Mr. Robert Gabel
Chief, Division of Scientific Authority
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, Room 750
Arlington, Virginia 22203

October 28, 2002

Dear Mr. Gabel:

The Natural Resources Defense Council (NRDC), SeaWeb, and the Wildlife Conservation Society (WCS), submit the following comments in support of the U.S. Fish and Wildlife Service's ("FWS") proposed rule listing beluga sturgeon (Huso huso) as an endangered species under the Endangered Species Act ("ESA"). See 67 Fed. Reg. 49657 (July 31, 2002) ("Proposed Rule").

As documented in the Proposed Rule, beluga sturgeon is a species on the brink of extinction. The source of the world's most prized caviar, these remarkable fish have been decimated by overfishing and poaching to supply the caviar trade, loss of critical spawning habitat, and ineffective management. International action to date has failed to halt beluga's downward spiral, and the point is rapidly approaching where the species may no longer be recoverable. Urgent action is necessary. We therefore request that the Service proceed with an endangered listing on an emergency, expedited basis.

II. Background

On December 11, 2000, NRDC, WCS and SeaWeb filed a petition with the Service to list beluga sturgeon as an endangered species pursuant to the ESA and its implementing regulations. See Natural Resources Defense Council, et al., "A Petition to List Beluga Sturgeon (Huso huso) as an Endangered Species" (Dec. 11, 2000) ("Petition"). The Petition presents extensive information on the precipitous decline of beluga sturgeon, which have suffered a 90% population loss in the last two decades. After the Service failed to respond to the Petition within the statutorily required 90-day and 12-month timeframes, NRDC sued the Service in April, 2002.

In response to the lawsuit, the Service proposed to list beluga sturgeon as an endangered species on July 31, 2002. In its proposal, the Service reiterated information presented in the Petition, and provided additional information in support of its proposal.

II. An Emergency Listing of Beluga Sturgeon is Warranted

Section 4(a)(1) of the ESA sets forth the criteria for listing a species as endangered or threatened. 16. U.S.C. § 1533(a)(1). A species may be determined to be endangered or threatened due to one or more of five factors. On the basis of the information presented in the petition and the proposed rule, beluga sturgeon clearly qualify under all five factors for listing as an endangered species. Under the normal course of rulemaking we would expect the Service to finalize its decision to list beluga sturgeon within a year. 16 U.S.C. § 1533(b)(6)(A).

However, due to 1) alarming new information regarding the status of beluga sturgeon, 2) the resumption in international trade in beluga caviar, 3) the lack of progress on the part of the range states in developing effective management and enforcement regimes, 4) the major role U.S. demand for beluga caviar plays in contributing to the problem, and 5) the fact that the Service delayed issuing the proposed rule by more than a year past the statutory deadlines, we believe an emergency listing before the start of the spring fishing season is warranted. See 50 C.F.R. § 424.20(a) (empowering the Secretary to list species on an emergency basis). Each of these issues is discussed in more detail below.

1. Beluga's accelerating spiral toward extinction.

A fisheries survey conducted by the Caspian Sea range states in late 2001 found only 28 beluga sturgeon in the entire survey area. More than 85% of those fish were immature, suggesting that this population is highly depleted. These alarming results were subject to a flawed scientific analysis that was then used to justify resumption of the sturgeon fishery in 2002 that had been suspended by the CITES Secretariat in July 2001.

While the 2001 survey marked an important first step toward cooperative assessment of Caspian Sea sturgeon, its results and the analysis of those results were too deeply flawed scientifically to be used as the basis for quota management. As the Service's own reviewers concluded, the survey lacked crucial information on sampling effort, spatial and temporal distribution of that effort, number of fish taken per trawl in each specified area, and size and age distribution of fish captured in the survey (67 Fed. Reg. 49661).

Furthermore, the results of the survey were inappropriately used to justify total allowable catch (TAC) levels for H. huso for the 2002 fishing season. An attached analysis by WCS highlights some of the scientific flaws underlying the TAC justification, and several of these points are reiterated in the proposal by the Service's outside reviewers. They include the use of a scientifically unreasonable catchability coefficient in extrapolating survey results to a population estimate; reliance on an overly optimistic estimate of survivability; and a failure to recognize the reduced number, size and fitness of beluga spawners and loss of spawning grounds in the Caspian system.

2. The lack of progress in improving fisheries management and enforcement among the Caspian range states.

In June, 2001, the Standing Committee of the Convention on International Trade in Endangered Species (CITES) reached an agreement with sturgeon range states of the Caspian Sea (the "Paris Agreement" CITES SC45 Doc.12.2, attached). This agreement temporarily suspended fishing for sturgeon in the Caspian Sea and established deadlines for addressing various management, scientific and enforcement issues related to Caspian sturgeon fisheries. These deadlines have long past, with very little progress achieved on any front, as documented by a recent report prepared by the Secretariat on behalf of the CITES Animals Committee in preparation for the CITES Conference of the Parties to be held next month in Santiago. See, CoP12 Doc. 42.1, attached. The most important of the Paris agreement obligations, the limitations of those obligations, and the failures to date in achieving them, are briefly described below.

By December 31, 2001, the range states were to have "conducted a comprehensive survey of sturgeon stocks in the Caspian Sea involving representatives of all States that conduct commercial fishing of sturgeon in the Caspian Sea;" and "requested Interpol to conduct an analysis of illegal trade in sturgeons." Paris Agreement, Section 1(d)(ii) and (iii).

As discussed above and in the attached analysis, the survey of sturgeon done in the fall of 2001 can hardly be called comprehensive, did not involve representatives of all states conducting commercial fishing, and most importantly, was seriously flawed. Independent reviewers also found that the report that used the survey results to justify 2002 TAC levels was "lacking important data necessary in the formation of fishery stock estimations." (67 Fed. Reg. 49661) As described in the attached analysis, the interpretation of the survey results was overly optimistic and failed to acknowledge population declines that have been documented in the peer reviewed literature.

With respect to Interpol, according to the Secretariat, "the data currently available on illegal harvesting, trade and enforcement are too limited for analysis by Interpol." COP 12 Doc 42.1 at 3. Thus, the problem has yet to be adequately described, let alone addressed.

By June 20, 2002, the range states were to have:

1. "Adopted a collaborative basin-level management system for sturgeon fisheries in the Caspian Sea as the basis for sustainable commercial exports of sturgeons." Paris Agreement, Section 1(e)(iii).
   
   This requirement has clearly not been achieved. Indeed, the range states have reportedly been unable to agree on a scientific basis for establishing and allocating sturgeon quotas, let alone a comprehensive management plan. See, e.g., Caspian Business News, Oct 16-23, 2002. The Secretariat recently termed catch limits "largely arbitrary," (COP 12 Doc 42.1 p.10) and last week shut down beluga caviar exports from the Caspian range states due to the failure of governments to cooperate to set quotas for beluga sturgeon. See CITES Notification to the Parties No. 2002/059: Trade in specimens of Huso huso from the Caspian Sea (attached).
   
   
2. "Established a long-term survey programme as the basis for future management of sturgeon stocks in the Caspian Sea, incorporating up-to-date technology and techniques." Paris Agreement, Section 1(e)(i).
   
   In the words of the Secretariat, "catch quotas have traditionally been based on stock assessments in the marine environment, but stock assessments have seldom been satisfactory in terms of basin-wide coverage and sampling intensity.... In some cases, sampling trawls have produced such limited catches of sturgeons, probably because of the currently reduced densities of most sturgeon stocks, that little can be inferred about the age structure and recruitment of stocks, and statistical variation in most demographic and biological parameters remains unknown." COP 12 Doc 42.1 p.9.
   
   Indeed, the Secretariat warns that questionable stock assessments may be part of the problem: "significant volumes of sturgeons are also caught as part of stock assessments, research and monitoring. Greater transparency in large-scale non-commercial or research-related fisheries is required to avoid concerns that such fisheries are merely a subterfuge for commercial fisheries and trade." Id.
   
   
3. "Significantly increased efforts to combat illegal harvesting and illegal trade, and to regulate domestic trade" Paris Agreement, Section 1(e)(iv).
   
   The Secretariat reports that "much more vigorous enforcement is needed, in parts of the Eurasian region in particular, in order to combat illegal fishing and illegal trade." COP 12 Doc 42.1 p.9. Thus, despite efforts, illegal fishing and trade remain a major problem.
   
   
4. "Fully implemented all other recommendations of the [CITES]Animals Committee made in accordance with Resolution Conf. 8.9(Rev.)." Paris Agreement, Section 1(e)(viii).
   
   The many ways in which the range states have failed to implement the recommendations made by the Animals Committee are documented by the Secretariat in COP 12 Doc 42.1, attached.

In summary, despite legitimate and important efforts, the range states have not met the requirements laid out in the Paris agreement. Even if those requirements had been met, moreover, they would be insufficient to resolve the nearly intractable problems that face beluga sturgeon. Unfortunately, beluga sturgeon do not have the luxury of time and cannot wait for the profound reforms necessary to render Caspian sturgeon fisheries sustainable. Immediate action to halt the international trade in beluga caviar is necessary to help preserve the species while long term solutions are developed and implemented.

3. The resumption of international trade in beluga caviar

In March, 2002, the CITES Secretariat approved resumption in the international trade in beluga caviar, despite the lack of progress in meeting the objectives laid out in the Paris agreement. See, CITES SC 46 Inf.5: Caspian Sea states to resume caviar trade (attached).. The resumption in trade poses a major and immediate threat to beluga sturgeon by increasing international demand for beluga caviar. The announcement last week that CITES is once again suspending trade in beluga caviar is not sufficient to restore beluga sturgeon, particularly in light of the fact that the 2002 fishing season is largely over. Slow to mature and reproduce, recovery of beluga sturgeon is likely to require many years, if not decades, of relief from the pressure of international trade in beluga caviar.

4. The role of the United States

The U.S. imported roughly 80% of all the beluga caviar exported from the region in 2000, the latest year for which complete figures are available. UNEP-World Conservation Monitoring Center, 2002. As the number one importer of beluga caviar, the United States is playing a major role in the decline and potential extinction of beluga sturgeon.

5. Extensive delays by FWS in issuing the proposed rule have deepened the threat to beluga sturgeon.

By failing to act expeditiously and in accordance with the ESA's mandatory deadlines, FWS has already delayed the protections offered under the ESA to species listed as endangered. Beluga clearly qualify as an endangered species as outlined in the Petition and in the Proposed Rule. Yet these delays have meant that the U.S. continues to import most of the available beluga caviar exports, further jeopardizing beluga sturgeon.

For all these reasons, we request that the Service list beluga sturgeon as an endangered species on an emergency basis.

III. Beluga sturgeon should not be listed as endangered, not threatened

We understand that some parties have suggested that beluga sturgeon be listed as a threatened species. Beluga sturgeon, however, clearly qualify as an "endangered" species, not a threatened species, under both the plain letter of the ESA and FWS's regulations. Moreover, listing beluga sturgeon as threatened is unlikely to succeed in protecting it from extinction.

1. Beluga sturgeon face clear and imminent danger of extinction due to all of the five factors specified in the Act.

First, beluga sturgeon clearly meet the definition of an "endangered" (not a "threatened") species. Section 3 of the ESA defines an "endangered species" as "any species which is in danger or extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A threatened species, by contrast, is defined as "any species which is likely to become an endangered species within the foreseeable future." Id. at § 1532(20). As both the Petition and the Proposed Rule make clear, beluga sturgeon are clearly an endangered species now. Indeed, one would be hard pressed to identify a species that is more in danger of extinction. A summary of the factors affecting beluga sturgeon appears below.

1. Habitat: dams, river channelization and other man-made changes to flow regimes have reduced the species' historic spawning habitat by at least 85%-90%. 67 Fed. Reg. 49657.
2. Overutilization: overfishing to fuel the legal and illegal trade in beluga caviar is the most significant factor in the rapid decline of beluga sturgeon. 67 Fed. Reg. 49659.
3. Disease: tumors, reproductive abnormalities and large fish kills have affected beluga sturgeon throughout their range. These are associated with heavy metals, pesticides, and organic pollutants resulting from oil and gas extraction, untreated sewage discharges, industrial effluents, and agricultural runoff. 67 Fed. Reg. 49660.
4. Inadequacy of existing regulations: the failure of regulatory oversight is a key factor contributing to the rapid decline of beluga sturgeon. Catch limits are largely arbitrary. CITES COP12 Doc. 42.1. No maximum size limits, which would protect spawners, have been established. Id. Scientifically rigorous fishery surveys and stock assessments have not been conducted. Bycatch mortality is poorly controlled and very high. Id. Existing penalties do not act as a sufficient deterrent to poachers or illegal traders. Id. The listing of beluga sturgeon on Appendix II of the Convention on International Trade in Endangered Species in 1998 has not been sufficient to halt the accelerating decline of beluga sturgeon.
5. Other Natural or Man-Made Factors: Genetic alteration and hybridization of sturgeon stocks is a major problem. Most hatcheries in the region base their operations on very limited numbers of parents, in some cases on fewer than 10 adult females per species per year. The release of large numbers of closely related offspring may swamp smaller numbers of offspring produced through natural spawning and may therefore reduce the genetic fitness of the population as a whole and of each successive spawning cohort. Id.

As indicated in the Proposed Rule, all of these factors and others have led to the drastically depleted state of beluga sturgeon today. Current hypotheses indicate that natural reproduction is no longer sustaining wild beluga sturgeon populations, and many believe we are rapidly approaching the point where the species will no longer be recoverable. Under these circumstances, it is indisputable that beluga is in clear and imminent danger of extinction and its listing as an endangered species is thus legally required.

2. Conditioning US trade in beluga caviar on conservation progress in the region will not be effective.

Second, even if the law allowed beluga sturgeon to be listed as threatened, which it does not, the likelihood that such an approach would succeed in restoring beluga sturgeon is remote. For example, an approach advocated by some is to list beluga sturgeon as threatened accompanied by a special rule under section 4(d) that would permit importation of beluga caviar as long as certain conditions are met. Such conditions could include progress in habitat restoration, improvements in enforcement, or stock assessments.

The lack of progress in implementing the Paris agreement, discussed above, indicates that this type of approach is of very limited utility, particularly within the time frame required to rescue this species from extinction.

Moreover, given the pressing demands on the Service's existing resources, we question the ability of the Service to monitor compliance with the kinds of conditions that it might impose under a 4(d) rule (e.g., enforcement improvements, habitat restoration, scientific studies, etc.). The small budget and limited number of staff devoted to international species conservation are barely sufficient to undertake current obligations, let alone major new monitoring projects involving remote locations, different languages, and complex legal and technical issues.

Indeed, much larger and well funded organizations have failed in similar efforts. For example, the CITES Secretariat reports that Interpol could not find enough data to determine what enforcement improvements are necessary in the region. We doubt the Service, with far fewer employees and no presence in the region, could effectively monitor enforcement of quotas or other conservation measures. Similar constraints pose towering obstacles to surveillance and evaluation of the other management measures (habitat restoration, establishment of a science based management plan, etc.) necessary to restore beluga sturgeon.

Some have argued that halting trade in beluga caviar will deprive hatcheries in the Caspian region of needed revenue. However, listing beluga sturgeon as endangered under the ESA will have no effect on trade in the two other commercially important species that produce Caspian Sea caviar, the stellate sturgeon (sevruga caviar) and the Russian sturgeon (osetra caviar). Trade in these species will be allowed to continue and will help support the continued operation of hatcheries on the Caspian Sea that are crucial to the recovery of beluga sturgeon populations.

IV. Hybrids of beluga sturgeon should be listed as endangered.

Three small experimental aquaculture operations in Florida and one in Hawaii have been experimenting with producing caviar from bester, an artificially obtained hybrid of beluga sturgeon and Acerpensiformes ruthenus, for commercial purposes. This raises the question of whether hybrids of beluga sturgeon should be included in the listing. We conclude they must, based on the following considerations.

1. The first generation of the cross to produce bester is fertile. However, the F1 generation fails to cross with itself spontaneously, and problems with F2 generations are many. This means that bester and presumably other hybrid operations require a regular infusion of beluga spawners. A related problem is that bester operations must obtain enough different beluga females to maintain a decent amount of genetic variability in the population and prevent the detrimental effects of inbreeding, which again requires new spawners.
   
   Production of bester or similar hybrids does not contribute to the conservation of beluga sturgeon, but rather of the hybrId. In fact, bester production may be to beluga's detriment, by removing spawners from the wild population. At a time when Caspian Sea hatcheries are having difficulty finding enough beluga spawners to fend off extinction of the species, the idea of allowing aquaculture operations to import beluga spawners for commercial operations that produce a hybrid would be seriously misguided.
   
   
2. In the bester hybrid, Huso huso is always the female in the cross and A. ruthenus always the male. This means that the current tests used by FWS in caviar trade enforcement, which only look at maternal lineages (mitochondrial DNA), would not be able to distinguish hybrids. Thus allowing continued trade in hybrids would complicate an already difficult enforcement problem.
   
   
3. The economic harm that would result from including bester and other hybrids in the listing would be very small. A very small number (<10) of commercial aquaculturalists are pursuing the development of bester as a profitable investment. Production of this hybrid has yet to become commercially viable.

V. Conclusion

The benefits of an endangered listing for beluga sturgeon include the following:

Reducing the pressure: Listing beluga sturgeon as endangered under the U.S. Endangered Species Act will help reduce the pressure on beluga sturgeon by banning the importation of beluga caviar into the United States. The United States is by far the largest importer of beluga caviar, accounting for 80% of the beluga caviar exported in 2000.

Setting a precedent for conservation: Such a listing will also set an important precedent for other nations, and encourage international action to promote management and recovery of this species. A final listing will boost proposals for a basin-wide zero quota for beluga caviar, and will send a signal that the U.S. is serious about sturgeon conservation.

Improving U.S. enforcement: Beluga caviar already is illegally imported into the United States in violation of existing CITES labeling and certification requirements. Law enforcement officials have confronted the difficult task of distinguishing between legal beluga caviar and illegal beluga caviar. By banning the sale of any caviar from beluga or its hybrids, enforcement will be rendered less complex.

Suspending trade in beluga caviar through an endangered species listing is just one step along the road to rebuilding beluga sturgeon. Other needed actions include the conduct of regular and scientifically sound stock assessments, strengthening management and enforcement programs, and maintaining the operations of sturgeon hatcheries in the Caspian region. Eliminating US consumption of beluga caviar will buy time for such actions to take effect, and is a critical first step toward setting this species on the road to recovery.

Thank you for considering these comments.

Lisa Speer
Andrew Wetzler
Natural Resources Defense Council

Ellen Pikitch
Liz Lauck
Wildlife Conservation Society

Vikki Spruill
Shannon Crownover
SeaWeb

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