New Complaint Charges NMFS with Allowing Overfishing of Key Forage Species

A complaint filed this week in the Northern District of California by Oceana charges the National Marine Fisheries Service (NMFS) with failing to protect key species, such as Pacific sardine and anchovy, that serve as the base of the ocean food web. The lawsuit claims NMFS fails to prevent overfishing, fails to account for the species’ ecological role when setting catch limits, and fails to adequately analyze the implications of their actions. A copy of the complaint may be found here.

“America’s fisheries laws mandate protection for the species that form the base of the ocean food web,” said Whit Sheard, Pacific Counsel and Senior Advisor for Oceana. “When the government fails in this task, the rest of the ocean ecosystem, as well as the industries that depend upon it, pay the long term costs.”

The lawsuit seeks to compel NMFS to do the following when managing forage species in the Coastal Pelagic Species Fishery Management Plan:

• Set an “optimum yield” catch level that includes leaving enough forage fish as prey for the other marine life that rely upon these important components of the food web.
• Set required limits and reference points to prevent overfishing.
• Use the best science in determining catch levels and overfishing limits.
• Consider the role of forage fish in the ecosystem and the impacts of removing large amounts of forage fish as part of the required environmental analysis.

Central to the complaint is Amendment 13 to the Coastal Pelagic Species Fishery Management Plan. Adopted by NMFS on November 14, 2011, the stated intent of Amendment 13 is to ensure that the management plan is consistent with recent NMFS guidelines, which describe fishery management approaches to meet the objectives of National Standard 1 (NS1) of section 301 of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). National Standard 1 states “[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield (OY) from each fishery for the U.S. fishing industry.” The complaint alleges that Amendment 13 violates the MSA in several respects, and contends that NMFS violated the National Environmental Policy Act (NEPA) by, among other things, failing to prepare a full environmental impact statement (EIS). Oceana contends that NMFS's actions are arbitrary and capricious, in violation of the Administrative Procedures Act. Oceana seeks an order vacating and remanding Amendment 13 and requiring the preparation of an EIS.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.