SNAPBACK: DEPARTMENT OF COMMERCE’S REGULATION OF RED SNAPPER UPHELD BY 5TH CIRCUIT

Snapback: Department of Commerce's Regulation of

Red Snapper Upheld by 5th Circuit

By: Lance Bullock

Coastal Conservation Ass’n v. United States DOC, No. 16-30137, 2017 U.S. App. LEXIS 803 (5th Cir. 2017); 2017 WL 187703 (5th Cir. 2017).Appellant, Coastal Conservation Association (“CCA”), is comprised of recreational anglers and sought to challenge the Gulf of Mexico Fishery Management Council’s (“Council’) Amendment 40 to the Reef Fish Fisheries Management Plan. Amendment 40 set fishing quotas and seasons from 2015-2017 in federal waters of the Gulf of Mexico. The main source of contention is the management of the Red Snapper. The season was open year-round for recreational anglers prior to 1997. In an effort to combat overfishing in the recreational sector, Amendment 40 proposed to divide the recreational sector into two subdivisions for purposes of quotas, federal for hire charter vessels, and private anglers.CCA’s argument against the recreational quota is two-fold. First, CCA maintained that splitting the recreational sector into two sub categories conflicts with Congress’ intent through the plain meaning of 16 U.S.C. § 1883(d)(1), which provides for separate quotas for recreational fishing and commercial fishing. Second, CCA argued the meaning of the statute is shown by two canons of statutory interpretation. In regard to the first canon, expressio unius est exclusio alterius, (“expressing one item of a commonly associated group or series excludes another left unmentioned.”) CCA argued that if Congress created two quotas, commercial and recreational, then the creation of a third, for-hire charters, conflicts with Congress’ intent. The court did not find this argument persuasive, reasoning that the charter fishing quota was a sub-quota of the recreational quota, rather than a third, distinct and separate quota. The second canon of interpretation that a specific statute supersedes over a general or inconsistent one also failed. CCA further asserted section 407 of the Magnuson-Stevens Act (16 U.S.C § 1883) “conflicts” with 16 U.S.C. 1853(b)(3)(A). The court found no such conflict between the statutes. The court noted that the Secretary complied with section 407 by establishing a separate quota for recreational fishing and commercial fishing, and the Secretary’s inclusion of for-hire charters within recreational fishing as immaterial.Fisheries Management Plans (“FMPs”) must comply with ten standards codified in 16 U.S.C. § 1851(a). Only two of these standards, (2) and (8), were at issue in the case. The relevant portion of each paragraph is as follows: (2) states that “Conservation and management measures shall be based upon the best scientific information available,” and (8) states that “economic and social data” should be taken into account for meeting the requirements of paragraph (2). CCA argued that paragraph (8) creates an affirmative duty to consider only quantitative, and not qualitative, data about the social and economic impacts of the regulation. The court reasoned that while the Council did consider quantitative data about the social and economic impacts of Amendment 40, the Council relied upon the best available data, and thus the Council fulfilled its duty.Lastly, CCA contented that the decision to base quota allocations on only two sets of catch data was arbitrary and capricious. Catch data dating back to 1986 was utilized in determining allocations. CCA argued that utilizing catch data dating back to 1986 did not account for the “dramatic shift of recreational fishing away from charter boats and toward private angling.” The Council considered eight other sets of harvest data before settling on the one used. In response, the court held that relevant factors were considered by the Council, therefore CCA failed to carry its burden of showing the decision was arbitrary and capricious.