Judge: NMFS must rewrite anchovy catch rule
Important to note, the “collapsed” anchovy assessment on which this court ruling was based was updated in November and submitted to the Pacific Fishery Management Council, which has been deliberating the anchovy issue. The original 15,000 mt estimated in 2015 was increased to 92,000 mt, and the 2017 population estimate came in at 1.1 million mt. The SWFSC also presented results of their latest Daily Egg Production study to the Council, noting that anchovy had returned to historic abundance. The judge did not receive this information before making her ruling.
It’s unclear how NMFS will respond now, in light of the ongoing government shutdown. The CPS management team met yesterday (without NMFS members present) to discuss how they might recommend a new OFL, ABC and ACL to the Council for the April Council meeting. The judge’s deadline for new reference points is April 18. NMFS/Department of Justice could request a stay, but an Oceana rep. at the management team meeting said they will oppose a stay because the Council and NMFS have had a year since the original ruling— and this shouldn’t be hard now, with the population at a million tons or more.
The April Council meeting should be lively!!
Diane Pleschner-Steele
Federal fishing regulators have until April 16 to rewrite a rule that sets annual catch limits (ACL) for commercial fishing of anchovy in federal waters off the northern coast of California, a judge has ruled.
The Jan. 18 order from federal judge Lucy Koh enforces a judgment in a lawsuit brought in 2016 by the environmental activist group Oceana against the National Marine Fisheries Service (NMFS).
Oceana’s lawsuit questioned the science that NMFS relied on in reaching a 2016 decision to set the ACL for northern California anchovy at 25,000 metric tons. The agency set that limit — even though landings typically only total less than a third of that, 7,300t — judging the stock’s maximum sustainable yield to be 123,000t, and calculating an acceptable biological catch of 100,000t. The ACL was set, conservatively, the agency said, at a fourth of that level.
However, after the 2016 rule was adopted, Oceana sued NMFS in federal court arguing that the rule violated principles established in the Magnuson-Stevens Act and another law, the Administrative Practices Act, because the agency failed “to articulate the scientific basis for this catch limit”.
In January 2018, judge Koh approved Oceana’s motion for summary judgment vacating the 25,000t ACL rule. NMFS had asked judge Koh to amend that judgment but in June 2018 she declined. NMFS, which is currently working on new assessments of the stock to inform future ACL decisions, has since appealed Koh’s ruling. Meanwhile, Koh, acting on a request from Oceana, ordered that the agency rewrite the rule.
NMFS objected, citing the pending assessments, but Koh was not moved.
“Moreover, the court is not convinced by defendants’ explanation for the delay. The Service need not wait for new data to promulgate an updated OFL [Overfishing Limit], ABC [Allowable Biological Catch], and ACL because the service need only use the best scientific information available,” she wrote.
Precipitous decline?
In its lawsuit, Oceana, claiming that the anchovy stock had “declined precipitously”, argued that NMFS hadn’t conducted a stock assessment for the species since 1995 and that the true size of the northern anchovy biomass averaged between 10,000t to 15,000t from the 2009 to 2011 period.
Speaking to Undercurrent in June 2018 about the ruling, Diane Pleschner-Steele, the executive director of the California Wetfish Producers Association, disagreed with the biomass estimates, but because the harvesters her group works with are seeing more anchovies, not fewer.
Pleschner-Steele said that her group worked in 2017 with the California Department of Fish and Wildlife to perform an aerial survey of anchovy stocks.
“The department’s plane flew along the coast inside the area that the NOAA acoustic trawl survey was transecting at the same time, and our spotter pilot estimated tonnage of the schools he observed,” she wrote. “We documented tens of thousands of tons of coastal pelagic species — both sardine and anchovy — that the NOAA cruise did not see or factor into its assessment because they survey largely offshore and don’t come into nearshore waters. This is now recognized as a problem, and we’re hopeful that we can improve stock assessments over time.”
Contact the author jason.smith@undercurrentnews.
Original post: https://www.undercurrentnews.com/