The decision is the latest to come out of a yearslong debate over whether NMFS adequately manages the river herring and shad species. The forage fish are an important food source to many larger species, including popular sport fish, and their numbers are in decline.
Roger Fleming, a staff attorney at Earthjustice, said the order means NMFS must consider immediately adding the species to the fishery management plan under the Mid-Atlantic Fishery Management Council.
“The National Marine Fisheries Service invested millions of federal dollars in state waters habitat restoration for river herring and shad but continues to undermine their recovery by failing to protect them in federal waters,” he said, later adding in a statement: “The agency’s own scientific data shows these fish are caught and killed by the millions in Atlantic mackerel and herring fisheries and need protection.”
The controversy began in 2013, when the Mid-Atlantic Fishery Management Council voted to not pursue a proposal that would have added river herring and shad to a fishery management plan. Instead, the council recommended — and NMFS approved — provisions that set up limited protections for both species.
Earthjustice sued over both actions, filing lawsuits on behalf of the Anglers Conservation Network, Gateway Striper Club Inc. and others. The U.S. District Court for the District of Columbia sided with NMFS in the first case, and a federal appeals court upheld that decision earlier this month (Greenwire, Jan. 5).
But conservationists were more successful with the second lawsuit, which took aim at the plan NMFS approved.
In yesterday’s order, District Judge Gladys Kessler ordered NMFS to conduct an in-depth environmental analysis that specifically considers whether to add river herring and shad to the fishery management plan. It comes after her October decision finding that NMFS violated the National Environmental Policy Act by not considering a range of options for protecting river herring and shad.
Kessler also ordered NMFS to ensure the council “prepares a draft decision document on the issue of stocks in the fishery,” including an analysis of whether to add the species to the fishery management plan. The council must vote on whether to recommend changes in its October meeting.
If added to the fishery management plan, river herring and shad would get numerous protections, including a catch limit based on the best available science. Fishery managers would also have to set rebuilding goals and identify essential fish habitat.
