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Judge calls out fisheries service on herring catch

By Doug Fraser

March 13, 2012 2:00 AM


Environmentalists and local fishermen hailed a decision by a federal judge Monday that they say will help many of those species that may not have the cachet of commercial fish species like cod, haddock or even herring, but are affected just as much when they are caught along with their better-known brethren.


U.S. District Judge Gladys Kessler ruled that the National Marine Fisheries Service had not followed the law in failing to protect river herring and shad from being overfished by herring trawlers. Kessler said NMFS couldn't single out stocks for protection but must apply conservation measures to all depleted stocks without unreasonable delay.


NMFS spokeswoman Maggie Mooney-Seus said her agency was still considering Kessler's decision.


When the New England Fishery Management Council deliberated changes to the fishery management plan for Atlantic herring in 2008, they initially included consideration of measures to assess the damage that large herring trawlers were inflicting on other species like river herring and shad that were sometimes caught in great numbers along with the massive hauls of Atlantic herring. By 2008, there was already great concern about river herring in particular whose population had experienced a precipitous drop-off and states all along the Atlantic coast imposed a moratorium on catching or selling any of these anadromous species, which return to the Cape's streams and rivers every spring to spawn.


Local fishermen and the national environmental movement wondered if the startling decline of fish returning to the runs could be linked with bycatch in the herring fishery. In 2008, Amendment 4 to the herring management plan was originally intended to address that by increasing the amount of monitoring of river herring and shad and other bycatch, but that portion of the amendment was put off until the next big revision, Amendment 5, which is now in the public hearing phase nearly four years later.


"It's clear that the courts don't allow you to shunt off legal obligations on some future plan," said Roger Fleming, the attorney representing recreational fisherman Michael Flaherty of Wareham, charter boat Capt. Alan Hastbacka of Chatham, and the Ocean River Institute who filed suit last April. They claimed the National Marine Fisheries Service, which oversees the fish council and does the legal work behind fish regulations, violated the federal Magnuson-Stevens Fish Conservation and Management Act and two other federal acts by not preventing overfishing of river herring and shad. They were upset that NMFS and the council dropped all considerations of protections for these species even though there were clear indications they were in trouble and likely overfished.


"I'm tired of seeing the council and the fisheries service do what they always do and delay and delay and delay, and take no action until it's too late," Flaherty said.


Hastbacka has seen the efficiency of the herring fleet firsthand.


"They came in the day after the commercial striped bass season ended and wiped out all those herring," Hastbacka said. "It's clear with river herring, that there's an issue."


The plaintiffs wanted NMFS to set annual catch limits for these species and draw up measures to penalize the fishery when it exceeded those limits as required by federal law. They argued that, because river herring and shad were caught with Atlantic herring they should have been included with that species in a fishery management plan.


The plaintiffs also claimed NMFS hadn't used the best available science as required because their annual catch limits for Atlantic herring didn't take into account the importance of herring as a food source for other species.


The court remedy is less clear in that Amendment 5 could address some of these issues, including bycatch and oversight of fishing vessels and their catch, Fleming said. Other remedies are still being negotiated.



Copyright © Cape Cod Media Group, a division of Ottaway Newspapers, Inc. All Rights Reserved.

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It is about time, that someone is held accountable for this continued abuse to our River herring that undoubtly has affected the recovery of every species that feed on them to survive.


Many efforts were made by local controls to improve the river herring only to be raped by the large dragger's, and for what purpose??



The continued decimation of this valuable resource, only will make the recovery process for the upper species fish much longer and kudos to the JUDGE for speaking out

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ban the pair trawlers and mid water trawler. period.


Or put fines in place for bycatch of protected/regulated species...just like there are for EVERYONE else.

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Capt. Alan Hastbacka is the owner of Got Stryper Charters and the Pintail rubber bait out of Chatham MA


Mike Flaherty is a past VP of MSBA (2004) and is currently running for school committee in the town of Wareham MA



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You Can Help Regulate the Industrial Mid Water Trawl Fleet


Take Action Today

Submit a Public Comment


Written Public Comments must be received on or before

5pm EST Monday April 9, 2012:



Subject: Comments on Draft Amendment 5


Attn: Comments on Draft Amendment 5

Paul J. Howard, Executive Director

New England Fishery Management Council

50 Water Street Mill #2

Newburyport MA 01950


Attend a Public Hearing



Wednesday, March 14, 2012

MA DMF Annisquam River Station

30 Emerson Avenue, Gloucester, MA 01930

7:00 – 9:00 pm


Thursday, March 15, 2012

Sheraton Harborside Hotel

250 Market Street, Portsmouth, NH 03801

7:00 – 9:00 pm


Monday, March 19, 2012

Seaport Inn

110 Middle Street, Fairhaven, MA 02719

7:00 – 9:00 pm


Wednesday, March 21, 2012

Holiday Inn By the Bay

88 Spring Street, Portland, ME 04101

7:00 – 9:00 pm


Tuesday, March 27, 2012

Radisson Hotel Plymouth Harbor

180 Water Street, Plymouth MA 02360

7:00 – 9:00 pm


Wednesday, March 28, 2012

Hilton Garden Inn

One Thurber Street, Warwick, RI 02886

7:00 – 9:00 pm


Thursday, March 29, 2012

Congress Hall Hotel

251 Beach Avenue, Cape May, NJ 08204

7:00 – 9:00 p


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The New England Fisheries Management Council Amendment 5 Public Comment Document is 83 Pages and the full Amendment 5 Draft Environmental Impact Statement is 530 pages. Both of these documents can be found on the Atlantic Herring pages of the NEFMC web site:


Honest By Catch humbly suggests that you consider the following information as you choose your words and formulate your own comments, both for the public hearings & in your very important written comment letters & emails.


Critical Alternatives That Must Be Approved in Amendment 5:


NEFMC must approve a comprehensive monitoring and management reform program that brings greater accountability and oversight to the industrial trawl fleet. At minimum, the following actions must be approved:


• Honest By Catch supports Section Alternative 2

100 percent at-sea monitoring on all midwater trawl fishing trips (i.e., Category A& B vessels) in order to provide reliable estimates of all catch, including bycatch of depleted river herring and other marine life


• Honest By Catch supports Section Alternative 4D

An accountability system to discourage the wasteful dumping of catch, including a fleet-wide allowance of five slippage events for each herring management area, after which any slippage event would require a return to port


• Honest By Catch supports Section 3.4.4 Alternative 5

No herring mid water trawling in areas established to promote rebuilding of ground fish populations


• Honest By Catch supports Section 3.3.5, if modified to require immediate implementation of a river herring catch cap

An immediate catch limit, or cap, on the total amount of river herring caught in the Atlantic herring fishery


• Honest By Catch supports Section 3.1.5 Option 2

A requirement to accurately weigh and report all catch is essential to any monitoring system


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