U.S. District Court Judge Gladys Kessler has found that the National Marine Fisheries Service (NMFS) acted illegally in approving the plan put together by the New England Fisheries Management Council known as Amendment 4 and tossed out the entire amendment.
The order is the latest development in a lawsuit filed in April 2011 by a coalition of recreational anglers and charter-boat fishermen, and conservationists that asked NMFS to consider protections for severely depleted river herring, shad, and sea herring—the key links in the food chain for the Northeast’s ocean ecosystem and fisheries. Specifically, the order today:
- Requires NMFS and the New England Council to review the most recent science and consider a full suite of protections for river herring and shad
- Gives NMFS one year to take action to minimize the bycatch of river herring and shad (such as a recently proposed cap on the total bycatch allowed)
- Orders NMFS to consider new approaches for setting the allowable catch for sea herring that accounts for its role as food for other fish, birds, and whales
- Requires reports to the Court in one, six, and 12 months
- Orders that Amendment 4 is vacated (null), effective one year from now
Additionally, the court will retain oversight of the Agency’s actions in this matter until NMFS fully complies with the Order.
“Essentially, the court found that NMFS rubber stamped an illegal fisheries management plan and is now requiring they go back and fix it,” said Roger Fleming who represented the coalition in court. “This time they must get the necessary protections right, it’s not optional.”
Lead plaintiff Mike Flaherty of Wareham, Massachusetts, said, “Recreational fishermen have been sacrificing for years to bring back river herring but when these fish are in federal waters it’s open season on them by industrial trawlers. Today’s order is another giant step in making this industry play by the same rules as the rest of us.”
In March 2012, Judge Kessler found that NMFS had failed to take required action to address the catch of severely depleted populations of river herring and shad populations by the New England industrial herring fleet. The court found that a Fisheries Management Plan must protect all stocks that “require conservation and management” and may not unreasonably delay making such decisions.
The court also found that appropriate protections for sea herring and its role as a keystone species in the ocean food web were not considered.
The court stepped in today with an order enforcing the March decision.
Atlantic (sea) herring, river herring and shad are critical components of the ocean and coastal ecosystem. Often referred to as “forage fish”, they are the most significant source of food for a variety of commercially valuable fish like cod, sought after sport fish like striped bass and tuna, and countless birds and mammals. Since 1985 there has been over a 90 percent decline in river herring populations. Shad is a separate fish species and similarly threatened.
Industrial scale herring trawlers with the power to strip these fish from the ocean with unprecedented efficiency have moved into the region in recent years and now dominate the fishery, but have remained vastly under-regulated.