WASHINGTON (CN) - In anticipation of clawing back red snapper quotas from Gulf Coast commercial fishers, feds have "frozen" red snapper fishing altogether, a group of fishermen claim in court.
Following the proposal of a Republican-supported bill last fall with strong support from recreational fishermen that would have wrested control of red snapper regulations from the feds and placed it in the hands of individual states, the federal agencies in charge of regulation moved instead to grant recreational fishermen higher quotas for fish they are allowed to catch.
Red snapper populations are monitored under the federal Magnuson-Stevens Act , which restricts commercial and recreational fishing with annual quotas to replenish fish stocks and prevent overfishing. The only way to give more to recreational fishermen is to take away from commercial fishermen, the plaintiff fisherman claim in a lawsuit filed Dec. 28.
"Worse, even before soliciting public comments to formally consider and adopt this reallocation, defendants have preemptively 'frozen' a portion of the quota reserved to the commercial sector," the complaint says.
The majority of the twenty-seven plaintiffs are individuals who have red snapper allocations and who own commercial seafood businesses. Three of the plaintiffs: Fish for America LLC, Gulf Fishermen's Association Inc. and Gulf of Mexico Reef Fish Shareholders' Alliance, are organizations that represent and advocate on behalf of commercial fishermen.
The lawsuit relates to a final rule, Amendment 28, published in the Federal Register in November 2015 that withholds 4.9 percent (352,000 pounds) of the commercial sector's red snapper quota in order to reallocate it to the recreational sector.
In advance of the rule going into effect, the lawsuit says, defendants opted to take a "regulatory shortcut" by withholding a portion of plaintiffs' quota just in case the Amendment can be enforced retroactively.
The plaintiffs claim the reallocation of the quota at the very start of the fishing season disrupts business planning because it frustrates participants who want to catch all of their quota in the beginning of the year.
Additionally, the plaintiffs argue, since quotas will be returned to commercial fishermen if proposed rule fails to advance, its promotion could have the unintended consequence of creating market glut, depressing dockside fish prices or "stranding" quota that cannot be used before the end of the year.
While the reallocation of a portion of the commercial fisherman's lawsuit is what prompted the lawsuit, the plaintiffs believe "the reallocation itself is also legally flawed in numerous other respects, including that it unfairly penalizes the commercial sector and rewards the recreational sector for overharvesting, and will jeopardize rebuilding of the overfished red snapper stock."
Issues surrounding the red snapper fishery have long been contentious.
In 2004, the Gulf Council approved Amendment 22 to the Reef Fish FMP, which established a rebuilding plan for red snapper that was projected to end overfishing by 2010 and to rebuild the stock by 2032.
Nevertheless, for many years, the plaintiffs say, National Marine Fisheries Service failed to implement sufficient measures to keep recreational fishers from overfishing, resulting in the fishers continuously taking way more than their share of red snapper.
"Specifically," the lawsuit says, "between 2007 and 2013, the recreational sector exceeded its quota every year by 66 to 128 percent (except for 2010, when the Deepwater Horizon incident closed much of the Gulf to fishing). By contrast, over this same period of time, the commercial sector complied with its quota every year."
Frustrated with the fisheries service's continuing failure to hold the recreational sector accountable to its quota, the plaintiffs filed suit in 2013, and again in 2014, asserting the agency's actions violated several provisions of the Magnuson-Stevens Act and other laws.
The court ruled for Plaintiffs on all of their Magnuson-Stevens Act claims, the plaintiffs say.
But now, suddenly, the Gulf Council and the federal regulators have "concluded that the only possible 'fair and equitable' allocation" is one that penalizes the commercial sector by taking away its quota and giving it to the recreational sector," the plaintiffs say.
When the rule, Amendment 28, was published in November, the fisheries service still had not initiated an evaluation of the rule to determine whether it is consistent with the fishery management plan and applicable law as required by 16 U.S.C. § 1854(b)(1), nor had it published the notice of availability the rule for public comment as required, the complaint says.
The defendants named in the lawsuit are U.S. Commerce Secretary Penny Sue Pritzker, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service.
The commercial fisherman seek damages for violation of the Administrative Procedure and National Environmental Policy acts and a declaration the final rule is arbitrary and capricious and in violation of the Magnuson-Stevens Fishery Conservation and Management Act as well as the Administrative Procedure Act and NEPA.
They are represented by Michael Scanlon of K&L Gates LLP in Washington.
A spokesperson for the fisheries service said the agency does not comment on pending litigation.
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