February 22, 2018
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Court: Group must review fish petition

By Heather Steeves, BDN Staff

A federal court has ordered the National Marine Fisheries Service to reconsider a petition by a group of Port Clyde fishermen who filed a civil action lawsuit against the agency.

The lawsuit was filed in 2007 after the fisheries service denied a petition by the fishermen requesting that the agency stop trawlers from dragging their nets through federally protected groundfish spawning areas.

The fisheries service is responsible for management, conservation and protection of marine resources in waters three miles to 200 miles offshore.

According to Glenn Libby, chairman of the Port Clyde-based Midcoast Fishermen’s Association, the federal agency has designated certain areas in that zone as off-limits to most fishing to protect spawning for groundfish such as cod, haddock, pollock and flounder.

The service has allowed industrial trawlers to drop their nets into the middle of the water column to catch herring in the groundfish spawning areas.

The Midcoast Fishermen’s Association argues, however, that the trawlers might be fishing outside of the designated midwater area and lowering their nets too far down near the groundfish.

Libby said the petition arose after lobstermen who buy herring for bait from the trawlers noticed an increase of groundfish mixed in with the herring.

The association’s petition to the National Marine Fisheries Service asked the agency “to take emergency action to address continued overfishing in the Northeastern multispecies fisheries by excluding midwater trawl vessels from groundfish closed areas.”

The National Marine Fisheries Service denied the petition, stating that the New England Fishery Management Council, which helps the service on fishery management issues, had considered prohibiting midwater trawls in the closed areas but “determined that the bycatch was not sufficient to justify this action.”

In its reasons for the petition denial, the service’s assistant administrator, William Hogarth, wrote that “your petition does not contain significant new information that demonstrates an emergency in the fishery.”

But according to U.S. Magistrate Judge John Facciola’s decision released this week, the National Marine Fisheries Service did not give a thorough enough explanation for the denial.

“The agency drew a scientific conclusion that the data suggested an acceptable level of bycatch [groundfish], but it did not provide anything to support this conclusion, not even the data itself or the level considered acceptable,” the judge’s opinion states. “The agency implicitly rejected without explanation the Petition’s con-cern.”

Earthjustice attorney Roger Fleming, who represented the Midcoast Fishermen’s Association, said it is typical for a judge to rule in favor of governmental agencies. So although neither side got summary judgment, Fleming is counting the ruling as a victory.

“I am still baffled as to how [the National Marine Fisheries Service] denied the petition in the first place,” Fleming said Friday.

The agency now will have to look at the petition again. Fleming said it is possible the agency still will deny the request.

“They are back at square one, and I think they received some pretty strong messages from the court,” Fleming said.

Maggie Mooney-Seus, communications officer for the Northeast region of the National Marine Fisheries Service, said her organization is talking with the U.S. Department of Justice to determine the agency’s options.

“We’re figuring out the next steps,” Mooney-Seus said Friday.

Attempts on Friday to reach trawler operators or their representatives were unsuccessful. But last year Mary Beth Tooley of Camden, then a spokeswoman for the Small Pelagic Group, told the Bangor Daily News that midwater trawl fishermen targeted by the lawsuit felt their fleet does not negatively affect federally protected groundfish stocks.

“It is a highly politicized issue, and there is not enough data to support these assertions,” Tooley said in July 2009. Three of the fishing vessels in the Small Pelagic Group have their home ports in Maine, including the Starlight of Vinalhaven and the Sunlight of Rockland, which use long nets to trawl for herring in the middle of the water column.

Gerry Cushman, a lobsterman who fishes out of Port Clyde, said Friday that he was on the Midcoast Fishermen’s Association’s side, even though keeping the trawlers away could deplete his supply of herring.

“It could hurt lobstermen. We might not be able to get the herring to keep us lobstering — it could hurt us in that area, but I don’t think lobstermen want to kill another fishery,” Cushman said.

The next New England Fishery Management Council Herring Oversight Committee meeting is scheduled over a two-day period beginning at 9:30 a.m. Tuesday, July 27, and 9 a.m. Wednesday, July 28, at the Holiday Inn by the Bay in Portland. The committee will discuss issues surrounding monitoring bycatch, including groundfish, in herring fishing. The meeting is open to the public.

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