Issue: April 2011
BAY JOURNAL: Whose Fish Is It?

Hoping to break an impasse between two fishery services, Earthjustice takes on the case of the shad . . . and sues them both.

by Karl Blankenship

What to do when the fate of a fish is in the hands of two different agencies, and neither is doing what's necessary to save the species? Sue them both, of course. That was precisely what Earthjustice did late last year. The national legal advocacy nonprofit (originally the Sierra Club Legal Defense Fund) filed suit against both the Atlantic Coast Marine Fisheries Commission (ASMFC) and National Marine Fisheries Service (NMFS), saying the two agencies have turned responsibility for protecting shad and river herring populations into a finger-pointing and buck-passing game while the fish stocks declined. Spawning populations of these once abundant fish are at or near all-time lows along the coast and in the Chesapeake's tributaries.

The suit contends that fishery managers have done little to prevent the fish from being caught as bycatch in ocean fisheries. "There has just been finger-pointing," says Earthjustice attorney Roger Fleming. "These population levels have dropped so significantly that we have to do everything that we can to avoid their bycatch."

River herring include two species, alewives and blueback herring. Like shad, they are anadromous, meaning they return to their native rivers to spawn, but spend most of their lives offshore, migrating up and down the East Coast. Most of the fishing pressure on these species historically has been in rivers, during their spring spawning runs. As a result, their catches have been regulated primarily by the ASMFC, which has ratcheted back allowable inshore catches over the years.

Much of the problem, according to the suit, is that the ASMFC's jurisdiction only includes state waters. The fish spend most of their lives in federal waters (more than three miles offshore).

Anecdotal evidence suggests that large numbers of shad and river herring are caught by offshore fisheries targeting other species (mackerel and Atlantic herring, for instance)--potentially more than the total caught in the few remaining inshore fisheries.

Last year, the ASMFC asked the federal government to take emergency action to gather data about bycatch of shad and river herring in federal waters, but their request was rejected. "That was one trigger for the suit--seeing the ASMFC ask for emergency action, and being denied pretty bluntly," Fleming says. Federal managers have said that data indicating excessive bycatch of shad and river herring is poor and too anecdotal to constitute an emergency. But the suit says the NMFS is as much to blame for that as anyone, by not seeking better data on the bycatch--that is, putting observers on vessels.

The NMFS has never developed a management plan for shad and river herring because the fish are not targeted in federal waters. But the suit contends that the federal Magnuson-Stevens Act requires the NMFS to develop management plans for any species that is overfished, and furthermore to control bycatch of vulnerable species in the offshore fisheries.
The ASMFC is to blame, the suit contends, because it failed to collect adequate data about the species--data that would have allowed it to set coastwide bycatch limits for shad and river herring. The suit also says the ASMFC's existing management plans for the species have failed to adequately protect the stock.

Neither agency comments on active legal matters, but several conservation groups have applauded the action. "We are finally airing out this argument between state and federal responsibilities," says Pam Gromen, executive director of the National Coalition for Marine Conservation. "Finally, I'm hoping, we'll have a definitive decision for the responsibility for managing these fish in federal waters."

Shad, and to a lesser extent river herring, have been restoration priorities in the Bay watershed. But the spawning runs have shown little improvement in Bay tributaries, despite the tens of millions of dollars spent over the years on hatchery and stocking programs and, more notably, dam bypasses that allow the fish to swim farther upstream.
The regional management councils that develop fishery plans for federal waters have begun considering amending management plans to protect shad and river herring, but advocates say any final decision is likely years away. They hope the suit leads to accelerated action.

"You have species that probably could qualify for endangered species listings in some areas," said Ken Stump, policy director of the Marine Fish Conservation Network. "They don't really have the luxury of waiting until we get our act together." 

This article is adapted from the Bay Journal News Service, a syndication service specializing in Bay environmental issues. Karl Blankenship is the editor of both the news service and the monthly Bay Journal newspaper.