Monday, August 27, 2012

Another Fish Story

A couple weeks ago, Judge Gladys Kessler (DDC) issued an order directing the National Marine Fisheries Service (NMFS) and the New England Fisheries Management Council to review their decision not to include river herring as a non-target stock within the newly minted Atlantic herring fishery management plan. The order provides the remedy for Judge Kessler’s March opinion finding that the agencies’ decision not to include river herring in the plan violated the Magnuson-Stevens Act (MSA). Together, the decisions mark the convergence of two ongoing dramas: the evolution of the relationship between NMFS and the regional fisheries management councils, and the campaign to restore river herring and shad to the rivers and coastal waters of the Atlantic seaboard.

First, the political and legal dynamic between NMFS and the regional fishery councils. In theory, there is no question that NMFS has the final word on fishery management plans, but in practice the regional councils—which include federal, state, and industry representatives, as well as one at-large representative—exert tremendous political pressure on and are typically given a great deal of deference by NMFS, as well as its parent agency, NOAA. Courts have also been known to basically defer to the councils. This second-degree deference is similar to the permission courts give to agencies to defer to industry in areas at the “frontiers” of science and technology. Regional fishery councils are designed to be more neutral than a project proponent (like Shell drilling in the Arctic) but the structure and constitution of the Councils are controversial: members of the regulated industry sit on the councils and help write the rules that regulate them. Josh Eagle, Sarah Newkirk, and Buzz Thompson unpacked the problems with the system and proposed some important changes, and Mother Jones even ran with the situation as a kind of expose. But it remains as it has been.

In Judge Kessler’s opinions one can hear a reprimand. (And not for the first time – she also took NMFS to task for approving a controversial NEFMC groundfish plan in 2001.) NMFS had argued that the agency properly deferred to the Council’s decision to exclude river herring and to address them at a future date. Judge Kessler seems to have taken the argument as tantamount to a disavowal of responsibility: “According to Defendants, NMFS deferred to the Council…and needed to do no more. The crux of Defendants' argument is that [except in certain circumstances] NMFS should simply defer to the Council's determination of what stocks are in the fishery.” Judge Kessler rejected the argument, and reminded the agency that though the Council does put the fishery management plan together, “once the council completes its work, the MSA requires NMFS to review its plan to determine whether it comports” with the law. Thus, regardless of the fishery management councils’ clout, NMFS still must make its own assessment.

Second, the once-and-now-again prominent herring. On the ocean-side, the allowable catch-limits for Atlantic herring were at stake in the litigation (NMFS and the Council won that issue.) The catch-limits, in turn, tie into the larger cultural issue of who gets to fish for herring, and what equipment they get to use. Just last month the N.Y. Times reported that the industrial-scale damage caused by midwater trawlers fishing for herring in New England has forged an unusual coalition among environmentalists and traditional pure seine net and harpoon fishermen.

On the inland side, the case ties into a larger story surrounding alewife and blueback herring, collectively known as river herring. River herring were an important food for Native Americans and earlier settlers, and still are an important part of the marine and freshwater food webs. Their numbers have dropped precipitously in the last thirty years, as the cumulative impacts of old milldams, nutrient loading into aquatic habitat, trawler fishing, and climate change have taken their toll. Last August, the Natural Resources Defense Council submitted a petition to list river herring as threatened under the Endangered Species Act. NOAA found that the petition warranted further review, and is in the process of conducting a formal study.

The fate of river herring, in turn, is intertwined with the fate of the old milldams of New England. Last year, Dave Owen blogged about dam removal on the Penobscot River in Maine. Other dam removal projects are percolating around the region, including on the Winnicut River in New Hampshire, the Taunton River and other historic runs in Massachusetts, and the Pawtuxet River right here in Little Rhody. Of course, there is some resistance to the herring. Maine, for instance, had passed a law in Maine requiring state officials to operate a dam so as to block river herring from a portion of the St. Croix River. The U.S. Environmental Protection Agency recently issued a finding that the law violated the Clean Water Act by effectively, and improperly, revising the state’s water quality standards.

These conflicts over management of Atlantic and river herring reveal just some of the enormous weight that has been loaded onto the legal regimes established under the MSA, which will be up for reauthorization soon. Senator Chuck Schumer of New York has secured hearings for the fall. In this election year it is unlikely anything will happen, but it will, as fish tales often do, make for a good story.

-- Michael Burger

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