Fifth Circuit sides with commercial fishermen in Gulf red-snapper case

By Sam Knef | Feb 12, 2017

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 Fisherman's Association.

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 concurring.

Dennis wrote 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 stated.

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 components."

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.

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