Judge: Fisheries erred in bluefish limits

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ST. CROIX - A federal judge has ordered the National Marine Fisheries Service to redo a portion of a biological opinion that was part of the process in setting annual catch limits for bluefish - also called parrotfish - in federal Caribbean waters.

The court found that the National Marine Fisheries Service needs to do a better job of monitoring the impact that the catch limits it established for bluefish have on the health of threatened corals, so that the matter can be revisited if necessary to protect the corals.

Bluefish is a popular dish on St. Croix, where fishermen target the species because there is a local demand for it. On St. Thomas and in Puerto Rico, bluefish is generally considered "by-catch," marine life caught unintentionally while fishing for something else.

The Sept. 30 court order came in a lawsuit brought last year by The Center for Biological Diversity and related plaintiffs, contending that when catch limits were approved for Caribbean fisheries, the National Marine Fisheries Service ignored science showing that bluefish and other grazing fish play a key role in promoting the health of coral reefs.

Bluefish provide protection for corals by grazing on algae that otherwise would smother the reef, according to statement the plaintiffs in the case released Monday.

The lawsuit dealt with the Endangered Species Act and whether the National Marine Fisheries Service properly considered the effect that the catch limits it set for bluefish and another fish, surgeonfish, would have on elkhorn and staghorn corals, which are listed as threatened species.

Ultimately, U.S. Senior District Judge Salvador Casellas of Puerto Rico granted summary judgement in part for The Center for Biological Diversity and other plaintiffs, finding that the methods the National Marine Fisheries Service planned to use to monitor the impact of commercial fishing for bluefish on elkhorn and staghorn coral were inadequate.

The judge found that the federal agency's monitoring plan was invalid because, as a baseline matter, the agency did not know how many bluefish were present to begin with and did not plan to monitor the impacts of the fishery on the bluefish themselves.

The court concluded that the agency had illegally failed to establish an adequate procedure for verifying whether its fishing plan was preventing excessive harm to the threatened elkhorn and staghorn corals.

The judge found that the National Marine Fisheries Service "committed legal error" when it issued a biological opinion - which was required in this situation under the Endangered Species Act - that was inadequate in that way.

He remanded a portion of the biological opinion back to the agency for reconsideration.

That portion is called an "Incidental Take Statement," and discusses the impact of incidental or indirect "take" - the likelihood of injury to the threatened corals "by annoying it to such an extent as to significantly disrupt normal behavioral patterns," according to the court opinion.

Among other things, the Incidental Take Statement sets the impact of the incidental or indirect "take," and discusses related issues, such as terms and conditions to minimize the impact, according to the opinion.

The Incidental Take Statement also includes a plan for monitoring the impact on the threatened species, because if the estimated "take" on the corals as established in the statement is exceeded, then officials would have to restart the entire process required under the Endangered Species Act to ensure that the action is not jeopardizing the species.

Casellas found problems with the way the National Marine Fisheries Service intended to monitor the effect of commercial fishing for bluefish and surgeonfish on coral reefs.

He ordered the Incidental Take Statement remanded to the National Marine Fisheries Service for reconsideration and ordered that by Nov. 11, the National Marine Fisheries Service file a motion proposing a timetable for revising the statement.

He ruled in favor of the National Marine Fisheries Service on two other issues brought forth in the lawsuit. He also pointed out that the catch limits - which were implemented last year - actually should result in a decrease in the fishing of bluefish, and therefore higher populations of the fish.

Because of the federal shutdown, The Daily News was unable to reach anyone with the National Marine Fisheries Service for comment on the decision on Monday.

The plaintiffs put out a joint statement that was released Monday afternoon. The lawsuit was filed by Earthjustice on behalf of two conservation groups, CORALations and the Center for Biological Diversity, and Mary Adele Donnelly.

"We know that corals face increasing threats from climate change and disease. Keeping a healthy, diverse population of algae-eaters on the reef is crucial to keeping coral reefs healthy," Andrea Treece, of Earthjustice, said in the statement.

"The corals in the Caribbean are dying - anyone can see it. This decision means that there will be enough parrotfish around for a healthy coral reef that could then become home for even more precious reef wildlife," Miyoko Sakashita, oceans director at the Center for Biological Diversity, said in the release.

- Contact Joy Blackburn at 714-9145 or email jblackburn@dailynews.vi.

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