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Comments on the Draft Recovery Plan for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter

February 9, 2011

February 9, 2011


Douglas M. Burn
Wildlife Biologist
Marine Mammals Management Office
U.S. Fish and Wildlife Service
1011 East Tudor Road
Anchorage, AK 99503

Submitted via e-mail to:

Re: Comments on the Draft Recovery Plan for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter

Dear Mr. Burn:

These comments on the U.S. Fish and Wildlife Service (FWS) Draft Recovery Plan for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter, 75 Fed. Reg. 62,562 Oct. 12, 2010), are submitted on behalf of Friends of the Sea Otter, Defenders of Wildlife, Oceans Public Trust Initiative, a project of Earth Island Institute’s International Marine Mammal Project, and the Monterey Bay Aquarium (the groups).[1] The groups collectively represent well over a million members nationwide who are concerned with the continued survival and recovery of the northern sea otter.

The groups have a long-standing commitment to issues surrounding sea otter protection and recovery, and appreciate the opportunity to provide comments on the FWS draft recovery plan (DRP). Overall, we are pleased with the DRP. It is clear that the Recovery Team has dedicated substantial time and effort in developing the DRP, and the groups believe that the recovery plan will be an important step in advancing the interests of sea otter conservation in Alaska. We appreciate the effort FWS has made toward the conservation of the northern sea otter and look forward to participating in continued efforts to carry out the actions necessary to achieve recovery of this species.

The groups’ comments focus on some areas of the DRP’s threat analysis, as well as more generalized comments on the DRP.

This letter also addresses the need to consider the mandates of the Marine Mammal Protection Act (MMPA), which will be an important component of the long-term northern sea otter conservation program.

Comments on Threat Analysis.


The foremost issue presented by the DRP is the impact of orca predation on the northern sea otter. Section 3, subsection A of the DRP, from pages 3-1 through 3-5, addresses the orca predation hypothesis. The DRP recognizes predation as the most likely cause of the decline of the northern sea otter population, and treats this factor as a moderate to high threat to recovery. The principal deficiency in the DRP, however, is its failure to discuss the reasons why the possible orca predation may have occurred and to factor into this recovery plan the measures that should be taken to eliminate or reduce the environmental problems causing any orca predation. Orca predation of sea otters, an atypical prey species, is a changed behavior whose root causes should be examined and discussed as part of the recovery program.

The most likely cause of any orca predation of sea otters is related to the collapse of the Bering Sea and North Pacific marine ecosystems. These collapses are well-documented and have had wide-ranging impacts on many species, including other predators at the top of the food chain. The DRP, however, includes virtually no discussion of this issue, even though it is critically important to the overall health of the marine ecosystem for the northern sea otter distinct population segment (DPS), and very well could be the primary causal factor for any orca predation of sea otters. The threat to sea otters is not orcas per se, but the factors that are causing any orca predation.

In addition to addressing the causes of orca predation, the DRP must discuss the actions that should be taken for eliminating those causes. The final recovery plan (FRP) must recognize and respond to the ecosystem declines that are affecting virtually all marine species in this region. From the conclusions offered in the DRP, sea otter recovery may very well be dependent on identifying and addressing the root causes of the collapse of these marine ecosystems, not because of the direct effect on sea otters, but because, as seen through any orca predation, those changes are indirectly affecting the sea otters by changing behaviors of other species. We believe that adding this critically important discussion to the recovery plan is required for a legally sufficient and scientifically comprehensive report on sea otter recovery.

We are aware of the difficulty in identifying and responding to the ecosystem collapse, and there may not be conclusive evidence currently available on how this environmental disaster in the North Pacific Ocean and Bering Sea is affecting orca predation. We also realize that the solutions to that problem are not easy. Nonetheless, it is up to an ESA recovery plan to tackle difficult questions of this nature, and the DRP is incomplete without consideration of this critically important issue.

The ESA itself requires that such discussions be included in the final recovery plan. Section 4(f) of the ESA requires that FWS develop and implement recovery plans “for the conservation and survival of endangered species and threatened species.” 16 U.S.C. § 1533(f) (emphasis added). The ESA defines the term “conservation” as “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 chapter are no longer necessary.” Id. § 1532(3) (emphasis added). Thus, by requiring the use of “all methods and procedures” to promote the conservation of listed species, the ESA sets forth a broad mandate to FWS to address any and all threats and impediments to the species’ conservation and recovery in the plan. Here, any plan for the recovery of the northern sea otter must account for the collapse of the Bering Sea and North Pacific ecosystems.

There is agency precedent for recovery plans that approach threats to recovery in a comprehensive manner and account for indirect effects. The FWS and National Marine Fisheries Service (NMFS) Interim Recovery Planning Guidance (June 2010) recognizes and encourages this broad approach. “Recovery is the process by which listed species and their ecosystems are restored and their future is safeguarded to the point that protections under the ESA are no longer needed.” Id. at 1.1 (emphasis added). With that policy goal in mind, the joint guidance makes the following statement regarding the scope of recovery plans:


It is important to note that, although the ESA appears to focus on the individual species, subspecies,or [DPSs], the purposes of the ESA include conserving the ecosystems upon which listed species depend. Recovery plans should aim to address threats by restoring or protecting ecosystem functions or processes whenever and wherever possible… This approach is science-based and provides a means for required habitat to be maintained long-term in a dynamic way by natural processes. This broader perspective should be infused into all recovery plans, whether they be for single species (including subspecies and DPSs), or multiple species.


Id. at 2.1 (emphasis added).

Further authority for a broadened scope of review is found in the MMPA. The MMPA states that the “primary objective” of marine mammal management “should be to maintain the health and stability of the marine ecosystem.” Id. § 1361(6). The MMPA requires the preparation of conservation plans for depleted stocks. Id. § 1383b(b). The DPS of the northern sea otter is depleted under the definition of the MMPA because it is listed as a threatened species under the ESA. Under the MMPA, conservation plans “shall have the purpose of conserving and restoring the species or stock to its optimum sustainable population.” Id. § 1383b(b)(2). This mandate, which is even broader and more expansive than the mandate for recovery plans under the ESA, certainly includes the obligation to examine and address the root causes of increased orca predation. FWS has an obligation to prepare a conservation plan under the MMPA; while the recovery plan could serve both purposes, FWS would need to significantly broaden the scope of the DRP to address the MMPA’s goal of ecosystem health and stability. If the recovery plan is not intended to serve the dual purpose of an MMPA conservation plan, FWS should give notice as to when the MMPA conservation plan will be developed and lay the foundation for that review by providing additional ecosystem-related information in the FRP.

While the DRP does not address what appears to be the most significant factor related to the predation issue – reversing the regional ecosystem collapse – it does include a recovery measure for predation management plans. These plans would include the possibility of lethal or nonlethal removal of individual orcas. We consider this proposed action unacceptable. There is no evidence in the DRP of the behavior that would require such an extreme measure. Orcas themselves are protected under the MMPA from such removal, and, except under very limited authorities that are not applicable here, there is no apparent legal authority to take such action. For these reasons, we oppose including such plans as an element of the recovery program.

Fisheries Bycatch and Entanglement in Debris

Section 3, subsection H (pages 3-27 to 3-29) addresses the threat of bycatch and entanglement in debris. It concludes that while incidental mortality in commercial fisheries is generally low, within the range of the DPS there are a number of fisheries that have the potential to take sea otters and are without observer coverage. Addressed by fishery, the DPR relies on observer reports to determine the threat of fisheries bycatch and entanglement. The discussion is questionable, however because it assumes that the bycatch and entanglement reporting of fisheries is accurate and reliable. The section does not capture the true difficulties of coming to conclusions about the impacts of bycatch and entanglement when it is well understood that there is low and inaccurate reporting. While the DPR does give some mention of low observer coverage on fisheries that have the potential to “take” sea otters, the section remains weak in its presentation of this problem and the related threat to recovery.

Furthermore, the threats analysis on page 4-9 incorrectly states the overall threat assessment associated with fisheries bycatch. While bycatch may not be a significant individual threat to the population or even a contributor to population declines, it should not be ranked as “low.” As a potential contributor to cumulative population threats to an already declining population and impeding future recovery, bycatch should be ranked as a more significant threat. The groups especially believe this given the low confidence of FWS and fisheries experts as to how different fisheries may be interacting with sea otters. It is agreed that the observer coverage and amount of data collected to assess the threat of various fisheries in Southwest Alaska is poor and, therefore, to the extent possible depending on overlap between habitat used by sea otters and fisheries activities, further research must be conducted and more adequate methods of data retrieval implemented before the impacts can be dismissed as “low.” This is especially true for fisheries known to intersect with sea otters, including the eastern areas and eastern Aleutians for Dungeness crab fisheries, and the western and central eastern areas of the Alaska Peninsula for the set-net for salmon fisheries. Similarly, the priority level given to fisheries monitoring in subsection 3.2.1 on page 7-11 is inappropriate and should be raised to “priority 2.”

Subsistence Harvest

The DRP discussion on the threat posed by subsistence harvest does not provide the necessary level of attention and concern to the potential for take that would impede recovery. As an initial matter, there is insufficient information about take levels. Available data are very unreliable, and it is possible that take is occurring now at levels in excess of those reported. Even if take levels are currently low, it remains possible that take would increase as the DPS begins to recover. In other areas of Alaska, sea otters have been the subject of taking for commercial purposes, some of which have not been legally authorized under the ESA handicraft exemption. In addition, sea otters have been subjected to purposeful and unauthorized taking and are currently the subject of a campaign in southeast Alaska seeking sea otter culling and management for purported impacts to shellfish beds [2]. The final recovery plan should recognize the potential for similar problems to arise for the southwest Alaska DPS. In the final recovery plan, FWS should discuss the need for better reporting and monitoring of subsistence take and acknowledge a greater potential threat that such take at current or potentially higher future levels will impede recovery. This discussion should include an evaluation of the need to use existing legal authority applicable to ESA-listed and depleted species to establish quotas or other regulatory restrictions on subsistence harvest.

Oil Spills

The discussion of potential risk resulting from oil and gas leasing activities in section 3, subsection E, pages 3-19 through 3-21 correctly concludes that, while oil spills are not the reason for the population decline in southwest Alaska, they have the potential to be catastrophic to the population, and must be closely watched.

However, the groups disagree with the DRP’s assertion on page 4-7 that the management potential for the prevention and containment of small oil spills is thought to be high. Numerous federal agencies tasked with responding to offshore oil spills have repeatedly cited a lack of sufficient knowledge, technology, and resources to adequately contain and manage oil spills, especially those occurring in Alaskan waters. For example, Captain James J. Fisher, Chief, Office of Policy Integration, U.S. Coast Guard, recently gave a presentation detailing the current information gaps associated with the containment and removal of oil from icy conditions, as well as the physical lack of resources available and challenges of remote response locations.

[3] The National Oil Spill Commission’s January 11, 2011, final report,Deep Water: The Gulf Oil Disaster and the Future of Offshore Oil, further acknowledges the challenges associated with potential oil spills in the Arctic:

…oil spilled off Alaska (from blowouts, pipeline or tanker leaks, or other accidents) is likely to degrade more slowly than that found in the Gulf of Mexico because of lower water temperatures, reduced mixing of the oil into the water due to the presence of ice, and the shallower depths through which oil would travel from the wellhead to the surface. Some think the slow weathering could facilitate the skimming and in situ burning of escaped oil under ideal weather conditions, but the slow pace of natural dispersion means that oil would linger much longer in the marine environment. And serious questions remain about how to access spilled oil when the area is iced over or in seasonal slushy conditions.

Id. at 302. It should be noted that while the potential risk resulting from oil and gas development in Bristol Bay is currently moot due to the cancellation of the lease sales by the Administration, should they go forward at some point, there will continue to be a risk of overlap between exploration and development activities and the range necessary to facilitate sea otter recovery. Furthermore, there remains a continuing threat of oil spills throughout the range of this DPS associated with vessel accidents and discharges. The potential risks associated with planned oil and gas extraction in Cook Inlet or future leasing that may occur near the Aleutians also remains of concern. Thus, the FRP should treat the potential for oil spills as a higher priority threat and develop appropriate strategies for responding to protect sea otters.

General Comments

Recovery Strategy

This section, beginning on page 5-1, correctly concludes that while there are factors that may not actually currently be the cause of the declines in the sea otter population, any mortality is cumulative and can exacerbate an already serious problem if not monitored and, if necessary, mitigated. The groups support the inclusion of this statement in the DRP, and encourage FWS to ensure that other potential threats and factors be carefully monitored over time, even if they are not the main cause of the declines.

History of Population Dynamics

The DRP discusses recent population declines throughout the sea otter range. See DRP, pages 2- 11 to 2-23. It fails to mention, however, the decline that occurred in the mid-1980s that was associated with incidental take in set-net fisheries of southern sea otters. That decline was halted, and population growth resumed, due in large part to the California fisheries closures for multiple species that were, in turn, instigated by the MMPA and ESA take prohibitions.

The DRP also includes only a limited discussion of the MMPA, both in terms of its effect on protecting sea otters and prohibitions and management goals that, in some cases, extend further beyond those of the ESA. In particular, the MMPA sets the goal of achieving an optimum sustainable population (OSP) level for all marine mammals. That objective is independent of sea otter recovery and delisting under the ESA, and is generally equated with a range of population sizes at or above 60 percent of the carrying capacity of the species’ habitat. The FRP should at least identify the additional legal goal that FWS is charged with carrying out under the MMPA.

Finally, the MMPA sets as its primary goal the health and stability of the ecosystem of which marine mammals are a part. This objective is closely related to several key elements of the DRP, especially the ecosystem standard for recovery described in Appendix A. The separate MMPA objective for this purpose bolsters the ESA justification and certainly should be included in the relevant DRP discussion.

Listing of Species

The 2005 listing decision and DRP do not provide a sufficient explanation as to why the five management units (MU) are not treated as separate DPSs. Under a joint policy developed by FWS and NMFS, in order to constitute a DPS, a population must exhibit (1) “discreteness” in relation to the remainder of the species, and (2) “significance” to the species to which it belongs. 61 Fed. Reg. 4,722 (Feb. 7, 1996). Based on the discussion in the DRP at pages 2-12 to 2-23, it appears that a case may exist for treating each MU as a separately listed DPS. The FRP should explain the grounds for establishing MUs that do not qualify as DPSs.

FWS has no biological or legal justification for stating that delisting would be achieved when the identified goals are attained for three of the five MUs. See DRP, page 6-3. Under the ESA, it appears that recovery of the sea otters must be premised on all of the MUs meeting the recovery thresholds. While the DRP does note that “[d]elisting should not be considered if any one of the MUs meets the criteria specified for uplisting to endangered,” it still allows for delisting in the event that two of the five MUs are in worse shape than when listed, so long as goals are attained for the remaining three MUs. This policy could theoretically result in mandatory delisting even if the health of the overall population, as measured by the state of all five MUs together, is worse off than when the species was listed in the first place.

Population Monitoring and Research

Section 7, subsection 1 “Recovery Program: Population monitoring and research” (page 7-1, 7-3 to 7-8) does a good job of identifying activities that should take place in order to ensure proper population monitoring and research. However, there is a need not only for all of the activities under this subsection to be done, but the DRP should have emphasized that they need to be done on an annual basis in order to accurately monitor the population and be able to step in quickly should the resulting trend data indicate any emerging problems. FWS has put together a good monitoring plan that meets these goals that should be included as an addendum to the final recovery plan. This needs to be made a funding priority by the agencies in order to effectuate true species recovery.


In summary, the groups generally support the DRP. However, some significant issues remain that FWS must address in the final version. The scope of the DRP should be substantially broadened to include and address the health of the larger ecosystem and the causes of orca predation. Other threats, including fisheries bycatch, entanglement in debris, subsistence harvest, and oil spills, should be analyzed from the perspective that, for a species in decline, each instance of take can have cumulatively significant impacts on the outlook for species recovery.

We thank you for the opportunity to comment and participate in this significant step forward for the Southwest Alaska DPS of the northern sea otter.

Very truly yours,
Jennifer Covert, Senior Program Manager
Friends of the Sea Otter
Andrew Johnson, Sea Otter Research and Conservation Manager
Monterey Bay Aquarium
Cindy Lowry, Director
Oceans Public Trust Initiative, a Project of Earth Island Institute’s International Marine Mammal Project
Karla Dutton, Director, Alaska Programs
Defenders of Wildlife

[1] The Humane Society of the United States (HSUS) is regularly a part of this group, or coalition, of organizations concerned with sea otter issues; HSUS has submitted their own comments to the DRP.

[2] See, City of Petersburg, Alaska Resolution No. 1958: A Resolution Requesting that State and Federal Managing Authorities Become More Actively Involved in Managing the Sea Otter Population and Find Ways to Revive Lost Economies Due to the Relocation and Re-Colonization of Sea Otters in Southeast Alaska (Jan. 18, 2011); Craig Community Association Resolution 2011-08: Craig Community Association Tribal Council Requesting that State of
Alaska and Federal Authorities Become More Actively Involved in Managing the Sea Otter Population and Find Ways to Revive Lost Economies Due to the Relocation and Re-Colonization of Sea Otters in Southeast Alaska (2011); Letter from J. Bolling, Chairman of the Prince of Wales Community Advisory Council, to G. Haskett, Alaska Regional Director, FWS (Feb. 3, 2011).

[3] Captain James J. Fisher, Chief, Office of Policy Integration, U.S. Coast Guard, panelist at the Environmental Law Institute’s seminar Arctic Coastal and Marine Spatial Planning and the Role of the Arctic People (March 11, 2010). Presentation materials available at:


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