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Sunday, May 19, 2024 | Back issues
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Agency Finds There Are Plenty of Fish in the Sea

WASHINGTON (CN) - The National Marine Fisheries Service must reassess how its management plan for U.S. Atlantic herring fisheries will affect other species, a federal judge ruled.

Michael Flahherty, a New England fisherman, sued over an amendment to the NMFS plan for herring fisheries. Amendment 4 assumes that Atlantic herring are the only stock fish in the fishery, and sets acceptable biological catch limits and accountability measures for the fishery fleet on that assumption.

But Flaherty said this would result in massive overfishing of river herring stock, in violation of the Magnuson-Stevens Fishery Conservation and Management Act.

Since the government failed to consider the impact on river herring, Flahherty claimed the change violated the National Environmental Policy Act.

U.S. District Court Judge Gladys Kessler found that the NMFS had acted "arbitrarily and capriciously" in adopting the amendment because the environmental assessment demonstrated "a total failure to consider the environmental impacts of alternatives to the proposed ABC control rule or AMs," abbreviating acceptable biological catch and accountability measures.

The Commerce Department, which oversees the NMFS, argued that it did not need to give a hard look at the impact of alternatives to its preferred course of action under D.C. Circuit precedent in Sierra Club v. Van Antwerp.

Kessler said, however, that this ignored City of Alexandria v. Slater, in which the D.C. Circuit found "an alternative is properly excluded from consideration in an environmental impact statement only if it would be reasonable for the agency to conclude that the alternative does not 'bring about the ends of the federal action.'" [Internal citation from Citizens Against Burlington v. Bussey.]

Amendment 4 included an analysis of rejected alternatives, but, "tellingly, none of these alternatives receive any treatment in the Environmental Assessment," Kessler said.

The court granted Flaherty summary judgment with regard to the NEPA violation but did not provide with an immediate remedy.

Even as it adopted Amendment 4 to the Atlantic herring fishery management plan, the NMFS was developing a fifth amendment to address the shortcomings. In light of this, Kessler said both parties can present further briefs on potential remedies.

In 2010 Flaherty tried to block the NMFS's Atlantic herring fishery management plan in its entirety, but a judge ruled in September 2011 that he failed to file his objection in a timely manner.

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