Texas Court Invalidates Gulf Red Snapper Plan
Fisheries Service Given Nine Months to Fix It

Coastal Conservation Assn. v. Gutierrez, Civ. Action No. H-05-1214 (S.D. Tex. Mar. 12, 2007).

Josh Clemons, M.S., J.D., MS-AL Sea Grant Legal Program

Originally published in Water Log: The Legal Reporter of the Mississippi-Alabama Sea Grant Consortium, Volume 27.1 (May 2007).

On March 12, 2007, U.S. District Judge Melinda Harmon of the U.S. District Court for the Southern District of Texas, Houston Division, ruled that the National Marine Fisheries Service (NMFS) violated the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act) and the Administrative Procedure Act when it promulgated Amendment 22 to the Gulf of Mexico Reef Fishery Management Plan (management plan) because the plan did not have at least a fifty percent likelihood of rebuilding red snapper stocks within the mandated time period. The court gave NMFS nine months to approve a satisfactory plan.

The Magnuson Act
Congress passed the Magnuson Act1 in 1976 to protect the nation’s fishery stocks from overexploitation. Towards this end the Magnuson Act provides for Regional Fishery Management Councils (Councils), which produce fishery management plans for species in their jurisdictions. These plans are reviewed by NMFS before being promulgated through the formal administrative rulemaking process.

Congress established ten national standards to guide the management plans and their implementing regulations.2 Four of these standards were relevant to this case. Standard one requires conservation and management measures to “prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.”3 Standard two requires measures to be based on the best available scientific information. Standard eight requires measures to utilize economic and social data to minimize adverse impacts on fishing communities. Standard nine requires measures to minimize bycatch and mortality from unavoidable bycatch.4 These standards are put into effect by the management plans and NMFS regulations.

The Magnuson Act requires the Councils to generate a plan to end overfishing and rebuild the stock within one year of a stock being declared overfished. If a Council fails to complete an adequate plan on time, NMFS must create one within nine months. Overfished stocks are to be returned to full productivity within ten years, or if that is not possible, within the shortest possible time that does not exceed “the rebuilding period calculated in the absence of fishing mortality, plus one mean generation time or equivalent period based on the species’ life history characteristics.”5 For the Gulf of Mexico red snapper, this period has been calculated to be 31.6 years.

Federal Efforts to Protect Red Snapper
Red snapper stocks, with a current population level of approximately seven percent of historical levels, have been officially declared overfished since 1997. Human-induced red snapper mortality is caused by three activities: commercial red snapper fishing, recreational red snapper fishing, and shrimp fishing. Of these, the one that takes the greatest number of red snapper is, ironically, shrimp fishing; juvenile red snapper, which congregate near the ocean floor, are often taken as bycatch by shrimp trawls. It is generally acknowledged that the rebuilding of red snapper stocks will require reduction of this bycatch.

NMFS regulates the taking of red snapper under the Gulf of Mexico Reef Fishery Management Plan. In 1990 the management plan was to rebuild red snapper stocks by 2000. Since then the target date has been set farther and farther into the future. Amendment 22 to the management plan, adopted by NMFS in 2005, sets the date at 2032. (Interestingly, NMFS has increased the total allowable catch of red snapper from four million pounds in 1991 to over nine million pounds today.) Amendment 22 responds to NMFS’ demand, in response to a proposed red snapper rebuilding plan that the Council submitted in 2001, that the Council “further explore alternative rebuilding plans based on more realistic expectations concerning bycatch in the shrimp fishery.”6

Amendment 22 Controversy
The issue of bycatch in the shrimp fishery is at the center of the Amendment 22 controversy. In Amendment 22 the Council declared that the red snapper stocks could be rebuilt by 2032 without additional regulatory action with respect to shrimp fishery bycatch. To reach this conclusion, the Council relied on three assumptions: that ninety percent of red snapper mortality is caused by commercial shrimping; that bycatch reduction devices (BRDs) provide forty percent effectiveness in reducing that red snapper mortality; and that shrimping effort in the Gulf will be cut in half in every year of the red snapper rebuilding plan.

The Coastal Conservation Association (CCA), an advocacy group for recreational fishers, believed that Amendment 22 provided inadequate protection for red snapper because it failed to address shrimp trawl bycatch. In March 2005 the group filed with NMFS a “Petition for Emergency Action to Stop Overfishing in the Gulf of Mexico Red Snapper Fishery.” The agency denied the petition on the grounds that “additional management measures to end overfishing of red snapper would better be addressed through a Gulf of Mexico Fishery Management Council (Council) regulatory amendment and development of a fishery management plan (FMP) amendment.”7 CCA then sued NMFS for approving Amendment 22 without mandating a reduction in bycatch, for violating the National Environmental Policy Act (NEPA), and for denying the petition for emergency rulemaking.

The Court’s Opinion
When a court reviews the action of an administrative agency, it examines whether the agency has acted reasonably and rationally to carry out its statutory mandate from Congress. A court usually will be very deferential to agency expertise but will also require that the agency adequately explain its action. Judge Harmon, following the reasoning of the D.C. Circuit Court of Appeals,8 declared that the stock rebuilding plan would have to have at least a fifty percent chance of succeeding to pass muster.

NMFS faced a difficult challenge in defending its action here. In formulating the rebuilding plan the Council had considered economic studies that showed a reduction in shrimping effort of only thirty-four percent, culminating in 2012. Yet in the plan the Council adhered to the assumption of a fifty percent reduction in effort beginning in 1999 and continuing through 2032.

The court found that NMFS was not engaging in reasonable decision-making when it persisted in relying on an assumption that was contradicted by the evidence the agency considered. Judge Harmon observed that the Council’s own graphs showed that red snapper stocks would not be rebuilt within the mandatory time period. It would have been difficult for the court to conclude that the agency had acted reasonably, in light of this evidence to the contrary.

Judge Harmon also found that NMFS violated the plain meaning of the Magnuson Act by not taking steps to minimize bycatch and mortality from unavoidable bycatch in the fishery management plan. The agency had attempted to defend itself by claiming that it would include bycatch reduction at a later date in the Shrimp Fishery Management Plan. Unfortunately for the agency, the Magnuson Act explicitly requires fishery management plans to include measures that, to the extent practicable, minimize bycatch and mortality from unavoidable bycatch.

The court thus sided with CCA on its substantive claim that NMFS, in approving Amendment 22, violated the Magnuson Act and the APA. It was less receptive to CCA’s other two claims. Judge Harmon found that CCA did not raise a valid NEPA question, and that NMFS did not act inappropriately when it denied the group’s petition for emergency rulemaking.

Conclusion
Judge Harmon ordered NMFS to approve a red snapper stock rebuilding plan that includes measures to reduce shrimp fishery bycatch within nine months of her decision. Rather than vacating the entire plan, however, Judge Harmon allowed for the status quo to be maintained until the new plan is finalized.

On April 2 NMFS issued interim measures to address red snapper overfishing while the Council prepares a new plan. The interim measures, which include a reduction in the bag limit and the total allowable catch, became effective on May 2. The interim measures may be viewed at the Council’s website, www.gulfcouncil.org .

Endnotes
1.16 U.S.C. §§ 1801-83.
2. Id. § 1851(a).
3. Id. § 1851(a)(1).
4.The Magnuson Act defines “bycatch” as “fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards. Such term does not include fish released alive under a recreational catch and release fishery management program.” Id. § 1802(2). Of most pertinence here are red snapper caught by accident in shrimp trawls.
5. 50 C.F.R. 600.310(e)(4)(ii)(B).
6. Coastal Conservation Assn. v. Gutierrez, Civ. Action No. H-05-1214, at 5 (S.D. Tex. March 12, 2007) (quoting Amendment 22).
7. 70 Fed. Reg. 53142 (Sept. 7, 2005).
8. National Resources Defense Council v. Daley, 209 F.3d 747 (D.C. Cir. 2000).

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