“This amendment establishes an acceptable
biological catch control rule that accounts for herring’s role in the ecosystem
and prohibits midwater trawling in inshore waters from the U.S./Canadia border
to the Rhode Island/Connecticut border.
Amendment 8 is intended to support sustainable management of the herring
resource and help ensure that herring is available to minimize possible
detrimental biological on predators of herring and associated socioeconomic
impacts on other user groups.”
The adoption of Amendment 8 was
hailed by a wide range of stakeholders, ranging from members of the small-boat
and shore-based herring fishery to environmental groups to recreational
fishermen and the whale-watching fleet, all of whom believed that the mid-water
trawlers caused localized depletion of Atlantic herring, which left
insufficient herring in inshore waters for the small-boat commercials to catch,
and too few herring for the larger fish and whales sought by anglers, commercial fishermen and
whale-watchers to eat. Such stakeholders
all claimed that the mid-water trawlers were causing real environmental and
economic harm.
About the only people who were
upset about Amendment 8 were the mid-water trawlers themselves, who denied that
they were causing any environmental or economic harm to anything or to anyone,
but knew with absolute certainty that Amendment 8 was causing economic harm to
them. In
comments sent to NMFS opposing adoption of Amendment 8, the mid-water trawlers
argued, among other things, that
“The best available science does not
indicate localized depletion, nor does it find a difference in fishery removals
by midwater trawl vessels compared to purse seine vessels, and this measure
makes no attempt to align the restricted area with associated analyses and is
an illegitimate political compromise,”
“The allocation of fishing grounds is not
fair or equitable and does not promote conservation,”
“Restricting midwater trawling in inshore
waters has no conservation benefit and does not minimize economic impacts,”
and
“Prohibiting midwater trawling inshore is
arbitrary and capricious.”
After NMFS adopted Amendment 8
over the mid-water trawlers objections, the trawlers challenged the amendment
in court.
And they won.
“the Court finds that the Secretary has
failed to find a rational connection between the facts found ant the choice to
implement the exclusion zone. A primary
purpose of the rule is to ‘minimize local depletion and its associated user
group conflict when midwater trawl vessels harvesting herring overlap with
other user groups[.] Yet, the Secretary
could not identify any scientific evidence of localized depletion, let alone
establish a link between [mid-water trawl] vessels and localized
depletion…Though the Secretary contends that the agency was entitled to rely on
the overlap analysis [showing that mid-water trawl vessels fished for herring
in the exclusion zone at the same time that other user groups and predator
species were present] as an alternative to the inconclusive localized depletion
analysis, she fails to put forth any evidence that overlap is associated with
localized depletion. The overlap
analysis may accurately predict user group conflict, but it is not a suitable
replacement for independent evidence of localized depletion linked to
[mid-water trawl] vessels for a rule justified as addressing localized
depletion. For this reason alone, the
Court finds the rule arbitrary and capricious.
“The Court notes a further problem with
the localized depletion justification and analysis: the record fails to clearly define localized
depletion spatially or temporally…
“The Secretary highlights a series of
public comments from fishery users describing the negative impacts of the
[mid-water trawl] fleet…Though these comments can certainly provide anecdotal
support for the final rule, they are not an adequate substitute for scientific
evidence of localized depletion and its link to [mid-water trawl] vessels…
“…In sum, the Secretary’s findings
concerning localized depletion do not justify such a sweeping and economically
consequential ban even under this deferential standard of review [applicable to
judicial review of NMFS’ actions].
[citations omitted]”
Although Amendment 8’s regional
depletion argument, as well as its inshore exclusion zone, was invalidated by
the court, the New England Fishery Management Council still believes that there
is reason to limit the harvest of herring on the inshore grounds, perhaps by
placing restrictions on the high harvests of the mid-water trawlers. Thus, on
February 16, the Council released the Scoping Document for Amendment 10
to the Atlantic Herring Fishery Management Plan, stating that
“The purpose of this action is to develop
and implement management actions designed to attain optimum yield and improve
the conservation status of Atlantic herring by accounting for its critically
important role as a forage species in the ecosystem and minimizing user
conflicts created by competing interests on the herring resource between the
directed herring fishery and other important user groups, including commercial
and recreational fisheries, whale watching, and tourism.
“The Council will explore a range of
management alternatives to minimize user conflicts, including spatially and
temporally explicit gear restrictions, area closures, and possession
limits. The geographic scope of potential
management measures will consider, but not be limited to, the spatial extent of
the Midwater Trawl Restricted Area approved by the Council in Amendment 8, with
a particular focus on areas not already subject to seasonal closures for
midwater trawling.
“The current management measures to
address catch of shad and river herring in the directed Atlantic herring
fishery have catch estimation challenges and were instituted when the abundance
and landings of Atlantic herring were much higher than they presently are. This action will augment efforts to restore
and maintain runs of river herring and shad through consideration of management
alternatives for the directed Atlantic herring fishery that enhance river
herring and shad avoidance and catch reduction (e.g., time/area closures and/or
reconsideration of catch caps).”
The Council is now holding
hearing and seeking public comment on the Scoping Document, to help it to
determine what issues should be addressed in Amendment 10, should the Council
decide to move forward with that management action.
Given the court’s decision with
respect to Amendment 8, there’s little doubt that Amendment 10, if adopted,
will face a similar legal challenge, so the Council is doing its best to
address the court’s findings and ensure that Amendment 10 won’t meet a similar
fate. For example, the only times the
term “localized depletion” appears in the Scoping Document is when that document
discusses past amendments, including Amendment 8; it is not used with respect
to Amendment 10 at all.
The Scoping Document also seems to be placing a greater emphasis on user conflicts and on ecosystem issues, in particular the bycatch and dead discards of shad and river herring in the directed Atlantic herring fishery, an issue that is particularly relevant to the mid-water trawl fleet. The Scoping Document’s suggestion that the Council may consider the implementation of possession limits suggests that it might attempt to exclude the mid-water trawls from certain waters not by explicitly prohibiting their use, as was the case in Addendum 8, but by establishing possession limits that would, as a practical matter, be too low to allow the big vessels to operate profitably.
Still, it’s clear that the
mid-water trawl fleet will not willingly accept such restrictions. At a scoping hearing held in South Kingstown,
Rhode Island on March 19, Meghan Lapp, speaking on behalf of the commercial
fishing company Seafreeze, commented that
“This amendment is following the same
exact arguments, the same exact thought patterns, the same exact trajectories,
the same exact as the previous amendment that was shot down in court. It seems to me that it is a solution looking
for a problem, the problem statement and even the scoping document is like,
tell us the problems that exist rather than identifying an issue that does
exist and attempting to fix it. To me,
that is backwards. The problem statement
is nonsensical, you cannot attain optimum yield by creating unnecessary gear
restrictions, area closures, and the like.
The forage issue was addressed in Amendment 8’s ABC control rule…that
was not challenged at all by the previous lawsuit, that remains in place…I do
not think that with this action the [Plan Development Team] is going to have
any more substantial information than it did the last time. I do remember looking through, there was
extensive PDT analysis about space and user conflicts, from what I remember in
that document there was like one place in space and time where there were
conflicts identified, and it was somewhere up off of Gloucester in a particular
time of year…”
Her arguments weren’t without
merit. A
memorandum sent to the Council’s Herring Committee by the Herring Plan
Development Team, dated June 9, 2023, noted that
“the PDT would like clarification as to
what the problem is. The draft statement
mentions ‘user group conflicts,’ but the statement does not identify specific
stakeholders or conflicts. Does the
Committee wish to specifically identify the user group conflicts? It may be better to state this as competing
interests that could be a source of user group conflicts. The ecosystem impact of having less herring
available is a source of conflict.
[numbering omitted]”
The memorandum also reported that
“The PDT notes the data supporting the
analysis conducted for A8 had limitations.
Furthermore, those limitations persist in the data.”
Considering the findings of the
Court in Sustainable Fisheries Coalition v. Raimondo, those comments give cause for concern. At the same
time, they are far from fatal to Amendment 10’s prospects.
If Amendment 10 is to survive,
the Council must develop an administrative record that supports the Amendment’s
stated goals. Amendment 8’s restrictions
on mid-water trawls were invalidated not only because they rested on claims of
“localized depletion” that were unsupported by any scientific studies, but also
because the key concept—“localized depletion” itself—was not clearly
defined. The anecdotal information
provided in support of the Amendment, absent such definition and statistically valid data, was not
enough to support the agency action.
Because Amendment 10 does not
focus on localized depletion, the Council may be able to create an administrative record sufficent to defeat a court challenge. Whether the Council will successfully do so is yet to be
seen, but the Scoping Document represents the start of its efforts.
Anyone with insights into the
issues addressed in the Scoping Document would do well to make their thoughts
known.
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