June 17, 2016 — The following piece was authored by Shaun Gehan, counsel for the Sustainable Fisheries Coaltion:

The Atlantic herring fishery has been under constant litigation since 2011. Each major management action since Amendment 4 to the herring fishery management plan was adopted has been challenged by EarthJustice, a Pew Foundation-funded law firm, representing environmental and sportfishing interests. These suits are part of Pew’s multi-year, multi-million dollar “forage fish” campaign.

In what the herring industry hopes augurs an end to this cycle of litigation, Senior Judge Gladys Kessler of the Federal District Court for the District of Columbia handed EarthJustice a sound defeat in its latest case. At issue, in essence, were plaintiffs’ contentions that quota was set too high and that NMFS failed to give due consideration to alternative quota-setting methods, including one developed by a Pew-funded group known as the Lenfest Forage Fish Task Force.

Judge Kessler called the approach NMFS took in setting catch targets to be “clearly permissible.”  She also noted that herring’s role as forage was explicitly taken into account by fisheries scientists when assessing the stock’s status. Currently, the Atlantic herring population is roughly twice the long-term average size generally sought to be obtained through traditional fisheries management.

EarthJustice claimed that the Pew-funded research constituted the “best available science for managing forage fish.” Use of the “best scientific information available” in managing fisheries is legally required. As the court noted, however, not only did NMFS consider the reports advocated by plaintiffs in setting quotas, but that as the expert agency, determining what constitutes the best science is squarely in its discretion. The plaintiffs, Judge Kessler noted, “fail to explain why” the studies they prefer “are clearly the ‘best available science.’”

This lawsuit represents the latest skirmish in a long running conflict between Pew/EarthJustice and the fishing industry over herring management. The Sustainable Fisheries Coalition, a group comprised of herring fishermen from New Jersey to Maine, processors and bait dealers, intervened in this lawsuit. While pleased with this result, industry members recognized that significant threats to their livelihood still exist.

For instance, there remains pending a challenge to herring Amendment 5 dealing with issues of monitoring and bycatch. That case was stayed as the New England and Mid-Atlantic Fisheries Management Councils – federally-created bodies charged with developing fishery rules – consider measures to address these concerns.

The herring fishery has one of the lowest rates of bycatch – incidental harvest of non-target species – in the nation, as SFC has repeatedly noted. To improve on this record, herring fishermen have established a “bycatch avoidance network” in conjunction with partners from academic institutions and support of some states. Through this network, vessels communicate areas of high incidental catch so that others may avoid them.

Nonetheless, the Pew-funded Herring Alliance, also represented by EarthJustice, is seeking to impose a requirement that 100 percent of all herring trips be monitored by government observers at industry expense. Such a measure was included as part of Amendment 5, but was rejected by NMFS on the basis that it lacked the funds to fulfill the mandate. It was this decision, among others, that are the subject of EarthJustice’s pending case.

Various federal laws forbid a governmental agency from incurring unfunded obligations or shifting money appropriated for other uses. At the time it rejected these provisions, NMFS noted that even with industry cost sharing, additional at-sea monitors and data collection would impose financial obligations on the government it could not cover. Notably, like all federal fisheries, the herring fleet is required to carry observers in order to collect statistically rigorous data. The issue is thus about monitoring above levels necessary to gather precise and accurate information.

The new measure currently under development would establish a framework under which fishermen could be required to pay additional monitoring costs. Such monitoring could be done by observers on vessels, via electronic means such as cameras, through dockside inspections, or a combination of methods. Additional industry-funded data collection, however, could only occur when NMFS has funds to cover its share of the costs.

Nonetheless, in a letter to both Councils the Herring Alliance this week advocated for mandatory coverage on all trips made by the largest herring vessels. The practical effect of this proposal would be to cause these vessels to cease fishing, save for a handful of routinely observed trips. SFC participants believe this option is unlawful as it would result in an inability to harvest most of the allowable herring catch each year. There is support among fishermen, however, for increased monitoring so long as the costs are reasonable. Herring fishing is capital-intensive and profit margins are small.

The parties to the Amendment 5 lawsuit are set to report to Judge Kessler in early July on how they want to proceed with the case. It is likely EarthJustice will ask the judge to continue the stay while the Industry-Funded Monitoring amendment works its way through the process. In the meantime, the herring industry is savoring a small, but important victory. Counsel for the SFC notes that this decision makes it more likely that the next herring action – quota specifications for the next three years – will be the first herring measure in half a decade not to wind up in court.