Case for Shad & Herring Rules Circles the Drain

(CN) - The D.C. Circuit cut the line on a case accusing the government of failing to protect ocean fish that feed New York and New Jersey eagles and striped bass.

Led by the New Jersey-based Anglers Conservation Network and its founder, Capt. Paul Eidman, the case centers on four dwindling stocks of fish - alewife, blueback herring, American shad and hickory shad - that school in the Atlantic Ocean from New York to North Carolina.

As those fish migrate up rivers during their annual spawning in the spring, they are prey for bald eagles, ospreys and other birds, like cormorants and gulls, as well as for other fish at sea and for striped bass making their annual spawning run into many of the same rivers.

The case at hand contends that there are even fewer river herrings and shads available for bigger species on the food chain, thanks to a 2013 inaction by the Mid-Atlantic Fishery Management Council, one of eight established by the 1976 Fishery Conservation Act, or Magnuson-Stevens Act.

That year, the council was considering adopting Amendment 15 to add river herring and shad to the 1983 Mackerel, Squid, and Butterfish Fishery Management Plan.

Rather than approving the amendment, however, the council voted 10-9 to table the issue for three years while a working group studied the fish further.

The plaintiffs say this decision violated the Magnuson-Stevens Act, but U.S. District Judge Gladys Kessler dismissed the complaint on Sept. 30, 2014.

A three-judge panel with the D.C. Circuit affirmed Tuesday.

"It was the Mid-Atlantic Council, not the secretary or the Fisheries Service, who tabled Amendment 15 pending further study," Judge A. Raymond Randolph wrote for the three-judge panel. "Plaintiffs' efforts to show otherwise do not survive examination."

Voicing disappointment with the ruling, Earthjustice attorney Roger Fleming said the court effectively validated "a developing trend" by the National Oceanic and Atmospheric Administration Fisheries and the secretary of commerce "to treat the core requirements contained in federal fisheries law as optional."

"We don't believe that is what Congress intended in drafting a comprehensive statute to conserve and manage our nation's dwindling fisheries resources," Fleming added in an email.

For the D.C. Circuit, however, the service did not have a "responsibility as a backstop" to the council.

"Even if the Fisheries Service had such a broad, mandatory duty to act as a 'backstop,' this would at most obligate the Fisheries Service to act when the council fails to do so," Randolph wrote. "It would not somehow transform the inactions of the council into 'actions that are taken by the Secretary' or the Fisheries Service."

Relief is also not available under the Administrative Procedure Act, or APA, the court said.

"Even if the Mid-Atlantic Council were considered a division of the federal Fisheries Service, and even if the Council's decision were somehow considered 'agency action,' it still would not be 'final agency action' as Sec. 704 of the APA requires," Randolph wrote. "Recommendations of subordinate officials are not final for purposes of judicial review, regardless whether those recommendations might turn out to be influential."

The Fisheries Service was not required to identify river herring and shad as overfished stocks, according to the ruling.

"Neither the Fisheries Service nor the secretary has ever determined that river herring or shad are overfished, and the Magnuson-Stevens Act does not impose a discrete ministerial duty on them to do so," Randolph wrote.

In a similar suit Kessler ruled on last year, the judge called it "striking" that the government did not consider adding shad and herring stocks to the plan.

Fleming said his clients "anticipate they will get the relief they sought in the final court order for that case."

In addition to the Anglers Conservation Network, the Hallowell, Maine-based attorney represents co-plaintiffs New York's Gateway Striper Club and Massachusetts herring warden Philip Lofgren.

The National Marine Fisheries Service; National Oceanic and Atmospheric Administration; and Secretary of Commerce Penny Pritzker were named as defendants. They have not returned an email seeking comment.

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