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Commercial Fisheries News
Volume 36 Number 8
April 2009
MFA pursues herring midwater trawl lawsuit
WASHINGTON, DC – The Port Clyde, ME-based Midcoast Fishermen’s Association announced in late February that it was moving forward with its lawsuit to prevent herring midwater trawlers from fishing in groundfish closed areas.
Then, in a related new development on March 19, the Sustainable Fisheries Coalition, which represents midwater trawlers and purse seiners from Maine to New Jersey, filed a motion with the court seeking amicus curiae status in the case.
If approved, the coalition would become a “friend of the court,” making it an adviser on legal matters related to the case.
The lawsuit originally was filed in US District Court for the District of Columbia on Dec. 28, 2007 after the National Marine Fisheries Service (NMFS) rejected a petition from the Midcoast Fishermen’s Association seeking emergency action and long-term measures to prohibit midwater trawling activity in groundfish closed areas (see CFN February 2008 for details).
However, the plaintiffs, represented by Earthjustice attorney Roger Fleming, asked the court this past January to put the suit’s case management plan on hold in order to give the New England Fishery Management Council a chance to address the issue in Amendment 4 to the federal herring plan, which is currently under development.
Midcoast Fishermen’s Association Chairman Glen Libby said, “For a while there, we really thought the council was going to deal with this.”
But then, two things happened at the council’s Feb. 9-11 meeting that led the association to believe otherwise. And so it asked the court to proceed with the case and set a briefing schedule.
Alliance proposal
First, the draft Amendment 4 document – as it stood at the February council meeting – did not contain a detailed proposal initially submitted by the Herring Alliance to restrict and closely monitor midwater trawl access into groundfish closed areas.
This proposal, strongly supported by the Midcoast Fishermen’s Association as a way to resolve the issue, would allow fishing by midwater trawlers in closed areas only under an experimental fishery with requirements for: 100% observer coverage; electronic monitoring; limits on the number of trips per year; prohibitions on pair trawling; monitoring and gear requirements; and bycatch triggers that would exclude vessels from further fishing in closed areas once reached.
Although the council is expected to consider the proposal during future meetings as time allows, Fleming expressed concern that the issue wasn’t debated at all in February, and the council gave no clear indication of when it would discuss the proposal in the future.
Amd. 4 priorities
Second, worried that it might not be able to fully develop all items currently on the table for Amendment 4, the council voted to prioritize the topics.
“Measures to establish criteria for herring vessel access to groundfish closed areas” came in fourth, falling behind:
Development of annual catch limits (ACLs) and accountability measures (AMs), which was number-one since both are now required by the Magnuson-Stevens Fishery Conservation and Management Act;
Catch monitoring requirements for the herring fishery, the initial reason for initiating Amendment 4; and
Measures to address river herring bycatch, an issue that also is being closely monitored by the Atlantic States Marine Fisheries Commission.
The fifth priority was measures to address interactions with the mackerel fishery, but the council has already completed work on this item, so its inclusion in the eventual Amendment 4 public hearing document is virtually assured.
According to Fleming, the council voted back in November to make midwater trawl access to groundfish closed areas a 2009 workload priority, so being placed fourth on the Amendment 4 list went counter to the signal sent by the council last fall.
Now, said Fleming, the big concern is that the council will run out of time to address a fourth-level priority, and the closed area issue will fall by the wayside.
“The Midcoast Fishermen’s Association felt it was left with no choice but to pursue this in court,” he said. “The association thinks this is an important issue and would like to see it resolved.”
Parties involved
The original complaint filed with the court back in December of 2007 had two plaintiffs – the Midcoast Fishermen’s Association and the Northwest Atlantic Marine Alliance (NAMA).
Since then, NAMA has withdrawn from the case. However, NAMA’s board chairman, fisherman Curt Rice, is joining the suit as an individual plaintiff.
The suit is against the secretary of commerce, the National Oceanic and Atmospheric Administration, and NMFS.
The Sustainable Fisheries Coalition said it wanted to join the proceedings as a friend of the court because it had “a vital stake” in the litigation and its interests were “not fully represented by existing parties.”
With amicus curiae status, the coalition “would assist the court in understanding the interests and issues involved in this case,” wrote coalition attorney Eldon Greenberg in his March 19 memorandum supporting the request.
“Because the rule sought by the plaintiffs would drastically curtail the herring fishery, the coalition has every interest in ensuring that its perspective is represented,” he said.
Greenberg further argued that the court should “understand the broader context” of the plaintiffs’ claims in terms of adverse impacts on jobs, revenues, financial viability of the companies involved, and the economic health of coastal communities that would result from closing large areas to herring fishing. He noted that in 2007, Atlantic herring landings were valued at $19.5 million.
Plaintiffs’ case
The Midcoast Fishermen’s Association’s chief goal is to prevent midwater trawlers from fishing in groundfish closed areas, period. Association members adamantly claim that the prohibition is necessary to protect struggling groundfish stocks from being caught and discarded as bycatch by the herring fleet.
“We’re working hard to rebuild groundfish stocks, and letting these midwater trawlers fish in a groundfish closed area is undermining our efforts,” said Libby.
Fleming argued in the complaint that NMFS’s decision to deny the group’s original petition for emergency action was “arbitrary and capricious” and violated both the Magnuson-Stevens Act and the Administrative Procedure Act, which is why the association moved ahead with a formal lawsuit.
He further stated, “The best available science indicates that bycatch in the herring midwater trawl fishery is likely underestimated due to existing deficiencies in the monitoring program for these vessels, including insufficient levels of observer coverage.”
Coalition position
In its request for amicus curiae status, the coalition contested those claims.
Attorney Greenberg wrote, “To the contrary, the coalition’s view is that:
“Groundfish bycatch by midwater trawlers is actually extremely low and does not significantly impact groundfish stocks;
“The fishery is closely monitored by NMFS;
“Extensive measures are in place to ensure that bycatch remains within acceptable levels; and
“The council and NMFS are actively engaged at this very time in evaluating the adequacy of such measures.”
Economic impact
According to the coalition, “the midwater fleet does not specifically target herring in areas closed to groundfish bottom trawling.”
However, the boats “frequently will fish these areas when the herring are transiting through them or are feeding in those areas.” The areas can be “prime fishing grounds for the herring fleet during particular times of some years” in specific locations depending on herring migratory patterns.
To make the areas permanently off-limits would result in “severe” impacts on the fleet, the coalition explained.
Greenberg said that, as of mid-March, the herring fleet had landed less than 10% of its allowed 542,000-pound haddock bycatch allocation for the 2008 fishing year, which ends April 30, and that any bycatch that does occur is allowed under rules implemented by NMFS.
“When NMFS approved midwater trawling in groundfish closed areas, the agency determined that the activity would not have a biologically significant impact on recovering groundfish stocks,” said Greenberg.
“This issue has been further addressed by the New England council, and there is no scientific evidence suggesting that a different conclusion is warranted,” he said.
Fleming, however, disagreed.
“Recent data show that midwater trawl vessels catch juvenile and adult groundfish, often in significant amounts,” he argued on behalf of the plaintiffs.
Fleming also noted that some of those bycatch incidents have been “well publicized.”
Janice M. Plante
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