(CN) - Changes to a federal plan that aims to prevent overfishing left a subgroup of the northern anchovy out to dry but otherwise passes muster, a federal judge found.
The Pacific Council, a federal body that manages the fisheries seaward of California, Oregon and Washington, drew protest when it amended its plan in 2010 to comply with newly imposed requirements.
Amendment 13 made significant changes to the harvest control rules set by an earlier rule, Amendment 8, for northern anchovy, Pacific sardine, Pacific (chub) mackerel, jack mackerel and market squid. These species are all pelagic, meaning they live in the water column as opposed to near the sea floor.
In a federal complaint, the ocean conservation group Oceana claimed that the amendment violated several aspects of the Magnuson-Stevens Fishery Conservation and Management Act, as well as the National Environmental Policy Act and the Endangered Species Act.
Under Magnuson-Stevens, fishery management plans must set a value for maximum sustainable yield and optimum yield when issuing harvesting guidelines. Maximum sustainable yield represents the largest sustainable catch that can be taken from a fishery without causing its collapse under prevailing ecological, environmental conditions and fishery technological characteristics. Optimal yield is the amount of fish that will provide the greatest overall benefit in respect to food production and recreation, taking into account the protection of marine ecosystems.
Oceana argued that Amendment 13 failed to set optimum yield for any of the species covered by the plan.
U.S. District Judge Edward Chen concluded last week, however, that this argument concerns problems first introduced by Amendment 8 in 2000.
"The putative problem with Amendment 8 was not changed in any meaningful way in Amendment 13," Chen wrote. "That aspect of Amendment 8 was not reopened or reconsidered by the NMFS [National Marine Fisheries Service] in issuing Amendment 13. Thus, plaintiff's challenge to Amendment 13's failure to specify OY is untimely."
Though the government won summary judgment on this issue, Chen sided with Oceana as to the absent maximum sustainable yield value (MSY) for the northern subpopulation of the northern anchovy.
Apparently the council had considered setting an MSY for this species, but ultimately decided not to do so because of insufficient data.
The record shows, however, that the council's management team for coastal pelagic species suggested reasonable numbers in a 2010 report to use for such calculations. The council's scientific and statistical committee for the species also gave input.
Though the government said these recommendations came too late, Chen disagreed.
"Defendants point to nothing in the record suggesting that it would have caused significant disruption to add the MSY estimate and a short justification in the amendment before transmitting it to NMFS," he wrote. "Defendants have offered no explanation for why it was not 'practicable' to incorporate this number into Amendment 13 before the council transmitted it to NMFS in January 2011, or before the notice of proposed rulemaking was published in June 2011. They merely note that by the time the number was available, the Council had taken its final action approving Amendment 13. Given the timeline of actions here, this fact, without further explanation, does not convincingly establish that it was not possible to incorporate the MSY proxy for the northern subpopulation of the northern anchovy into Amendment 13 at some point before the amendment was finalized. Without such an explanation, NMFS's decision to approve Amendment 13 without an MSY proxy for this population was arbitrary, capricious, and contrary to law."
Chen nevertheless rejected Oceana's claim that Amendment 13 required an Environmental Impact Statement or a formal consultation regarding the effect of Amendment 13 on endangered species that rely on the covered fisheries for forage.
Amendment 13 will now be remanded to the Secretary of Commerce for action regarding the lack of a maximum sustainable yield value on the anchovy.
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