Remember river herring?  I do.

By Mike Flaherty | Mar 01, 2012

THIS BLOG ARTICLE ORIGINALLY APPEARED IN SEPTEMBER 2010 

 

 

Hello Friends & Neighbors,


As most folks here know, I usually like to candidly discuss local government issues in my Wareham Week blog, but for a change, I thought I would share with you all another interest of mine - fishery management.


The following is a copy of my letter to the editor of the New Bedford Standard Times which was published on September 14, 2010.


I thought it may be of interest to some here as well.


Thank you for your time.

Mike Flaherty


======================================================

Remember river herring?
By MIKE FLAHERTY

New Bedford Standard Times

September 14, 2010


I remember being able to take up to 48 river herring per week from the Middleboro herring run. It was a very well-managed run, as there were upwards of four wardens on hand to ensure folks only took what they were allowed.

I remember taking my 2-year-old son to the run, and he would play with the herring swimming in the bucket as I netted them. I remember giving some to my elderly neighbor who liked to eat them. Most of all, I remember what great bait they were. They don't call them striper candy for nothing.

Ah, the good old days.

So when fishery managers told us that river herring were in really tough shape and needed help, the recreational fishing community in Massachusetts sucked it up as we usually do in such times and said, "OK. Let's give them a break." So we agreed to the state's ban on the possession of river herring. As those involved will remember, the ban meant no possession whatsoever — not on your person, not on your hook, not even leftovers in your freezer from the year before the ban. Zip, zilch, nada, zero!

Prior to Massachusetts, Rhode Island had enacted a similar ban. Connecticut before them. That's what we as conservation-minded recreational fishermen do. We take the long view, sacrificing today for a better tomorrow. At least that's how it is supposed to work.

Unfortunately with river herring management, somehow things got turned upside down on their head. I had no idea at the time that the ban did not apply to commercial fishermen in the sea herring fishery. And I bet the rest of those in New England who supported the river herring bans in their state had no clue either. Now, these days, as I wait year after year for some good news that will allow us to lift the ban, I'm forming a whole different set of memories when it comes to river herring.

I remember learning from Massachusetts state biologist Dr. Mike Armstrong how a single pair trawler could decimate an entire run of river herring while they target sea herring. As Armstrong put it in the Aug. 22, 2004 Standard-Times, "We know that in the winter that, to some degree, the runs stick together and mix it up with the sea herring." Armstrong added, "They are landing 300,000 pounds at a whack. So say that the Mattapoisett River run is 100,000 fish, which is about 50,000 pounds. In theory you could catch an entire run of fish. It could wipe them out."

Despite such facts, I remember any effort to get meaningful observer coverage added to the commercial sea herring fishery thwarted at every turn by hired industry lawyers and lobbyists.

I remember scratching my head at a river herring meeting of the Atlantic States Marine Fisheries Commission when the director of the Massachusetts Division of Marine Fisheries, Paul Diodati, explained that there is a 5 percent "batch allowance" for river herring in commercial fisheries. A "batch" could be as small as a tote of lobster bait or as large as a boat's whole hold. The bottom line: Pair trawlers can hold upwards of 1 million pounds of sea herring, which means that it would be perfectly legal if they happened to have 50,000 pounds of river herring in the mix.

I remember thinking that as a recreational fisherman, while I couldn't legally posses a single river herring at all, that 50,000-pound figure above would represent the entire Mattapoisett herring run described by Armstrong. All perfectly legal to wipe out by midwater trawlers. "Theoretically," of course.

I remember when an industry lawyer named Shaun Gehan actually lobbied fishery managers to ensure that loopholes were added to the herring management plan to accommodate his clients' needs.

I remember most recently how the state of Maine's councilor on the New England Fishery Management Council, Mary Beth Tooley, saw no problem with the fact that not only do her boats catch river herring, but that she objects to the term "bycatch." After all, according to Tooley, who works for numerous midwater trawler interests, river herring caught in the sea herring fishery are "incidental catch" that are currently not being discarded, but rather kept and sold.

Do you remember the last time you were able to keep a single river herring for yourself, never mind sell one for use as lobster bait?

In the coming weeks, fishery managers will be weighing their options on actually getting real when it comes to monitoring bycatch in the small-mesh sea herring fishery. Recreational fishermen have been doing our part for years. It is time to close the loopholes and finally mandate the same from industry.

http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20100914/OPINION/9140316

Comments (4)
Posted by: Mike Flaherty | Sep 22, 2010 23:41

Update - we just filed a lawsuit.  The full text of that lawsuit may be found at the bottom of the following link...


http://www.honestbycatch.com/index.php?option=com_content&view=article&id=129:asssociated-press&catid=54:print-a-electronic-media&Itemid=86


Essentially we are suing the federal government and every state on the eastern seaboard to finally bring some sanity to river herring management.


And I'll say this, I have seen amazing things happen when recreational fishermen, commercial fishermen, and environmentalists put their differences aside to work where we all have common ground.  To bring that back home, that's something that I hope the many factions within Wareham will be able to do some day soon.


Best,
Mike Flaherty

 =====================================================


FOR IMMEDIATE RELEASE

September 20, 2010

 

Contact:
Roger Fleming, Earthjustice, (978) 846-0612
Raviya Ismail, Earthjustice, (202) 841-7619 (cell)
Warren Doty, Martha’s Vineyard/Dukes County Fishermen’s Association, (508) 564-0150


Lawsuit Filed to Protect River Herring and Shad
Agencies failed to prevent population decline of river herring and shad

 


Washington, D.C. — Commercial and recreational fishermen are challenging two government agencies for failing to protect river herring and shad from being caught and killed by Atlantic industrial fisheries.



The Atlantic States Marine Fisheries Commission and the National Marine Fisheries Service both are required to take measures to stem the decline of river herring and shad populations – and have failed to do so. Public interest law firm Earthjustice is representing the Martha’s Vineyard/Duke’s County Commercial Fishermen’s Association and angler Michael S. Flaherty in the lawsuit.



“Our communities depend on a healthy and abundant fish supply for their prosperity,” said Warren Doty, Executive director of the Martha’s Vineyard/Dukes County Fishermen’s Association.  “The game of ping-pong between the Commission and Fisheries Service – where each agency points their finger at the other to act and does nothing themselves – has led to the continued steep decline of river herring and shad.  It’s time for these agencies to take action and develop a plan that will rebuild our fish populations.”



River herring are a critical component of the coastal ecosystem along the Eastern seaboard, providing a significant source of food for a variety of fish, birds and mammals. Since 1985 there has been over a 90 percent decline in river herring populations, according to recent data. Shad is a separate fish species and similarly threatened. Both of these fish populations have been decimated by the unregulated catch by industrial midwater trawl fishermen.  These industrial trawlers are up to 165 feet long and can hold more than one million pounds of catch.  Though these ships attempt to catch sea herring and mackerel, they also scoop up millions of river herring and shad as “bycatch,” which are either discarded dead or sold along with these other fish as lobster bait.



“Recreational fishermen have been doing our part for years to ensure river herring populations have the chance to rebound,” said Mike Flaherty of Wareham, Massachusetts “It’s time to close the loopholes and mandate the same from industry.”



The lawsuit challenges both agencies for failure to conserve and manage river herring and shad populations under the Magnuson-Stevens Act and the Atlantic Coast Fisheries Cooperative Management Act.  These laws are in place to prevent overfishing, rebuild depleted stocks, establish annual catch limits and accountability measures and minimize bycatch – leftover fish usually killed and discarded.



The ASMFC is made up of state fisheries managers from the entire Eastern seaboard whose authority for managing coastal fish species is primarily exercised in state waters. NMFS is the federal agency charged with managing our nation’s ocean fish in federal waters – typically those more than three miles off the coast.  Both agencies have done little to nothing to managing the slaughter of river herring in federal waters or to prevent the population collapse of river herring and shad. River herring spawns in state waters but generally spends the majority of its life in federal waters.



“We have an unregulated federal fishery for river herring and shad,” said Roger Fleming, Earthjustice attorney.  “We are calling on these agencies to do what the law requires them to do – conserve and manage these fish. The time to act was yesterday.”



“Midwater trawling for herring and mackerel is an unsustainable fishing method that threatens all species of river herring, shad, groundfish, and other stocks through overfishing and the disruption of the ocean ecology,” said Doty.  “Midwater trawling undermines the viability of the traditional, more sustainable fishing methods we support.”



###



Posted by: Mike Flaherty | Sep 28, 2010 09:58

The Boston Globe did an article on this story today.  Complete with photographs from the Wareham river herring run at the Agawam river.

 

http://www.boston.com/news/science/articles/2010/09/28/lawsuit_blames_offshore_boats_for_herrings_decline/?page=1



Posted by: Mike Flaherty | Mar 14, 2012 07:58

** UPDATE **

 

I am very proud to report...

 

Victory for fishermen and conservation groups in battle with unsustainable industrial trawling


March 12, 2012


Washington, D.C.

 

In a court decision late Friday, U.S. District Court Judge Gladys Kessler found that the National Marine Fisheries Service (NMFS) has failed to take required action to address the catch of severely depleted populations of Atlantic river herring and shad populations by the New England industrial herring fleet.

 

The court found that a Fisheries Management Plan must protect all stocks that “require conservation and management” and may not unreasonably delay making such decisions. The court also found that the service failed to minimize bycatch in the herring fishery.

 

Atlantic (sea) herring, river herring and shad are critical components of the ocean and coastal ecosystem. Often referred to as “forage fish”, they are the most significant source of food for a variety of commercially valuable fish like cod, sought after sport fish like striped bass and tuna, and countless birds and mammals. Since 1985 there has been over a 90 percent decline in river herring populations. Shad is a separate fish species and similarly threatened.

 

“The industrial midwater trawl fishery is unsustainable. Without adequate protections in place, New England commercial and recreational fishermen are losing businesses and a way of life they’ve worked their whole lives for,” said Roger Fleming, Earthjustice attorney who represented the coalition in court. “Now federal fisheries managers will be required to protect fish at the bottom of the food chain which will lead to healthier oceans, rivers, and fisheries for everyone.”

 

Lead Plaintiff Mike Flaherty of Wareham, Massachusetts, said, “Recreational fishermen have been sacrificing for years to bring back river herring but when these fish are in federal waters it’s open season on them by industrial trawlers. With this ruling, this industry will finally need to play by the same rules as the rest of us.”

 

This court decision is the result of a lawsuit filed in April 2011 by a coalition of recreational anglers and charter-boat fishermen, and conservationists. NMFS must now be required to protect river herring, and reconsider catch limits, bycatch regulations, and accountability requirements across the Atlantic herring fishery.

 

“The science is clear. Atlantic herring and mackerel fisheries are being decimated by midwater trawlers indiscriminately scooping up depleted river herring populations as senseless bycatch,” said Rob Moir of the Ocean River Institute. “When river herring migrate from rivers to spend seven years in the Gulf of Maine the impacts of these particular mega-midwater trawlers are acute. The result is fewer river herring in our watersheds.”

 

Judge Kessler’s decision is also noteworthy for making clear, contrary to NFMS assertions in court, that recreational and charter boat fishermen have a stake in how forage species like herring are managed because they are the food for the fish they catch.

 

“The fall fishing season my business depends on was abruptly wiped out because a fleet of midwater trawlers moved onto our fishing grounds and stripped away all the bait fish in a matter of hours,” said Captain Alan A. Hastbacka, who owns and operates a striped bass charter fishing business out of Chatham. “The giant trawlers need to be reined in. This decision will protect the small businessmen who pump millions of tourist dollars into the New England’s economy every year.”



Posted by: Mike Flaherty | Mar 15, 2012 07:55

I have to clarify some confusion regarding the date shown for the beginning of this blog post.  It reads "March 1", but I originally posted this article back in September 2010.



For those unfamiliar with how content is viewed on Wareham Week, once a blog article has been submitted it is available to be viewed by anyone for free.  However after some time (30 days?), then the article is only viewable by those who are paid subscribers ($10/year).



I ran into this problem in the past where I commented on an old blog post of mine but it didn't show up under the comments section at all.  I spoke with Wareham Week about it, they recommended to change the scheduling start/end times for the article to be more current.  That worked.



So when I ran into the same problem while updating this very old article on the river herring lawsuit, I did the same thing.  However, come to find out, doing this doesn't just change the timeframe that it is scheduled to be "active".  It also actually changed the date of the article to appear as if it first appeared on the start date of the updated schedule.  So instead of saying, September 2010, it now says March 1, 2010. 



While most people could figure that out by simply looking at the dates of the comments, which are all from Sept 2010, I have just placed a note at the top of the original article to indicate so.



I also wish to clarify that there are actually two different lawsuits that were filed - each with a separate judge.  One lawsuit sought to challenge all east coast states and the federal government regarding their overall failure to manage river herring.  The second one sought to challenge only the federal government and their failure to address river herring bycatch within the separate "sea herring" fishery (among other things).

 


The lawsuit mentioned in the first post of this blog was filed in September 2010.   Martha's Vinyard Fisherman's Association is the lead plaintiff on this one.  I am a co-plaintiff.



See:
September 20, 2010 Filing of Martha's Vinyard Fishing Association V. Locke {and THREE pages of other defendants}
http://www.honestbycatch.com/images/stories/river_herring/2010/Fed-State-River_Herring_Complaint.pdf

 


In this first lawsuit, the judge granted the defendants' motion to dismiss.  Not to get too technical, but it is always tough to hold the states accountable in fishery management processes.  We are appealing the dismissal, and in light of the findings from the second lawsuit, I am increasingly optimistic that we will prevail in this one too.



The second lawsuit is the one I posted the update to yesterday.
  It was filed on April 11, 2011.  I am the lead plaintiff on this one.



See:
April 11, 2011 filing of Flaherty V. Locke
http://earthjustice.org/sites/default/files/Riverherringshadcomplaint.pdf



See:
March 9, 2012 Court Opinion in Flaherty V. Bryson
(Locke was changed to Bryson when he became the President's new Secretary of Commerce)
http://earthjustice.org/sites/default/files/KesslerA4Decision.pdf



We scored major wins on the issues that were the most important in this lawsuit. I'm very happy with the Judge's findings (and there's 74 pages of them).



While the Judge did agree with many of our points, the matter of "remedy" was left open-ended because concurrently fishery managers are working on an amendment to the Sea Herring Fishery Management Plan that may be able to address some of our concerns.  Beyond that amendment other remedies are being negotiated.  The point though is that whatever is negotiated will need to comport with the judge's findings.



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