Ruling could force regulators to protect species at base of food chain
Allison Winter, E&E reporter
Greenwire: Wednesday, March 14, 2012
A recent federal court ruling could force federal regulators to give new consideration to small forage fish they have previously overlooked while focusing on larger commercial fish species, environmentalists say.
U.S. District Court Judge Gladys Kessler ruled that the National Marine Fisheries Service has failed to keep dwindling populations of river herring in New England from being overfished by trawlers.
Marine advocates tracking the case say it could force regulators to give river herring added protection and could be a precedent-setting call for more careful attention for forage fish elsewhere.
"Now federal fisheries managers will be required to protect fish at the bottom of the food chain, which will lead to healthier oceans, rivers and fisheries for everyone," said Mike Flaherty, a striped bass fisherman from Wareham, Mass., who was the lead plaintiff in the case.
Flaherty and a coalition of other recreational anglers, charter-boat fishermen and the Massachusetts-based environmental group Ocean River Institute filed the lawsuit.
They hope the ruling will goad regulators to set catch limits for the first time for river herring and other small fish species -- often considered "trash fish" -- that are not the target of major fisheries but face pressure as bycatch or for other fish products.
"In our view, what this means, not just for critical forage species like the river herring and shad, but for other forage species around the country and other fish stocks, the National Marine Fisheries Service and relevant councils have to take a hard look at their fisheries and reevaluate which stocks are getting caught in them and whether or not they should be setting catching limits," said Roger Fleming, the Earthjustice attorney who argued the case. "In most cases, the answer is going to be 'yes.'"
The 74-page ruling, issued Friday, says the National Oceanic and Atmospheric Administration cannot single out stocks for protection but must apply conservation measures to all depleted stocks without unreasonable delay. But plaintiffs and federal regulators will still have to broker how the agency will do that.
Noting that the "question of the appropriate remedy in this case presents substantial complexities," Kessler did not demand specific catch limits for the herring, but ordered the agency and plaintiffs to each write briefs on what they think should happen next to ensure its conservation.
NOAA spokeswoman Marjorie Mooney-Seuss yesterday said the agency is "carefully reviewing" the court decision to determine its next steps. NOAA is also considering a separate petition to list the fish as an endangered species.
'You can't ignore a species'
Fishermen and environmental groups sued NOAA last year to try to force protection for river herring -- a collective term referring to alewives, blueback herring, American shad and hickory shad.
The silvery fish, which can be up to 15 inches long, live in the ocean and return to freshwater rivers and streams to spawn. They are critical components of the ocean and coastal ecosystem as a food source for birds and larger fish, including sought-after sport fish like striped bass. But their numbers have dropped 90 percent in the past 20 years, sport-fishers and environmentalists say.
NOAA has an Atlantic Herring Fishery Management Plan that seeks to set science-based catch limits for sea herring, a separate species that spends its entire life at sea. But the most recent amendments to the plan fail to address river herring and shad.
Federal lawyers had argued that they did not need to consider conservation measures for the river herring, since the regional fishing council had never directed that action.
Kessler rejected that claim, writing in her opinion that NOAA cannot "ignore its duty to ensure compliance" with fisheries management laws and that the agency had not sufficiently explained why it would not consider river herring as a stock.
"The councils do not have unlimited and unreviewable discretion to determine the make-up of their fisheries," Kessler wrote.
Environmentalists said the ruling could open doors to pressure the fisheries service to manage any number of stocks that may be in trouble -- even if they are not direct fishing targets.
"What this says is you can't ignore a species," said Peter Baker, director of the Northeast Fisheries Program for the Pew Environment Group and head of the Herring Alliance, a group advocating protection for forage fish. Baker's group was not involved in the lawsuit.
The ruling comes as federal fishery managers face increasing pressure to expand their focus beyond target fish species and consider protections for the small forage fish that form the base of the food web.
"From my point of view, it's the next iteration of responsible management," Baker said.
Last fall, fisheries managers for 15 Atlantic Coast states approved new catch restrictions for menhaden, a prey species that conservationists regard as critical to the health of the marine environment (Greenwire, Nov. 10, 2011).
And fishery managers in New England are considering a shift to an "ecosystems-based" management that could overhaul the evaluation of fish stocks to consider predator and prey fish together (Greenwire, Nov. 17, 2011).
"We're right on the cusp of the fisheries service and the councils taking the first plunge into trying to codify some of the relationships and management measures, and the court case will help speed a fundamental change in how managers look at fisheries instead of just looking at target species," said Baker.
A key species
Sport-fishers and environmentalists have watched with concern as river herring populations have dropped dramatically. In a separate legal action, environmental groups and recreational fishermen also petitioned NOAA in 2010 to protect river herring as an endangered species. NOAA is reviewing the petition and has classified river herring as a "species of concern."
States along the Atlantic coast have taken measures to protect the fish, working to improve water quality in streams and imposing a moratorium in 2008 against catching or selling the species when it is in state waters.
But that does not help the herring when it is at sea, where large industrial trawlers can haul it in with other fish. The trawls target mackerel and sea herring, primarily as bait for the lobster fishery.
But the trawls also bring in hundreds of thousands of pounds of river herring when the fish is at sea, according to the plaintiffs. The fish's decline can then disrupt the game species that depend on it.
"The fall fishing season my business depends on was abruptly wiped out because a fleet of midwater trawlers moved onto our fishing grounds and stripped away all the bait fish in a matter of hours," said Captain Alan Hastbacka, who owns and operates a striped bass charter fishing business out of Chatham, Mass. "The giant trawlers need to be reined in."
The case could also open a window for recreational fishermen who want to challenge the fisheries service's decisions. The federal government had argued the recreational fishing groups did not have enough of a personal stake in the herring decision to give them legal standing to sue the agency.
But Kessler said there was a clear connection between the agency's regulatory choices and decline of the river herring and striped bass, and that injury to the fishermen was "fairly traceable."
"Now there is a precedent that if they don't take the time to get responsible management, people will speak out, and fishermen and institutions have the right to take them to court," said Rob Moir, president of the environmental plaintiff Ocean River Institute.