Feds’ plan to rebuild Pacific sardine numbers insufficient, judge finds

SAN JOSE, Calif. (CN) — A federal judge ruled this week in favor of environmentalists who say federal agencies did not properly implement a plan to prevent overfishing of the dwindling Pacific sardine population threatened on the West Coast for decades.

U.S. Magistrate Judge Virginia DeMarchi this week partially granted a March 2023 motion for summary judgment in favor of environmentalists, saying the feds did not properly execute a plan to rebuild the Pacific sardine population and prevent overfishing by the legal deadline. However, the feds prevailed on several claims challenging how officials analyzed potential impacts on the fish population.

Oceana, a nonprofit ocean conservation and advocacy organization, challenged U.S. Secretary of Commerce Gina Raimondo, the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service’s plan to improve numbers of the small, oily fish that are a schooling feast for many ocean creatures, including protected species of salmon, tuna, sharks, sea birds, seals and sea lions.  

Oceana claims that the government's plan to increase numbers of the Pacific sardine violates the Magnuson-Stevens Fishery Conservation and Management Act because officials failed to set a reasonable rebuilding target or demonstrate how the plan will prevent overfishing of the sardines.

The nonprofit also claims that the service’s approval of the plan violates the National Environmental Policy Act, saying officials failed to analyze its potential impacts on the sardine population and marine predators or prepare an environmental impact statement.

In her 35-page order Monday, DeMarchi ruled in favor of a majority of Oceana’s claims about flaws in the agencies' analysis of Pacific sardine populations.

DeMarchi determined that the feds violated the law by assuming that the sardine harvest would never reach certain limits. She said that the agency and regional councils must set “hard, science-based caps on how many fish could be caught each year” backed by “accountability measures,” and that the government's amended plan did not set catch limits that will rebuild the Pacific sardine population within the legal timeframe. 

The judge also agreed with Oceana that the service’s analysis relied on flawed assumptions.

“NMFS made no attempt to quantify the differences between its alternative rebuilding plans, beyond observing that ‘the modeling also does not account for restrictions on incidental catch that might restrict harvest,'” DeMarchi said. “NMFS acted arbitrarily and capriciously and failed to take the hard look required by NEPA by relying on inconsistent assumptions and by ignoring important aspects of the proposed rebuilding plans under consideration.”

Danika Desai, an Earthjustice attorney representing the plaintiff, said that the judge's decision upholds basic tenets for the government.

The fisheries service must establish limits on sardine catch "that are supported by science and low enough to allow the sardine population to bounce back," Desai said. "The agency can’t simply set catch limits way above a level that will rebuild the population and count on fishing vessels to catch less."

"The fisheries service can’t keep calculating its catch limits using science that it has known is faulty for over a decade, even as the agency refuses to fix that science," she added.

Although DeMarchi agreed with Oceana that the plan's current environmental analysis was deficient, she ruled that she would not order a new environmental impact statement. 

DeMarchi also found no issue with the federal agencies' rebuilding target, saying that the Magnuson-Stevens Fishery Conservation and Management Act does not specify whether an agency’s target must reflect periods when fish are at both low and high productivity. 

The judge also said that the government's determination that its rebuilding plan did not require an external consultation was not “arbitrary or capricious.” That plan correctly cites the fact that Pacific sardines are important food for marine predators, and noted that fishing would continue at minimal levels, she said. 

“The record reflects that NMFS did consider the reasonably foreseeable impacts of the proposed alternatives on marine predators generally, including how those impacts would likely be mitigated by the availability of other forage fish species,” DeMarchi said.

DeMarchi said that rather than issuing an order to vacate the agency’s plan, the parties should instead meet to discuss and submit proposals for a remedy by May 6. 

Attorneys for the government did not immediately respond to requests for comment. The National Oceanic and Atmospheric Administration declined to comment. 

The management council in 2019 declared the West Coast population overfished. Numbers of Pacific sardine dropped dramatically in 2013 and have continued to slowly decline since then, according to an assessment from the administration.

Numbers have been below the threshold to regular commercial fishing for the last three years. Toothed whales and baleen whales — creatures whose own populations are in some cases recovering from historic lows and in other cases still in decline — consume the most sardines by far.

"These holdings come at a critical time because the fisheries service is, as we speak, developing new catch limits for the next fishing year and will need to make sure it does so in compliance with the law," Desai said.

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