New England Fisheries

Fishermen and Conservationists Forced to Federal Courts for River Herring Help

Roger Fleming is an attorney with Earthjustice. Roger has been working in fisheries law in New England and Washington, D.C. since 2001. He is an expert on the requirements of the Magnuson-Stevens Act (MSA) and related ocean conservation laws.  He represents the fishermen and conservation organizations in the suits discussed below.

Earlier this month, I wrote about a petition filed by the Natural Resources Defense Council asking the federal government to list river herring as “threatened” under the Endangered Species Act. Fishermen and conservationists, similarly frustrated by the failure of state and federal officials to responsibly manage this public resource, have filed three separate federal lawsuits seeking to force more immediate action.

River herring are an important source of food for birds of prey, like this osprey, that rely on the annual migration of river herring into inland rivers each spring. (Photo credit: Mike Laptew)

River herring and shad are keystone species in our ocean and coastal river ecosystems. They are food for species like cod, striped bass, tuna, mammals and countless water fowl. And, as spawning adults, they play a key role in the transfer of nutrients between marine and freshwater environments. Yet, populations of these fish have plummeted on the East Coast.

One important reason for the decline is the fact there are unregulated fisheries for these fish in federal ocean waters (3 or more miles from shore).  Industrial trawlers targeting Atlantic herring and mackerel catch millions of river herring and shad each year, which are then either sold with sea herring as bait or discarded at sea dead. Meanwhile, federal and state officials have refused to write management plans that would responsibly monitor these trawlers and set reasonable conservation standards for these fish.

In September, 2010, the Martha’s Vineyard/Dukes County Fishermen’s Association and Recreational Fisherman Michael S. Flaherty filed suit in federal court in Washington, D.C. seeking to compel the National Marine Fisheries Service (NMFS) and the Atlantic States Marine Fisheries Commission (ASMFC) to write a comprehensive management plan that would monitor and limit the catch of river herring and shad throughout their range.  Instead of addressing the plaintiffs’ claims and defending their actions on the merits, both NMFS and the ASMFC have sought to duck accountability by filing motions to dismiss the suit on procedural grounds, claiming they can’t be sued by the public for their management failures.  Plaintiffs are currently waiting for a decision on the motions to dismiss, and then plan to press forward for a decision on the merits within the next six months.

In April 2011, Michael Flaherty, charter boat Capt. Alan Hastbacka, and the Ocean River Institute sued NMFS challenging the March 2, 2011 final rule implementing Amendment 4 to the Atlantic Herring Fishery Management Plan. This amendment was intended to implement new Magnuson-Stevens Act requirements for annual catch limits and accountability measures for this fishery. However, the new plan fails to include shad and river herring as stocks caught in the fishery (thus avoiding conservation requirements for those species) and fails to implement adequate accountability measures, including necessary monitoring.  Briefing in this case is underway and plaintiffs hope for a favorable decision in early 2012.

River herring return to their natal rivers to spawn each spring. (Photo credit: Mike Laptew)

Also in April 2011, the Friends of Merrymeeting Bay filed a U.S. Constitutional challenge to a Maine law specifically implemented to block river herring from accessing their spawning habitat in Maine’s St. Croix River.  The St. Croix used to be one of the worlds largest river herring runs, capable of supporting 25 million fish, but now only supports a few thousand.  The law was aimed at appeasing a few politically-connected freshwater fishing guides who mistakenly believed river herring negatively affected upstream sport fish, and ignores scientific studies all showing this not to be true.  The plaintiffs are hoping for a favorable decision this fall.

This is a critical time when state and federal fisheries managers must take action to stem the decline of river herring and shad. Officials must adopt plans that closely monitor industrial trawlers, limit the catch of these fish in the open ocean, and ensure they have access to the riverine habitat they need to spawn. Fishermen and conservationists should not need the Courts to order them to do so.


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