Fishermen Too Late to Challenge Regulations

WASHINGTON (CN) - A Massachusetts fisherman who wants the National Marine Fisheries Service to protect river herring and shad from commercial fisheries' bycatch is too late to challenge management plans, a federal judge ruled.

Michael Flaherty and the Martha's Vineyard/Dukes County Fishermen's Association claimed the Fisheries Service failed in its duty under the Magnuson-Stevens Fishery Conservation and Management Act to protect river herring and shad. Both species are anadromous: they are born in fresh water and migrate to the ocean, then return to their fresh water hatching grounds to spawn.

U.S. District Judge Richard Leon did not address the substance of the fishermen's complaint, finding them time-barred by the Magnuson-Stevens Act, which requires that challenges to regulations issued by the Secretary of Commerce under the Act be filed within 30 days of publication in the Federal Register.

The National Marine Fisheries Service is an agency of the Department of Commerce.

The most recent fishery management plan (FMP) for commercial fisheries that affect river herring and shad was published on March 11, 2010 but the fishermen did not file their complaint until Sept. 30 that year.

The fishermen argued that their complaint was not subject to the 30-day limit because it does not directly challenge FMPs, but attacked the Fisheries Service's failure to minimize bycatch of river herring and shad.

Judge Leon called this "artful pleading" because the Fisheries Service does not directly regulate the river herring and shad fisheries, which are governed by the states through the Atlantic Coastal Fisheries Act. Thus the only way the Fisheries Service could minimize the bycatch of the two species would be through modification of FMPs for the commercial fisheries.

The fishermen's "general allegations are inextricably intertwined with grievances with respect to the [Fisheries Service's] management of - specifically the FMPs for - the Atlantic herring, squid, mackerel and butterfish fisheries," Leon wrote.

The Magnuson-Stevens Act was passed in 1976 to conserve and manage fisheries off the coasts of the United States. It created independent regional Fishery Management Councils, which prepare fishery management plans for each fishery in federal waters that requires conservation and management.

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