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Tuesday, May 28, 2024 | Back issues
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Judge Slams Failure to Study Herring and Shad

(CN) - The government need not face claims that it left certain species of river herring and shad on the East Coast vulnerable to overfishing, a federal judge ruled.

The dispute stems over changes that the National Marine Fisheries Service made to the Mackerel, Squid and Butterfish Fishery Management Plan in 2010.

In addition to establishing catch limits for shad and herring, the amended plan required advance notice of fishing trips seeking more than 20,000 lbs. of mackerel.

Though regulators considered adding river herring and shad stocks to the plan two years later, they subsequently decided to hold off and keep studying the issue.

Anglers Conservation Network and four other groups filed suit last year in Washington, complaining that the agency's refusal to add shad and river herring stocks to the fishery management plan was arbitrary and capricious.

Since the fishery catches both species, the plaintiffs said they deserved protection.

U.S. District Judge Gladys Kessler gave the challengers some relief Monday, noting that the National Environmental Policy Act requires federal agencies to explore a range of possible alternatives before taking action.

Since a key objective of the amended rule was to consider adding shad and herring stocks to the plan, Kessler called it "striking" that the government did not study that option.

The agency's environmental impact statement for the fishery management plan should have included an alternative that studied the effects of not adding river herring and shad stocks, according to the ruling.

Earthjustice attorney Roger Fleming called the ruling "a significant win" that makes regulators reconsider their exclusion of river herring and shad from a plan that "regulates the fisheries where these severely depleted stocks of fish are caught and killed by the millions."

The fishery in question affects two species of river herring, the alewife and the blueback herring, as well as American shad and hickory shad. They live primarily in the ocean but spawn in freshwater rivers.

Found along the Atlantic Coast where they grow up to 16 inches long, alewives and blueback herrings are popular baitfish for lobster traps. They are often confused with each other, though alewives have larger eyes and blueback herrings have deep blue-green stripes down their backs.

American shad and hickory shad range from Florida to the Gulf of Maine. Both feed on plankton, small fish, fish eggs and sometimes crustaceans. Adult shads can weigh up to 3 pounds and are prized for their savory meat.

Though the conservationist plaintiffs emphasized that the amended rule was intended to reduce the incidental take of these fish, the government claimed it need not add any species to a plan unless that species is being overfished. Neither river herring nor shad are in danger of this.

Judge Kessler noted Monday that studies of the species' populations are inconclusive, with some reports indicating a decline in numbers while others point to population stability and even increase in some areas.

Given this uncertainty, Kessler said the government "is not obligated to add stocks to the fishery simply because the 'impacts [of doing so] are likely to be positive."

Fleming, the Earthjustice attorney, disputed the court's finding about the suppposedly inconclusive data.

Kessler also denied the conservationists on their bid to put an independent scientific observer on every "small mesh bottom trawl mackerel trip," to protect shad and river herring from overfishing.

Noting that this would be extremely expensive, Kessler said the government would in turn try to collect more fees from the fishing industry, violating several laws against spending more money than Congress authorizes and paying federal workers with nongovernment funds.

The reality is that increasing observer presence will not produce accurate calculations and annual catch limits if the fisheries experience fluctuating annual catches and insufficient catch data, according to the ruling.

Though "disappointed" that the court rejected the proposed 100 percent observer presence on large fishing vessels, Earthjustice attorney Fleming said the case still "has helped to bring attention to the issue and our clients and many others are continuing to press for changes through a new amendment being developed to address this problem."

"We continue to believe that to manage high volume fisheries like these, the science shows we need high levels of observer coverage, including 100 percent coverage on the largest vessels," Fleming said in an email.

Justice Department attorney John Grosko has not returned a request for comment Monday.

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