8EARTHJUSTICE

ALASKA

CALIFORNIA NORTKWEST

FLORIOA

MID-PACIFIC

NORTKEAST

NORTKERN ROCKIES

ROCKY MOUNTAIN

WASHINGTON, DC

INTERNATIONAL

Via Certified Mail

Return Receipt Requested

February 21, 2012 Dr. Roy Crabtree Regional Administrator, Southeast Region National Marine Fisheries Service 263 13 th Avenue South St. Petersburg, FL 33701 Mr. Samuel Rauch
Assistant Administrator for Fisheries National Marine Fisheries Service 1315 East West Highway, SSMC3 Silver Spring, MD 20910 Dr. Jane Lubchenco
Under Secretary and Administrator
NOAA
1401 Constitution Avenue, NW
Room 5128
Washington, DC 20230

Mr. John E. Bryson

Secretary of Commerce
U.S. Department of Commerce
1401 Constitution Ave., NW
Washington, D.C. 20230

Re:

Notice of Violations of the Endangered Species Act Relating to Continued Authorization of the U.S. Caribbean Reef Fish Fishery

Dear Dr. Crabtree, Mr. Rauch, Dr. Lubchenco, and Mr. Bryson: On behalf of 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"). As detailed below, NMFS is in violation of Section 7 of the ESA, 16 U .S.C. 1536, because it is failing to ensure that the ongoing operation of the U.S. Caribbean Reef Fish Fishery is not likely to jeopardize the continued existence of elkhorn and staghom coral or destroy or adversely modify their critical habitat. NMFS's violation stems from its reliance on the Biological Opinion for the Continued Authorization of Reef Fish Fishing Managed under the Reef Fish Fishery Management Plan (FMP) of Puerto Rico and the U.S. Virgin Islands (CRFFMP) ("Biological Opinion") dated October 4, 2011. The Biological Opinion is fundamentally flawed and cannot be relied upon to ensure that the U.S. Caribbean Reef Fish Fishery meets the requirements of the ESA The Biological Opinion fails to analyze properly the Fishery's impacts
426 17TH STREET 5TH FLOOR OAKLAND. CA 94612 F: 415.217.2040 E: caoffice@earthjustice.org W: www.earthjustice.org

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U.S. Caribbean Reef Fish Fishery 60-day notice February 21,2012 Page 20f8 on these two coral species and their critical habitat, fails to use the best available science, fails to establish a rational connection between the facts it found and conclusions it made, and fails to establish a lawful incidental take limit to track and minimize Fishery impacts. Consequently, the Biological Opinion represents a violation of the basic requirements of the ESA to conserve listed species, and is arbitrary and capricious, an abuse of discretion, and not in accordance with law, in violation 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 suit provision 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, 2012 challenging other unlawful actions in connection with the authorization of the Fishery. Center for 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 Marine Fisheries Service relating to the effects of the U.S. Caribbean Reef Fish Fishery on elkhorn and staghorn 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 coral have 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 and staghorn coral has declined by over 97% since the early 1980s. NMFS listed elkhorn and staghorn coral as threatened species under the ESA in 2006 in response to a petition from the Center for Biological Diversity (71 Fed. Reg. 26852 (May 9, 2006)) and designated critical habitat for elkhorn and staghorn coral in 2008 (73 Fed. Reg. 72210 (Nov. 26,2008)). These two coral species face numerous threats to their survival and recovery, including stress resulting from rising 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 from one stressor leaves elkhorn and staghorn coral more vulnerable to damage from the others and less able to recover. Indeed, the persistence of stressors that reduce coral growth and reproduction or increase coral mortality may tip the reef ecosystem and thus the critical habitat of elkhorn and staghorn coral- into irreversible decline. Knowlton and Jackson (2008). Competition for space and light between hard corals and benthic algae, particularly macroalgae and dense turf algae, plays a fundamental role in determining the overall status of coral reefs. See, e.g., Lirman (2001). High macroalgal biomass harms corals in a number of ways. First, it can directly harm coral by overgrowing it and starving it of sunlight necessary to feed 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

U.S. Caribbean Reef Fish Fishery 60-day notice February 21, 2012 Page 3 of8 mortality. Macroalgae also harm coral by secreting substances that may directly kill coral or indirectly kill coral by promoting the growth of harmful bacteria. ld. Second, algal overgrowth interferes with the coral's fecundity. Finally, algal overgrowth of reef structure decreases available habitat for coral recruits to settle and develop, thereby impairing the ability of staghorn and elkhorn coral to recover. Competition between macroalgae and coral can cause "feedback loops," driving reefs with high coral cover and low macroalgal cover to shift toward high macro algal coral cover and low coral cover. Such shifts have been common in the Caribbean since the 1980s, and macroalgae now dominate most of the space on Caribbean reefs. This regional shift is generally attributed to the decline of herbivorous grazing species that control macroalgal growth as a result of overfishing of herbivorous fish species and the drastic declines of the sea urchin Diadema antillarum. After declining dramatically in the 1980s, this urchin species has not recovered to numbers that would allow it to play an ecologically significant role in grazing on Caribbean reefs. Parrotfish -large-bodied fish with powerful, beak-like mouths that scrape algae off coral and other substrate are now the only major macroalgae grazers left in the U.S. Caribbean. In the absence of urchins, grazing by parrotfish is crucial to the health of Caribbean coral reef habitat. Mumby et al. (2006), Jackson (2001). Parrotfish graze on macroalgae that would otherwise compete for space and light with corals. The removal of parrotfish and other large herbivorous fish facilitates algal overgrowth and 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 competition between 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 grazing species, 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 grazing functionality of the herbivorous fish population. Mumby et al. 2006. Current data indicate that parrotfish populations in the U.S. Caribbean are heavily skewed towards smaller individuals, indicating that larger individuals have been disproportionately removed by fishing and that the populations are experiencing unsustainable fishing pressure.
1

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

u.s. Caribbean Reef Fish Fishery 60-day notice

February 21,2012 Page 4 of8 resilient to the continuing impacts of "primary" stressors such as climate change, hurricanes, and disease. "[M]anaging these less severe threats may assist in decreasing the rate of elkhorn and staghorn 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 harvest of parrotfish in the U.S. Caribbean reef fish fishery in its October 4,2011 Biological Opinion regarding the effects of the u.s. Caribbean Reef Fish Fishery on ESA-listed species. For the reasons explained below, this decision violates NMFS's substantive duties under Section 7 of the ESA.

II.

Violations of the ESA

NMFS is in violation of ESA Section 7 because it has failed to ensure that the ongoing operation of the U.S. Caribbean Reef Fish Fishery is not likely to jeopardize the continued existence ofelkhorn and staghorn coral or destroy or adversely modify critical habitat for those coral 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 may not 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 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.l4(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 action agency and the consulting agency, different branches ofNMFS must undertake internal consultation with each other. Thus, in this case the NMFS Office of Protected Species must consult with the NMFS Office of Sustainable Fisheries. At the completion of consultation, NMFS as the consulting agency issues a biological opinion that determines whether the action is likely to jeopardize 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 likelihood ofjeopardy 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, the ultimate duty to ensure that an activity does not jeopardize a listed species or destroy or adversely modify its critical habitat lies with the action agency. An action agency's reliance on an inadequate, incomplete, or flawed biological opinion cannot satisfy its duty to avoid the likelihood ofjeopardy to listed species. See, e.g., Florida Key Deer v. Paulison, 522 F .3d 1133,

U.S. Caribbean Reef Fish Fishery 60-day notice February 21, 2012 Page 5 of8 1145 (11th Cir. 2008); Pyramid Lake Tribe ofIndians v. u.s. Navy, 898 F.2d 1410, 1415 (9th Cir. 1990); Stop H-3 Ass 'n. v. Dole, 740 F.2d 1442, 1460 (9th Cir. 1984) (action agency must independently ensure that its actions are not likely to cause jeopardy). Thus, the substantive duty to insure against jeopardy to listed species or destruction or adverse modification of critical habitat remains in effect regardless of the status of the consultation. In this case, the Biological Opinion is a deeply flawed document on which NMFS may not reasonably rely. For example, rather than examining the possible adverse effects of the Fishery when added to all other actions that are already negatively affecting elkhorn and staghorn coral in the action area, the Biological Opinion unlawfully analyzes the likelihood ofjeopardy and adverse modification by comparing the incremental impacts of the Fishery to other, "unmanageable" threats, including climate change, hurricanes, and disease. Thus, the Biological Opinion fails to analyze the Fishery's effects in the context of the already poor and declining status of elkhorn and staghorn coral, and in addition to increasing baseline threats. Instead, the Biological Opinion concludes that Fishery effects, "in and of themselves," are not likely to jeopardize the continued existence of elkhorn and staghorn coral or destroy or adversely modifY their critical habitat. By looking at the effects of the Fishery in isolation from other threats that are already negatively affecting these two species of coral, NMFS violated the ESA. Indeed, the Ninth Circuit examined NMFS's approach in a prior case and soundly rejected it as contrary to ESA purposes and requirements: "Under this approach, a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest. This type of slow slide 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 available scientific information regarding the effects of fishing on elkhorn and staghorn coral and their critical habitat. The Biological Opinion disregards scientific evidence showing that macro algal dominance of reef habitat poses a significant threat to the survival and recovery of elkhorn and staghorn coral, as well as to their critical habitat, particularly in the context of the myriad and intensifYing threats that these species otherwise face. It also disregards scientific evidence showing that even moderate levels of fishing can adversely affect the grazing efficacy of herbivorous fish populations and that an intact, unfished grazing fish population is necessary to mediate competition between coral and macroalgae and facilitate successful sexual and asexual reproduction of these species. ~e Biological Opinion also ignores scientific evidence showing that the grazing efficiency of the herbivorous popUlation or parrotfish specifically is more closely linked to the number of large fish in the population rather than overall numbers or biomass of fish. In addition, while acknowledging that the loss of a major grazer, the long-spined black urchin, 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

U.S. Caribbean Reef Fish Fishery 60-day notice February 21, 2012 Page 6 of8 removal of the only major grazers left, parrotfish, is currently contributing to the decline of these species and degradation of their critical habitat. Furthermore, the Biological Opinion fails to articulate a rational connection between the facts presented and NMFS' s conclusion that continued Fishery operations are not likely to jeopardize the continued existence of elkhorn and staghorn coral or destroy or adversely modify their critical habitat. For example, NMFS fails to acknowledge the importance of maintaining a healthy, 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 of another major grazer, the long-spined black urchin. In addition, NMFS's conclusion that grazing by the most prevalent species of parrotfish in the U.S. Caribbean is not a major factor in mediating algal overgrowth is internally inconsistent with its assertion that protecting the three rarest species of parrotfish in the U.S. Caribbean will lead to increases in grazing. Moreover, NMFS's assumption that fishery management measures will actually achieve reductions in parrotfish catch and will thus increase grazing has no basis, as these measures lack effective monitoring and reporting requirements. Furthermore, NMFS offers no rational explanation for its assumption that any reductions in parrotfish catch that may be achieved will be sufficient to increase grazing and reduce algal overgrowth so as to avoid jeopardy to elkhorn and staghorn coral and destruction or adverse modification of their critical habitat. Finally, NMFS's dismissal of macro algal overgrowth of reefs as a "moderate" threat to elkhorn and staghorn coral conflicts with its own admission that macro algal overgrowth acts synergistically with other threats to degrade the status of the species and their critical habitat and renders them more vulnerable to those 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) of the action's incidental take on the at!ected species; (2) establish reasonable and prudent measw:es necessary or appropriate to minimize the impact of that take; and (3) impose terms and conditions with which the action agency must comply to implement the incidental take limit and reasonable 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.3d 1257,1274 (11 th Cir. 2009); Or. Natural Res. Councilv. Allen, 476 F.3d 1031,1037 (9th Cir.2007). However, the Biological Opinion does not include incidental take limits for staghorn and elkhorn coral that reflect the effects of the Fishery. Moreover, the Biological Opinion fails to offer a rational explanation why it cannot quantitatively assess the Fishery's indirect impacts to elkhorn and staghorn coral from removing large grazing fish, especially large parrotfish, and thereby fostering continued macro algal overgrowth.

U.S. Caribbean Reef Fish Fishery 60-day notice February 21,2012 Page 7 of8 Where it is not possible to specify incidental take in terms of a numerical limit, NMFS must explain why it is not possible and use a proxy for incidental take that bears a clear, rational relationship to the impacts of the action on the species, such that the incidental take limit provides an adequate trigger for reinitiation of consultation if the effects of the action exceed the effects that NMFS predicted in its Biological Opinion. See id. However, the Biological Opinion does not establish a clear, reasonably proxy for coral taken by indirect impacts, and thus does not establish a meaningful trigger for the reinitiation of consultation if Fishery effects exceed NMFS'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 elkhorn and staghorn coral is flawed in that it does not provide a reliable measure of the Fishery's ongoing effects on the entire area affected by the Fishery (an area that includes not only waters off 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 invalid biological opinion. In its duty as the action agency authorizing the operation of the Fishery, NMFS also has an independent duty to ensure that its actions avoid the likelihood ofjeopardy. By authorizing the continued operation of the Fishery based on the Biological Opinion, NMFS does not meet this legal standard. See, e.g., Pyramid Lake Tribe ofIndians, 898 F.2d at 1415; Stop H-3 Ass 'n., 740 F.2d at 1460. NMFS has therefore violated and remains in violation of Section 7(a)(2) of the ESA. CONCLUSION For the above stated reasons, NMFS has violated and remains in ongoing violation of Section 7 of the ESA. If you believe any of the foregoing is in error or would like to discuss a resolution of this matter, please do not hesitate to contact us. Sincerely,

~
Andrea A. Treece Stephen E. Roady

Attorneys for the Center for Biological Diversity, CORALations, and Mary Adele Donnelly

U.S. Caribbean Reef Fish Fishery 60-day notice February 21,2012 Page 8of8 Attachments: Comments from Earthjustice on behalf of Sea 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 of Symbiodinium by the stoplight parrotfish Spirisoma viride. BioI. Lett. doi: 10.1 098/rsbl.20 11.0836. 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 of herbivore exclusion and increased algal biomass on coral survivorship and growth. Coral Reefs 19: 392 399. 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-off of 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 the slippery slope to slime? Science 307: 1725-1726.