California/Oregon Drift Gillnet Fishery Violates the Endangered Species Act, Marine Mammal Protection Act, Migratory Bird Treaty Act, National Environmental Policy Act, and Magnuson-Stevens Fishery Conservation and Management Act

Brendan Cummings
Ocean Program Director
PO Box 549 • Joshua Tree, CA • 92252
T: (760) 366-2232 x. 304 • F: (760) 366-2669 •

Via Electronic and Certified Mail
June 23, 2006
Carlos M. Gutierrez
Secretary of Commerce
U.S. Department of Commerce
1401 Constitution Avenue, N.W., Room 5516
Washington, D.C. 20230

Dr. William Hogarth
Assistant Administrator for Fisheries
National Oceanographic and Atmospheric Administration
1315 East-West Highway
Silver Springs, MD 20910
RE: 60-Day Notice of Intent to Sue: Violations of the Endangered Species Act, Marine Mammal Protection Act, Migratory Bird Treaty Act, National Environmental Policy Act, and Magnuson-Stevens Fishery Conservation and Management Act related to the Management of the California/Oregon Drift Gillnet Fishery
Dear Mr. Gutierrez and Dr. Hogarth:
This letter serves as a sixty day notice on behalf of the Center for Biological Diversity (“CBD”) and the Sea Turtle Restoration Project/Turtle Island Restoration Network (“TIRN”) of intent to sue the National Marine Fisheries Service/NOAA Fisheries (“NMFS”) over violations of Sections 2, 7, and 9 of the Endangered Species Act (“ESA”)(16 U.S.C. § 1531 et seq.) for actions and inactions related to the management and regulation of the California/Oregon Drift Gillnet Fishery (“Fishery”). Through this letter we also put NMFS on notice that we believe the agency’s current management of the Fishery, as well as a proposed exempted fishing permit (“EFP”) related to the Fishery, puts the agency in violation of the procedural and substantive mandates of not just the ESA, but also the Marine Mammal Protection Act (“MMPA”)(16 U.S.C. § 1361 et seq.), the Migratory Bird Treaty Act (“MBTA”)(16 U.S.C. § 706 et seq.), Magnuson- Stevens Fishery Conservation and Management Act (“MSA”) (16 U.S.C. § 1801 et seq.), and the
National Environmental Policy Act (“NEPA”) (42 U.S.C. § 4321 et seq.). This letter is provided pursuant to the 60-day notice requirement of the citizen suit provision of the ESA, to the extent such notice is deemed necessary by a court. See 16 U.S.C. § 1540(g).1

The California/Oregon Drift Gillnet Fishery for Shark and Swordfish (“Fishery”) is currently primarily a federally-managed fishery, with the majority of the fishing effort occurring in federal waters within 200 miles off the coast of California and Oregon. The fishery is governed pursuant to the overlapping provisions of a federal Fishery Management Plan (“FMP”) under the MSA, and regulations promulgated by NMFS to implement that FMP, Biological Opinions drafted by NMFS under the ESA, regulations promulgated by NMFS pursuant to the ESA to implement the Biological Opinions, regulations promulgated by NMFS pursuant to the MMPA to implement a Take Reduction Plan developed for the Fishery, as well as several provisions of California and Oregon state law.
The Fishery consists of approximately 100 permitted vessels of which approximately 40 are active in a given year. These vessels use nets of approximately one mile in length with mesh sizes of 16 to 22 inches. The nets are lowered in the evening and retrieved in the morning and allow small animals to pass through while trapping larger animals. Although termed “gillnets,” the nets used in the Fishery actually entangle fish and other animals rather than trap them by the gills. The majority of fishing effort in the Fishery occurs between August and the end of January.

Although the Fishery originally targeted thresher sharks, today it also targets both swordfish and shortfin mako sharks. Other species commonly caught and kept by this Fishery include opah, louver, and various species of tuna. The majority of the targeted catch in the Fishery now consists of swordfish taken off the California coast between San Diego and Cape Mendocino. Sunfish or mola and blue sharks are the two most common unwanted fish species or “bycatch” caught by the Fishery, with over ten thousand molas and one thousand blue sharks caught and discarded by the Fishery in 2005 alone.
Historically, the Fishery has resulted in the incidental bycatch of many species of marine mammals, sea turtles and seabirds. Several of these species are listed as endangered or threatened under the ESA, including sperm whales (Physeter macrocephalus), humpback whales (megaptera novaeangliae), fin whales (Balaenoptera physalus), leatherback sea turtles (Dermochelys coriacea), loggerhead sea turtles (Caretta caretta), green sea turtles (Chelonia mydas), and olive ridley sea turtles (Lepidochelys olivacea). In addition, numerous non-ESA listed marine mammals protected by the MMPA have been ensnared and killed in gillnets used by the Fishery, including, for example, pilot whales, common, northern right whale, and Pacific white-sided dolphins, sand everal additional species of whales, sea lions and seals.

1 As you should be aware, claims brought under the MMPA, MBTA, MSA, and NEPA, as well as certain claims under the ESA, are brought pursuant to the Administrative Procedure Act (“APA”) and therefore do not require 60 days notice before suit. To the extent any of the violations of law described in this letter require affirmative action by NMFS, please consider this letter a formal petition for such action pursuant to 5 U.S.C. § 553(e).

NMFS considers the Fishery a Category I fishery under the MMPA. A Category I fishery is a fishery that has “frequent incidental morality and serious injury of marine mammals.” 16 U.S.C. § 1387(c)(1)(A); 50 C.F.R. § 229.2. Since at least 1990, NMFS has monitored the  Fishery due to its high rate of bycatch. Mortality and entanglement rates are calculated based upon the number of individuals observed entangled or killed and the percentage of the fishing effort observed. Mortality and entanglement rates vary from year to year, with some species observed killed every year and others observed killed only every two or three years.
Consequently, NMFS’ estimates of annual mortality and entanglement rates vary based upon which years are used to calculate the average.
In response to the high level of marine mammal mortality from the Fishery, in 1997 NMFS adopted the Pacific Offshore Cetacean Take Reduction Plan and accompanying regulations pursuant to Section 118(f) of the MMPA. The Take Reduction Plan and implementing regulations became effective October 30, 1997. 62 Fed. Reg. 51805 (Oct. 3,
1997). Despite the Take Reduction Plan, the Fishery continues to kill marine mammals at rates in excess of those authorized by the MMPA.
Because implementation of the Take Reduction Plan constitutes federal agency action within the meaning of the ESA, NMFS undertook an internal Section 7 consultation in connection with adoption of the Take Reduction Plan and implementing regulations, and issued a Biological Opinion on September 30, 1997, concluding that the Fishery would not jeopardize any listed marine mammal or sea turtle species. However, NMFS also concluded that the requirements of Section 101 of the MMPA for permit issuance could not be met and that, therefore, no incidental take of ESA-listed marine mammal species could be authorized.
Nevertheless, in spite of the fact that no take of ESA-listed marine mammals was authorized by NMFS, the Fishery continued to operate and take listed marine mammals. Additionally, take on listed sea turtle species occurred at levels in excess of that authorized by the 1997 Biological

Opinion’s Incidental Take Statement.
In March 2000, our organizations brought suit against NMFS for violations of the ESA and MMPA related to the Fishery.  In response, on October 23, 2000, NMFS issued a new Biological Opinion for the Fishery.

NMFS also at this point issued a permit under Section 101 of the MMPA authorizing the Fishery to take ESA listed marine mammal species. 65 Fed. Reg. 64670. The new Biological Opinion concluded that the Fishery would likely jeopardize both the loggerhead and leatherback sea turtles. With regard to the leatherback sea turtles, NMFS concluded that the projected take of the species from the Fishery, would jeopardize the species because any further mortality to the leatherback equated to jeopardy:
Therefore, any additional impacts to the western Pacific leatherback stocks are
likely to maintain or exacerbate the decline in these populations. This would
further hinder population persistence or attempts at recovery as long as mortalities exceed any possible population growth, which appears to be the current case, appreciably reducing the likelihood that western Pacific leatherback populations will persist. Additional reductions in the likelihood of persistence of western

Pacific leatherback stocks are likely to affect the overall persistence of the entire
Pacific Ocean leatherback population by reducing genetic diversity and viability,
representation of critical life stages, total population abundance, and
metapopulation resilience as small sub-populations are extirpated. These effects
would be expected to appreciably reduce the likelihood of both the survival and
recovery of the Pacific Ocean population of the leatherback sea turtle.
Biological Opinion at 94. (

As required by Section 7(b) of the ESA, 16 U.S.C. § 1536(b), NMFS proposed a
reasonable and prudent alternative that would avoid jeopardy to the leatherback.

Id. The reasonable and prudent alternative required that a seasonal closure of the Fishery be implemented North of Pt. Conception in the fall. Specifically the Biological Opinion states: By August 1, 2001, NMFS, or the states of California and Oregon, must
implement regulations to close an area to drift gillnets from Point Conception,
California (34°27’N), north to 45°N, and west to 129°W, from August 15th to
October 31st.

Id. at 102. While NMFS illegally delayed the implementation of this closure, on August 24, 2001, after receiving a notice of intent to sue from our organizations, NMFS finally implemented a modified version of the required closure through an interim final rule. 66 Fed. Reg 44549.2
The closure ultimately implemented by NMFS runs from August 15 to November 15 each year and extends from Point Sur (364°18.5’N) in California to 45°N on the Oregon Coast.
Since the leatherback closure went into effect, no leatherback sea turtles have been observed taken in the Fishery.

In April 2004, NMFS finally promulgated regulations implementing the long overdue FMP for HMS fisheries on the West Coast. 69 Fed. Reg. 18453. Through these regulations,
NMFS incorporated the existing leatherback and loggerhead closures into the FMP regulations. See 50 C.F.R. § 660.713(c)(1). The February 4, 2004 Biological Opinion for the FMP reached it’s no jeopardy conclusion for the leatherback based on the premise that the leatherback closure would remain in effect.
The February 4, 2004 Biological Opinion for the FMP contained an Incidental Take Statement estimating the likely take of listed sea turtles and marine mammals from the Fishery.
However, due to the interplay of the MMPA and ESA, no take authorization for ESA-listed marine mammals was issued:

2 The Biological Opinion also required a similar time/area closure to protect loggerhead sea turtles. NMFS failed to meet this requirement of the Opinion as well, and only implemented the closure over a year late following litigation by our organizations. See 67 Fed. Reg. 78388 (Dec. 24, 2002).

The ESA allows takings of threatened and endangered marine mammals only if
authorized by section 101(a)(5) of the MMPA. Until the proposed action receives authorization for the incidental taking of marine mammals under section 101(a)(5) of the MMPA, the incidental takes of marine mammals described below are not exempt from the taking prohibition of section 9(a), pursuant to section 7(o) of the ESA. February 4, 2004 Biological Opinion at 226. The MMPA Section 101 permit issued to the Fishery in October 2000 for the take of threatened and endangered marine mammals expired on October 24, 2003. See 65 Fed. Reg. 64670. No subsequent take authorization has been issued even though the Fishery continues to capture and kill ESA-listed marine mammals.
At its March 2006 meeting, the Pacific Fishery Management Council adopted a
recommendation to NMFS to authorize an exempted fishing permit (“EFP”) that would allow drift gillnet fishing in the current August 15-November 15 leatherback closed area. NMFS is currently considering the application.

Violations of the ESA
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.” 16 U.S.C. § 1531(c)(1).
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.” 16 U.S.C. § 1532(3).
Similarly, Section 7(a)(1) of the ESA directs that the Secretary review “…other programs administered by him and utilize such programs in furtherance of the purposes of the Act.” 16 U.S.C. § 1536(a)(1).
NMFS’s continued authorization of the Fishery is violating Sections 2(c) and 7(a)(1) of the ESA because the agency refuses to use its authorities to further the purpose of listed species conservation. Specifically, by not closing the Fishery or taking other measures to avoid unlawful take following the unpermitted taking of a humpback whale by the Fishery during the 2004/2005 fishing season, NMFS is violating these provisions. See Sierra Club v. Babbitt, 65 F.3d 1502, 1511, fn 15 (“If Seneca violates section 9, or any other environmental standard, the BLM need not consult with the FWS before exercising its right under the environmental stipulation to terminate the offending project. Indeed, section 7(a)(1) would appear to require the BLM to utilize its authority under the stipulation to suspend an activity that would result in a taking.”)
(Emphasis in original). Moreover, issuing an EFP which would allow drift-gillnet vessels to fish in the leatherback closure area after previously finding that such fishing would jeopardize this critically endangered species, would run afoul of these provisions as well.
Section 7(a)(2) of the ESA requires federal agencies to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the adverse modification of habitat of such species . . .determined . . . to be critical . . . .” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). To accomplish this goal, agencies must consult with the delegated agency of the Secretary of Commerce or Interior whenever their actions “may affect” a listed species. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). Where, as here, NMFS is both the acting agency and the delegated wildlife agency for purposes of the listed species in question, different branches of NMFS must undertake internal consultation with each other.
At the completion of consultation NMFS issues a Biological Opinion that determines if the agency action is likely to jeopardize the species. If so the opinion must specify a Reasonable and Prudent Alternative (“RPA”) that will avoid jeopardy and allow the agency to proceed with the action. 16 U.S.C. § 1536(b).
As described above, in the 2000 Biological Opinion, NMFS had the following to say about any further mortality to the leatherback:
Therefore, any additional impacts to the western Pacific leatherback stocks are
likely to maintain or exacerbate the decline in these populations….These effects
would be expected to appreciably reduce the likelihood of both the survival and
recovery of the Pacific Ocean population of the leatherback sea turtle.
Biological Opinion at 94. (Emphasis added). NMFS then concluded that the estimated annual mortality of leatherbacks from the Fishery would likely jeopardize the species. NMFS therefore proposed as an RPA a seasonal closure of the Fishery in the waters off the Central and Northern California and Southern Oregon Coasts. NMFS adopted a variant of this RPA via an ESA rulemaking which instituted the current closure. 66 Fed. Reg. 44549. The closure was then reaffirmed by NMFS when it adopted the HMS FMP under its authorities under the MSA. 69 Fed. Reg. 18444; 50 C.F.R. § 660.713. Since the October 2000 biological opinion for the Drift- Gillnet Fishery, the status of the leatherback in the Pacific has further declined. 3 We believe, as NMFS stated in 2000, that authorization of any leatherback take in the Pacific would violate the requirement to avoid jeopardy to the species. Therefore, any proposal, such as through an EFP, to allow the Fishery into currently closed areas occupied by the critically endangered leatherback sea turtle would violate Sections 7(a)(2) of the ESA.

Section 7(d) of the ESA, 16 U.S.C. § 1536(d), provides that once a federal agency
initiates consultation on an action under the ESA, the agency, as well as any applicant for a federal permit, “shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section.” The purpose of Section 7(d) is to maintain the environmental status quo pending the completion of interagency consultation. Section 7(d) prohibitions remain 3 Fortunately, the seasonal closure of the Fishery for the protection of the leatherback sea turtles appears to be effective. The past three years of observer data show no bycatch of leatherback sea turtles. It would be criminal for
NMFS to undue this apparently successful management measure and allow drift-gillnet vessels to set their nets in areas where they are likely to entangle and kill this critically endangered species.
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in effect throughout the consultation period and until the federal agency has satisfied its
obligations under Section 7(a)(2) that the action will not result in jeopardy to the species or adverse modification of its critical habitat. Our understanding is that NMFS is engaged in consultation over the issuance of the EFP to allow the Fishery to operate in the leatherback closure area. Continued authorization of the Fishery during this consultation constitutes a violation of this provision as well.
An agency’s duty to avoid jeopardy is continuing, and “where discretionary Federal involvement or control over the action has been retained or is authorized by law,” the agency must in certain circumstances reinitiate formal consultation. 50 C.F.R. § 402.16. An FMP is clearly a continuing agency action requiring reinitiation of consultation if any of the triggering circumstances occur. Among those circumstances is when the authorized take is exceeded. Id.
The excessive take also constitutes “new information” triggering the reinitiation requirement.
In this case, no take of ESA-listed marine mammals is authorized by the February 2004 Biological Opinion. Nevertheless, take of humpback whales has occurred. The reinitiation
requirements have been triggered. Because NMFS has failed to reinitiate consultation it is in violations of its procedural and substantive mandates to insure against jeopardy listed species.
The ESA prohibits any “person” from “taking” threatened and endangered species. 16 U.S.C.§ 1538. The definition of “take”, found at 16 U.S.C.§ 1532(19), states, The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
In a case dealing with fisheries, the Court ruled “the stature not only prohibits the acts of those parties that directly exact the taking, but also bans those acts of a third party that bring about the acts exacting a taking. We believe that…a governmental third party pursuant to whose authority an actor directly exacts a taking of an endangered species may be deemed to have violated the provisions of the ESA” Strahan v. Coxe, et al, 127 F.3d 155 (1st Cir. 1997). NMFS’s continued authorization of the FMP directly authorizes fishing activities that have been documented to take humpback whales, fin whales, sperm whales, and leatherback and loggerhead sea turtles and therefore fits the statute’s definition of take. Such take is ongoing.
Moreover, take of ESA-listed marine mammals by the Fishery is not authorized via either the ESA or MMPA, yet such take, as will the humpback whale in 2004/2005 is clearly occurring.
NMFS is violating Section 9 of the ESA.
Violations of the MMPA
The Fishery entangles and kills ESA-listed marine mammals as well as numerous nonlisted marine mammal species. It must therefore be operated in a manner consistent with the procedural and substantive mandates of the ESA and MMPA or not at all. This fishery is currently operating without any take authorization for ESA-listed marine mammals. Take can be authorized via an Incidental Take Statement issued pursuant to the ESA only if such take is also authorized pursuant to Section 101 of the MMPA. On October 30, 2000, NMFS issued a three year take authorization to the Fishery pursuant to Section 101(a)(5)(E) of the MMPA, 16 U.S.C. § 1371(a)(5)(E), allowing the take of ESA-listed marine mammals, specifically sperm, fin, and humpback whales, and the eastern stock of Steller sea lion. 65 Fed. Reg. 64670. While we believe this permit was improperly issued in the first instance, regardless of the infirmities of this permit, it is now expired and no take of any ESA-listed marine mammal is authorized for the Fishery, or for that matter any fishery under the HMS FMP. Unfortunately, the Fishery continues to entangle ESA-listed marine mammals. For example, observer data from the 2004- 2005 fishing season shows the entanglement of a humpback whale. This take was not authorized under the ESA or the MMPA and therefore occurred in violation of both statutes. Continued operation of the Fishery, and certainly any expansion of the Fishery into currently closed areas, violates the provisions of the ESA and MMPA prohibiting such take. Until and unless the
Fishery as a whole (including any proposed exempted fishing) receives a lawful Section 101 authorization pursuant to the MMPA, we believe that the Fishery must be suspended.
The continued authorization of the Fishery under the FMP (and under any proposed exempted fishing permit) also violates the unambiguous command of the MMPA that all fisheries “shall reduce incidental mortality and serious injury of marine mammals to insignificant levels approaching a zero mortality and serious injury rate” by April 30, 2001. 16 U.S.C. § 1387(b)(1). NMFS has defined ZMRG by regulation as ten percent of Potential Biological Removal (“PBR”). The fishery’s take of marine mammal species remains above this threshold.
For example, in the most 2005 Pacific Stock Assessment Reports the fishery was estimated to kill 23 northern right whale dolphins each year, in excess of a ZMRG level of 16. Similarly, take of the short-finned pilot whale is not just above ZMRG, but almost at PBR. Take of sperm, humpback and fin whales also remains well above 10% of PBR, thereby exceeding the definition of ZMRG. Because April 30, 2001 has come and gone without the Fishery reaching ZMRG, the continued authorization, or any expansion, of the Fishery violates the MMPA.4
The MMPA explicitly requires NMFS to “amend the take reduction plan and implementing regulations as necessary to meet the requirements of” the MMPA to reach ZMRG, and, when necessary, to “proscribe emergency regulations that, consistent with such plan to the maximum extent practicable, reduce incidental mortality and serious injury in the fishery.” 16 U.S.C. §§ 1387(f)(7)(F) & 1387(g)(1)(A). Given the Fishery continues to take marine mammals at levels in excess of ZMRG, NMFS failure to utilize this authority to amend the Take Reduction Plan violates these provisions of the MMPA as well.
Violations of the MBTA
We believe that the Fishery as currently authorized is violating the MBTA. Obviously, any exempted fishing permit allowing an expansion of the Fishery would likewise violate the MBTA.
Section 2 of the MBTA provides that “it shall be unlawful at any time, by any means or in any4 Even if NMFS could somehow construe the promulgation of the Pacific Offshore Cetacean Take Reduction Plan as relieving the Fishery of the April 30, 2001 ZMRG deadline, the five-year deadline contained in the MMPA for a fishery to reach ZMRG under a Take Reduction Plan has also come and gone. See 16 U.S.C. § 1387(f)(2). manner,” to, among many other prohibited actions, “pursue, hunt, take, capture, [or] kill” any migratory bird included in the terms of the treaties. 16 U.S.C. § 703 (emphasis added). The term “take” is defined as to “pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 50 C.F.R. § 10.12 (1997). The primary species taken by the Fishery, the northern fulmar, is
included in the list of migratory birds protected by the MBTA. See 50 C.F.R. § 10.13 (list of protected migratory birds). Other MBTA protected species such as the Cassin’s auklet are also taken by the fishery. The MBTA imposes strict liability for killing migratory birds, without regard to whether the harm was intended. Its scope extends to harm occurring “by any means or in any manner,” and is not limited to, for example, poaching. See e.g., U.S. v. Moon Lake Electric Association, 45 F. Supp. 2d 1070 (1999) and cases cited therein. Indeed, the federal government itself has successfully prosecuted under the MBTA’s criminal provisions those who have unintentionally killed migratory birds. E.g., U.S. v. Corbin Farm Service, 444 F. Supp. 510, 532-534 (E. D. Cal.), affirmed, 578 F.2d 259 (9th Cir. 1978); U.S. v. FMC Corp., 572 F.2d 902 (2nd Cir. 1978). The MBTA applies to federal agencies such as NMFS as well as private persons. See Humane Society v. Glickman, No. 98-1510, 1999 U.S. Dist. LEXIS 19759
(D.D.C. July 6, 1999)), affirmed, Humane Society v. Glickman, 217 F.3d 882, 885 (D.C. Cir. 2000)(“There is no exemption in § 703 for farmers, or golf course superintendents, or ornithologists, or airport officials, or state officers, or federal agencies.”). Following Glickman, FWS issued Director’s Order No. 131, confirming that it is FWS’s position that the MBTA applies equally to federal and non-federal entities, and that “take of migratory birds by Federal
agencies is prohibited unless authorized pursuant to regulations promulgated under the MBTA.”
MBTA Section 3 authorizes the Secretary of the Interior to “determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, take, capture, [or] killing . . . of any such bird.” 16 U.S.C. § 704. FWS may issue a permit allowing the take of migratory birds if consistent with the treaties, statute and FWS regulations. NMFS however has not obtained, much less applied for such a permit authorizing any take by the Fishery (or any other fishery under the HMS FMP). NMFS cannot dispute that the Fishery kills birds protected under the MBTA. We believe
that until such take is permitted, NMFS cannot lawfully allow any fishing that is likely to result in death of such species. In its response to comments on the FMP, NMFS claimed that the MBTA does not apply beyond the 3 nautical mile territorial sea and therefore it need not comply. This is simply wrong. As NMFS is or should be aware, in 2001 an Interior Solicitor’s Opinion concluded that the MBTA does in fact apply in the U.S. EEZ. NMFS’s conclusions to the contrary will not survive legal scrutiny.
Violations of MSA
NMFS has promulgated regulations governing the issuance of EFPs. See 50 C.F.R. § 660.745. Under these regulations, NMFS may authorize fishing that would otherwise be prohibited by an FMP only in very limited circumstances. Specifically, NMFS may only authorize such fishing for “limited testing, public display, data collection, exploratory, health and safety, environmental cleanup, and/or hazard removal purposes.” 50 C.F.R. § 660.745(b). In attempting to shoehorn into this regulatory scheme a proposed EFP that would for all practical purposes eliminate the leatherback closure area, the Council claims the EFP is for the purposes
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of “collecting data on the incidental take of ESA protected leatherback sea turtles to allow for informed management decisions in determining appropriate protective measures.” Such a rationale is absurd; NMFS has sufficient data on the impact of the Fishery on leatherbacks. Prior to the closure takes were occurring at a rate that NMFS determined jeopardized the species.
Subsequent to the closure no takes have been documented. To kill more critically endangered leatherback sea turtles simply to “collect data” to reaffirm the well-established fact that unregulated gillnet fishing kills leatherbacks makes a mockery of any rational interpretation of the exempted fishing regulations. If the Council wishes to reopen the leatherback closure area to the Fishery, it must follow standard MSA procedures. It must not be allowed to do so under the guise of an EFP.
NMFS’s regulations for the issuance of an EFP also require the agency to publish in the Federal Register notice of receipt of an EFP application, a brief description of the proposal, and the intent of NMFS to issue the EFP. 50 C.F.R. § 660.745(b)(3). NMFS has yet to publish such notification and cannot lawfully issue the EFP without doing so.
Violations of NEPA
While we believe that any EFP for the Fishery would be legally untenable because of the substantive requirements of the ESA, MMPA, MBTA, and MSA, we also believe that the issuance of any such EFP would also violate the environmental review provisions of NEPA.
NEPA’s fundamental purposes are to guarantee that: (1) agencies take a “hard look” at the environmental consequences of their actions before these actions occur by ensuring that the agency has, and carefully considers, detailed information concerning significant environmental impacts; and (2) agencies make the relevant information available to the public so that it may also play a role in both the decisionmaking process and the implementation of that decision. See, e.g. 40 C.F.R. § 1500.1. In this instance, NMFS has apparently completely reversed this process. NMFS has decided it wishes to allow drift-gillnet fishing in the area currently closed to such fishing to protect leatherback sea turtles. Such prejudging of the outcome completely taints the NEPA process and is unlawful. See Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000).
In addition to the flawed timing of the NEPA analysis, NMFS’s most significant violation of NEPA is its failure to prepare a full Environmental Impact Statement (“EIS”) for the EFP.
Under NEPA:
an EIS must be prepared if “substantial questions are raised as to whether a
project . . . may cause significant degradation of some human environmental
factor.” To trigger this requirement “a plaintiff need not show that significant
effects will in fact occur,” raising “substantial questions whether a project may
have a significant effect is sufficient.”
Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149-50 (9th Cir. 1998) (citations omitted)
(emphasis in original).
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As you should be aware, the Draft EA NMFS will presumably rely upon for its EFP issuance5 itself explicitly or implicitly acknowledges that several of the Council on Environmental Quality (“CEQ”) “significance” factors triggering the need to prepare an EIS are met by the proposed EFP. See 40 C.F.R. § 1508. CEQ factors triggered by the proposed EFP, include but are not limited to, whether the action involves “[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands [and] ecologically critical areas,” Id. at § 1508.27(b)(3) (leatherback foraging areas); “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial,” Id. at § 1508.27(b)(4) (EA at 6: “The proposed action is likely to be controversial”); “[t]he degree to which the action may establish a precedent for future actions with significant effects or represent a decision in principle about a future consideration,” Id. at § 1508.27(b)(6) (the stated purpose of the EFP is to expand the fishery); “the degree to which the action is related to other actions with . . . cumulatively significant impacts,” Id. at § 1508.27(b)(7) (the related Longline EFP as well as all other impacts on the leatherback throughout its range); the “degree to which the action may adversely affect an endangered or threatened species,” Id. at § 1508.27(b)(8) (previously found to jeopardize the leatherback); and whether “the action threatens a violation of Federal . . . law or requirements imposed for the protection of the environment.” Id. at § 1508.27(b)(10) (violates ESA, MMPA and MBTA).
Either of these factors, standing alone, is sufficient to require preparation of an EIS. Ocean Advocates v. United States Army Corps of Engineers, 402 F.3d 846, 865 (9th Cir. 2005). In this instance, each of these factors requires preparation of an EIS.
In sum, reliance on an EA for the proposed action is completely at odds with the letter and spirit of NEPA. Rather than cast aside compliance with NEPA in its rush to accommodate the gillnet industry in time for the 2006 fishing season, if NMFS wishes to consider modifications to the Fishery it must do so only in a careful manner after preparation of an EIS. We therefore believe that the only lawful course for NMFS to follow at this point is to either select the No Action Alternative in the Draft EA, or to forgo action until the completion of a full EIS that analyzes a full range of alternatives, including alternatives, such as the complete closure of the Fishery, which may be necessary to come into compliance with existing law.

As the above makes clear, we believe that the current Drift Gillnet Fishery is operating in violation of the ESA, MMPA and MBTA. If NMFS wishes to reopen the regulatory process for the Fishery in an attempt to allow fishing in areas in which it is currently prohibited, we believe that the likely result will be something quite different- a court ruling suspending the entire Fishery until the Fishery complies with all applicable laws.
If NMFS does not act within 60 days to correct the violations described in this letter, our organizations will pursue litigation in Federal Court against NMFS. We will seek injunctive and declaratory relief, and legal fees and costs regarding these violations. An appropriate remedy 5 As NMFS has not published a Federal Register notice announcing the availability of the EA or of its intent to issue the EFP, we can only assume the flawed NEPA document used by the Council will also be used by NMFS.
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that would prevent litigation would be for the NMFS to: 1) deny the proposed EFP; 2) initiate the process to authorize take of ESA-listed marine mammals pursuant to Section 101(a)(5)(E) of the MMPA; and, 3) reconvene the Take Reduction Team for the purpose of modifying the existing
Take Reduction Plan so as reduce mortality and serious injury of marine mammals in the Fishery to ZMRG.
If you have any questions, wish to meet to discuss this matter, or feel this notice is in error, please contact me at (760) 366-2232×304.

Thank you for your concern
Brendan Cummings
Ocean Program Director
Center for Biological Diversity