A federal magistrate judge in Washington, DC has issued an opinion ordering the National Marine Fisheries Service (NMFS) to reconsider its decision to reject a petition by the Midcoast Fishermen’s Association and Fisherman Curt Rice which sought to stop industrial Atlantic herring trawl ships from slaughtering cod, haddock, and other groundfish in sanctuaries designed for their protection.  For years industrial Atlantic herring trawl ships have caught groundfish in their nets as bycatch contributing to the steep decline and slow recovery of these fish populations.

In 2007 public interest law firm Earthjustice filed a petition on behalf of the Midcoast Fishermen’s Association, based in Port Clyde Maine, and the Northwest Atlantic Marine Alliance, formerly based in Saco, Maine, seeking to exclude industrial trawlers from designated areas of the ocean designed to protect the nursery grounds of New England’s depleted groundfish populations. The agency rejected the petition in November 2007 in a cursory one-page letter stating it was not concerned about the levels of groundfish bycatch by midwater trawl ships.

In the latest ruling, Federal Magistrate Judge John M. Facciola found the agency’s failure to explain its reasons for denial “fatal”. He also recommended that the court resubmit the petition to the agency so NMFS could then explain their reasoning while also considering all the appropriate data in support of the petition, including scientific analysis showing that the amount of groundfish bycatch occurring is significantly worse than even existing data shows.

“Nobody should have access to groundfish closed areas unless it’s established through a carefully designed exempted fishing permit with the highest levels of monitoring that they can fish cleanly,” said Glen Libby, a groundfisherman from Port Clyde, Maine and chairman of the Midcoast Fishermen’s Association (MFA). “That did not happen with this fishery and year after year we’ve seen a lot of perfectly good groundfish showing up on the docks mixed in with herring sold as bait for lobster traps.  That is not helping with groundfish recovery.”

“NMFS’s failure to carefully monitor midwater trawl ships and to protect groundfish nursery grounds from their indiscriminate fishing practices has been a significant factor in the slow recovery of the once-robust groundfish populations,” said Earthjustice attorney Roger Fleming. “Judge Facciola has sent a strong message to the agency that it needs to get its act together, look at the data and other available information, and take seriously the request by New England fishermen to move these ships out of groundfish sanctuaries.”

In issuing his opinion, Judge Facciola found that the agency did not address in any manner those points made by the MFA that the midwater trawl access to groundfish closed areas is based on an incorrect assumption, that current bycatch estimates are fundamentally flawed, and that the agency failed to provide a clear rational for its decision. Judge Facciola also recognized that there is more recent data and other significant developments since the MFA’s petition was filed in 2007 that bear on the accuracy of the bycatch estimates used by the agency. 

“Atlantic herring do not have to be caught in such a destructive way,” said Warren Doty, Executive director of the Martha’s Vinyard/Dukes County Fishermen’s Association who filed a brief in support of the MFA. “Purse seines and fixed gear were used for years to supply enough herring for New England’s food and bait markets but these midwater trawlers have moved in and pushed everyone else aside. Now we’re all suffering because of them.”

In a related case settled last week, commercial fishermen from Cape Cod reached an agreement with NMFS requiring the agency to reconsider a loophole allowing for the dumping of unmonitored catch contained in new rules that herring midwater trawl ships must follow in order to fish in one of the groundfish closed areas southeast of Cape Cod. These new protocols otherwise require a federal fisheries observer onboard every midwater trawler entering the area to better document bycatch.