Join us on Thursday, May 23, (My Birthday) with over 850 underserved school children from Marin and San Francisco Counties on Ocean Beach cleaning up trash, and creating aerial art to share their message of conservation with the world.
To volunteer, contact Wendy Dalia, at wdalia@audubon.org.
This program is funded by the California Coastal Commission’s Whale Tale license plate program. Now in its 20th year, this event is celebrated in 7 locations on the California Coast, involving 8,000 children. This will be the fifth year The Richardson Bay Audubon Center will be coordinating the San Francisco event!
We need 40 volunteers to make this day a success!

10-15 volunteers needed to arrive at 6:30am to help lay out the aerial art outlines in the sand. This is a fascinating process, directed by a pro aerial art designer!
25-30 volunteers needed to arrive at 8am for a volunteer orientation and assist with:
Greeting and directing arriving buses
Greeting and directing classes arriving by car, public transportation, walking
Assist with the distribution of supplies (gloves, data cards etc.)
Provide first aid (if you are certified) & manage the water & snack station for volunteers
Roam the beach to interact with students, help maintain safety, and inspire/be inspired, help get students to where they need to be
Assist with getting everyone into the art at the designated time
AND cheer on the kids while they wait for the helicopter to fly over and take the photo!

This is a fantastic opportunity to reinforce the importance of clean oceans and watershed and ocean conservation to over 850 students and our communities – and you can be in the aerial art photo too!

Let’s Get Some Trash Off Our Beaches and Out of Our Ocean!

Questions for David McGuire, Director Sea Stewards for Marine Biology Class, Skyline College

1.         What was your favorite moment you have ever captured on film and why?

It’s hard to say. I was charged by a sea lion bull in the Galapagos making a film called 180 South and held my ground, continuing filming.  The 450 pound animal bumped my lens but stopped cold, panting and snarling and glaring two feet from me.  It didn’t make it into the film.

I have dove with large groups of sharks, which is always exciting, like when we were making the film Shark Stewards of the Reef.  We dove with a hundred sharks all hunting at disk. In a large school of sharks it is impossible to watch all the individuals so you have to study the group behavior to know when things are turning from tranquil to sketchy.  Another time I was filming White sharks off Guadalupe Mexico out of a cage.  There were two large animals and two smaller sharks around 10 feet or so. I had a Mexican dive master who was my dive buddy and safety diver.  He used a broomstick as a fender. I was filming this 14 foot female Great White as she swam past about a meter away, panning her with my camera, thinking, “this is the shot!” I had a funny feeling and turning slowly, I saw another shark about a meter away with his Great White Grin.  It was a gotcha! moment for the shark but all he did was stare.  I exhausted my air and sank away finally glancing at my buddy who was staring face to face with another large shark. He looked at me, shrugged and we decided it was time to go topside.  The point is, when we are out diving, swimming ad surfing the sharks see us without us ever knowing  it and they generally leave us alone.

2.         Do sharks face a greater danger from over-hunting/fishing or from habitat destruction due to increased human activity in and around their waters?

This depends on location. Historically the San Francisco Bay has suffered huge impacts from habitat destruction, development, and pollution. Its much better but sharks and other species are still impacted from oil spills and dredging. Coral reefs in the Philippines and Indonesia have been damaged from dynamite fishing and cyanide poisoning impacting coral, fish and indirectly sharks. But the new demand for shark fin has virtually erased sharks from many of the islands.  In 1000 dives our Academy team only saw two reef sharks that were protected by a dive resort. A news story we did on Dr. John McCosker for ABC Channel 7 tells how may sharks there used to be when he first dove there 30 years ago, and how few there are today.  By far the greatest threat to shark populations is from overfishing and the relatively new phenomena called shark finning.  Shark finning is where sharks are caught, the fins cut off and the shark discarded to make room for more fins and other fish.  This is driven by the huge demand for shark fin for the primarily Chinese delicacy shark fin soup.  Where sharks used to be caught and cut free to swim and survive, now they are killed for their fins at the rate of 73-100 million a year and populations are crashing as a result.  Although killing sharks just for fins is illegal in the USA and about 40 other countries, the demand is so high that shark populations are suffering. Even countries with laws against the practice contribute to the problem by allowing the trade of fins from sharks that have been illegally finned. There is no domestic source of shark fin, so the fins for shark fin soup here come from Hong Kong where they come from unknown fisheries, have been treated and re-exported.  We sequenced the DNA from an otherwise non descript fin purchased in San Francisco Chinatown and it was an endangered Great Hammerhead Shark. These sharks do not live in California and it is likely the fin came from a finned shark.

3.         Where did the main inspiration for Sea Stewards come from? What is the biggest idea you want viewers to get out of the film?

Ten years ago while on a sailing expedition through the South Pacific I dove wild atolls with healthy reef ecosystems in the South Pacific with lots of sharks.  We also dove other reefs that had no sharks or small sharks and the reefs didn’t look as healthy.  These islands are essentially uninhabited, but we learned that fishermen were killing the sharks just for their fins and discarding the shark bodies. Later in the harbor of the main port we saw small boats loading up tuna onto a ship with a Taiwanese flag.  The rail of the ship was lined with shark fins but not a single shark was loaded- only tuna.  I later discovered the magnitude of the problem of shark finning and the impacts losing sharks has on marine ecosystems.  That’s when we decided to make the film Shark Stewards of the Reef and I founded Sea Stewards to stop this practice and help regulate the shark fin trade.  There is a full account published here and other stories under press on the web site seastewards.org.

4.    How do the sharks of the San Francisco Bay differ from those that you have studied elsewhere? And are the SF sharks in any more danger than the others? Why if so?

The most interesting shark we are looking at is the Sevengill shark. Sevengills are a large shark that prefers deeper water. They are a beautiful shark with only one dorsal fin and seven gills which is unusual since most sharks have five gills.  Sevengills come into the Bay to pup and reproduce and feed.  Our tagging indicates that the adults leave the Bay after some period of time, and return while others are resident. We have no idea how many there are or the extent of the range of this population, or how many are being fished. These sharks were once fished commercially and are still caught as bycatch in nets and by local fishermen. The wetland and shallow eelgrass bed habitat where the pups grow have been severely impacted but we have no idea if this and other local shark populations are seriously threatened or not. It’s symptomatic of most sharks how little we know,  even somewhere as sophisticated and managed as the San Francisco Bay. As a rule, we know very little about shark’s conservation status until we realize we have over fished them and the populations are threatened.  The California Thresher Shark population was dramatically reduced in the eighties by over fishing until the fishery was closed. This is why we need to scrutinize the amount of bycatch in fisheries like the gillnet fisheries, evaluate recreational impacts and protect critical habitat where the sharks are reproducing and giving birth.  Those core components are the basis of what we call the Shark Sanctuary program.

Hammerhead sharks are high up on the list of endangerment. These beautiful sharks have the misfortune of being the most coveted for their fins and they aggregate in areas where they are easily fished.  The combination of threats has delivered a double whammy and the sharks are disappearing from many locations around the world.  Recently three species of Hammerhead and other species like the Oceanic Whitetip have received additional protection under CITES- the Convention on International Trade in Endangered Species. This agreement will help control trade of fins and other body parts by the countries who have signed the agreement and recognize the convention.  It’s a start. We helped work on this proposal four years ago and helped garner support by tens of thousands of the public and it will make the fin trade of these species more difficult but not impossible. These sharks still need our protection and establishing shark sanctuaries and no fishing zones is another important solution.

5.      Why are sharks important in the ocean and how do they keep the ocean ecosystem healthy?  As apex predators, sharks are the regulators of the marine fid web.  Sharks maintain the health and the balance of fish populations. Removing apex predators has a cascade effect that impacts the fish below them all the way to the base of the food chain whether it be a coral reef, an estuary or a kelp forest.  We need large sharks.  It’s a lot of what we put into the film Shark Stewards of the Reef.

6.         Throughout your work, you have used film to share your research and influence people and policy.  What documentary or film of yours do you think was most effective in changing behavior and/or policy, and why?  Has your strategy changed with the increasing utilization of social media platforms such as Youtube, Twitter, and Facebook?

I’m a small time documentarian but I love to film and use film to tell ocean and nature stories. Winning an Emmy for Reefs to Rainforest, a TV documentary on the Philippines Biodiversity Expedition with the California Academy of Sciences and ABC was very rewarding.   I was stung by a lion fish, had a blistering rash from a nettle while filming on a volcano and worked really hard for two months in tough conditions to document the wonderful work of these scientists, Shark Stewards was an important film featuring several shark experts examining shark finning, sharks as predators and ecosystem health and establishing shark sanctuaries. It was made for PBS but it came out about the same time as Sharkwater, which was a great drama and had a much larger audience and impact for the good. Most of our work is small or no budget so we use the web and social media to spread the word and got onboard early on. It’s a great way to reach a world audience.

Today I’m more interested in reaching a larger audience through adventure- like the film 180 South or  Swim for Sharks- and embed the message in the drama.  Too often we preach to the choir or turn people off with our eco warnings, while Girls Gone Wild or Kitty Drives the Car gets a million hits on You Tube. Id like to make an impactful adventure series for the web to inspire youth about how cool sharks and the ocean are, and influence the world in a positive way.

7.      Being an underwater cinematographer and going on numerous sailing voyages, I’m sure you got a chance to come in contact with all type of marine organisms, when and what was that made your focus of marine documentation be centered on sharks? Was it more than them just being at the top of the food web in marine life?

I’ve always loved sharks and sought them out on my dives but I didn’t begin to study them until I learned about how threatened many species are.  One third of the large oceanic sharks are threatened with extinction. In my lifetime we have seen some populations decline to less than 10% of their original population.  Some predictions place outright extinction in another thirty years at the rate we are fishing.  Going back to the first question- it was when I learned about this gold rush for shark fin driven largely by economic prosperity in the east that inspired me to learn more and to explain what I and others have learned about this very grave threat to sharks and our oceans. That’s what drives my filmmaking.

Sharks are iconic; they are symbols, symbols of power and beauty but also symbols of what is going wrong in our oceans.  Sea Stewards logo is a white shark over the planet and the Pacific Ocean, the ost dominant feature on Earth.  This symbolizes it’s a world ocean and sharks are an important part of that ocean world from reefs to waves  to the fish we love to eat.  We need to use this symbol to rally around sharks and ocean health. That’s what Sea and Shark Stewards are about.  We intend to protect sharks and the health and balance of our oceans for the future.  An ocean without sharks would be like a swimming pool with a broken filter; algae ridden, stagnant and dead.

7.         I’ve always been interested in how conservation groups mobilize when faced with challenges. In that respect, how did your organization work with the public to get support for the passage of AB 376? And in what ways did these methods engage or challenge the public’s perspective about sharks?

Most people don’t think about sharks much unless it’s to fear or loathe them. The news and shark films typically focus on shark attacks when in fact its sharks who are under attack. We started campaigning using the documentary produced with my friends Christopher and Holiday Johnson. They owned the vessel and camera equipment and together we sounded the alarm on shark finning in 2006.  We started in the town of Tiburon where we screened the film at a film festival. Inspired by a young man and his friends we convinced the Mayor and town council to officially condemn shark finning and ban shark fin soup that same year. We took that to San Francisco where the largest and most affluent Asian American population consumed the most shark fin soup outside of Asia.  We attempted to garner support as we reached out to that community but we treaded water for five years attempting to pass a citywide shark fin ban. With the help of two prominent Asian American leaders -Senator Clayton Hee of Hawaii and CA Assemblyman Paul Fong who took the lead among that community. We worked with other groups and approached my Assemblyman (now Congressman) Jared Huffman to lead a state effort. We learned we must work with people within the culture or we are judging, pointing fingers and they will naturally take offense or become defensive.  It is a challenge to make it known that this is not a cultural issue, its an issue of sustainability and shark fin soup is unsustainable. The subject of race and discrimination against Chinese culture was raised – notably in the press by one Senator running for Mayor and by the interim mayor- but those claims were deflected both by a poll held by the Monterey Bay Aquarium indicating the majority (78%) of Chinese Americans would support a ban once they learned of the gravity of the situation, and by the formation of Chinese and other Asian Americans into a group called APAOHA who helped address the issue from a cultural perspective and help us pass AB 376. Without these community and environmental leaders and activists nothing would have gotten through the legislature.  We recently defended a lawsuit against the California ban claiming discrimination and helped pass similar legislation in other four states, three US territories and we are now working in 5 other US states and abroad to pass similar legislation.  I believe the public is starting to understand that this sharks are becoming endangered driven by a luxury and that we need to change our patterns for the oceans to survive.

8.         Since you began your campaign to end shark finning, have you seen any change in the number of sharks killed each year for their fins? Have you gotten the support of many local restaurants by the cessation of serving shark fin soup?

Shark numbers and fishery impacts are hard to come by but a recent study suggests around one hundred million sharks are being killed each year.  It is difficult to estimate shark populations and even more of a challenge to successfully manage them.  The oceans are vast and there are many illegal, unregulated and unreported shark fisheries. Enforcement is very difficult even for countries like the USA who have a navy, coast guard and local fish and wildlife enforcement officers. We have recently been working in Texas where sharks are poached from the Gulf by small Mexican launchas primarily for their fins it is believed by enforcement officers there. The waters around Asia are being fished clean and the effort is turning to the world ocean.  It’s a symptom of a sickness in every ocean around the globe. Spain is a huge exporter of shark and shark fin, purchasing the products from other EU fishers and Africa and exporting to Honk Kong and China.  The consumers need to be educated that this dish is causing destruction not just of sharks but the ecosystems sharks serve.  Like elephant ivory,  not only enforcement and trade regulation but also education is paramount.

As the trade of endangered species fins is regulated, we must keep educating and reaching out to Hong Kong and China to encourage them to shift their consumption to more sustainable patterns. Shark fin soup is a luxury we can live without but the oceans cannot survive with out sharks.  We need to keep working here in the USA to limit the shark fin trade going through our ports and work with Asian countries to reduce the demand.

Locally, California restaurants will be required to stop serving the dish as of July 1.  Law abiding citizens will cease selling it. There are always a few people who will do illegal acts for gain, but the lion’s share of the soup fin trade will stop in California. More importantly, we will be halting the flow of tons of shark fins coming through our ports for re-export.

It’s really a choice we all have to make. Will humanity continue to allow the greedy and the ignorant to exploit wild animals like whales, elephants, tigers and sharks until they are extinct, or will we make the decision that these products of millions of years of evolution are worth loving and protecting and fighting for?

Sea Stewards will keep fighting to protect sharks and restore the health and balance of the ocean. We need your help.

©David McGuire, Sea Stewards

Sharks are disappearing from our oceans at the rate of 100 million per year, according to a new study published in the scientific journal Marine Policy. After withstanding the last five extinctions, a creature responsible for only six to 12 human deaths each year is now the prey of humans, and is now in danger of disappearing in what biologist EO Wilson calls the Sixth Great Extinction.

Humanity’s bite out of the shark population holds dire consequences. Oceans produce 70 percent of our oxygen and are thus essential to life on earth. As the ocean’s apex predators, sharks occupy the top of the food chain and are essential to maintaining the ecological balance of the sea. As shark populations deteriorate, so too will oceanic health – and the value chain that represents the ocean or “blue” economy. This simple syllogism is rapidly becoming a reality.

The culprit is overfishing, which is primarily driven by the shark fin trade. Shark finning is a practice that provides the key ingredient for shark fin soup, a status symbol in China and in other countries with Chinese populations, which now sells for as much as US $100 a bowl. After more than 400 million years on planet Earth, sharks are being destroyed to support the lucrative trade in shark fins necessary for creating the delicacy.

Shark finning

An inhumane and unsustainable practice, shark finning occurs when fishermen catch sharks, cut off the fins (which sell for as much as $800 per pound), and carelessly toss the animals back into the sea, many of them still alive. Since their carcasses are only worth pennies a pound, many fishermen focus only on the fins. For sharks as well as for the people who depend on the blue economy, the cruel practice exacts a terrible toll to maintain a market that yields profits for so few.

Already, numbers of some species such as oceanic white tip sharks have plummeted to one percent of their original population in the Atlantic. While we still do not know the full scope of the impact on some species, we do know that one third of open-ocean sharks are endangered. If something cannot be done to reverse the decline, scientists warn that the collapse of the sea may be imminent.

Fortunately, recent developments offer hope. Research into the economic value of sharks shows that they are worth much more swimming in the sea than in soup dishes. The estimated value of a shark can be as much as $2m for some island communities. In Fiji, shark diving tourism is worth $42m per year, and in French Polynesia, lemon shark diving brings in $15.4m.
Follow our in-depth coverage of Bangkok CITES conference

In Palau, where diving tourism yields 39 percent of the country’s GDP, killing a shark can result in upwards of $250,000 in fines and an additional $250,000 for each section removed, such as the fins. That is why coastal communities such as the Bahamas, Honduras, Palau, Maldives and Ecuador are establishing shark sanctuaries to prohibit the killing of sharks and support the eco-tourism so essential to their island economies.

In terms of international policy, the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) just voted to protect three species of hammerhead sharks. Among the most coveted for shark fin soup, these gentle sharks are becoming rapidly overfished, even in protected areas like the Galapagos Islands.

While these developments indicate promise, shark populations remain in danger as long as the market for shark fins thrives. In her book Demon Fish, Washington Post reporter Juliet Eilperin interviews shark fin dealers for their take on the matter. One dealer named Lin Ying Jui calls shark fin a “luxury” product, which her shop in Sai Ying Poon makes available for customers who are rich enough to buy. It is simple economics, really. Give the customer what they want or risk losing their business to another. If sharks disappear from the sea in pursuit of retail profits, so be it. As Eilperin reports, “‘There’s nothing we can do about it,’ says Lin. ‘We have to accept it.’”

Thankfully, such defeatism is not preventing a global surge in action on behalf of sharks from divers, activists, policymakers, scientists and writers who collectively constitute the international shark advocacy community. The group is itself a renewable resource, lending support to protect sharks on local, regional, national and international fronts.

Law to save sharks

Heightened awareness is leading to greater protection for sharks. To reduce supply, the US has a law against live finning in our waters and approximately 40 other countries have similar laws against the practice. To address fatalism like that of Lin, the Hong Kong shark fin trader, US states have begun to pass shark fin trade bans to help reduce the demand for the luxury dish.

For my part, after reading a report on one particularly gruesome incident involving 2,000 dead, finless sharks off the coast of Colombia, I contacted shark conservationist and marine biologist David McGuire to see if there was anything that Texas could do. McGuire’s organisation had successfully spearheaded the California and Illinois bans, and has campaigns in the works in several other states.

Since partnering with McGuire’s organisation Shark Stewards, a San Francisco-based non-profit, I have been introduced to an international community of shark advocates that extends all the way to China. In my home state of Texas, Shark Stewards has partnered with the Humane Society of the United States to move a bi-partisan bill successfully through the Senate and House committee hearings. If Texas succeeds, our state will become the sixth state to pass the bill, and the first “red state” in America to lead on the issue.

“There are no easy solutions,” says McGuire, “but there are a few things we can do here at home. Local fishermen can support releasing sharks after catching them.” And, he says, “Avoiding unsustainable seafood and supporting shark fin trade reductions helps reduce killing sharks in international waters. Concerned ocean citizens can also support Shark Stewards’ international appeal to the UN to ban the practice of shark finning worldwide as we have here in the USA.”

The blue economy is in precarious condition, and we need more people to join the effort to save it. The effects of the ocean going out of balance is costing lives and livelihoods as coral reefs collapse and other systems are impaired. The ocean coastal zone is a natural resource that provides two-thirds of the world’s GDP. As the regulators of the sea, sharks are essential to maintaining the balance required for the rest of the food chain to thrive – humanity included.

Anna M Clark is president of EarthPeople and the author of Green, American Style: Becoming Earth-Friendly and Reaping the Benefits. She has written for The Guardian and The Huffington Post and writes the Eco-Leadership column for Greenbiz.com. She is a Public Voices fellow at The Op-Ed Project and writes on culture, leadership and sustainability.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.

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
Email: cgutierrez@doc.gov

Dr. William Hogarth
Assistant Administrator for Fisheries
National Oceanographic and Atmospheric Administration
1315 East-West Highway
Silver Springs, MD 20910
E-mail: bill.hogarth@noaa.gov
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

Background
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.

Conclusion
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
Sincerely,
/s/
Brendan Cummings
Ocean Program Director
Center for Biological Diversity

The immediate intervention of Incopesca and the destitution of its Board of Directors, is the recommendation of (The Front for Our Seas), delivered today through a letter addressed to Costa Rica’s President Laura Chinchilla and the Minister of Agriculture and Livestock Gloria AbrahamLetter addressed to Costa Rica’s President and the Minister of Agriculture and Livestock (in spanish)

The recommendation is based on the latest political developments taking place in the bosom of Incopesca, which demonstrates that fisheries policies are still a long way from real change, in spite of the positive marine conservation actions taken by the Executive Branch over the last two years.

Among the positive actions, the Front For Our Seas highlights the closure of private docks to foreign fleets, the creation of the Sea Mounts Marine Management Area, the inclusion of hammerhead sharks in Appendix II of CITES, the destitution of Incopesca’s Vicepresident due to an inherent conflict of interests, and the recent issue of the Comptrollership´s Report (DFOE-EC-IF-14-2012) (Government Accountability Office) which exposed a number of anomalies surrounding the definition of national fisheries policies.

The Front for Our Seas complains nonetheless, that the elaboration of the National Fisheries Development Plan, soon to be published, was performed by two well known consultants, both of which since 2003 have vehemently defended Incopesca’s policies related to the use of private docks by foreign fleets, the use of shark finning control systems that allows the separation of the fins from the body, and the use of the Association of Biologists to oversee illegal foreign fleet landings at private docks. Furthermore, the Front denounced the recent appointment of fishing entrepreneur Mauricio Gonzalez as a Board Member of Incopesca, who also happens to be responsible for three longline vessels, which together accumulate over 40 reports for invading the protected waters of Cocos Island National Park.

Finally, the Front for Our Seas reminded the President and the Minister that an intervention of the institution is technically justified, based on the Reports issued by the Presidential Commission on Marine Governance and the Comprtollership of the Republic, which exposed the need to reform the institution and the lack of technical considerations when granting licenses.

“We’ve had to resort once and again to the Courts, the Legislative Assembly, the Attorney General, the Ombudsman and the Comptrollership of the Republic, just to change the capricious policies established by this consultants, whom for years simply decided to ignore the best scientific information and national legislation” clarified Randall Arauz of Pretoma, a member organization of the Front For Our Seas. “I don’t see why it would be any different now, we will have to wait for the publication of their Plan”, warned Arauz.

“The appointment of Mauricio González as a Board member of Incopesca is proof of the tremendous forces that are resisting the efforts of the Government of Laura Chinchilla to fully develop the Blue Agenda, and we are even more worried that the Minister of Agriculture seems to not mind much about these appointments” explained Andrés Jiménez, Coordinator of the Front For Our Seas,   “An intervention of Incopesca would give the necessary means to the President to clear the path of the stale private interests that have ruled this institution up to this very day.” sentenced Jiménez.

“The time has come to define the political reforms needed for Incopesca to finally ensure the protection of the public interest” announced Leonora Jiménez, spokeswoman of the Front For Our Seas. . “I call on all Costa Ricans to support an immediate intervention of Incopesca, as marine resources belong to all of us, ” said Jiménez.

The Front For our Seas is a group of organizations of the civil society that works to improve the administration of marine resources through a series of legal, scientific, political, and advocacy approaches, that lead to an improved management of marine resources. It promotes the reform of Incopesca in such a way that it responds to the objectives for which the institution was created: the protection of the public interest and the sustainable use of fishery resources.

The eight organizations, Pretoma, Fundación Keto, Fundación Promar, International Student Volunteers Inc., Sea Save Foundation, The Leatherback Trust, UESPRA, Widecast, as well as interested citizens who integrate the Front For Our Seas, enjoy ample experience on environmental education, research, conservation and defense of the environment.

For more information: 

Andrés Jiménez: andresjmo@gmail.com, tel: (506) 8831 3373

Randall Arauz: rarauz@pretoma.org, tel: (506) 8344 3711

The U.S. High Seas Driftnet Fishing Moratorium Protection Act requires the Department of Commerce to produce a biennial report to the U.S. Congress identifying nations whose vessels have engaged in IUU fishing activities in the preceding two years (2011-2012), and bycatch of protected living marine resources (PLMRs) and/or shark catch on the high seas in the preceding year (2012). It also requires the Department to issue certification decisions for those nations identified in the previous Report to Congress (January 2011). The 2013 biennial Report to Congress was published today and is available at http://www.nmfs.noaa.gov/ia/.

2013 Report Highlights
The 2013 Report identifies ten nations – Colombia, Ecuador, Ghana, Italy, Mexico, Panama, the Republic of Korea, Spain, Tanzania, and Venezuela – whose fishing vessels engaged in IUU fishing in 2011 or 2012,  and one nation – Mexico – whose vessels had bycatch of North Pacific loggerhead sea turtles, a protected living marine resource, in 2012 without an effective regulatory regime to address such bycatch. NOAA Fisheries will work with these nations over the next two years to encourage them to take appropriate action to address the activities for which they were identified. NOAA will work with Mexico to develop an action plan that addresses the bycatch of the North Pacific loggerheads.

This is the first time that the United States is identifying a nation for bycatch-related activities. The Moratorium Protection Act limits the timeframe for bycatch identification to the year preceding the publication of the report. Therefore, for the 2013 report, the United States required evidence of bycatch activities in 2012, which was extremely challenging given the nature of bycatch reporting.
All six of the nations identified in the 2011 Report to Congress (Colombia, Ecuador, Panama, Venezuela, Italy, and Portugal) have addressed the illegal fishing activities for which they were identified and have received positive certifications as a result of their actions. Each nation took actions such as sanctioning vessels with fines and/or revocation of fishing licenses, adopting or amending laws and regulations, or improving monitoring and enforcement which has resulted in a positive certification.

Final Rule to Implement International Provisions of the Shark Conservation Act
NOAA Fisheries will publish a final rule next week to implement the international provisions of the Shark Conservation Act.  The regulations specify the identification and certification procedures for nations whose vessels engage in shark catch on the high seas and also amend the definition of IUU fishing to ensure that NOAA Fisheries can take a more comprehensive approach to addressing unsustainable fisheries activities of concern. The rule will be available after publication here: http://www.nmfs.noaa.gov/ia/iuu/msra_page/msra.html

Please share this information within your organization and do not hesitate to contact me if you have any questions regarding these matters.
Sincerely,

Elizabeth McLanahan
Acting Director, NOAA Fisheries Office of International Affairs