This article was first published in National Fishermen and appears here with permission.
Unloading herring in Massachusetts. Newburyport Daily News photo.
A federal court ruling could reopen some Northeast waters to mid-water herring trawlers, after a 2019 rule change that shut them out of a broad swath of the nearshore Atlantic from Long Island to the Canadian border.
U.S. District Court Judge Leo Sorokin in Boston ruled March 4 in favor of a lawsuit brought by the Sustainable Fisheries Coalition, a trade group representing companies that fish for herring and mackerel. In November 2019 NMFS approved a measure from the New England Fishery Management Council to create an exclusion zone for mid-water trawling 12 miles offshore — with a bump out to 20 miles east of Cape Cod.
It was a culmination of two decades of debate over the impact of mid-water trawling, and complaints from other fishermen that it caused “localized depletion” of forage fish, disrupting ecosystems and their seasonal access to groundfish, tuna and other species.
“The council recommended the midwater trawl restricted area to mitigate potential negative socioeconomic impacts on other user groups resulting from short duration, high-volume herring removals by midwater trawl vessels,” NMFS Northeast regional administrator Michael Pentony wrote in 2019 in a decision letter approving the New England council’s proposal.
But in his opinion Judge Sorokin wrote that the “localized depletion” concept has not been adequately defined by the agency. That led him to decide the exclusion zone decision violated National Standard 4 of the Magnuson-Steven Fishery Management and Conservation Act.
NMFS “failed to identify a rational connection between the facts found and 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,’” the judge wrote. Yet NMFS “could not identify any scientific evidence of localized depletion, let alone establish a link between MWT vessels and localized depletion.”
Quoting the law, Sorokin wrote that National Standard 4 states that “conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.
“Assuming without deciding that the Defendant (NMFS) could reasonably recognize the exclusion zone as an allocation for the first time in the final rule, the Court finds that the Defendant did not comply with National Standard 4 and, specifically, its obligation to explain how the rule is “reasonably calculated to promote conservation,” the judge wrote.
Before the 2019 decision, estimates by the New England council and industry sources foresaw a 30 percent reduction in the mid-water fishery’s revenue. In a March 11 statement mid-water boat operators said Sorokin’s ruling could help them.
The court's decision may be a boon for New England herring trawlers. Above, herring vessel Sunlight, Photo courtesy of O'Hara Bait
“In recent years, we’ve relied on this area for most of our catch,” said Gary O’Neill, who owns the mid-water trawlers Endeavour and Challenger and the Cape Seafoods processing plan in Gloucester, Mass. “This was an existential threat to our livelihood. This decision is a huge relief.”
In its lawsuit the Sustainable Fisheries Coalition argued the New England council’s science advisors could not identify adverse impacts from mid-water trawling but that opponents’ persistence and political influence persuaded the council and NMFS.
“The law is the only protection a small fishing sector has against a well-represented majority,” said Shaun Gehan, an attorney for the mid-water fishermen. “We are pleased the judge recognized this measure lacked a meaningful conservation benefit, not to mention fairness and equity, as the law demands.”
“The main problem with the process was that it was couched as addressing so-called ‘localized depletion,’ which scientists were unable to identify,” said Wayne Reichle, president of Lund’s Fisheries, operators of the mid-water trawler Enterprise and a processing plant at Cape May. N.J. “This is an issue of user conflicts and should be addressed as such.”