Case 5:21-cv-00736-NC Document 1 Filed 01/29/21 Page 1 of 40
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`ANDREA A. TREECE, State Bar No. 237639
`Earthjustice
`50 California Street, Suite 500
`San Francisco, CA 94111
`Telephone: 415-217-2000
`Facsimile: 415-217-2040
`Email: atreece@earthjustice.org
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`STEPHEN D. MASHUDA (Pro Hac Vice forthcoming)
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`Telephone: 206-343-7340
`Facsimile: 415-217-2040
`Email: smashuda@earthjustice.org
`
`Counsel for Plaintiff
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`OCEANA, Inc.,
`Plaintiff,
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`v.
`WYNN COGGINS, in her official capacity as
`Acting Secretary of Commerce; NATIONAL
`OCEANIC AND ATMOSPHERIC
`ADMINISTRATION; and NATIONAL MARINE
`FISHERIES SERVICE,
`Defendants.
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`Case No. 5:21-cv-00736
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`Administrative Procedure Act Case
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`Case 5:21-cv-00736-NC Document 1 Filed 01/29/21 Page 2 of 40
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`INTRODUCTION
`For the third time in four years, the National Marine Fisheries Service (“NMFS”)
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`has promulgated a blatantly illegal regulation setting catch limits for the central subpopulation of
`northern anchovy (hereinafter, “anchovy”). NMFS’s near-fanatical determination to ignore
`science and maintain a fishery management approach this Court has explicitly held unlawful
`displays a troubling disregard for the rule of law and harms a species that is vital to West Coast
`coastal communities and marine ecosystems.
`Above all else, the Magnuson-Stevens Fishery Conservation and Management
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`Act requires NMFS to manage federal fisheries based on the best scientific information available
`to prevent overfishing and protect the marine ecosystem. This suit challenges NMFS’s
`continued failure to comply with these bedrock requirements in its December 31, 2020 Catch
`Rule1 and the Coastal Pelagic Species Fishery Management Plan (“CPS FMP”) provisions that
`rule applies. The agency’s insistence on setting unchanging catch limits that do not reflect the
`status of the anchovy population and are not subject to any regular review or adjustment, fails to
`account for the well-known “boom and bust” cycle of the anchovy population and its importance
`to the West Coast marine ecosystem.
`Twice in the past two years, this Court has instructed NMFS to correct
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`fundamental errors in its approach to anchovy management. In 2018, the Court ordered NMFS,
`et al.,2 to apply the best available science and issue a new rule that prevents overfishing of
`anchovy. Oceana, Inc. v. Ross, No. 16-CV-06784-LHK, 2018 WL 1989575 (N.D. Cal. Jan. 18,
`2018) (“Oceana v. Ross I”). The Court determined that the agency’s 2016 annual catch limit
`(“ACL”), acceptable biological catch (“ABC”), and overfishing limit (“OFL”) (collectively,
`“catch limits”) were unlawfully based on decades-old data about the size of the anchovy
`
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`1 Fisheries off West Coast States; Coastal Pelagic Species Fisheries; Harvest Specifications for
`the Central Subpopulation of Northern Anchovy, 85 Fed. Reg. 86855 (Dec. 31, 2020) (“2020
`Catch Rule”).
`2 Federal Defendants include Wynn Coggins in her official capacity as Acting Secretary of
`Commerce, the National Oceanic and Atmospheric Administration, and the National Marine
`Fisheries Service. They will be referred to collectively in this Complaint as “NMFS” or “the
`agency.”
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`population, did not bear any relationship to the actual size of that population, and thus could not
`prevent overfishing of this population. The decision explicitly recognized that in order to
`prevent overfishing, catch limits must be based on the size of the anchovy population. Anchovy
`populations naturally experience rapid changes in abundance, meaning management must be
`responsive to the fluctuating population and cannot rely on unchanging catch limits to prevent
`overfishing. Nonetheless, in its 2019 Catch Rule, NMFS doubled down on its previous unlawful
`approach and attempted to lock in catch limits for an indefinite period that fail to account for the
`fact that the anchovy population undergoes frequent and rapid declines.
`On September 2, 2020, the Court vacated the 2019 Catch Rule, holding that
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`NMFS had ignored the best available science on anchovy abundance and population fluctuations.
`Oceana, Inc. v. Ross, No. 19-CV-03809-LHK, 2020 WL 5232566 (N.D. Cal. Sept. 2, 2020)
`(“Oceana v. Ross II”). The Court further held that NMFS failed to prevent overfishing by setting
`unchanging catch limits that did not reflect the anchovy’s potential to drop quickly to very low
`levels, and leaving those limits in place for an indefinite time period. The Court ordered NMFS
`to develop a new rule that complied with the Magnuson-Stevens Act and Administrative
`Procedure Act (“APA”). NMFS responded by promulgating the 2020 Catch Rule, which repeats
`the errors the Court identified and rationales the Court rejected, while attempting to refute the
`Court’s carefully considered holdings.
`Like the 2019 Catch Rule the Court vacated, the 2020 Catch Rule establishes
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`values for three interrelated limits: the overfishing limit, the acceptable biological catch, and the
`annual catch limit. Together, these three catch limits are supposed to prevent overfishing and
`ensure that enough anchovy are left in the water to feed other fish and wildlife.
`Despite sound, peer-reviewed science showing the anchovy population can drop
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`by more than 90 percent in just two years, and the Court’s holding that NMFS must consider that
`science, the 2020 Catch Rule allows commercial fishing vessels to catch 25,000 metric tons of
`anchovy every year, regardless of the size of the anchovy population. In other words, the new
`rule would allow 25,000 metric tons of catch regardless of whether the population rapidly
`declines to very small levels, is at its historic average size, or is in a boom period. This
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`unchanging catch limit ignores the agency’s legal duties—and the Court’s direction—to apply
`the best available science to anchovy management, and to adjust the catch limits based on best
`available science to prevent overfishing in down years.
`The Magnuson-Stevens Act requires that the annual catch limit also account for
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`the needs of marine predators that depend on anchovy. The best available science demonstrates
`the intertwined fates of these predators and their prey: when anchovy populations decline,
`predators like brown pelicans and California sea lions suffer starvation, breeding failures, and
`death.
`Despite the Court’s holdings that setting unchanging catch limits for an indefinite
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`time period and relying on a 75 percent buffer between the overfishing limit and annual catch
`limit do not reflect the best available science and fail to prevent overfishing, NMFS based the
`2020 Catch Rule on this unlawful approach. That approach is inherent in the CPS FMP’s
`framework for managing anchovy and other so-called “monitored” fish populations. But the
`agency’s application of that approach serves only to highlight (again) that the CPS FMP itself
`violates the Magnuson-Stevens Act.
`The CPS FMP’s “monitored stock” provisions purport to allow the agency to set
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`all three catch limits once, when the rule is issued, without requiring the agency to periodically
`check them against new data as the stock fluctuates over time. While the CPS FMP indicates
`that the agency has discretion to revise the catch limits in light of new data—and the agency
`itself routinely collects data on anchovy abundance—the CPS FMP does not require the agency
`to do so. Accordingly, the CPS FMP, like the 2020 Catch Rule that applies it, violates NMFS’s
`Magnuson-Stevens Act duties to use the abundance information the agency collects every year to
`update its understanding of the population status and adjust the catch limits to ensure that they
`reflect the size of the population, prevent overfishing of that population, and account for the
`needs of marine predators. Oceana challenges NMFS’s 2020 Catch Rule, and the provisions of
`the CPS FMP it applies, because they fail to use the best available science, will not prevent
`overfishing, and fail to protect this vital population of anchovy at the base of the West Coast
`marine ecosystem’s food web on an ongoing basis.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`The 2020 Catch Rule and the CPS FMP provisions it implements fail to comply
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`with multiple legal requirements. First, NMFS violated the Magnuson-Stevens Act and the APA
`by setting unchanging catch limits that will remain in effect indefinitely without regard for the
`dramatic fluctuations in the size of the anchovy population and without explaining how they
`would prevent overfishing when the anchovy population declines to low levels. Second, NMFS
`violated the Magnuson-Stevens Act and the APA by failing to demonstrate how its unchanging
`annual catch limit accounts for the needs of marine predators when the anchovy population
`declines. Third, NMFS violated the Magnuson-Stevens Act and the APA by applying the CPS
`FMP’s “monitored stock” approach to set unchanging, indefinite limits unresponsive to a
`population known to rapidly and drastically fluctuate.
`Further exacerbating these errors, NMFS irrationally cherry-picked four recent
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`years of data showing high abundance and used that to set unchanging catch limits that will
`remain in place indefinitely and, contrary to the Court’s holdings, again disregarded other
`available and reliable information from low abundance years.
`By committing each of these actions and omissions, NMFS failed to comply with
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`the statutory requirements of the Magnuson-Stevens Act and acted in a manner that was
`arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, in
`violation of the APA. NMFS’s actions and failure to act have harmed Oceana’s members’
`interest in maintaining a healthy and sustainable population of anchovy and a healthy ocean
`ecosystem. This harm will continue in the absence of action by the Court.
`JURISDICTION AND VENUE
`This action arises under the Magnuson-Stevens Act, 16 U.S.C. §§ 1801–1884, and
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`the APA, 5 U.S.C. §§ 701–706.
`This Court has jurisdiction over this action pursuant to the Magnuson-Stevens
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`Act, which provides that “[t]he district courts of the United States shall have exclusive
`jurisdiction over any case or controversy arising under” the Magnuson-Stevens Act. 16 U.S.C. §
`1861(d). The Magnuson-Stevens Act also provides that actions taken by the Secretary of
`Commerce under regulations implementing a fishery management plan shall be subject to
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`judicial review “if a petition for such review is filed within 30 days after the date on which the
`regulations are promulgated or the action is published in the Federal Register, as applicable.” 16
`U.S.C. § 1855(f). NMFS published the 2020 Catch Rule on December 31, 2020, in the Federal
`Register. Oceana is filing this Complaint within 30 days of publication of the 2020 Catch Rule.
`This Court, further, has jurisdiction over this action pursuant to the APA, which
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`provides that final agency action is subject to judicial review. 5 U.S.C. §§ 701–706. NMFS’s
`issuance of the 2019 Catch Rule is a “final agency action” subject to judicial review under the
`APA.
` This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331
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`(federal question jurisdiction), which grants the district courts “original jurisdiction of all civil
`actions arising under the … laws … of the United States,” and 28 U.S.C. § 1361, which grants
`the district courts “original jurisdiction of any action in the nature of mandamus to compel an
`officer or employee of the United States or any agency thereof to perform a duty owed to the
`plaintiff.”
`This Court has the authority to grant declaratory relief pursuant to the Declaratory
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`Judgment Act, 28 U.S.C. §§ 2201–02, and may also grant relief pursuant to the Magnuson-
`Stevens Act, 16 U.S.C. §§ 1861(d) and 1855(f), as well as the APA, 5 U.S.C. § 706.
`Venue is properly vested in this judicial district under 28 U.S.C. § 1391(e),
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`because a substantial part of the events and omissions which gave rise to this action occurred in
`this district.
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`INTRADISTRICT ASSIGNMENT
`This action should be assigned to the San Jose Division pursuant to Civil L.R. 3-
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`2(e) because a substantial part of the events or omissions giving rise to the claim occurred in
`Santa Cruz County and Monterey County.
`This case challenges a final rule promulgated in direct response to two previous
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`rulings from U.S. District Court Judge Lucy H. Koh of the San Jose Division in Oceana v. Ross
`I, 5:16-cv-06784-LHK and Oceana v. Ross II, 5:19-cv-03809-LHK, concerning the same parties
`and the same subject matter at issue in those ongoing matters, and is related to those cases
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`pursuant to Civil L.R. 3-12(a).
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`PARTIES
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`Plaintiff OCEANA is a non-profit international advocacy organization dedicated
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`to protecting and restoring the world’s oceans through policy, advocacy, science, law, and public
`education. Oceana has over 1,392,680 members worldwide, including 215,789 members in
`California, Oregon, and Washington. Oceana maintains an office in Monterey, California.
`Ensuring the conservation and sound management of forage species, such as the species
`managed under the 2020 Catch Rule and the CPS FMP, is a central focus of Oceana’s work.
`Oceana devotes considerable resources to studying and communicating the ecological and
`economic importance of sound management of forage species in the California Current
`Ecosystem off the U.S. West Coast.
`Oceana and others have urged the Pacific Fishery Management Council
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`(“Council”) and NMFS to fulfill their legal obligations to sustainably manage northern anchovy.
`For nearly a decade, Oceana and others have specifically requested that NMFS and the Council
`consider updated abundance estimates for northern anchovy; establish a scientifically based
`annual catch limit, acceptable biological catch, and overfishing limit; conduct a full stock
`assessment of northern anchovy; and develop an ecosystem-based management framework for
`managing the stock. These requests were made in letters to the Council in June 2010, June and
`October 2013, March and September 2014, June and October 2015, and September 2016. In
`February 2015, Oceana submitted comments to NMFS on Amendment 14 to the CPS FMP,
`requesting that NMFS conduct an updated stock assessment and develop an annual catch limit
`that reflects anchovy’s importance to marine predators in the California Current Ecosystem.
`Oceana commented on NMFS’s proposed 2016 Catch Rule in December 2015, describing the
`scientific evidence indicating a collapse of the stock. Oceana subsequently challenged the 2016
`Catch Rule, which this Court set aside for violations of the Magnuson-Stevens Act and APA.
`Oceana continued to advocate for scientifically valid management of anchovy after the Court’s
`ruling. On April 7, 2018, and April 12, 2019, the Pacific Fisheries Management Council
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`considered anchovy management. Oceana staff attended both meetings and provided public
`comment, highlighting the importance of a new overfishing limit, acceptable biological catch,
`and annual catch limit. Oceana commented on NMFS’s proposed 2019 Catch Rule in April 2019
`and subsequently challenged the 2019 Catch Rule, which this Court again set aside for violations
`of the Magnuson-Stevens Act and APA. Oceana continued to advocate for a CPS FMP
`amendment to fix the flaws the Court identified and establish scientifically valid management of
`anchovy. Specifically, Oceana requested the FMP be amended to require NMFS and the Council
`to regularly update the overfishing limit, acceptable biological catch, and annual catch limit for
`anchovy based on the most recent estimate of population size through annual or biannual harvest
`specifications (as is currently done for Pacific sardine and Pacific mackerel). Oceana conveyed
`these requests in detailed letters to the Council and public testimony in front of the Council on
`June 20, 2019; November 15, 2019; and November 18, 2020. Most recently, Oceana commented
`on the proposed 2020 Catch Rule, describing the rule’s failure to use the best available science
`and prevent overfishing as well as the numerous scientific and legal problems with the agency’s
`“monitored stock” management approach, and requesting that NMFS limit the effective period of
`the catch rule.
`Oceana’s members use and enjoy the oceans for numerous activities, including
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`fishing, wildlife observation, scuba diving, snorkeling, boating, swimming, beach walking,
`research, and study. Oceana’s members value and depend upon a healthy marine environment
`for these activities. Oceana’s members also consume seafood caught in the California Current
`Ecosystem. They are concerned about and directly affected by environmental injury caused by
`unsustainable fishing in the U.S. West Coast fisheries resulting in depletion of northern anchovy
`and the predatory fish and wildlife that rely on northern anchovy to grow and thrive. Injuries to
`Oceana’s members include injuries to their consumption and recreational and commercial use of
`fish populations, as well their interest in healthy populations of sea lions, brown pelicans,
`humpback whales, and other wildlife.
`The above-described aesthetic, conservation, recreational, commercial, scientific,
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`educational, and other interests of Oceana and its members have been, are being, and, unless the
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`relief prayed for in this Complaint is granted, will continue to be adversely affected and
`irreparably injured by NMFS’s failure to protect northern anchovy through the unlawful 2020
`Catch Rule. These injuries are actual and concrete and would be redressed by the relief Oceana
`seeks here. Oceana has no adequate remedy at law.
`The Defendants in this action are:
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`a.
`WYNN COGGINS. Ms. Coggins is sued in her official capacity as Acting
`Secretary of Commerce. The Secretary of Commerce is ultimately responsible for overseeing
`the proper administration and implementation of the Magnuson-Stevens Act in connection with
`federal fisheries management actions, including provisions related to the duty to end and prevent
`overfishing and achieve optimum yield and base all conservation and management measures on
`the best available science.
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`b.
`NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION.
`The National Oceanic and Atmospheric Administration is an agency of the United States
`Department of Commerce with supervisory responsibility for NMFS. The Secretary of the
`Department of Commerce has delegated responsibility to ensure compliance with the Magnuson-
`Stevens Act to the National Oceanic and Atmospheric Administration, which in turn has sub-
`delegated that responsibility to NMFS.
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`c.
`NATIONAL MARINE FISHERIES SERVICE. NMFS is an agency of
`the United States Department of Commerce that has been delegated the primary responsibility to
`ensure that the requirements of the Magnuson-Stevens Act and other applicable laws are
`followed and enforced, including the requirements to prevent and end overfishing, account for
`the needs of the ecosystem in order to achieve optimum yield, and set rational annual catch limits
`and other reference points based on best available science. In that capacity, NMFS must review
`fishery management plans and amendments to those plans, and issue implementing regulations.
`LEGAL BACKGROUND
`Magnuson-Stevens Act Framework for Preventing Overfishing
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`The Magnuson-Stevens Act governs the conservation and management of
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`fisheries in the United States territorial waters and in the exclusive economic zone, which
`extends from the boundaries of state waters (typically 3 miles from shore) to 200 miles offshore
`or to an international boundary with neighboring countries. 16 U.S.C. §§ 1801(b)(1), 1802(11).
`The Magnuson-Stevens Act creates eight regional Fishery Management Councils and requires
`them to prepare fishery management plans for all fisheries under their authority that require
`conservation and management. 16 U.S.C. § 1852(a), (h)(1).
`All fishery management plans and amendments developed by the Councils and
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`regulations implementing fishery management plans and amendments are subject to final review
`and approval by NMFS to ensure that they comply with the requirements of the Magnuson-
`Stevens Act, as well as with other applicable laws and requirements. 16 U.S.C. § 1854(a), (b).
`The Magnuson-Stevens Act requires that fishery management plans, fishery
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`management plan amendments, and any regulations promulgated to implement such fishery
`management plans, must be consistent with the “National Standards” for fishery conservation
`and management, and certain other requirements. 16 U.S.C. § 1851(a).
`The Magnuson-Stevens Act establishes a common-sense approach to prevent
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`overfishing, requiring that NMFS assess the condition of each fish population it manages using
`the best scientific information available and base management measures such as catch limits on
`the current size of the population. In other words, the Act requires NMFS to determine as best it
`can how many fish are in the water and ensure that its catch limits leave enough fish in the water
`to prevent overfishing and protect the marine ecosystem.
`National Standard One of the Magnuson-Stevens Act requires that
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`“[c]onservation and management measures shall prevent overfishing while achieving, on a
`continuing basis, the optimum yield from each fishery.” 16 U.S.C. § 1851(a)(1).
` National Standard Two of the Magnuson-Stevens Act requires that
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`“[c]onservation and management measures shall be based upon the best scientific information
`available.” 16 U.S.C. § 1851(a)(2). “Conservation and management measures” include “all of
`the rules, regulations, conditions, methods, and other measures” to “rebuild, restore, or maintain
`… the marine environment,” including annual catch limits, acceptable biological catch, and
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`objective and measurable criteria for determining when a stock is overfished, such as the
`overfishing limit. Id. §§ 1802(5); 1853(a)(1), 1853(a)(10), 1853(a)(15); 50 C.F.R. §
`600.310(e)(2)(i)(A), (D).
`Because the first step to preventing overfishing and achieving optimum yield is to
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`understand the status of the fish population, the Magnuson-Stevens Act requires each fishery
`management plan to “assess and specify the present and probable future condition of, and the
`maximum sustainable yield and optimum yield from, the fishery, and include a summary of the
`information utilized in making such specification.” 16 U.S.C. § 1853(a)(3). The status of the
`population must inform the catch limits described below.
`In 2006, Congress enacted the Magnuson-Stevens Reauthorization Act, which
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`among other things established a system of interrelated management measures and reference
`points intended to prevent and end overfishing. Pursuant to the Magnuson-Stevens Act, 16
`U.S.C. § 1851(b), NMFS has promulgated guidelines that reflect the agency’s interpretation of
`the Act’s requirements to prevent overfishing and rely on the best available science. 50 C.F.R. §
`600.305(a)(3). These guidelines provide further details on how required measures are
`established and work as part of a system to prevent and end overfishing. Of particular relevance
`here, this system includes establishing and revising the key measures: overfishing limits,
`acceptable biological catches, and annual catch limits.
`To avoid overfishing, NMFS must first establish an “overfishing limit” that
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`estimates the catch level (expressed in numbers or weight of fish) above which overfishing will
`occur. 50 C.F.R. § 600.310(e)(2)(i)(D).
`NMFS must then specify the “acceptable biological catch” for each stock, which
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`provides an upper limit on annual catch that accounts for scientific uncertainty in estimating the
`overfishing limit, as well as any other scientific uncertainty. 50 C.F.R. § 600.310(f)(1)(ii).
`Fishery managers “must articulate how [acceptable biological catch] will be set compared to the
`[overfishing limit] based on the scientific knowledge about the stock … and taking into account
`scientific uncertainty” and “should consider reducing fishing mortality as stock size declines …
`and as scientific uncertainty increases.” Id. § 600.310(f)(2)(ii).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`The function of acceptable biological catch is to ensure that any uncertainty in
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`estimating the overfishing limit does not result in overfishing.
`Each fishery management plan must “establish a mechanism for specifying annual
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`catch limits in the plan (including a multiyear plan), implementing regulations, or annual
`specifications, at a level such that overfishing does not occur in the fishery, including measures
`to ensure accountability.” 16 U.S.C. § 1853(a)(15).
`Fishery Management Measures Must Protect the Marine Ecosystem
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`The Magnuson-Stevens Act and its implementing regulations emphasize the
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`importance of protecting marine ecosystems and making decisions about fisheries in the context
`of the health and long-term sustainability of the marine environment. The Act requires that
`fisheries be managed to achieve “optimum yield,” 16 U.S.C. § 1801(b)(4), which is defined as
`the amount of fish that “will provide the greatest overall benefit to the Nation, particularly with
`respect to food production and recreational opportunities, and taking into account the protection
`of marine ecosystems,” and “is prescribed on the basis of the maximum sustainable yield from
`the fishery, as reduced by any relevant social, economic, or ecological factor.” 16 U.S.C. §
`1802(33)(A)–(B) (emphasis added).
`To determine optimum yield in the context of protecting marine ecosystems,
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`NMFS must consider, among other things, “maintaining adequate forage for all components of
`the ecosystem.” 50 C.F.R. § 600.310(e)(3)(iii)(A)(3). Ecological factors that NMFS is supposed
`to consider when determining the appropriate level for optimum yield include the fishery’s
`“impacts on … forage fish stocks, other fisheries, predator-prey or competitive interactions,
`marine mammals, threatened or endangered species, and birds.” Id. § 600.310(e)(3)(iii)(B)(3).
`In addition, the regulatory guidelines advise fishery managers to consider managing forage
`stocks to leave a larger proportion of the population to feed marine predators rather than the
`smaller proportion they would leave unfished if they managed only to attain maximum
`sustainable yield. Id.
`NMFS’s interpretation of Magnuson-Stevens Act requirements states that the
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`annual catch limit should be reduced below the acceptable biological catch level to account for
`ecological, economic, and social factors. It also specifically states that annual catch limit should
`be reduced to address the “needs of forage fish” such as anchovy. 50 C.F.R. § 600.310(f)(4)(iv).
`The Secretary has the responsibility to carry out any fishery management plan or
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`plan amendment approved or prepared by the Secretary in accordance with the Magnuson-
`Stevens Act. 16 U.S.C. § 1855(d).
`FACTUAL BACKGROUND
`Role of Anchovy in California Current Ecosystem
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`Anchovy are a keystone forage species in the California Current Ecosystem off
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`the U.S. West Coast. They are preyed upon by a wide variety of marine wildlife, including
`commercially and recreationally valuable fish, mammals, and sea birds. Studies of predator diets
`show that anchovy are among the most important forage fish throughout the California Current
`Ecosystem in terms of the number of predators they support and the importance in predators’
`respective diets.
`Anchovy are preferred prey due to their high fat content, small body size,
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`tendency to school (which makes them easier to catch), and superior nutritional value. Some
`marine predators are highly dependent on anchovy abundance for their survival and reproductive
`success, and suffer food-related reproductive failures when anchovy are not readily available,
`even if other prey are available. For example, northern anchovy availability within foraging
`distance of brown pelican breeding colonies is among the most important factors influencing
`pelican breeding success. While the brown pelican was listed under the Endangered Species Act,
`the anchovy fishery was required to account for brown pelican forage needs in setting catch
`limits. When the U.S. Fish and Wildlife Service delisted the brown pelican in 2009, it did so
`partly on the assumption the CPS FMP would provide adequate forage for the species. Since
`that time, however, brown pelicans experienced unprecedented die-offs and multi-year breeding
`failures from 2008 to 2015 due to lack of high-quality forage—particularly, anchovy and Pacific
`sardine (also managed under the CPS FMP).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`In addition to supporting many species of sea birds and predatory fish, anchovy
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`also support many species of marine mammals, including seals, sea lions, dolphins, porpoises,
`and whales. A study led by NMFS found that availability of northern anchovy and Pacific
`sardine is especially important for breeding California sea lions, and that the lack of adequate
`supplies of anchovy and sardine in recent years was the primary factor in mass starvation and
`die-offs among California sea lion pups in 2013, 2014, 2015, and 2016. This was the case even
`though other prey items, such as rockfish and squid, were locally available because these
`alternative prey species lack the energy content sea lion mothers need to successfully feed and
`wean their pups.
`A number of threatened and end