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1 Submitted via erulemaking Portal Chris Fanning NMFS West Coast Region 501 W. Ocean Blvd., Suite 4200 Long Beach, CA March 31, 2016 Subj.: NOAA-NMFS ; Application for Exempted Fishing Permit to Use Drift Gillnet Gear in Pacific Leatherback Conservation Area Dear Mr. Fanning, Earthjustice and Wild Oceans recommend that NMFS deny the application for an exempted fishing permit ( EFP ) to use drift gillnet ( DGN ) gear in the Pacific Leatherback Conservation Area ( PLCA ). This application is aimed at opening waters crucial to the survival and recovery of the critically endangered Pacific leatherback sea turtle to dangerous, wasteful gear that is known to kill leatherbacks and dozens of other non-target species. The use of largescale drift gillnets has been banned for decades on the high seas precisely because the United States and other nations recognized that use of this gear is a destructive fishing practice that poses a threat to living marine resources of the world s oceans, including but not limited to the North and South Pacific. 1 NMFS should not entertain proposals to expand the use of similar gear in U.S. waters, particularly into an area that has been closed to DGN gear precisely because of the risk of injuring and killing Pacific leatherbacks. This species is at risk of going extinct within the foreseeable future. The death of even one leatherback could impair the species chance at recovery. Experimenting on a species this vulnerable to extinction is unacceptable. For these and other reasons explained below, allowing the use of DGN gear within the PLCA would be inconsistent with NMFS s responsibilities under applicable law, including the Endangered Species Act ( ESA ) and Magnuson-Stevens Fishery Conservation and Management Act ( MSA ). 2 NMFS should not expend further public resources to facilitate expansion of DGN effort and its negative impacts into the PLCA. NMFS should instead spend those resources on facilitating a transition to more selective gear like deep-set buoy gear U.S.C. 1826(b)(1). 2 See 50 C.F.R (b)(3)(iii) (grounds for denying EFP application include determination that activities under EFP would detrimentally affect the well-being of the stock of any regulated species of fish, marine mammal, threatened or endangered species, or would be inconsistent with applicable law).

2 Allowing Use of Drift Gillnets within the PLCA Would Risk Jeopardy to Pacific Leatherback Sea Turtles NMFS has identified the Pacific leatherback as a Priority #1 species, meaning it is a species whose extinction is almost certain in the immediate future because of a rapid population decline or habitat destruction. 3 The western Pacific leatherback the population affected by the DGN fishery has declined by more than 80% since the 1980s; the IUCN projects that the population will experience a 96% decline by The population is so low that removing even one leatherback during the proposed experimental fishing could significantly impair the species ability to survive and recover. In fact, in order to avoid delaying the species recovery, scientists estimate that total take by all U.S. West Coast fisheries needs to be limited to no more than one turtle every six years. 5 Both the IUCN and NMFS have determined that reducing fisheries bycatch of Pacific leatherbacks is essential to promoting the species survival and recovery. In fact, NMFS touts the PLCA as an example of an effective measure taken to protect leatherbacks from being entangled in fishing gear while they forage. 6 In 2007, NMFS denied a similar EFP to allow the use of DGN gear in the PLCA on the ground that it posed threats to migrating leatherbacks. Pacific leatherbacks have continued to decline since that time. The threat posed from DGN bycatch has therefore become more severe. There is no rational, lawful basis to allow such a threat to materialize. Importantly, the ESA tasks NMFS not just with preventing the Pacific leatherback s extinction, but actively promoting its recovery. 7 Section 2(c) of the ESA establishes that it is the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act. 8 The ESA defines conservation to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. 9 Similarly, when determining whether the proposed EFP would be likely to jeopardize the species continued existence, NMFS must examine its likely effect on the Pacific leatherback s chance of recovery as well as survival. 10 The Ninth Circuit has made clear that actions that appreciably reduce a species likelihood of recovery are considered to jeopardize its continued 3 NOAA Fisheries. January Species in the Spotlight, Priority Actions: , Pacific Leatherback Sea Turtle, Dermochelys coriacea, at 1, quoting NMFS Endangered and Threatened Listing Recovery Guidelines (55 Fed. Reg (June 15, 1990)). 4 IUCN Redlist of Threatened Species, Version , downloaded March 23, Curtis, K.A., J.E. Moore, S.R. Benson. 6 Species in the Spotlight at U.S.C. 1532(15), 1536(a)(2) U.S.C. 1531(c)(1) U.S.C. 1532(3) U.S.C. 1536(a)(2). 2

3 existence. 11 The best available science shows that the PLCA is crucial for Pacific leatherbacks and an area where fishery bycatch is more likely to occur. The best available science also shows that allowing more take of leatherbacks even one during the two-year course of the EFP would impair the species recovery, if not its survival. Issuing the EFP would thus violate NMFS s obligations under the ESA. Expanding DGN Effort into the Biologically Rich PLCA Is Inconsistent with MSA Requirements to Avoid and Minimize Bycatch The MSA requires the implementation of management measures to minimize bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of bycatch. 12 The DGN fishery has yet to meet this standard in its current operations outside the PLCA. Bycatch levels in this fishery remain high. The fishery catches thousands of non-target finfish and sharks per year, including overfished species like bluefin tuna and important recreational species such as striped marlin. When the fishery operated within the PLCA, observed catch of bluefin tuna and striped marlin were three times higher. It is the only federal fishery on the U.S. West Coast to be classified as a Category I fishery under the Marine Mammal Protection Act due to its frequent incidental mortality or serious injury of marine mammals. Marine mammals seriously injured and killed by this fishery in recent years include California sea lions, several species of dolphin, and sperm whales. The fishery has entangled a dozen Pacific leatherback sea turtles outside the PLCA since Allowing the use of DGN gear within the biologically rich PLCA is likely to increase bycatch of multiple fish including bluefin tuna and striped marlin, marine mammal, and sea turtle species. The gear and deployment modifications proposed in the EFP application are unlikely to counteract that increased risk. For instance, even the applicant s proposed shortened nets will still reach over a mile in length. The applicant proposes to place more pingers on the net to reduce potential bycatch. Pingers are already in use outside the PLCA and have reduced bycatch of small cetaceans. However, they have no documented success in reducing bycatch of other species, such as sea turtles, fish, or larger whales. Moreover, the proposal to insert breakaway sections into the nets to allow whales to break through poses several problems of its own. First, it is unlikely to reduce leatherback entanglements. Second, it may simply result in a whale dragging the section of net it has broken through, which can result in exhaustion, starvation, and death. Third, if a section of the net breaks free from the rest of the gear and is not recovered, it then poses a continuing entanglement risk to creatures in its path. In addition, the applicant s proposal to shorten soak times from 10 hours to 6 hours is insufficient to save surface-breathing animals like sea turtles and marine mammals from drowning. While these animals can remain underwater for relatively long periods of time, they cannot hold their breath for 6 hours, and an animal struggling to escape a net may use up its stored oxygen in a matter of minutes. 11 Nat l Wildlife Fed n v. Nat l Marine Fisheries Serv., 481 F. 3d 1224, (9th Cir. 2007), as amended on other grounds by 524 F.3d 917 (9th Cir. 2008) (requiring agency to consider both survival and recovery in determining whether project is likely to jeopardize species); see also 50 C.F.R (defining jeopardize as action that would reduce the survival and recovery of a listed species by reducing the reproduction, numbers, or distribution of that species. ) U.S.C. 1851(a)(9). 3

4 Furthermore, the current DGN fishery lacks adequate observer coverage to ensure that bycatch of rare species like leatherbacks is accurately detected and estimated. NMFS already struggles to achieve its goal of 20 percent observer coverage in the DGN fishery a level that is already significantly below the 30 percent recommended in NMFS s own 2011 U.S. National Bycatch Report. 13 NMFS attributes that shortfall to inadequate funding and unmet challenges in allocating observers. 14 It is difficult to see how NMFS could justify allowing the expansion of DGN effort into the biologically critical PLCA when the agency reports that it has insufficient resources to achieve minimum observer coverage for the fishery operating outside the PLCA. If anything, observer coverage must be increased in the existing fishery to better detect take of Pacific leatherbacks and other rare species. Finally, the proposed hard caps on bycatch of listed species do not accurately reflect ESA requirements. The proposal suggests that the EFP would terminate if it resulted in the observed serious injury or mortality of a single leatherback. This proposal tracks the MMPA standard for take ; for the Pacific leatherback, the correct standard is the ESA definition of take, which more broadly includes harassment, harm, and capture of a listed species. 15 The EFP application also proposes to terminate fishing under the EFP for the remainder of the year if the number of observed takes in the fishery for threatened or endangered animals is the lower of either double the estimate of incidental take in the BiOp or 10 animals. NMFS may not automatically allow the fishery to take double the estimated incidental take of a listed species before suspending fishing. Rather, NMFS must set a clear and easily enforceable incidental take limit that when exceeded, immediately halts the action and triggers reinitiation of consultation. The EFP Does Not Meet Stated Objectives and Would Not Provide Scientifically Meaningful Results The proposed EFP does not meet the objective for which the Pacific Fishery Management Council originally solicited EFP proposals: to test alternative fishing gear as a substitute in the large mesh [DGN] fishery... while significantly reducing the bycatch from what has been observed in the contemporary DGN fishery. 16 The slight modifications to DGN gear proposed in the EFP are not likely to significantly reduce bycatch of Pacific leatherbacks or most other species. Perhaps more importantly, there is no need to fish DGN gear within the PLCA in order to test whether fishing at places where and times when favorable oceanic conditions are present could result in increased swordfish catch and reduced bycatch. If anything, testing these triggers outside the PLCA would provide more meaningful results because vessels that are also fishing outside the PLCA without following the oceanographic condition triggers would provide the necessary control for the experiment. Fishing according to one method inside the PLCA and 13 NMFS. May 2, Biological Opinion on the continued management of the drift gillnet fishery under the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species ( 2013 DGN BiOp ), at DGN BiOp at U.S.C. 1532(19). 16 EFP Solicitation Letter, July 02, 2014, Agenda Item G.3.a, Attachment 1, Sept. 2014; Renewed EFP Solicitation Letter, Sept. 29,

5 another method outside the PLCA would confound the results, making it difficult (perhaps impossible) to discern what caused any observed differences in swordfish catch or bycatch levels. Conclusion Experimenting with the use of DGN gear within the PLCA is ill-advised and unwarranted. As noted above, the EFP would not provide any useful scientific comparison between using oceanographic triggers for choosing fishing locations and times and status quo methods. Instead, it would simply allow the reintroduction of DGN gear into an area where NMFS has already determined the likelihood of entangling leatherbacks is unacceptably high. The Pacific leatherback is already at severe risk of extinction. This species is far too imperiled to be subjected additional risk from experimental DGN fishing within its key feeding and migratory grounds. Moreover, DGN gear causes excessive bycatch of numerous finfish, sharks, cetaceans, and pinnipeds. NMFS should not expend any more public resources to expand the use of this gear. Instead, NMFS should prioritize the development and transition to highly selective gear. Sincerely, Thank you for your consideration. Andrea A. Treece Earthjustice Staff Attorney, Oceans Program Theresa Labriola Wild Oceans West Coast Fisheries Program Director 5