Fishermen Challenge Federal Agency

Recreational and commercial fishermen have filed separate
actions against the National Marine Fisheries Service (NMFS) seeking to
close loopholes in the way it monitors the industrial Atlantic herring
midwater trawl fleet and bring accountability to this fishery.

Today, recreational fishing advocate Patrick Paquette of Hyannis,
Mass. filed a complaint under the Freedom of Information Act to obtain
a NMFS video previously shown at a public meeting of the New England
Fishery Management Council (NEFMC) Herring Oversight Committee, which
showed footage of federal observers on board a midwater trawl ship.

The council is in the process of developing a comprehensive
monitoring system for the Atlantic herring fishery, and the industrial
midwater trawl fleet is currently under review by regulators due to
evidence that the fishery catches large amounts of threatened
groundfish, river herring and marine mammals as "bycatch," species
caught unintentionally while targeting Atlantic herring.

The video provides important insights into the sampling procedures
of federal observers and the loopholes in the monitoring program that
stakeholders like Paquette have been working to correct. The video has
never been posted with the other meeting materials online, as is
customary, and shows rare footage of fishing operations and monitoring
valuable to those who are participating in the development of new
regulations.

"Representatives of the herring trawl industry refer to this video
at meetings as if it has the weight of a report by the federal observer
program because that is what it allegedly was," said Paquette, who
represents multiple recreational fishing organizations including the
60-year-old Massachusetts Striped Bass Association. "This is supposed
to be a clear and open public process, but I have run out of places to
ask for a copy of the video, so my only option is to ask a federal
judge."

"The agency's refusal to provide Mr. Paquette with a copy of the
video after showing it as part of a public policy-making meeting is a
baffling move by NMFS," said Roger Fleming, attorney with Earthjustice.
"It begs the question: 'What is it they are trying to hide?'"

In a separate filing also related to monitoring in the herring
fishery, Captain Peter Taylor of Chatham, Mass. filed suit last
Wednesday against NMFS for creating a new loophole in a rule that will
allow herring vessels to dump uninspected bycatch when fishing in an
area closed to most fishermen for the specific purpose of protecting
troubled groundfish stocks.

The area southeast of Cape Cod, known as Closed Area 1, has been
identified as a spawning ground and nursery area for juvenile cod and
haddock. These waters are currently off-limits to nearly all other
fishing vessels. Captain Taylor requested that the court require NMFS
to reconsider a loophole that allows herring vessels to dump certain
pre-sorted catch with no inspection and no accountability.

"This comes down to fairness," said Taylor. "I just want herring
trawlers held to the same standards when they fish in that area as I
am, and that means they shouldn't be allowed to discard fish that the
observers haven't inspected properly. When I am observed, all the fish
in my gear is counted, and I still fish with hooks. But herring trawl
nets are massive, with way more impact, and to only observe part of
their catch just isn't right."

The original rule proposed by NMFS was a reasonable approach to
gathering more data about bycatch by midwater trawl vessels. The final
rule incorporated a change allowing for the dumping loophole. The
original rule received an overwhelming number of public comments
supporting it.

"The law frowns upon surprises like this one that reverse the
direction of proposed rules," said Fleming. "It deprives the public of
their statutory right to notice and a meaningful opportunity to be
heard."

Herring trawlers can stretch up to165 feet and hold more than one
million pounds of catch. They drag massive nets behind them that are so
big that one net is often towed by two vessels in a practice called
pair trawling, and the net's small mesh is capable of catching
everything in its path. This type of vessel came to New England's
waters only 15 years ago, and was quickly found to be out of scale with
the region's traditional fishing fleet. Many fishermen believe that
these trawlers are causing the fragile marine ecosystem to collapse.

Both of the actions challenged appear to conflict with the new White
House policy on open government. For a copy of the President's
directives on government transparency and open government issued on his
very first day in office, please see the following: Presidential
Memorandums to the Heads of Executive Departments and Agencies re:
Freedom of Information Act, and Transparency and Open Government, 74
Fed. Reg. 4683, 4685 (January 26, 2009). https://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment/