U S Caribbean Acropora 60-Day Notice_FINAL

8/2/2019 U S Caribbean Acropora 60-Day Notice_FINAL

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ALASKA CALIFORNIA FLORIOA MID-PACIFIC NORTKEAST NORTKERN ROCKIES8EARTHJUSTICE NORTKWEST ROCKY MOUNTAIN WASHINGTON, DC INTERNATIONAL

Via Certified Mail Return Receipt Requested February 21, 2012

Dr. Roy Crabtree Dr. Jane Lubchenco Regional Administrator, Southeast Region Under Secretary and Administrator National Marine Fisheries Service NOAA 263 13 th Avenue South 1401 Constitution Avenue, NW St. Petersburg, FL 33701 Room 5128 Washington, DC 20230 Mr. Samuel Rauch Assistant Administrator for Fisheries Mr. John E. Bryson National Marine Fisheries Service Secretary of Commerce 1315 East West Highway, SSMC3 U.S. Department of Commerce Silver Spring, MD 20910 1401 Constitution Ave., NW

Washington, D.C. 20230Re: Notice of Violations of the Endangered Species Act Relating to ContinuedAuthorization of the U.S. Caribbean Reef Fish Fishery

Dear Dr. Crabtree, Mr. Rauch, Dr. Lubchenco, and Mr. Bryson:On behalfof the Center for Biological Diversity, Mary Adele Donnelly, and

CORALations, we write to notify you of violations of Section 7 of the Endangered Species Act("ESA"), 16 U.S.c. 1536, in connection with the National Marine Fisheries Service's("NMFS") continued authorization of the U.S. Caribbean Reef Fish Fishery ("Fishery"). Asdetailed below, NMFS is in violation of Section 7 of the ESA, 16 U .S.C. 1536, because it isfailing to ensure that the ongoing operation of the U.S. Caribbean Reef Fish Fishery is not likelyto jeopardize the continued existence of elkhorn and staghom coral or destroy or adverselymodify their critical habitat. NMFS's violation stems from its reliance on the BiologicalOpinion for the Continued Authorization of Reef Fish Fishing Managed under the Reef FishFishery Management Plan (FMP) of Puerto Rico and the U.S. Virgin Islands (CRFFMP)("Biological Opinion") dated October 4, 2011. The Biological Opinion is fundamentally flawedand cannot be relied upon to ensure that the U.S. Caribbean Reef Fish Fishery meets therequirements of the ESA The Biological Opinion fails to analyze properly the Fishery's impacts

426 17TH STREET 5TH FLOOR OAKLAND. CA 94612T: 415.217.2000 F: 415.217.2040 E: [email protected] W: www.earthjustice.org
mailto:[email protected]:///reader/full/www.earthjustice.orgmailto:[email protected]:///reader/full/www.earthjustice.org


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U.S. Caribbean ReefFish Fishery 60-day noticeFebruary 21,2012Page 20f8on these two coral species and their critical habitat, fails to use the best available science, fails toestablish a rational connection between the facts it found and conclusions it made, and fails toestablish a lawful incidental take limit to track and minimize Fishery impacts. Consequently, theBiological Opinion represents a violation of the basic requirements of the ESA to conserve listedspecies, and is arbitrary and capricious, an abuse of discretion, and not in accordance with law, inviolation of the ESA and the Administrative Procedure Act ("APA"), 5 U.S.C. 706(2).

This letter is provided pursuant to the 60-day notice requirement of the citizen suitprovision of the ESA, to the extent such notice is deemed necessary by a court. See 16 U.S.C. 1540(g). Please note that two signatories to this letter filed suit against NMFS and Mr. Bryson(in his official capacity as Secretary of the Department of Commerce) on January 30, 2012challenging other unlawful actions in connection with the authorization of the Fishery. Centerfor Biological Diversity, et al. v. NMFS, et aI., No. 1:12-cv-00151-RBW (January 30, 2012).These parties also previously provided comments and information to the National MarineFisheries Service relating to the effects of the U.S. Caribbean Reef Fish Fishery on elkhorn andstaghorn coral (see attached letters dated Nov. 18,2011 and Dec. 1,2011).I. Background

Once the major reef-building coral species in the Caribbean, elkhorn and staghorn coralhave declined precipitously over the last several decades, with most populations losing 80 to 98%of their baseline from the 1970s. In the U.S. Virgin Islands, the abundance of elkhorn andstaghorn coral has declined by over 97% since the early 1980s. NMFS listed elkhorn andstaghorn coral as threatened species under the ESA in 2006 in response to a petition from theCenter for Biological Diversity (71 Fed. Reg. 26852 (May 9, 2006)) and designated criticalhabitat for elkhorn and staghorn coral in 2008 (73 Fed. Reg. 72210 (Nov. 26,2008)). These twocoral species face numerous threats to their survival and recovery, including stress resulting fromrising sea surface temperatures due to climate change, ocean acidification, hurricane damage,disease, and competition with algae. These threats act in synergistic ways such that damage fromone stressor leaves elkhorn and staghorn coral more vulnerable to damage from the others andless able to recover. Indeed, the persistence of stressors that reduce coral growth andreproduction or increase coral mortality may tip the reef ecosystem and thus the critical habitatof elkhorn and staghorn coral- into irreversible decline. Knowlton and Jackson (2008).

Competition for space and light between hard corals and benthic algae, particularlymacroalgae and dense turf algae, plays a fundamental role in determining the overall status ofcoral reefs. See, e.g., Lirman (2001). High macroalgal biomass harms corals in a number ofways. First, it can directly harm coral by overgrowing it and starving it of sunlight necessary tofeed the symbiotic zooxanthellae in the coral's tissues, which provide nutrition to the coral polyp.Overgrowth generally interferes with the coral 's growth; severe overgrowth can result in coral


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U.S. Caribbean ReefFish Fishery 60-day noticeFebruary 21, 2012Page 3 of8mortality. Macroalgae also harm coral by secreting substances that may directly kill coral orindirectly kill coral by promoting the growth ofharmful bacteria. ld. Second, algal overgrowthinterferes with the coral 's fecundity. Finally, algal overgrowth of reef structure decreasesavailable habitat for coral recruits to settle and develop, thereby impairing the ability of staghornand elkhorn coral to recover.

Competition between macroalgae and coral can cause "feedback loops," driving reefswith high coral cover and low macroalgal cover to shift toward high macro algal coral cover andlow coral cover. Such shifts have been common in the Caribbean since the 1980s, andmacroalgae now dominate most of the space on Caribbean reefs. This regional shift is generallyattributed to the decline ofherbivorous grazing species that control macroalgal growth as a resultof overfishing of herbivorous fish species and the drastic declines of the sea urchin Diademaantillarum. After declining dramatically in the 1980s, this urchin species has not recovered tonumbers that would allow it to play an ecologically significant role in grazing on Caribbeanreefs. Parrotfish -large-bodied fish with powerful, beak-like mouths that scrape algae of fcoraland other substrate are now the only major macroalgae grazers left in the U.S. Caribbean. Inthe absence of urchins, grazing by parrotfish is crucial to the health ofCaribbean coral reefhabitat. Mumby et al. (2006), Jackson (2001).

Parrotfish graze on macroalgae that would otherwise compete for space and light withcorals. 1 The removal of parrotfish and other large herbivorous fish facilitates algal overgrowthand high macroalgal biomass. Ample scientific evidence demonstrates that maintaining diverse,abundant, and intact populations of grazing fish on the reef is vital in order to reduce competitionbetween algae and coral and provide suitable habitat for coral recruitment. Furthermore,scientific studies show that it is also necessary to maintain the largest individuals among grazingspecies, since these large fish remove a great deal more algae than their smaller counterparts.Studies also show that even low levels of fishing pressure can greatly reduce the grazingfunctionality of the herbivorous fish population. Mumby et al. 2006. Current data indicate thatparrotfish populations in the U.S. Caribbean are heavily skewed towards smaller individuals,indicating that larger individuals have been disproportionately removed by fishing and that thepopulations are experiencing unsustainable fishing pressure.

Scientific studies have shown that coral reefecosystems sUbjected to significant levels offishing tend to be less resilient and slower to recover from other stressors than reef systemswhere fishing is tightly controlled. Therefore, NMFS has concluded that the management of socalled "secondary" threats such as overfishing should be the focus of regulatory and recoveryefforts for staghorn and elkhorn coral in order to allow the species to be more resistant and1Stoplight parrotfish may also play an important role in dispersing the zooxanthellae (Symbiodinium spp.) uponwhich corals depend and thereby maintaining environmental reservoirs of zooxanthellae that can be taken up bycoral larvae. Castro-Sanguino and Sanchez 2011.


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u.s. Caribbean Reef Fish Fishery 60-day noticeFebruary 21,2012Page 4 of8resilient to the continuing impacts of "primary" stressors such as climate change, hurricanes, anddisease. "[M]anaging these less severe threats may assist in decreasing the rate of elkhorn andstaghorn coral's decline by enhancing coral condition and decreasing synergistic stress effects."BiOp at 179. See also Pandolfi et al. 2005.

In spite of its own conclusions, NMFS decided to authorize the continued directed harvestof parrot ish in the U.S. Caribbean reef fish fishery in its October 4,2011 Biological Opinionregarding the effects of the u.s. Caribbean ReefFish Fishery on ESA-listed species. For thereasons explained below, this decision violates NMFS's substantive duties under Section 7 of theESA.II. Violations of the ESA

NMFS is in violation ofESA Section 7 because it has failed to ensure that the ongoingoperation of the U.S. Caribbean ReefFish Fishery is not likely to jeopardize the continuedexistence ofelkhorn and staghorn coral or destroy or adversely modify critical habitat for thosecoral species. Because the Biological Opinion's "no jeopardy" and "no adverse modification"conclusions are arbitrary and capricious and not in accordance with applicable law, NMFS maynot rely on the Biological Opinion to meet ESA requirements.

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 ofany endangered species or threatened species or result in the adverse modification of habitat ofsuch species . . . determined . . . to be critical . . . ." 16 U.S.C. 1536(a)(2); 50 C.F.R. 402.l4(a). To accomplish this goal, agencies must consult with the delegated agency of theSecretary ofCommerce or Interior whenever their actions "may affect" a listed species. 16U.S.C. 1536(a)(2); 50 C.F.R. 402.14(a). Where, as here, NMFS is both the action agency andthe consulting agency, different branches ofNMFS must undertake internal consultation witheach other. Thus, in this case the NMFS Office ofProtected Species must consult with theNMFS Office of Sustainable Fisheries. At the completion of consultation, NMFS as theconsulting agency issues a biological opinion that determines whether the action is likely tojeopardize the continued existence of the species or destroy or adversely modify critical habitat.If so, the opinion must specify reasonable and prudent alternatives that will avoid the likelihoodof jeopardy or adverse modification and allow the action to proceed. 16 U.S.C. 1536(b).

Even after the procedural requirements of a consultation are complete, however, theultimate duty to ensure that an activity does not jeopardize a listed species or destroy or adverselymodify its critical habitat lies with the action agency. An action agency's reliance on aninadequate, incomplete, or flawed biological opinion cannot satisfy its duty to avoid thelikelihood of jeopardy to listed species. See, e.g., Florida Key Deer v. Paulison, 522 F .3d 1133,


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U.S. Caribbean ReefFish Fishery 60-day noticeFebruary 21, 2012Page 5 of81145 (11th Cir. 2008); Pyramid Lake Tribe ofIndians v. u.s. Navy, 898 F.2d 1410, 1415 (9thCir. 1990); Stop H-3 Ass n. v. Dole, 740 F.2d 1442, 1460 (9th Cir. 1984) (action agency mustindependently ensure that its actions are not likely to cause jeopardy). Thus, the substantive dutyto insure against jeopardy to listed species or destruction or adverse modification of criticalhabitat remains in effect regardless of the status of the consultation.

In this case, the Biological Opinion is a deeply flawed document on which NMFS maynot reasonably rely. For example, rather than examining the possible adverse effects of theFishery when added to all other actions that are already negatively affecting elkhorn and staghorncoral in the action area, the Biological Opinion unlawfully analyzes the likelihood ofjeopardyand adverse modification by comparing the incremental impacts of the Fishery to other,"unmanageable" threats, including climate change, hurricanes, and disease. Thus, the BiologicalOpinion fails to analyze the Fishery's effects in the context of the already poor and decliningstatus of elkhorn and staghorn coral, and in addition to increasing baseline threats. Instead, theBiological Opinion concludes that Fishery effects, "in and of themselves," are not likely tojeopardize the continued existence of elkhorn and staghorn coral or destroy or adversely modifYtheir critical habitat. By looking at the effects of the Fishery in isolation from other threats thatare already negatively affecting these two species of coral, NMFS violated the ESA. Indeed, theNinth Circuit examined NMFS's approach in a prior case and soundly rejected i t as contrary toESA purposes and requirements: "Under this approach, a listed species could be graduallydestroyed, so long as each step on the path to destruction is sufficiently modest. This type of slowslide into oblivion is one ofthe very ills the ESA seeks to prevent." Nat 'I Wildlife Fed'n v.NMFS, 481 F.3d 1224, 1235 (9th Cir. 2005).

In addition, the Biological Opinion's conclusions are not based upon the best availablescientific information regarding the effects of fishing on elkhorn and staghorn coral and theircritical habitat. The Biological Opinion disregards scientific evidence showing that macro algaldominance of reef habitat poses a significant threat to the survival and recovery of elkhorn andstaghorn coral, as well as to their critical habitat, particularly in the context of the myriad andintensifYing threats that these species otherwise face. It also disregards scientific evidenceshowing that even moderate levels of fishing can adversely affect the grazing efficacy ofherbivorous fish populations and that an intact, unfished grazing fish population is necessary tomediate competition between coral and macroalgae and facilitate successful sexual and asexualreproduction of these species. ~ Biological Opinion also ignores scientific evidence showingthat the grazing efficiency of the herbivorous popUlation or parrotfish specifically is more closelylinked to the number of large fish in the population rather than overall numbers or biomass offish. In addition, while acknowledging that the loss of a major grazer, the long-spined blackurchin, is a factor contributing to the degradation of elkhorn and staghorn habitat in the U.S.Caribbean, NMFS failed to properly consider substantial scientific evidence that the continued


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U.S. Caribbean Reef Fish Fishery 60-day noticeFebruary 21, 2012Page 6 of8removal of the only major grazers left, parrotfish, is currently contributing to the decline of thesespecies and degradation of their critical habitat.

Furthermore, the Biological Opinion fails to articulate a rational connection between thefacts presented and NMFS' s conclusion that continued Fishery operations are not likely tojeopardize the continued existence of elkhorn and staghorn coral or destroy or adversely modifytheir critical habitat. For example, NMFS fails to acknowledge the importance of maintaining ahealthy, intact population of the only major grazers left on the Caribbean reef ecosystem-parrotfish even as it blames the loss of coral and coral habitat on the loss several decades ago ofanother major grazer, the long-spined black urchin. In addition, NMFS's conclusion that grazingby the most prevalent species of parrotfish in the U.S. Caribbean is not a major factor inmediating algal overgrowth is internally inconsistent with its assertion that protecting the threerarest species of parrot ish in the U.S. Caribbean will lead to increases in grazing. Moreover,NMFS's assumption that fishery management measures will actually achieve reductions inparrotfish catch and will thus increase grazing has no basis, as these measures lack effectivemonitoring and reporting requirements. Furthermore, NMFS offers no rational explanation forits assumption that any reductions in parrotfish catch that may be achieved will be sufficient toincrease grazing and reduce algal overgrowth so as to avoid jeopardy to elkhorn and staghorncoral and destruction or adverse modification of their critical habitat. Finally, NMFS's dismissalof macro algal overgrowth of reefs as a "moderate" threat to elkhorn and staghorn coral conflictswith its own admission that macro algal overgrowth acts synergistically with other threats todegrade the status of the species and their critical habitat and renders them more vulnerable tothose threats.

Finally, the Biological Opinion violates ESA Section 7(b)(4), 16 U.S.C. 1536(b)(4),which requires that the Biological Opinion: (1) specify the impact (i.e., the amount or extent) ofthe action 's incidental take on the at!ected species; (2) establish reasonable and prudent measw:esnecessary or appropriate to minimize the impact of that take; and (3) impose terms andconditions with which the action agency must comply to implement the incidental take limit andreasonable and prudent measures. See also 50 C.F.R. 402. 14(i)(1 )(i)-(iii). When possible,incidental take must be specified in terms ofa numerical limitation. H.R. Rep. No. 97-567, at 27(1982), reprinted in 1982 U.S.C.C.A.N. 2807,2827; see also Miccosukee Tribe v. US., 566 F.3d1257,1274 (11 th Cir. 2009); Or. Natural Res. Councilv. Allen, 476 F.3d 1031,1037 (9thCir.2007). However, the Biological Opinion does not include incidental take limits for staghornand elkhorn coral that reflect the effects of the Fishery. Moreover, the Biological Opinion fails tooffer a rational explanation why it cannot quantitatively assess the Fishery 's indirect impacts toelkhorn and staghorn coral from removing large grazing fish, especially large parrotfish, andthereby fostering continued macro algal overgrowth.


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U.S. Caribbean ReefFish Fishery 60-day noticeFebruary 21,2012Page 7 of8

Where it is not possible to specify incidental take in terms of a numerical limit, NMFSmust explain why it is not possible and use a proxy for incidental take that bears a clear, rationalrelationship to the impacts of the action on the species, such that the incidental take limitprovides an adequate trigger for reinitiation of consultation if the effects of the action exceed theeffects that NMFS predicted in its Biological Opinion. See id. However, the Biological Opiniondoes not establish a clear, reasonably proxy for coral taken by indirect impacts, and thus does notestablish a meaningful trigger for the reinitiation of consultation if Fishery effects exceedNMFS's expectations. Specifically, NMFS's use of generic herbivorous fish biomass on St.Croix as a measuring stick to determine whether the entire Fishery is adversely affecting elkhornand staghorn coral is flawed in that it does not provide a reliable measure of the Fishery'songoing effects on the entire area affected by the Fishery (an area that includes not only watersoff St. Croix, but also waters adjacent to St. Thomas, St. John, and Puerto Rico).

For these reasons, NMFS has violated the ESA and AP A by producing an invalidbiological opinion. In its duty as the action agency authorizing the operation of theFishery, NMFS also has an independent duty to ensure that its actions avoid the likelihoodof jeopardy. By authorizing the continued operation of the Fishery based on the BiologicalOpinion, NMFS does not meet this legal standard. See, e.g., Pyramid Lake Tribe ofIndians, 898F.2d at 1415; Stop H-3 Ass 'n., 740 F.2d at 1460. NMFS has therefore violated and remains inviolation of Section 7(a)(2) of the ESA.

CONCLUSION

For the above stated reasons, NMFS has violated and remains in ongoing violation ofSection 7 of the ESA. If you believe any of the foregoing is in error or would like to discuss aresolution of this matter, please do not hesitate to contact us.

Sincerely, ndrea A. Treece

Stephen E. RoadyAttorneys for the Center for Biological Diversity,CORALations, and Mary Adele Donnelly


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U.S. Caribbean ReefFish Fishery 60-day noticeFebruary 21,2012Page 8of8Attachments:

Comments from Earthjustice on behalf ofSea Turtle Conservancy et al. (Nov. 18, 2011)Comments from Center for Biological Diversity joining Nov. 18 comment letter (Dec. 1,2011)Castro-Sanguino, C. and J.A. Sanchez. 2011. Dispersal ofSymbiodinium by the stoplight

parrotfish Spirisoma viride. BioI. Lett. doi: 10.1 098/rsbl.2011.0836.Jackson, J.B.C. 2001. What was natural in the coastal oceans? Proceedings of the National

Academy of Sciences 98: 5411 .:5418. www.pnas.org/cgildoi/10.1073/pnas.091092898.Knowlton, N. and J.B.C. Jackson. 2008. Shifting baselines, local impacts, and global change

on coral reefs. PLoS BioI. 6(2):e54. doi: 10. 13711journal.pbio.0060054.Lirman, D. 2001. Competition between macroalgae and corals: effects ofherbivoreexclusion and increased algal biomass on coral survivorship and growth. Coral Reefs 19: 392399. doi 10.1007/s003380000 125.Mumby, P.J., J.D. Hedley, K. Zychaluk, A.R. Harborne, and P.G. Blackwell. 2006.Revisiting the catastrophic die-offof the urchin Diadema antillarum on Caribbean coral reefs:Fresh insights on resilience from a simulation model. Ecological Modelling 196: 131-148.

Pandolfi, J.M., J.B.C. Jackson, N. Baron, R.H. Bradbury, H.M. Guzman, T.P. Hughes, C.V.Kappel, F. Micheli, J.C. Ogden, H.P. Possingham, E. Sala. 2005. Are U.S. coral reefs on theslippery slope to slime? Science 307: 1725-1726.
http:///reader/full/098/rsbl.20http://www.pnas.org/cgildoi/10.1073/pnas.091092898http:///reader/full/098/rsbl.20http://www.pnas.org/cgildoi/10.1073/pnas.091092898

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U S Caribbean Acropora 60-Day Notice_FINAL