Fishing is very popular along the Gulf of Mexico, and one of our favorites is red snapper. If you come out to the waters off Mississippi, you will find the largest and healthiest red snapper population in decades. Just don’t catch them. Despite the success of the Gulf red snapper fishery management plan, the federal fishing season is shrinking rapidly. In 2016, you had only eight days to fish for this tasty seafood favorite.
This counterintuitive result has led to a bizarre rebellion by the Gulf states, the redrawing of centuries-old boundaries, and a potential showdown with the federal government that has put this popular seafood into the national spotlight. Like any good fishing story, the tale of Gulf red snapper started out small, but has since become a whopper.
This is a tale of fisheries management in America. The nation’s fisheries are managed through the Magnuson-Stevens Fishery Conservation and Management Act (MSA) (16 U.S.C. § 1801 et seq. (2015)). The Act has undergone a number of important amendments (and name changes) over the years, but its goal continues to be conserving and managing the nation’s fisheries for optimal fishing and conservation.
The MSA operates through regional councils working with the National Marine Fisheries Service (NMFS). The councils create fishery management plans (FMPs) that set annual catch limits and accountability measures to prevent overfishing and to rebuild certain fisheries. Many council actions are presented as amendments to an FMP. Gulf red snapper is managed throughout all the Gulf states by the Gulf of Mexico Fishery Management Council (the Council).
Between the 1950s and the 1980s, the Gulf red snapper population plummeted due to overfishing. A 1988 assessment found that the fishery was both overfished and undergoing overfishing. By 1990, the spawning potential was so low as to threaten the continued existence of the population. Despite the plummeting numbers, the fishery was not being effectively managed. That changed when the Sustainable Fisheries Act of 1996 (Pub. L. No. 104-297) mandated catch quotas to try and save the red snapper population.
Following the Sustainable Fisheries Act, the Council implemented catch quotas through amendments to the red snapper FMP. But the narrow focus on quotas alone failed to prevent fish population decline. The quotas ignored the impact of commercial shrimpers, who caught juvenile red snapper as bycatch (fish caught unintentionally while fishing for something else) and accounted for 90 percent of the red snapper mortality rate. Even as the red snapper population continued to decline over the years, the management plan did not change. Rather than trigger serious reform, this failure just led the Council, in 2005, to push back the target date for rebuilding the stock. When the target date reached as far into the future as 2032 (the legal limit), the federal courts intervened.
In Coastal Conservation Ass’n v. Gutierrez, 512 F. Supp. 2d 896, (S.D. Tex. 2007), the district court reviewed an FMP amendment finding that no new regulations were necessary to rebuild the snapper stock and setting the target rebuilding date to 2032. The court held that the MSA required a “fairly high level of confidence” that the plan would actually rebuild the red snapper stock within that time frame. 512 F. Supp. at 901, citing Natural Res. Defendant. Council v. Evans, 209 F.3d 747, 754. The court found the amendment arbitrary and capricious under the Administrative Procedure Act and the MSA, as inconsistent with the scientific data cited by the Regional Council, and having less than a 50 percent chance of rebuilding red snapper stocks within the requisite time frame.
The court’s decision forced the Council to adopt serious regulations. Its new 2007 plan regulated shrimping methods and included stronger quotas, more active control of the federal fishing season, and increased commercial monitoring. This time it worked. By 2012, the red snapper fishery was no longer overfished and saw growing populations. In fact, the annual catch quota has been raised from about 7 million pounds in 2010, to over 14 million pounds in 2015.
Despite its seeming success, the management plan has been fraught with problems. Even as the red snapper population grows and the catch quotas increase, the federal season for recreational red snapper fishing has been shrinking. It has become a victim of its own success.
Red snapper quotas are set by weight, but enforced by catch limits and season length. As the population grows, the total quota has grown each year, but the fishery has also encountered a number of new pressures. First, having more red snapper available means they are easier to catch, so they are increasingly popular with recreational fishers. Second, the fish people catch are larger, so the weight quotas are met more quickly, even as the quotas themselves grow. Finally, lack of reliable data on the fish leaves the federal government guessing how much is caught. The federal fishing seasons are reduced to compensate for this increased catch.
For example, in 2010, the recreational quota for red snapper was 3.4 million pounds. That year, fishers had a 77-day season. In 2015, the recreational quota was 7.01 million pounds, a 1.6 million pound increase from 2014, and more than double the 2010 quota. However, the 2015 season was only 10 days. As the seasons shrink, frustration increases.
The Council not only sets quotas, but must take adequate accountability measures to prevent overfishing. It has been slow to adjust to the increasing demand for red snapper, and the recreational sector regularly exceeds its quotas. Much of the debate over red snapper has been between recreational and commercial fishers. The commercial industry points out that the recreational fishers have regularly overfished their quota. The recreational fishers believe that too much of the quota goes to the commercial sector, because more fishing today is done by recreational fishers.
Recreational overfishing led commercial fishers to file suit against NMFS in federal court, challenging the 2013 quotas and season. In Guindon v. Pritzker, 31 F. Supp. 3d 169 (D.D.C. 2014), the D.C. Circuit held that when NMFS determined the 2013 season, it failed to consider data that showed significant overfishing by the recreational sector. In addition, NMFS did not have adequate accountability measures to prevent further overfishing.
The Guindon decision had a substantial impact on the subsequent recreational federal seasons for red snapper. NMFS was forced to reduce the recreational catch quota to make up for past overfishing and include a 20 percent buffer to prevent quota overruns. The resulting season was reduced from 40 days to just nine in 2014, and 10 days in 2015.
The States React
The shortened seasons put significant pressure on the Gulf states to provide remedies for their citizens and tourists. They responded by changing their seasons in state waters to be different from the federal season, and even by expanding their seaward territorial boundaries outward into federal waters. A dispute that was limited to commercial and recreational fishermen became a contest between the states and federal government.
When the new plan took effect in 2007, most of the seasons and catch limits in state waters matched the federal season. Texas and Florida were the exceptions, allowing longer seasons and higher catch limits for red snapper within their state waters. Rather than forcing compliance, NMFS compensated for the increased fishing in those states by limiting the Gulf-wide quota. This caused disproportionate impacts on Louisiana, Mississippi, and Alabama, which saw their season shrink so that Texas and Florida could fish all they wanted.
This was not a sustainable strategy. As the federal seasons shrank, the other coastal states were forced to react. In 2013, Louisiana joined Texas and Florida in extending its seasons beyond the federal season. NMFS tried to react by setting different season lengths depending upon the state, but the rule was overturned by the federal district court in Brownsville, Texas. By 2014, Louisiana’s season was a full 365 days, and Alabama and Mississippi had also extended their state seasons. These seasons are called “non-compliant” or “inconsistent,” depending on which agency is ruling.
In addition to longer seasons, the states have also moved to extend their seaward boundaries into federal waters. The Submerged Lands Act sets the coastal boundary of each state at three nautical miles from the shore. See 42 U.S.C. §§ 1301–3015 (2000). A state can extend these boundaries in just two cases: (1) where the state had a statute or constitution that extended its boundary prior to entering the Union; or (2) with congressional approval. The Supreme Court, in United States v. Louisiana, 363 U.S. 1 (1960), considered the Gulf states’ claims in 1960, but only recognized Texas and Florida as qualifying for boundaries out nine nautical miles.
Largely due to the shrinking red snapper season, Louisiana passed Act 336 in 2011 (La. Rev. Stat. Ann. § 49:1–2), extending its boundaries out to nine nautical miles. The Act acknowledged that it would not go into effect until and unless it received congressional approval. Nonetheless, in 2012, the Louisiana Department of Wildlife and Fisheries began enforcing state fishing regulations outward for the full nine miles. In response, Mississippi extended its boundaries to nine nautical miles in 2012, and Alabama followed suit in 2014.
These extended boundaries created a legal grey zone between three and nine nautical miles out from shore. In that zone, fishers in compliance with federal laws could be cited by state authorities for lacking a state permit, and those fishing during inconsistent state seasons were ticketed by federal authorities for fishing out of season. Season announcements included a warning that anglers were fishing a designated area at their own risk.
To remedy this grey zone temporarily, federal lawmakers slipped a provision into the 2015 omnibus spending bill giving Louisiana, Mississippi, and Alabama fisheries management authority out to the full nine miles, but only during the fiscal year and only for reef fish. A permanent recognition of the new boundary is part of the Bipartisan Sportsmen’s Act, S. 659, which passed through the Senate Environment and Public Works Committee in January.
Solutions and Disputes
The Gulf states believe that the options for federal response are limited. Federal preemption is no longer a political reality, but controlling quotas through season length becomes ineffective if the federal season drops to zero days. Others fear a closed federal season, remembering striped bass on the East Coast. In that case, the federal waters were closed and the stock was fully recovered, but 30 years later, the waters still remain closed.
Although the problems are too plentiful to have a simple solution, there are a number of proposed resolutions that drive this debate.
Ultimately, many disputes involve how best to count the red snapper population. Without an accurate count, it is impossible to determine how much is caught and its impact on the total population. NMFS has been accused of using outdated stock assessment methods, which undercount the population and overcount the catch. For example, NMFS’s assessment method does not count red snapper found on artificial reefs. While commercial fishermen must comply with strict catch reporting requirements, recreational fishers do not. Instead, NMFS relies on surveys and estimates for recreational fishing data, which is less accurate. The MSA requires NMFS to use the “best available science,” but that often means, “something is better than nothing.”
The Gulf states use a number of different methods that they claim are more reliable than the NMFS, but their methods vary by state. Even using various methods, all the states’ counting results consistently show higher populations than the federal count. Each Gulf state has implemented a system to count red snapper catches landing on its shores. For example, Mississippi requires recreational fishers catching red snapper to report their catch through an app called Tails n’ Scales.
The Council is continuously discussing how to update NMFS’s assessment methods. Meanwhile, Congressman David Jolly of Florida introduced the Gulf Red Snapper Data Improvement Act, H.R. 3521, in 2015 to allocate funds toward better stock assessment methods.
Regional Management—Amendment 39
Some believe the states collectively could do a better job than the federal government of managing red snapper through a system of regional management under which each Gulf state would be allocated a quota, after which the states, collectively, would manage seasons as they saw fit.
A system shifting control of the fishery to regional management could be modelled on the Atlantic Striped Bass Conservation Act (16 U.S.C. § 5151 et seq.), which would ensure that federal conservation goals are met but allow the fishery to be managed by the states. This would mean creating different regulations based on fishing sectors and regions, rather than uniform regulations applied to the entire Gulf of Mexico. The regulations would still comply with the FMP but allow flexibility to consider regional tourism seasons, weather, and the preferences of local fishers. The challenge would be to avoid a confusing patchwork of rules with overlapping enforcement agencies.
The commercial and charter for-hire industries strongly oppose the idea of regional management. They fear that the states will favor recreational anglers over the business sector. The charter for-hire industry has been especially adamant that any regional management plan leave them out, even though they fall within the recreational sector under the MSA.
The Council’s proposed Amendment 39 sought to delegate management to the states. However, while the states were in favor of regional management in general, they did not fully embrace Amendment 39. Under the proposed plan, state quotas would be based on previous catches. So Texas, with a 3,300-mile shoreline, would only get 10 to 16 percent of the quota, while Alabama, with just a 600-mile shoreline, would get 35 to 40 percent. Larger states were not happy with this arrangement, nor with the amount of federal oversight that would remain. This lack of cohesion was part of the reason Amendment 39 was tabled indefinitely at the January 2016 Council meeting, despite being scheduled for final action.
However, the push for regional management is no longer confined to the Council. The Gulf state governors have already reached an agreement on how state management would work if they can wrest control from NMFS. The Gulf State Red Snapper Management Authority Act, H.R. 3094, 114th Cong. (2015), pending in Congress, would amend the MSA to put full management authority of red snapper with the principal fisheries manager of the Gulf states. Going further, Senator David Vitter (R–La.) added language to the U.S. Senate’s Bipartisan Sportsmen’s Act that would completely remove the federal government from management of red snapper in favor of the Gulf States. See American Sportfishing Association, Bipartisan Sportsmen’s Act Advances to Senate Floor, Jan. 20, 2016, available at http://asafishing.org/newsroom/news-releases/bipartisan-sportsmens-act-advances-to-senate-floor/.
Changing the Commercial/Recreational Allocations—Amendment 28
For decades, the red snapper quota was split almost equally between the commercial (51 percent) and recreational sectors (49 percent). This allocation was put in place in 1990, based on snapper catch by sector between 1979 and 1987—data more than a quarter century old. While recreational red snapper fishing has boomed in popularity and commercial fishers are consistently below quota, the allocations were never updated.
Adopted in August 2015, Amendment 28 changed the allocations between the sectors so that, on average, the recreational sector receives 51.5 percent of the quota and the commercial sector receives the remaining 48.5 percent. Despite the increased quota for recreational fishers, the new allocations are not expected to extend the federal season. Note that this new allocation was based on negotiations and compromise, not catch data. However, the commercial industry has already filed suit against this amendment for freezing the commercial allocation while the rule goes through the administrative process. The suit, Guindon v. Pritzker 3, No. 1:15-cv-02256-BJR (D.D.C. 2015), also promises to bring more claims once the rule is formally adopted.
Sector Separation—Amendment 40
The MSA divides the red snapper quota between the commercial and recreational sectors. Amendment 40’s “sector separation” subdivided the recreational sector’s quota between for-hire charter boats and private recreational fishers. The rationale was to better manage private anglers, who have been exceeding the recreational quotas. However, it also created the anomalous situation where a fisherman catching red snapper in his own boat one day must the next day pay a company hundreds of dollars to repeat the exact same activity.
Amendment 40 passed in October 2014 and took effect in 2015. Both seasons started on June 1, but while the private anglers’ season closed June 10, the for-hire charter boats kept fishing until July 14. Efforts are now underway to further subdivide the for-hire charter boats and manage separately charter vessels (vessels rented as a whole) (Amendment 41) and headboats (vessels charging anglers individually) (Amendment 42). The amendments would effectively implement an individual fishing quota system on federally permitted for-hire charters, with strict reporting requirements like those in the commercial sector.
Numerous attempts have been made to dismantle Amendment 40, but to date they have not yielded results. A federal judge in New Orleans rejected a challenge filed by the Coastal Conservation Association, and a House bill to defund implementation of Amendment 40 was not included in the 2015 omnibus spending bill. However, the issue may arise again. The Alabama delegation voted for the amendment in exchange for a sunset clause, so the Council will be forced to reconsider sector separation next year.
The MSA was designed to protect state jurisdiction and does not automatically preempt state fishery regulations. However, once a FMP is approved, state rules cannot conflict. Under MSA section 306 (16 U.S.C. § 1856), NMFS can preempt, or take over management of, a fishery within state waters after a hearing and a finding that the state’s actions “substantially and adversely” affect the FMP. Preemption is implied when there is an actual conflict between state and federal laws, such that dual compliance is impossible.
In fact, in at least one instance, a federal district court held that NMFS can abuse its discretion by not preempting state rules. In Southeastern Fisheries Ass’n v. Mosbacher, 773 F. Supp. 435 (D.D.C. 1991), the Council implemented an FMP for red drum in the Gulf, but state laws prohibited landing red drum. In effect, fishers could catch it but couldn’t unload it at shore. Despite this conflict, NMFS did not preempt state laws because it wanted to maintain a good working relationship with the states. The court was not convinced that this reason was appropriate, calling it a “litigation-generated rationale for the regulation.” 773 F. Supp. at 441. As such, it was held to be arbitrary and an abuse of the agency’s discretion.
Preemption has become more of a concern as the federal red snapper season approaches zero days. Without control of the season length, NMFS will have limited tools to manage the red snapper population, and the conflict with state seasons will be more pronounced. However, there are serious potential political consequences to such a move. This is no longer an instance of just one or two states out of compliance, but an entire region with a strong political voice and active efforts on Capitol Hill. The states are actively working to take control of the whole fishery.
The wide range of proposed solutions underscores the problem. There is no silver bullet (or hook). Whether it be accurately counting fish, allocating the quotas, or state control, the overall management of the fishery will continue to be controversial. With red snapper now a hot topic in Congress, there is no telling what the outcome will be, especially in an election year.
NMFS and the Council have created genuine increases in red snapper population but have been unable to manage the resulting competing interests. The more the population increases, the more problems it seems to create. The future of the Gulf red snapper fishery remains uncertain. Meanwhile, the fishers are left with empty lines wondering when this tale will end.