Recent decisions in lawsuits against the federal government have led some to conclude that federal fishery regulators are not doing enough to verify that herring boats are accurately reporting what they catch.

"I feel the agency (the National Marine Fisheries Service) is not looking at all the data available to them and how fishermen are saying the data misrepresents the impact (of the herring fishery on other species)," said Roger Fleming, an attorney for the environmental law firm Earth Justice, who argued both cases.

In December, Chatham fishermen Peter Taylor, Bob St.Pierre and Stuart Tolley sued the fisheries service to require herring boats bring the entire catch on board to give observers the opportunity to see everything that is being hauled in. When the agency issued a new rule in November 2009 that was intended to rein in bycatch in the herring fleet, it also included a provision that allowed herring boats to dump whatever remained in the nets that couldn't be brought on board using a pump.

Herring captains had argued that it would take too long to bring the remaining fish, estimated at 1,000 pounds or less, onto the vessel and it might be unsafe in rough weather. But the Chatham fishermen felt there was a high likelihood that what remained in the net could be larger species like cod, haddock and marine mammals.

Taylor was upset that herring boats were allowed to release what is in their nets before it gets inspected.

"(When carrying an observer), everything I catch has to be sampled. I don't get to throw anything overboard. If I do, I'm inviolation. Why not these guys?" Taylor asked. "It's a huge loophole."

This was especially galling to some because they believed that bycatch was high in areas that had been closed to fishing since 1994 as an emergency measure intended to give groundfish stocks like cod, haddock and flounders sanctuary from rampant overfishing. Herring fishermen were allowed back into closed areas in 1998 as long as they could show they weren't harming groundfish stocks that are still in need of protection.

"These are the biggest most efficient fishing vessels in New England," said Tom Rudolph, herring campaign director for the Cape Cod Commercial Hook Fishermen's Association. "They are fishing on the forage species that are the foundation of our fishery."

Last week, the fishermen reached an agreement with the fisheries service that the agency must reopen public comment on the issue and possibly adjust the rule, which only applies to the closed areas.

In a similar case, a District of Columbia federal magistrate last week ruled that the fisheries service hadn't sufficiently justified its reasons for denying a petition by Maine fishermen asking to ban herring boats from areas closed to protect groundfish. Judge John Facciola wrote in his decision that the agency had not rebutted or addressed the fishermen's contention that bycatch estimates were not based on reliable data. He sent the matter back to the fisheries to come up with better information to support its denial of the petition.

"We are consulting with the Department of Justice to determine the next steps," NMFS regional administrator Patricia Kurkulwrote in response to the decision.

The New England Council's herring committee meets today and tomorrow in Portland, Maine, and will look at how to improve the reliability of their catch data. The council hopes to include any possible remedies as part of new regulations that are slated to go into effect in 2012.

Sign our latest petition. Urge the Mid-Atlantic Fishery Management Council to protect vulnerable populations of river herring and shad from being caught as bycatch in industrial-scale trawl fisheries.

The comment period is only open through Friday, July 9 so please act now. Your letter can make a difference.

Paul Earnshaw, president of the Buckeye Brook Coalition, has issued an appeal to members and those interested in preserving the brook's herring run to support regulations to measure the numbers of the fish caught by offshore trawlers.

"We have done everything we can from land," Earnshaw says pointing to the ban on taking the fish as they make their spring spawning runs and the construction of fish ladders or the removal of stream obstructions including dams so as to improve their chances of spawning. Also, he noted the hundreds of millions spent on the combined storm overflow system in Providence to prevent the release of untreated wastewater into the bay during periods of heavy rainfall.

"This is the best opportunity we have ever had to make changes," Earnshaw argues.

His hope is that 5,000 people send letters or sign petitions to the Mid Atlantic Fisheries Council requiring the fishing industry to record the numbers of herring caught by the July 9 deadline for public comment. The council is in the process of considering Amendment 14 to the Atlantic mackerel, squid and butterfish fishery management plan that also takes into account actions that could affect river herring. The council is in the process of gathering information to decide whether it should move forward to develop management alternatives. The next step would be an environmental impact statement.

The scoping document prepared by the council notes that while a river herring stock assessment is not likely to be available until next year, indications are that stocks are at relatively low levels. It goes on to say that actions related to the issue could include additional at-sea monitoring, dockside monitoring, modifications to monitoring and reporting requirements, area closures where there are incidental catches of river herring and other measures to reduce the incidental catch of river herring and shads.

As it is now, Earnshaw said fleets trawling for sea herring that spawn at sea frequently net river herring as a by-catch. These fish are tossed back, but by then they are dead.

"We need to know what they're catching," he says.

Further, he contends that actions of these trawling fleets that use spotter planes and giant, highly efficient nets virtually sweep the sea clean of not only sea and river herring but also many other species.

Another action the industry is using is "pair trawling" where two vessels with a net stretched between them cover vast areas to scoop up schools of fish, he said.

"There's no limit to what they catch. They can't keep doing it," he said.

And what's happening offshore Earnshaw contends is impacting herring runs in Buckeye Brook and other locations. He said 8,300 herring were counted in this year's run as compared to 31,000 last year. Thirty years ago the fish were so plentiful that for days the stream that flows from Spring Green and Warwick Ponds to Mill Cove was packed with the fish to the point where they flopped on the banks. As the runs depleted a ban on the netting of herring, used as bait by sport fishermen, was imposed.

John Torgan, baykeeper with Save the Bay said, "We need to do everything we can to save the herring." He said that Save the Bay supports the use of observers to monitor what offshore fleets are catching.

Torgan said there are differing opinions on why there has been a decline in river herring. He said there was a dramatic drop in runs starting in 2000 that was followed by bans in Connecticut and Massachusetts. Rhode Island was the last of the states to ban possession of the fish.

One theory is that increased water temperatures have affected migratory patterns, although that hasn't been proven. Then there is the belief, he said, "that a lot of river herring are getting caught up" with the catching of sea herring.

Department of Environmental Management fisheries biologist Phil Edwards said that this year's herring runs were "site specific."

"Some were better and some were worse, but either way they were much lower than 2001," he said. Edwards added, however, that this year's runs were better than those of 2005 and 2006.

Additional information is available from the Herring Alliance at herringalliance.org and Earnshaw at 739-6592.

Dowling is among dozens of volunteers this spring watching for the piscine version of the swallows returning to Capistrano. River herring are silvery, iridescent fish that spend much of their adult life in the ocean before returning to estuaries to spawn. The name refers to two species, alewives and blueback herring. The fish arrive in the Hudson River in April and May, en route to freshwater tributaries where they reproduce.

The bony fish, which can grow to a little more than a foot in length, are one of the building blocks of the Hudson — delicacies to other fish and birds as well as anglers who enjoy pickled herring or need bait for striped-bass fishing. But as their numbers crash along the East Coast, scientists are trying to figure out how herring use the river.

The state Department of Environmental Conservation began its Volunteer River Herring Monitoring Program in 2008. That effort is in addition to the DEC's Hudson River Fisheries Unit evaluating the future of herring fishing in the Hudson. By July, the state has to submit a plan to the interstate commission coordinating the management of shared fisheries along the East Coast. The bluebacks and alewives returning to the Hudson and elsewhere each year circulate in the Atlantic Ocean from Maine to Florida.

"Not many people know about the decline of herring along the coast. It's not a sexy sport fish," said DEC fisheries biologist Bob Adams.

Population numbers are hard to come by. The Atlantic States Marine Fisheries Commission blames that on a lack of data from both the fishing industry as well as independent sources. The commission does point out commercial landings of river herring along the coast dropped from 13.7 million pounds in 1985 to less than 1 million pounds in 2007.

The state's data doesn't support having a "sustainable" fishery in the Hudson, said Andy Kahnle, who heads the Hudson River Fisheries Unit. Sustainable means adults and production of young are not in decline. The herring collected in the Hudson, he said, are getting smaller in size. Smaller fish are younger fish, which don't reproduce as well as older fish.

River herring, like other fish in the Hudson, face myriad survival pressures. Habitat loss, invasive species and ocean bycatch are considered possible causes of decline. Bycatch refers to ocean trawlers inadvertently catching one species while targeting another. The commission considers the bycatch of river herring by boats seeking Atlantic herring to be "a significant concern."

But some in the fishing industry disagree. Mary Beth Tooley of Small Pelagic Group, an organization representing Maine-based Atlantic herring and mackerel vessels, and a member of the New England Fisheries Management Council, said the industry is developing plans to minimize bycatch. Atlantic herring, which spend their entire lives in salt water, are different fish than river herring.

"I don't think it's a major cause of decline. I don't think we have enough data to say," she said.

Massachusetts, Rhode Island, Connecticut, Virginia and North Carolina have closed their river-herring fisheries. Presently, there is no daily limit on how many river herring anglers can take in New York. That will probably change.

"Our data are not good enough to defend the status-quo fishery as sustainable," DEC's Kahnle said. "Therefore, we plan to propose a restricted fishery ... with the commitment to monitor lengths, juvenile abundance, and catch rates in the fisheries."

More information is where Dowling and other volunteers play a role. With about 150 miles of estuary (the portion of the Hudson affected by saltwater and tides, from the Battery to Troy) and about 70 major tributaries (freshwater streams and rivers flowing into the Hudson), there is a lot of water to eyeball.

Volunteers visit one of eight specific tributaries twice a week and look for herring for 15 minutes. In Westchester, the Pocantico River in Sleepy Hollow and Sprout Brook in Cortlandt are being monitored.

By the study's midpoint in the first week of May, herring had been sighted everywhere but the Pocantico, which was bad news for Trish Lindemann. She takes her 7-year-old twin boys there to search for herring.

"I think you sort of have to like being outside and observing the wider world around you," said Lindemann, who handles the business end of her and her husband's New York City law firm. "Believe me, I'll be thrilled if and when we see a fish."

Others have gotten lucky on Sprout Brook but not Dowling. As of May 21, her forays have been fishless. For her, it's been about the Hudson overall.

"Anything I can do to help keep it healthy, I'll get involved," she said.