08/25/2026
RED SNAPPER CASE UPDATE: DISMISSAL ARGUMENTS ARE NOW FULLY BRIEFED
The latest filings in the red snapper case give us a clearer picture of where things stand going into the next phase, although “clearer” should not be confused with “closer to resolution.” The federal government filed its reply in support of dismissing the case, or alternatively putting the case on hold until NMFS takes final action on the new 2026 EFP applications. FWC also filed separately and formally joined that position.
The federal government’s argument is fairly calculated. The May 2026 EFPs that were challenged in this case have been rescinded, so they say there is no longer anything for the court to invalidate or stop. They also reject the plaintiffs’ argument that this case is really about NMFS using EFPs more broadly to get around requirements of the Magnuson Stevens Act, saying the original complaint challenged specific permits and cannot now be rewritten into a larger challenge against the agency’s EFP practices as a whole. There is some irony in that argument considering one of the central complaints from the beginning was that the original EFPs themselves were being used to sidestep requirements that would otherwise apply to the fishery, but I digress..
At the same time, the government says the new EFP applications from Florida, Georgia and South Carolina cannot be challenged yet because NMFS has not made a final decision on them. Their position is that any new permits would be based on new applications, new public comments and a new administrative record, meaning they would have to be reviewed as separate agency actions if and when they are approved. That leaves the government in a pretty convenient position where the old permits are supposedly too dead to challenge.. and the new ones are still too early to challenge.
Florida is now emphasizing that its July 10 application is an entirely new EFP and says it differs materially from the first one. According to FWC, the new application includes a projected harvest estimate, a harvest cap, an in season accountability measure, additional analysis of impacts to stock status and more discussion of compliance with the Magnuson Stevens Act and the National Standards. In other words, a number of the hard numbers, safeguards and legal analysis that were missing the first time around have finally showed up. FWC also says those changes address issues raised during the earlier public comment process that were already before the agencies prior to approval of the first EFPs, concerns identified by the plaintiffs in the suit and issues highlighted in the Judge’s preliminary injunction ruling.
That is probably one of the more revealing details in these filings. Nobody is conceding that the first EFPs were unlawful, but Florida is telling the court that the replacement application was changed specifically to address problems that surfaced during the first round. It is acknowledgment without accountability, as usual: the deficiencies are being corrected now, even though many of the underlying concerns were raised before the first permits were ever approved.
The new Florida application seeks authorization for a recreational red snapper season running through all of October with the possibility of additional days in December 2026 if approved, although the actual fishing structure would still depend on NMFS review and the terms of any final permit.
There is also another part of this case that should not get lost in the dismissal fight: the administrative record still has not been produced. That record is supposed to contain the materials NMFS relied on when making the decisions being challenged, yet months into the case the defendants are asking the court to either dismiss the challenge because the original permits were rescinded or pause it while NMFS works through another round of EFPs. That is especially notable now that the government is emphasizing that any future permits would come with a new administrative record of their own. The court is essentially being asked to move on from the first agency action before the full record behind that action has ever been produced.
The government’s preferred outcome remains dismissal of the case entirely clearly. If the Judge is not willing to do that, the backup request is to place the case on hold until NMFS makes a final decision regarding a 2026 recreational red snapper season. With the plaintiffs’ opposition filed and the federal government and FWC now answering it, the dismissal and abeyance issue appears to be fully briefed.
That does not mean a ruling is coming quickly, and it certainly does not mean the underlying dispute is close to being resolved. The court still has to decide whether rescinding the original permits is enough to wipe out the existing case, whether any exception to mootness applies, whether the case should instead be put on hold, and what happens to a challenge where the administrative record behind the original agency action has still never been produced. For now, the briefing is finished. The uncertainty is not.
