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Herring Rules Survive Fishermen’s Challenge

(CN) - Fishermen cannot compel the National Marine Fisheries Service to change its management plan for the U.S. Atlantic herring fisheries, 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.

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

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

U.S. District Judge Gladys Kessler in Washington found in 2012 that the agency 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.

Flaherty moved the next year to enforce the court's remedial order regarding Amendment 4, but Kessler denied the request on Wednesday.

"Plaintiffs do not deny that defendants have completed the various actions they were ordered to perform," she wrote. "Rather, plaintiffs insist that 'Defendants still have not addressed these violations in any substantive way.' This argument fails to recognize the limits on this court's authority."

Upon its finding that the agency acted arbitrarily and capriciously, the court remanded Amendment 4 to the agency for reconsideration and action consistent with the court's ruling.

But the word "action" does not indicate that the NMFS was required to take a particular substantive action, according to the ruling

"The court identified various procedural violations committed by defendants," Kessler wrote. "Defendants have now considered and addressed each of those issues. Thus, plaintiffs have obtained all of the relief to which they are entitled."

Flaherty and his co-plaintiffs, Capt. Alan Hastbacka, and the Ocean River Institute, may still seek review, however, of the agency's post-ruling decisions on the ground that they were arbitrary and capricious, according to the rulig,

Indeed they raised these claims in a supplemental complaint that will be heard in the coming months.

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