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February 2, 2021

Earthjustice Files New Legal Actions to Protect Anchovy and Ocean Wildlife as Fisheries Service Again Ignores Court Order

Continued refusal of Fisheries Service to follow court orders puts anchovy at risk of overfishing and threatens whales, sea lions, dolphins, salmon

Contacts

Andrea Treece, Earthjustice, (415) 217-2089

Geoff Shester, Oceana, (831) 643-9266

Ashley Blacow-Draeger, Oceana, (831) 224-7484

San Jose, CA

Earthjustice, representing Oceana, has filed two legal actions calling for responsible, science-based management of northern anchovy — an important food source for whales, sea lions, brown pelicans and salmon.

The actions seek to ensure a robust anchovy population into the future and provide enough food for dependent wildlife to eat. The Fisheries Service’s continued failure to use the best available science and prevent overfishing of anchovy jeopardizes the sustainability of this critical fish species as well as dozens of ocean animals that rely upon abundant populations of these tiny fish to survive and reproduce.

“It’s time to restore common sense, science, and the rule of law — all of which the new Biden administration seems to be trying to do,” said Earthjustice attorney Andrea Treece. “In the meantime, we’re asking the Court to stop the Fisheries Service’s endless loop of relying on the same outdated science and recycling the same, failed 'set it and forget it' management approach the Court has twice struck down. Repeating the same absurd thing over and over was a funny plot device for the movie “Groundhog Day,” but it’s a lousy way to manage a fish that supports the entire West Coast ecosystem. It’s time for the Fisheries Service to snap out of it and take its responsibilities — and the Court’s orders — seriously.”

On Jan. 29, Earthjustice and Oceana asked the Court to enforce a September 2, 2020, order that directed the Fisheries Service to fix fundamental flaws in its anchovy catch limit regulation, and filed a challenge to the Fisheries Service’s December 31, 2020, anchovy catch limit regulation, which, instead of fixing those flaws, merely repeated them.

Earthjustice and Oceana first challenged the Fisheries Service catch rule for anchovy in 2016 because it fundamentally violated our nation’s fishery management law. The Court ruled in Earthjustice and Oceana’s favor, finding that the Fisheries Service failed to base its catch limit on the best available estimates of the size of the anchovy population and also failed to prevent overfishing of anchovy in the years when the population drops. In 2019, the Fisheries Service issued a catch rule similar to the one the Court struck down. Earthjustice and Oceana challenged that rule because it ignored the best available science and would not prevent overfishing in years when the anchovy population is lower. In September 2020, Judge Lucy M. Koh again ordered the Fisheries Service to issue a new rule setting anchovy catch limits that complied with the law.

Despite the Court’s two previous orders, the Fisheries Service again ignored the best available science and published a “new” rule at the end of 2020 that triples down on its flawed management of anchovy by — yet again — dismissing the best available science and adopting limits that will not prevent overfishing.

In her September ruling, Judge Koh stated “The [Fisheries Service] . . . set the [catch] limit for an indefinite period of time without a mechanism to respond to significant changes in anchovy abundance, even though the best scientific information available established that anchovy population fluctuations are common and extreme. Given this backdrop, it was at minimum arbitrary and capricious for the NMFS to fail to consider whether the [catch limits] would still prevent overfishing, especially given that the anchovy population will fluctuate again in the future.” Yet, in its latest rule, the Fisheries Service once again allowed anchovy fishers to catch 25,000 metric tons of fish per year, regardless of whether the population is high or verging on collapse.

“It’s déjà vu all over again,” said Dr. Geoff Shester, California Campaign Director and Senior Scientist for Oceana. “Despite anchovy’s importance, and available state-of-the-art acoustic survey methods and data to manage anchovy responsibly, the Fisheries Service stubbornly chooses to ignore court orders and puts forth the same irresponsible and arbitrary catch limit rule over and over again. Then they pass the buck to their advisory body — the Pacific Fishery Management Council — to solve the problem while simultaneously advising them not to act. The science is clear and so is the law: setting unchanging catch limits for a boom-and-bust population like anchovy by cherry picking data from the ‘boom’ years is reckless and shortsighted, which is what forced us into the courts four years ago. Fishing communities and local economies rely on abundant populations of anchovy and other forage fish as critical food for larger fish like salmon as well as whales, sea lions and other ocean wildlife that bring tourism dollars to our coasts. We’re hoping that as a new administration looks to restore a science-based approach by its agencies they finally implement rational management of anchovy off the U.S. West Coast to increase the resilience of our oceans in the face of climate change.”

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Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.