New England Fisheries

Court Order Sets Clock Ticking for Action on River Herring

An alewife, a type of river herring. (Photo Credit: Anthony Archino)

In a few weeks the New England Fishery Management Council will get a letter, probably a long one, explaining why the coming year will bring big changes to the way the council handles severely depleted river herring and shad. The letter from the National Marine Fisheries Service (NMFS) is the first step in complying with a recent court order that struck down the current management plan for Atlantic herring (known as Amendment 4). U.S. District Court Judge Gladys Kessler not only laid out the problems, she set a deadline on coming up with solutions.

“It puts the council and NMFS on a clock to get things done,” said Earthjustice attorney Roger Fleming, who brought the case on behalf of some Herring Alliance members and recreational fishermen. Fleming says the judge wants a progress report from the federal agency in six months and a full report in one year detailing the changes made.

Judge Kessler’s decision makes clear that decisions about river herring must be based on solid science. That could have major implications for the council as it considers how to deal with two key issues: minimizing bycatch of river herring, and possibly making river herring part of the larger Fishery Management Plan for Atlantic herring.

One of the plaintiffs, Rob Moir of Ocean River Institute, called the herring bycatch an “enormously important issue” as the blueback herring, alewife and shad are scooped up by industrial scale trawlers fishing for the Atlantic herring. “In one trawl the large boats can take more herring from the sea than we will see in one year’s run up the river,” Moir said.

Although the bycatch question is important, Fleming said the pending question about whether to include river herring species in the larger fishery management plan has even greater potential. If that happens, Fleming said, the river herring would receive the full protections of the federal law on fisheries, the Magnuson-Stevens Act. “Catch limits and accountability measures, the identification of essential fish habitat areas,” Fleming said, “it’s a whole suite of requirements beyond just addressing bycatch.”

Fleming said Judge Kessler set a precedent by applying for the first time some sections of the Magnuson Stevens Act. She held that management plans must include all stocks that “require conservation and management.” The order doesn’t force the council to include river herring, but it does require that the council’s decision be firmly rooted in the law and scientific evidence. “And in this case that evidence is overwhelming,” Fleming added.

The order also required NMFS to take into account herring’s role in the ecosystem as food for predators. Summing up the possible impacts of the ruling, Ocean River Institute’s Moir sees the makings of “a much needed paradigm shift.”

“An ecosystem-based management approach, instead of the same old stock population-based management, will recognize herring as forage fish, vital food for cod, striped bass, bluefish, tuna, whales and other marine life,” Moir said. “It’s good for the fishermen of fish larger than herring and at the same time good for people in need of vibrant ocean and coastal areas.  And I can still eat herring marinated in wine and dill.”

Can all that happen in the time frame the judge laid out? As Fleming said, “It’s going to be an interesting year.”


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