Judge Strikes Down Red Snapper Emergency Rule
AUSTIN, June 4, 2013 – A federal judge in Brownsville has ruled in favor of the Texas Parks and Wildlife Department (TPWD) and the Louisiana Department of Wildlife and Fisheries (LDWF) in a joint lawsuit brought by both agencies challenging an emergency regulation enacted by the federal National Marine Fisheries Service (NMFS). The ruling means that the 2013 recreational red snapper fishing season in federal waters off the Texas coast will be longer than it would have been under the emergency rule.
“The Texas Parks and Wildlife Commission is relieved the court has invalidated a rule that was arbitrarily unfair to Texas anglers, coastal communities and businesses,” said T. Dan Friedkin of Houston, TPW Commission chairman. “At the same time, we remain committed to a cooperative regional management approach to support the existing Gulf plan for the continued recovery of red snapper.”
Friedkin also praised Judge Andrew Hanen for his careful study of the issues and his acceleration of a final decision before the rule could be enforced to shorten snapper fishing in federal waters off Texas.
“Texas Parks and Wildlife supports a move toward science-based regional management for red snapper stocks that acknowledges differences between various regions of the Gulf, and we plan to advocate that position in future Gulf council meetings,” said Carter Smith, TPWD executive director.
On Feb. 8, over the strong objections of state agency representatives from Louisiana, Texas, and Florida, the Gulf of Mexico Fishery Management Council (Council) voted to implement an emergency rule that could shorten the recreational red snapper fishing season in federal waters off the Texas, Louisiana, and Florida coasts, while extending the seasons in federal waters off the Alabama and Mississippi coasts.
Just weeks later, on April 18, the Gulf council voted 8 to 7 to overturn the emergency rule, in effect reversing the Feb. 8 vote. However, NMFS declined to rescind the original emergency rule as requested by the April 18 vote.
As published in the federal register on March 25, the emergency rule would empower the NMFS southeast regional administrator to reduce the red snapper season in federal waters off Texas, Louisiana and Florida since those states had set seasons in state waters that were different than the seasons in federal waters. In Texas, federal waters begin nine nautical miles from the state’s coast and extend 200 nautical miles.
The joint lawsuit alleged that there was no emergency to justify the proposed rule. The last stock assessment indicates red snapper recovery remains on track. The two states also alleged that the emergency rule violates the federal policy of cooperative federalism by improperly attempting to regulate the red snapper season in state waters. The lawsuit also alleged that the emergency rule violated federal law by discriminating against anglers and charter boat operators in Texas, Louisiana and Florida. The three states have been trying to make sure their anglers have equal opportunity. The Charter Fisherman’s Association, a group of charter boat operators, also had filed a separate suit against NMFS that was later combined with the states’ suit, likewise seeking to overturn the emergency rule.
Judge Hanen’s opinion found the federal agency exceeded its authority under federal law when it declared an emergency instead of following the required normal procedures for providing public notice and seeking comment, including comments from fishermen. The court also found the rule did not enhance red snapper conservation, but instead redistributed fishing opportunity from anglers in Texas, Louisiana and Florida to anglers based in Alabama and Mississippi. Judge Hanen held that such redistribution discriminated against anglers in states with fishing seasons that do not match the federal season and rewarded those living in states that do, in violation of federal law.
TPWD was represented by the Texas Attorney General’s office in filing the lawsuit.
“This is the latest example of the federal government getting slapped down for illegal, overreaching regulations,” said Texas Attorney General Greg Abbott. “This is a big win for Texas fishermen, jobs along the Gulf Coast and — most importantly — the rule of law. Calling the federal government’s actions ‘totally unacceptable’ the court struck down the government’s blatant and discriminatory attempt to punish Texas simply because federal bureaucrats disagreed with state rules about fishing in state waters. The court recognized what I have said all along – that the federal government was merely looking to penalize fishermen in certain states because they do not agree with the state regulations. Texans will not stand by idly while federal bureaucrats attempt to govern by illegal emergency rule – we will fight back and we will prevail.”
The Texas and Louisiana agencies have maintained that while a proposed shortened season will have no apparent conservation benefit, it would definitely have an economic impact. TPWD estimates that the originally projected 27-day season would generate at least $28 million from recreational fishermen in Texas, while a 12-day season would cut that figure by at least $16 million in lost retail sales in Texas. For Louisiana, reducing a 45-day season to a nine-day season could result in an estimated decline in economic value of approximately $8 million to recreational anglers in that state.
It will now be necessary for NMFS to implement Gulf-wide seasons in accordance with the court’s decision. Prior to the enactment of the emergency rule, NMFS had estimated that if all Gulf states were treated equally, the season would have been approximately 22 days. However, recent communications from NMFS suggest that a Gulf-wide season will be longer than that.