NEW ORLEANS — In a dispute
pitting recreational anglers against commercial fishermen in the
management of red snapper in Gulf waters, the U.S. Court of Appeals
for the 5th Circuit has sided with the interests of the Charter
The Coastal Conservation Association
and other private fishermen sued the U.S. Department of Commerce,
National Oceanic and Atmospheric Administration, National Marine
Fisheries and others in federal court in New Orleans in April 2015
challenging a rule that regulates the recreational sector of Gulf of
Mexico red snapper.
Known as Amendment 40 to the Reef
Fishery Management Plan, the rule adopted earlier in 2015 calls for
“increased flexibility in future management of the recreational
sector in order to reduce the likelihood of recreational-quota
overruns, which could negatively impact the rebuilding of the
red-snapper stock,” the opinion stated.
The 5th Circuit filed its opinion Jan.
17 and published a revised order Jan. 26.
Circuit Judge James Dennis wrote the
opinion, with Chief Judge Carl Stewart and Judge Jerry Smith
that the panel found Amendment 40 was "consistent with its
organic statute and was properly devised and implemented."
The plaintiffs had argued that a
congressional act of 1976 known as the Magnuson-Stevens Act
prohibits the Gulf Council — one of eight Regional Fishery
Management Councils that prepares fishery management plans — from
regulating charter fishing separately from other recreational
fishermen. It also argued that the Gulf Council and the National
Marine Fishery Service — which operates under the Department of
Commerce — failed to adequately “assess, specify, and analyze”
the likely economic and social effects of Amendment 40.
A third argument claimed that the
selection of data ranges used to calculate quota allocations was
arbitrary and capricious.
"The record demonstrates that the
Secretary (Department of Commerce) considered the relevant factors
and provided a rational justification for her decision to include
older data in making its allocations," Dennis wrote.
"As a result, we find the CCA has failed to carry its burden to
show that this decision was arbitrary and capricious."
When Amendment 40 was being proposed,
Commerce Secretary Penny Pritzker "described how the privileged
position of private anglers — in particular, the access to state
waters during state seasons and the lack of a limit on private
vessels targeting red snapper — had adversely affected the charter
industry, explaining that ‘[b]y establishing separate sectors,
National Marine Fishery Service intends to stabilize the Federal
for-hire component’s participation in the sector,’” the opinion
Dennis wrote that Amendment 40 does not
create a separate quota for charter fishing, but rather "it
subdivides the recreational sector into private and charter
He found that social-effects analysis
conducted by Gulf Council did not offer quantitative predictions on
the effects the amendment could have on the fishing community. But,
he wrote, the Council used the best available data to reasonably
"assess, specify and analyze" the likely economic and
social effects of Amendment 40.
"We therefore conclude that the
'basic obligation to assess the impacts of, and alternatives to, the
adopted plan as a whole was achieved,'" he wrote.