A federal ruling has been handed down that the U.S. government violated the law by failing to properly manage the Gulf of Mexico Red Snapper fishery. Photo: Bill Cochrane
by Ed Lallo/Gulf Seafood News Editor
A federal ruling has been handed down that the U.S. government violated the law by failing to properly manage the Gulf of Mexico Red Snapper fishery.
The U.S. District Court for the District of Columbia has ruled favorably on all five counts for 21 plaintiffs comprised of commercial fishermen in a lawsuit against Penny Sue Pritzker, acting in the official capacity as Secretary of the United States Department of Commerce; the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS).
In the ruling the court agreed that the persistent overharvesting by the recreational fishing sector in recent years has harmed all stakeholders in the fishery, including commercial and recreational fishermen and fishing communities, and deprived consumers of access to fresh fish.
Lack of Accountability by Recreational
The plaintiffs argued that the National Marine Fisheries Services violated the Magnuson-Stevens Fishery Conservation and Management Act, the law governing federal fisheries, by failing to implement sufficient accountability measures to ensure that the recreational fishing sector adheres to its annual fishing quota.
“We are very excited that the judge agreed with us on all counts,” said one of the plaintiffs in the case, David Krebs, president of Florida’s Ariel Seafood and a Gulf Seafood Institute board member. Photo: Ed Lallo/Newsroom Ink
The decision also found that the lack of accountability measures in the recreational sector caused a de facto reallocation of the red snapper fishery from the commercial sector to the recreational sector in violation of statutory and regulatory requirements.
“We are very excited that the judge agreed with us on all counts,” said one of the plaintiffs in the case, David Krebs, president of Florida’s Ariel Seafood and a Gulf Seafood Institute board member. “For years recreational fishermen have been frustrated, it is past time to fix their recreational accountability problems. The Gulf Council has continued failed them.”
Inadequate controls have permitted the recreational sector to routinely catch far more red snapper than it is allocated under the fishery management plan.
The fifty-page ruling cited NMFS administrator Roy Crabtree’s description of recreational sector’s particular management uncertainties to the Gulf of Mexico Fishery Managements Council’s Reef Fish Management Committee in January 2013, and to the full Council in June 2013.
The fifty-page ruling cited NMFS administrator Roy Crabtree description of recreational sector’s particular management uncertainties. Photo: NOAA
During those meetings Crabtree statements about the recreational fishing sector included, “If you look at the performance of the fishery in the past, we have, more often than not, had overages in the range of a million pounds. We still have a lot of management uncertainty in this fishery in terms of our ability to close the fisheries on time in the recreational sector.”
He went on to say about the recreational sector, “There’s been a great deal of management uncertainty and that’s reflected in the quota overruns to the recreational sector. We all know there’s a great deal of uncertainty inherent in determining when to close the recreational fishery and what they’re ultimately going to catch.”
Commercial fishermen and associated businesses that filed the lawsuit hailed the Court’s decision as a step towards better management of the red snapper fishery.
Litigation Not First Choice
“We have been working with the recreational sector for a long time, and we hope this ruling will strengthen that cooperation,” said plaintiff Buddy Guindon, owner of Katie’s Seafood in Galveston. “The ruling lays the groundwork for a better fishery management plan that will result in a better stock of fish.”
“We have been working with the recreational sector for a long time, and we hope this ruling will strengthen that cooperation,” said plaintiff Buddy Guindon, owner of Katie’s Seafood in Galveston. Photo: Ed Lallo/Newsroom Ink
According to the Galveston red snapper fisherman, “Litigation was not our first choice, but the agency’s mismanagement posed a real threat to the entire red snapper fishery, and to the businesses dependent on it. We look forward to working with NMFS and the Gulf Council to solve a longstanding issue in this fishery—the need for accountability measures in the recreational sector.”
Inadequate controls have permitted the recreational sector to routinely catch far more red snapper than it is allocated under the fishery management plan. The Court recognized, “overages in the recreational sector have occurred in six of the last seven years.” By contrast, the commercial sector of the fishery, which operates under an individual fishing quota (“IFQ”) system (a form of catch share), complies with its catch limit every year.
“The commercial sector has an effective IFQ program,” said Donny Waters, a commercial red snapper fisherman from Pensacola, Florida. “The agency’s actions on the recreational side were undermining the tremendous progress we’ve made. But we hope this decision will improve accountability in the recreational sector.”
The Gulf Council is scheduled to discuss in April and vote in May on the reallocation of additional snapper to recreational fishermen from the current 51/49 split favoring commercial fisherman. Council members have already stated a preference for Alternative 5 from Amendment 28; allocating 75% of red snapper in excess of 9.12 million pounds to the recreational sector and 25% to the commercial sector.
According to Charlene Ponce, spokesperson for the Council, “the council will likely discuss the lawsuit ruling and its implications during the April Council meeting in Baton Rouge. I can’t speculate what action they may take.”
Work Together Moving Forward
“We want to work with the Council to resolve the recreational red snapper problems as soon as possible,” said Krebs. “We have always wanted to help. We are not trying to take any fish away, but instead want to work to resolve the problems of the fishery. We are ready to listen to what suggestions the Council offers, and stand ready to work with them.”
“We want to work with the Council to resolve the recreational red snapper problems as soon as possible,” said Krebs. “We have always wanted to help. We are not trying to take anything away, but instead work to resolve the problems of the fishery.” Photo: Johnny Greene
As a result of the Court’s decision, any future management actions for red snapper – including any potential reallocation of quota to the recreational sector – must be developed with adequate accountability measures consistent with the Court’s order. NMFS will have to revise its regulations governing the recreational red snapper fishery in the Gulf of Mexico to “require whatever accountability measures are necessary to constrain catch to the quota.”
According to a NOAA spokesperson, they are currently reviewing the decision “however beyond that we do not comment on pending litigation.”
“We want to make sure that red snapper fishing is available for generations to come,” said Wayne Werner, a commercial red snapper fisherman from Alachua, Florida. “All we want is to make sure the public has access to red snapper in restaurants and grocery stores. This decision will allow the stock to rebuild more rapidly and allow all sectors to catch more fish in the future.”
Funny how The Environmental Defense Fund is not even mentioned in your article Mr. Lallo. Here is the description of plaintiffs in the lawsuit itself in which EDF is the lead plaintiff;
MEMORANDUM OF
ENVIRONMENTAL DEFENSE FUND,
BILLY ARCHER,
ANDREW CANTRELL,
SCOTT HICKMAN,
GARY JARVIS, AND
THEODORE STEPHEN TOMENY, JR.
AS
AMICI CURIAE
IN SUPPORT OF PLAINTIFFS
Just goes to show how they portray these actions as being originated by “fishermen” when in reality it is EDF pulling the strings.
The EDF did file an Amici Curiae with the court, however the court chose not to accept it because it was not filed in a timely manner. Also you can only file an Amici Curiae if you are not a part to the case.
The NMFS has failed rec fishermen in their attempts at managing the red snapper fishery. As a rec fisherman, I have been held to and complied with their ridiculous measures year after year. And year after year, the only constant is that their data collection methods and results have lacked conformity, stability and accuracy over and over. As scientists, they need to get the data right before moving ahead with other issues such as the headboat collaborative which is like putting a new tire on a broken axle. Many of the Gulf states achieve the simple goal of accountability and sustainability in their state rec and comm red snapper fisheries. Repeatedly, it is only the federal system of management which seem to be in constant crisis. Does this crisis drive up the price of snapper? Who benefits? I have no issues with the commercial sector, and it is counterproductive to continue to pit one sector against the other like apples and oranges. Perhaps it is time for the states to fully manage their own rec fisheries/quotas in federal waters, and let the Feds to continue to manage the commercial sector.
“Deprive the consumer of access to fresh fish”? I rarely see red snapper anymore on the menu in gulf coast restaurants. When I have asked the restaurant managers about the absence, it is always due to cost. But, not surprising Florida fish are going up north or out of the country because the middle man can get more money for the fish up there. When you do go to the local market place, a fillet is not priced for the average Joe, which amazes me because coastal towns take fish directly off the boats. A few weeks ago I got a better deal on fresh flown in Alaskan salmon than the snapper in the market, so what’s up with that. Keep speaking up for your rights recreational fishermen and fisherwomen. There should be reasonable catch for all of us. The snapper catch restrictions on us have gotten ridiculous.
The EDF did not contribute money nor did shareholders alliance (even though they are listed as plaintiffs, some of their members did individually). All financial support for the lawsuit came from fishermen and fish houses, with the exception of Gulf Fisherman’s Association located in St Petersburg. As previously mentioned, the EDF did file an Amici Curiae with the court, however the court chose not to accept it because it was not filed in a timely manner. Also you can only file an Amici Curiae if you are not a part to the case. I have a copy of the ruling and will send it to anyone who requests.
This article would leave you to believe that the NMFS is accurately counting all of the fish caught recreationally, thus their bold proclamation that the Family Level Angler is constantly “Overfishing” their quota and should be penalized. Also failed to be disclosed is that the likely biomass of Red Snapper is much greater than noted by the NMFS in part by the failure to account for stock on artificial structure and the overestimated recreational participants (effort) by 300% to 400% mathematically and artificially reduces biomass numbers in equal measure. The fact that these items are NOT disclosed in arguments, and the action desired by EDF and their affiliated and funded co-plaintiff’s (their lawyers also) in the commercial fishery arena, to restrict Family Level Anglers access to the fisheries and prevent these same recreational fishermen from getting any future quota increases is sickening and really highlights the goal of them. The idea that they are doing this to help recreational anglers and that this lawsuit will bring recreational and commercial fishermen closer together is laughable at best. The commercial sector has not worked with recreational anglers (except the few small groups directly funded by EDF) to fix anything. Actually they have sought to push their destructive and job killing IFQ privatization scheme into the recreational sector. MOST from these commercially aligned groups have actually opposed calls to make Reliable Science Based data a requirement in fishery management! They also have OPPOSED recent calls to fix the broken MSA so as to allow better use of Reliable Science in Fishery management!! EDFFish Jan 10, 2014 – “EDF takes another step today in our decades-long pursuit of vibrant, … we file an amicus brief in an ongoing lawsuit over the red snapper fishery.”
It really doesn’t matter to us who filed the lawsuit challenging NOAA’s red snapper rules developed through the Gulf of Mexico Fishery Management Council. What matters to us is how a Federal District Judge thoroughly examined the arguments from all sides and then used “the rule of law” to determine if the proposed regulations were fair and equitable. The Judge ruled the rules fell under the category of “arbitrary and capricious.” It is extremely difficult for the people to prove “arbitrary and capricious” when they challenge the awesome power of a federal agency in a federal court.
NOAA possesses the “presumption of correctness” in all that they do as part of maintaining a lasting government. I repeat, it is very difficult to win a lawsuit against the federal government in federal court. The evidence submitted by the Plaintiffs must be greater than most people can imagine.
Southeastern Fisheries Association (SFA) was not a party to the litigation, not because it isn’t supportive, but because its funds, all received from fishermen, dealers and allied businesses, are used in other areas related to gathering empirical data for better fisheries management. SFA has been in many lawsuits winning the one that keeps states from extending their authority into federal waters if there is a federal fishy management plan in place.
SFA is elated with the federal decision. The 50 page ruling lays out specific guideposts that must be complied with under the rule of law. No longer can 9 votes on the Gulf Council reallocate for political purposes or because one group wants to take over the fisheries. Any reallocation will be based on better data than was used in the unsuccessful efforts to take the largest share of red snapper for the unaccountable sector.
SFA is willing to talk about reallocation with recreational leaders, but be aware reallocation works both ways. The overwhelming, unscientific allocation to the recreational sector in some fisheries needs to be on the table for possible revision. To some the word reallocation means “take more fish from the commercial sector”. That is not a federally determined definition. The more talk about reallocation the more incentive it gives those of us who provide seafood for non-boaters, to say that’s not a bad idea. Maybe we can get more king mackerel, Spanish mackerel, amberjack and maybe, just maybe we can unlock the red drum fishery so that non-boaters can share in this underutilized resource in the federal EEZ.
There was a column by Dan Sikes, an Outdoor columnist for the Corpus Christi Times-Caller, which should be placed on this blog. The recreational sector must create a way to become accountable and then, and only then, would it be time to sit down with all stakeholders and talk about “Who Gets The Fish.”
very weld put by bob jones SFA
This is all one big scam. The states have no crisis in their snapper fisheries. States are not experiencing these issues with accountability or sustainability. The only problem is that the fed govt isn’t making money from rec fishermen, so they want tags, catch shares, IFQs, etc. which can be bought, sold or traded. This will be the real crisis. The recs should NOT be managed like comm fishermen. Crises manufactured like this is so that the price of fish will stay high, and so the Feds can turn rec fisheries into commodities to be bought and sold. People are waking up and seeing this, but here are none so blind as those who refuse to see that it is a scam. David Sikes is no friend to the rec fishing community. He should not even continue to call himself a reporter, since he is not willing to tell ALL there is to this story. And if you think they’ll ever give us more fish you are wrong. They’ll continue selling the fish quotas to the rich corporations and put small comm fishermen out of business too. First they’ll come for your neighbor’s fish, then they’ll come for your fish too. The recs and the data aren’t the problem. Big money is at the root. There is no crisis or shortage or issues in state fishery mgmt of red snapper. The states are having no issues with data or fish accounability. Ask questions. Do not believe biased “reporters” yelling fire in a theatre. Don’t be sheeple.
I find it amazing how many recreational fisherman really don’t understand the way they are managed. NMFS uses random telephone surveys, dockside intercepts (kreel survey’s)gathered by the coastal states and submitted to MRIP who then analyze the data and gives the results back to NMFS in waves (quarterly reports). Meaning the recrecational fisherman never have the current data on what’s been landed on the rec side. The commercial sector however, who at of the end of each business day know exactly what’s been landed and how many pounds of red snapper, grouper, tile fish etc can still be harvested for the rest of the fishing season. Complete accountability since the inception of the IFQ. If the recreational fishing sector really want to become accountable (which by this ruling it must become) the participants must recognzie the need to support better data collection tools? For the last 5 years many members of my industry (charter)have been advoacting the implentation of electonic log books and vessel monitor systems for the operators who want to harvest reef fish and have them counted correctly. It appears that day is finally coming and it’s a Big deal. At least for those of us who want to see a bright substainable future for the all fisherman both rec and commercial.
Trying to control harvest when the number of anglers increase every year and the size of fish being harvested increased to about 9 pounds from what used to be about 4 pounds just a few years past. This is a difficult task when the goal is to give the anglers as many day as possible.
We need better data collection to determine how many fish are being landed. Under the new MRIP 2013 we doubled our harvest from 2012 with the about the same number of days…
First I am suspicious of these numbers…and whether we should govern our season or final judgment on lawsuit based on 2013 MRIP numbers. I can not blame the commercial guys for being mad if the private anglers were allowed to catch double their allowance… We all want to know how can we get better data and control harvest. We can no longer think Derby fishing with a snapper season can control harvest. This has proven it just doesn’t work. The commercial sector controls their landings…there is no reason why the other charter businesses be held accountability also. The headboat program is a system where Harvest is being controlled. They are given a certain number of fish and their management plan will constraint their boats to those numbers. This program should be encouraged and endorsed for both the charter for hire and headboats. If this program is accepted to be used in the future then we have only the recreational anglers who need a plan that will give accurate accounting of landings.. one example could be maybe a daily permit to identify the true number of anglers targeting red snapper with Isnapper reporting before another permit is issued. I know the recreational anglers had some great ideas with tags and permits and should be given a chance. But trying to make decisions using incomplete data IMO is well GUESSING… The one great thing is that the red snapper have become more populated and easier to catch. We need a plan that collects accurate real time data before we go off the deep end placing blame…
Who really believes that the recreational harvest doubled from 2012 from approx. 5 million to 2013 – 10 million (including headboats +Texas) having basically the same number of days in the season???
Here is my wish list
I personally would like to explore if a purchase from the commercial sector( if agreeable) into the recreational sector is feasible. A reallocation at this time does not improve the situation and attributed to this litigation
I would like to see the CFH and Headboats who are consider as a commercial entity for profit who is no different financially dependent on the condition of the red snapper stock than the commcerial sector be given the same opportunity to be accountable and control harvest equally.
The private recreational be given a plan of their choosing to best identify who is fishing giving them the most possible days whether its weekends etc, days per month, with some approved system to accurately record their catch.
I would like to see this implemented before some knee jerk reaction to control numbers that could be crazy wrong and just having a 10-15 day season with many more lawsuit filed.
The commercial fisherman have asked for a new better plan.
The heaboat/charter for hire have asked for a better management plan
The private recreational anglers have asked for a better plan.
Lets get better data and make better decisions…
So Mr. Lallo, you are saying that you are not receiving any financial compensation from The Environmental Defense Fund or one of its front groups? You seem to continually be dodging that very simple yes/no question. It seems that you are doing what most EDF front groups arer designed to do – give the illusion that you are a non-biased entity putting forth your own arguments when in reality you are being paid by EDF to push their agenda. I believe this is called astroturfing – from Wikipedia; “Astroturfing is the practice of masking the sponsors of a message or organization (e.g. political, advertising, religious or public relations) to make it appear as though it originates from and is supported by grassroots participant(s). It is a practice intended to give the statements or organizations more credibility by withholding information about the source’s financial connection.”
I am not currently receiving any money from anyone. Period. Everything is coming out of my own pockets, and being retired I do it in my spare time.
When fishing the rigs during the work week, I would observe maybe 5-10 private boats after visiting 20-30 rigs. But, I observe 30-40 commercials making their catches. I guess a boat with 3-4 sport fishing people is really doing a lot of overfishing when 30-40 commercials are really only catching 2-4 four fish from their multi-hook rigs on a continual basis.
My discussions with some fed’s I see offshore revealed they have had all their overtime cut off, therefore they can not even check commercials at night or even during the day. Of course boats off-loading from some boats to run catch to some unknown port is probably legal also. I must admit I do not know the commercial rules. Therefore, I am sure all is legal and within the guidelines of NOAA
Well, I guess when commercials chum up snapper at night and pull a net around the rigs after chumming up the snapper (which destroys a number of species) that is an allowable catch method.
Follow the money, just like pogey fishing here in Mississippi and check to see whom is on the boards of the companies that are allow to destroy our baby speckled trout, you will find the answer. Hint: initials are TL.
Time to put observes on the rigs with proper lens to make a real determination as to whom is stripping the rigs would be a good idea. But NOAA is not interested in this, only whom from Washington with connections to commercial fleets and international sales is putting pressure on NOAA.
I fish the gulf often out of Texas ports and see with my own eyes the shrimpers anchored on rocks and wrecks taking snapper. I see the coms wipe out a hard bottom area to the point that only fish too small to be hooked are left behind. I see the coms baiting their long lines with undersize snapper cut in half. There is ZERO enforcement on the water. In 30 years of fishing the snapper I have never been checked even once. The data that these court rulings are based on is garbage.