Seafood, the exempted fishing
permits were issued around September 16, but the lawsuit wasn’t commenced until
October 5, and the 14-day fishing season is scheduled to begin tomorrow, on October
9. So one might reasonably ask whether
the Court has enough time to read both sides’ papers and consider their
arguments, do the necessary research, and write an opinion before the season
begins—which means sometime tonight—or whether the Court will allow the exempted
fishing permits to remain in effect, and fishing to begin, before ruling on the
issues raised in the complaint.
Given that it took the Court 16 days to rule after the Southeast
Fisheries Association action was filed, it might even be reasonable to
wonder whether the Court will have time to rule before the 14-day season
established by the exempted fishing permits is over.
Hopefully, it will, because it is fairly clear that the
exempted fishing permits are less about testing alternative methods of
obtaining recreational red snapper catch, landings, and effort data—after all,
as the Plaintiffs noted, it doesn’t address the dead discards, the biggest
component of recreational catch, at all—and more about creating a longer red
snapper season that escapes the bounds set by the science-based provisions of
Magnuson-Stevens.
But at this point, we can only wait and see what the Court’s
decision will be.
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