MINISTERS are facing a new legal clash with fishermen who say they face losing their livelihoods after being banned from an area of Scotland to protect an endangered fish.
Creel fishermen and scallop divers are furious that a blanket fishing ban has been imposed over one of the largest nesting sites for the critically endangered flapper skate ever found in the Inner Sound off Skye despite the Scottish Government's nature agency saying they were either low or zero threat.
The move has caused even more anger because it was the same fishermen who raised concerns for the flapper skate in the area and the impact that might be caused by more invasive dredging or trawling in the area.
It was announced that the area has been given marine protected area (MPA) status by the Scottish government.
It will come into force on Wednesday (March 17) and prohibit some activities such as fishing, diving and construction.
NatureScot, said the Skye habitat was of "national importance for the species".
But its advice to its sister Scottish Government agency Marine Scotland, seen by the Herald on Sunday states that the "severe" risk came from trawling and dredging in the area.
Some have said the blanket ban "looked like payback" after the Scottish Creel Fishermen's Federation (SCFF) took ministers to court over failings over a would-be no-trawling test and won.
In a landmark legal judgment, the SCFF won a court challenge over the "right to trawl" in Scotland's inshore waters which was expected to have a marked bearing in fishing rights across the country.
The fishermen successfully argued in a judicial review that the decision to reject the pilot scheme in the Inner Sound was unlawful because the Scottish Government only took into account opposition and did not properly assess the proposal - including examining benefits and the wider issues of inshore fisheries management.
The case was brought on the basis that ministers rejected the pilot because of the objections which were mainly from the trawler fishing communities instead of applying their own reasoned consideration.
Mobile fishing, through trawling and dredging, can often come into conflict with static methods.
Ministers are currently contesting Lady Poole's order that they reconsider the pilot scheme originally rejected by Marine Scotland, which oversees fisheries.
The SCFF had accused ministers of acting unlawfully by "listening to its cronies" in the industrial trawling sector in ending the pilot scheme which it is believed could have brought greater benefits to the economy and the Scottish marine environment.
But the newest Court of Session and High Court judges Lady Poole ruled in the SCFF's favour saying it is was entitled to expect the plan is "properly" reconsidered "with an open mind".
Alistair Sinclair, national co-ordinator of the Scottish Creel Fishermen's Federation said there were legal action discussions being held adding: "This looks like payback for having the cheek to take government to court We were instrumental in finding the site and are now being punished for doing so.
Alistair Sinclair, right and Scott MacFarlane, creel fishermen aboard the Guess Again on Loch Fyne
"Jobs will go with huge impacts on coastal communities, future opportunities for employment for our young folk will disappear with entire communities being affected."
Robert Younger, solicitor with Fish Legal, which supported the creel fishermen's case against ministers added: “NatureScot advised that scallop diving has no impact on flapper skate so one has to ask why the Scottish Government has decided to ban this activity within the new protected area.
"Having already taken the Scottish Government to court over their rejection of the Inner Sound sustainable fishing pilot we will again be closely assessing our legal options to challenge this unnecessary and prejudicial scallop diving ban.”
Dr Suzanne Henderson, NatureScot marine ecosystems manager told Chris Rickard of Shark and Skate Citizen Science Scotland who helped discover the flapper skate eggs in an email seen by the Herald on Sunday that they had not advised that there was any threat from diving of any sort.
"Creel fishing was considered in more detail but our assessment concluded that the risks from this activity were low," she said.
The flapper skate has been listed as critically endangered since 2006 as a result of overfishing.
READ MORE: Fishermen mount court challenge over ministers' 'unlawful right to trawl" in Scots waters
They remain absent from large parts of their former United Kingdom distribution, such as the Irish Sea and the North Sea, with the west coast of Scotland the last remaining stronghold for the species.
Flapper skate take more than 10 years to reach sexual maturity and produce low numbers of offspring, meaning populations recover slowly from any negative impact such as habitat loss.
The adult fish hunt for prawns, other skate and small sharks in deep water.
The Skye MPA designation will initially be in place for 12 months.
The Scottish government said any proposals to extend the designation for longer would be subject to a "full stakeholder engagement process, public consultation and impact assessments"
But NatureScot has said that they anticipate being able to complete assessment work and provide final advice to support consideration of permanent protection of the egg-laying habitat in the Inner Sound by the end of June 2022 - in 15 months.
Alistair 'Bally' Philp, deputy chairman of the North West Inshore Fisheries Group said there were 35 full time creel boats and around four scallop dive boats who fish the Sound - and warned that the move by ministers could put boats out of business.
He said: After a two year battle by local fishermen and conservation groups to ensure this site gets protected from dredging and trawling we now find ourselves questioning as to what motivated the Scottish government to disregard the advice they received regarding both the extent of the site and also those activities that required to be excluded to facilitate the management objectives.
"We have written to the fisheries minister for an explanation, though we suspect this is just more of the same old marginalising of low impact fisheries like creel and dive in favour of the interests of wider industrial fisheries interests. Whatever the motivation we very much doubt the government are acting in the wider public interest.
Fishing during the Covid Lockdown off the Isle of Skye featuing Bally Philp
In his letter to rural economy secretary Fergus Ewing, he added: "To pitch this as somehow being done to advance our interests or to further the management objectives of the site is frankly quite a disgusting manipulation of the situation."
MPAs cover others areas of sea off Scotland's coast. The designation aims to protect habitats from marine industry projects and some types of fishing.
Europe's largest MPA covers an area of deep sea covering more than 38,610 sq miles off the Western Isles.
Our Seas Coalition, which campaigns for sustainable fishing that benefits people and the environment, said while the new MPA designation was welcome they were shocked that dredging was still to be allowed.
Ailsa McLennan of Our Seas said: “Whilst it is excellent news that some protective measures are being taken to protecting this critically endangered species, the Scottish Government are not taking a strategic or ecologically sound approach to fisheries management. Ministers are rejecting scientific advice from Nature Scot and allowing scallop dredging to continue on adjacent areas of sensitive seabed habitats whilst preventing sustainable fishing methods from taking place in the area. What is going on?”
At the centre of the SCFF legal case was the Skye pilot that came amidst mounting evidence that the use of trawled fishing gear in the inshore caused widespread ecological damage including significant declines in the diversity and size of commercial fish species.
The pilot was designed to test the environmental and economic benefits of creating ‘trawl free’ potting zones.
It aimed to separate different methods of fishing into certain areas, such as creeling that uses static equipment, and fishing by trawling or dredging which does not.
There were to be other measures such as limits on the number of creel vessels and creels, quotas and minimum landing sizes of lobsters.
It was originally intended that the trial scheme pilot would be up and running by April 1, 2019 if it went ahead but the Scottish Government’s Marine Scotland directorate took until February 26, 2020 to make a decision to end the pilot.
Mr Rickard said: "At first glance the news of the No Take Zone surrounding the egg site in the Inner Sound of Skye sounds fantastic.
"However, the Scottish Government have entirely failed to take stakeholders views into consideration and have actively ignored advice from their own conservation advisory organisation, Nature Scot. "The area protected from dredging and trawling is smaller than Nature Scot suggested.
"On top of this, Marine Scotland have put in place a blanket ban on all activities, taking no account of actual impact. The very creel and scallop diver skippers who helped not only find the site in the first place, but in their own time and at their own cost took citizen scientists divers to survey the site on four separate occasions, seem to be getting lumped in with activities as destructive as scallop dredging and bottom trawling.
"This blanket closure of an area that is extremely important to both creel and scallop diving in the area is a slap in the face to those fisheries. If Marine Scotland's aim was to alienate the very folk who identified, surveyed and fought hard for appropriate protection of this site, then they have succeeded spectacularly."
The Scottish Government did not respond to the fishermen's criticisms.
Instead they pointed to comments rural affairs minister Ben Macpherson made about the MPA.
He said “The flapper skate, which was once abundant in our seas, is now only found in the northern area of the North Sea and off Scotland’s north-west coast.
“The designation of this new Marine Protected Area will allow further information to be gathered to inform permanent proposals and will safeguard an area of vital importance to this critically endangered species. This will support conservation efforts to help it recover back to a healthy status in Scottish waters."
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereLast Updated:
Report this comment Cancel