[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]





 NOAA'S STELLER SEA LION SCIENCE AND FISHERY MANAGEMENT RESTRICTIONS 
                DOES THE SCIENCE SUPPORT THE DECISIONS?

=======================================================================

                        OVERSIGHT FIELD HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

            Monday, October 17, 2011, in Seattle, Washington

                               __________

                           Serial No. 112-72

                               __________

       Printed for the use of the Committee on Natural Resources






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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
             EDWARD J. MARKEY, MA, Ranking Democrat Member

Don Young, AK                        Dale E. Kildee, MI
John J. Duncan, Jr., TN              Peter A. DeFazio, OR
Louie Gohmert, TX                    Eni F.H. Faleomavaega, AS
Rob Bishop, UT                       Frank Pallone, Jr., NJ
Doug Lamborn, CO                     Grace F. Napolitano, CA
Robert J. Wittman, VA                Rush D. Holt, NJ
Paul C. Broun, GA                    Raul M. Grijalva, AZ
John Fleming, LA                     Madeleine Z. Bordallo, GU
Mike Coffman, CO                     Jim Costa, CA
Tom McClintock, CA                   Dan Boren, OK
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Jeff Denham, CA                          CNMI
Dan Benishek, MI                     Martin Heinrich, NM
David Rivera, FL                     Ben Ray Lujan, NM
Jeff Duncan, SC                      John P. Sarbanes, MD
Scott R. Tipton, CO                  Betty Sutton, OH
Paul A. Gosar, AZ                    Niki Tsongas, MA
Raul R. Labrador, ID                 Pedro R. Pierluisi, PR
Kristi L. Noem, SD                   John Garamendi, CA
Steve Southerland II, FL             Colleen W. Hanabusa, HI
Bill Flores, TX                      Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Charles J. ``Chuck'' Fleischmann, 
    TN
Jon Runyan, NJ
Bill Johnson, OH

                       Todd Young, Chief of Staff
                      Lisa Pittman, Chief Counsel
                Jeffrey Duncan, Democrat Staff Director
                 David Watkins, Democrat Chief Counsel
                                 ------                                



















                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Monday, October 17, 2011.........................     1

Statement of Members:
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     1
        Prepared statement of....................................     3
    Young, Hon. Don, the Representative in Congress for the State 
      of Alaska..................................................     4
        Prepared statement of....................................     5

Statement of Witnesses:
    Cotter, Larry, Chair, North Pacific Fishery Management 
      Council's Steller Sea Lion Mitigation Committee and Chief 
      Executive Officer, Aleutian Pribilof Island Community 
      Development Association....................................    43
        Prepared statement of....................................    45
    Knapp, Dr. Gunnar, Professor of Economics, Institute of 
      Social and Economic Research, University of Alaska 
      Anchorage..................................................    37
        Joint prepared statement of..............................    32
    LeVine, Michael, Pacific Senior Counsel, Oceana..............    64
        Prepared statement of....................................    66
    Little, David, President, Freezer Longline Coalition.........    57
        Prepared statement of....................................    58
    Loomis, Todd, Government and Industry Affairs, Cascade 
      Fishing, Inc...............................................    52
        Prepared statement of....................................    53
    Ragen, Timothy J., Ph.D., Executive Director, Marine Mammal 
      Commission.................................................    39
        Prepared statement of....................................    41
    Schwaab, Eric, Assistant Administrator for Fisheries, 
      National Marine Fisheries Service, National Oceanic and 
      Atmospheric Administration, U.S. Department of Commerce....     6
        Prepared statement of....................................     8
    Trites, Dr. Andrew, Professor and Director, Marine Mammal 
      Research Unit, Fisheries Centre, University of British 
      Columbia...................................................    30
        Joint prepared statement of..............................    32
    Tsukada, Ryuichi Rudy, President, Aleut Enterprise, LLC......    60
        Prepared statement of....................................    62
    Tweit, Bill, Special Assistant, Washington Department of Fish 
      and Wildlife...............................................    17
        Prepared statement of....................................    19
    Vincent-Lang, Doug, Special Assistant to the Commissioner, 
      Alaska Department of Fish and Game.........................    13
        Prepared statement of....................................    15



 
 OVERSIGHT FIELD HEARING TITLED ``NOAA'S STELLER SEA LION SCIENCE AND 
    FISHERY MANAGEMENT RESTRICTIONS -- DOES THE SCIENCE SUPPORT THE 
                              DECISIONS?''

                              ----------                              


                        Monday, October 17, 2011

                     U.S. House of Representatives

                     Committee on Natural Resources

                          Seattle, Washington

                              ----------                              

    The Committee met, pursuant to call, at 9:30 a.m., at the 
Ruth Fisher Boardroom of Union Station, 401 South Jackson 
Street, Seattle, Washington, Hon. Doc Hastings [Chairman of the 
Committee] presiding.
    Present: Representatives Hastings and Young.

       STATEMENT OF THE HON. RICHARD ``DOC'' HASTINGS, A 
    REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON

    Mr. Hastings. I want to thank everybody for being here 
today, and I note that we have a quorum under our rules.
    The Committee on Natural Resources today is meeting to hear 
testimony on an oversight hearing on ``NOAA's Steller Sea Lion 
Science and Fishery Management Restrictions: Does the Science 
Support the Decisions?''
    I ask unanimous consent that in addition to my oral 
statement that I will be giving that my colleague from Alaska, 
Congressman Don Young, be permitted to give an opening 
statement. Without objection, so ordered.
    I will recognize myself now for an opening statement.
    I would like to thank all of our witnesses that will be 
here today for their willingness to testify on the issue of 
Steller sea lions and whether fishery management measures that 
were in place to protect sea lions are based on sound science. 
These management actions are the latest in a series of 
restrictions placed on commercial fishing activities in the 
Bering Sea and the Gulf of Alaska in an effort to protect 
Steller sea lions.
    The National Oceanic and Atmospheric Administration, or 
NOAA's, own documents state that the imposition of the fishery 
management restrictions put in place last January will cost the 
commercial fishing industry between $44 million and $61 million 
per year, and cause a job loss of between 250 and 750 jobs.
    Now, at a time when every effort should be focused on 
creating jobs and economic opportunities, it certainly stands 
out when an action by a Federal agency will result in this 
degree of economic loss, especially when one of the missions of 
the agency is to fully utilize our Nation's fishery resources.
    Now, having said that, I understand that NOAA has multiple 
missions. I also understand that there is a lot about Steller 
sea lions that is still poorly understood. However, I am 
concerned that the decision to impose these restrictions was 
based on whether fishing was, and I quote, ``not likely to 
jeopardize the continued existence of a listed species.''
    Now, that standard seems to put the burden of proof on 
whether the Agency could disprove that the commercial fishing 
industry was responsible for harming Steller sea lions. The 
fact that the Biological Opinion uses the word ``may'' 
throughout the document indicates to me that the Agency is not 
sure what is going on in the Bering Sea and, therefore, cannot 
disprove any of its theories.
    When an agency puts in place a restriction on an industry 
that will result in a loss of $61 million per year, and a cost 
of up to 750 jobs, I expect them to be certain in their 
deliberations. The Biological Opinion leaves one to wonder 
whether there is any certainty.
    The independent scientific review that was commissioned by 
the States of Washington and Alaska appear to share this 
concern. In fact, their report states, and I quote, ``The 
conclusions of the BiOp regarding the finding of jeopardy and 
its posited cause (nutritional stress from food competition 
with fisheries) do not follow logically from scientific, 
economic, and social information presented in the BiOp and 
attendant documents.''
    The report goes on to say, and I quote again, ``The 
conclusions are contradicted by both information presented in 
the BiOp as well as information not presented in the BiOp.''
    When 13 of the 14 criteria assessed by NOAA to determine if 
nutritional stress was restricting recovery for the western 
population came up negative, while at the same time the 
Biological Opinion concludes that the fishing industry is 
restricting food availability, it simply raises questions about 
the validity of the entire Biological Opinion.
    This is just one question that has been raised regarding 
the science behind the fishing restrictions. When the agency's 
own science conflicts with their conclusions, it is no wonder 
the States of Washington and Alaska commissioned an independent 
scientific review.
    It is also concerning that so little has changed since 2000 
when Congress began to appropriate funding for Steller sea lion 
research. Beginning in Fiscal Year 2001, Congress has 
appropriated more than $150 million for Steller sea lion 
research, and more than half of that went directly to NOAA for 
their own research program. And 10 years later, we are still 
asking many of the same questions.
    Despite this funding, NOAA still has not been able to 
answer the questions regarding whether the commercial fishing 
industry is limiting the food available for Steller sea lions. 
This is the first area of research that should have been 
conducted so that we would not be in the situation we are now, 
facing new restrictions that will cost jobs and restrict 
economic activity.
    We now have a final report from the independent scientific 
review panel, and the report raises serious issues with the 
conclusions in the Biological Opinion, and also raises 
questions whether the science even supports the conclusions 
made by NOAA. The real question is what the Agency will do with 
this new information.
    Now, I hope our witnesses, and particularly our NOAA 
witnesses, will discuss what happens next. NOAA has the 
authority, and I would argue, the obligation, to take this 
independent review panel's report and to take another look at 
their findings in the Biological Opinion.
    I would also strongly suggest that NOAA look at other new 
information, such as the Atka mackerel stock assessment that 
was completed after the BiOp was finalized. This new 
information is certainly relevant, and the Agency has an 
obligation to review all new information when it becomes 
available.
    I understand NOAA has its own plans for its own independent 
review of the BiOp. I hope this independent review will allow 
for public input as the Washington State and Alaska review did. 
I would also encourage NOAA to develop the terms of reference 
for the review in a manner suggested by the North Pacific 
Fishery Management Council, and to include a review of the 
science and the conclusions contained in the BiOp.
    [The prepared statement of Mr. Hastings follows:]

          Statement of The Honorable Doc Hastings, Chairman, 
                     Committee on Natural Resources

    I would like to thank our witnesses for their willingness to 
testify today on the issue of Steller sea lions and whether the fishery 
management measures that were put in place to protect sea lions are 
based on sound science. These management actions are the latest in a 
series of restrictions placed on commercial fishing activities in the 
Bering Sea and the Gulf of Alaska in an effort to protect Steller sea 
lions.
    The National Oceanic and Atmospheric Administration's own documents 
state that the imposition of the fishery management restrictions put in 
place last January will cost the commercial fishing industry between 
$44 million and $61 million per year and cause the loss of between 250 
and 750 jobs. At a time when every effort should be focused upon 
creating jobs and economic opportunities, it certainly stands out when 
an action by a Federal agency will result in this degree of economic 
loss--especially when one of the missions of the agency is to fully 
utilize the Nation's fishery resources.
    Having said that, I understand that NOAA has multiple missions. I 
also understand that there is a lot about Steller sea lions that is 
still poorly understood. However, I am concerned that the decision to 
impose these restrictions was based on whether fishing was ``not likely 
 to jeopardize the continued existence of a listed species...'' That 
standard seems to put the burden of proof on whether the agency could 
disprove that the commercial fishing industry was responsible for 
harming Steller sea lions. The fact that the Biological Opinion uses 
the word ``may'' throughout the document indicates to me that the 
agency is not sure what is going on in the Bering Sea and therefore 
cannot disprove any of the theories.
    When an agency puts in place a restriction on an industry that will 
result in a loss of up to $61 million per year and cost 750 jobs, I 
expect them to be certain. The Biological Opinion leaves one to wonder 
whether there is any certainty. The independent scientific review that 
was commissioned by the States of Washington and Alaska appears to 
share this concern. In fact, their report states, ``the conclusions in 
the BiOp regarding the finding of jeopardy and its posited cause 
(nutritional stress from food competition with fisheries) do not follow 
logically from scientific, economic, and social information presented 
in the BiOp and attendant documents.'' The report goes on to say, ``The 
conclusions are contradicted both by information presented in the BiOp 
as well as information not presented in the BiOp.''
    When 13 of the 14 criteria assessed by NOAA to determine if 
nutritional stress was restricting recovery for the western population 
came up negative while at the same time the Biological Opinion 
concludes that the fishing industry is restricting food availability, 
it raises questions about the validity of the entire Biological 
Opinion. This is just one question that has been raised regarding the 
science behind the fishing restrictions. When the agency's own science 
conflicts with their conclusions, it is no wonder the States of 
Washington and Alaska commissioned an independent scientific review.
    It is also concerning that so little has changed since 2000 when 
Congress began to appropriate funding for Steller sea lion research. 
Beginning in Fiscal Year 2001, Congress appropriated more than $150 
million for Steller sea lion research and more than half of that went 
directly to NOAA for their research program. And ten years later, we 
still are asking many of the same questions. Despite this funding, NOAA 
still is not able to answer the questions regarding whether the 
commercial fishing industry is limiting the food available for Steller 
sea lions. This is the first area of research that should be have been 
conducted so that we would not be in the situation we are in now--
facing new restrictions that will costs jobs and restrict economic 
activity.
    We now have the final report from the independent scientific review 
panel and the report raises serious issues with the conclusions in the 
Biological Opinion and also questions whether the science even supports 
the conclusions made by NOAA.
    The real question is what the agency will do with this new 
information. I hope our witnesses--in particular our NOAA witness--will 
discuss what happens next. NOAA has the authority, and I would argue 
the obligation, to take this independent review panel's report and to 
take another look at their findings in the Biological Opinion. I would 
also strongly suggest that NOAA look at other new information such as 
the Atka mackerel stock assessment that was completed after the 
Biological Opinion was finalized. This new information is certainly 
relevant and the agency has an obligation to review all new information 
when it becomes available.
    I understand NOAA has plans for its own independent review of the 
Biological Opinion. I hope that independent review will allow for 
public input as the Washington state and Alaska review did. I would 
also strongly encourage NOAA to develop the terms of reference for the 
review in the manner suggested by the North Pacific Fishery Management 
Council and to include a review of the science and the conclusions 
contained in the Biological Opinion.
                                 ______
                                 
    Mr. Hastings. And with that, I would like to recognize my 
colleague from Alaska, Mr. Young.

 STATEMENT OF THE HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF ALASKA

    Mr. Young. Thank you, Chairman Hastings, and thank you for 
holding this hearing on a topic that is of great interest to 
both of our States, and for hosting me in your great State of 
Washington--although I think where you are from is a lot nicer, 
but that is beside the point.
    The other day, I was reminded about a hearing held on this 
same topic in 1999. At that hearing, my friend, former Chairman 
Jim Saxton, said, ``If you can clearly identify a problem and a 
solution, then everyone will work together to accomplish the 
goal. If there is scientific uncertainty, distress, and 
animosity, then the process of cooperatively working together 
to find a solution is doomed to fail.''
    Over a decade later, sadly nothing has changed, as you 
mentioned in your statement. We are talking about the same 
issue and asking the same questions. Most shocking, significant 
taxpayer dollars have been directed toward research on the 
Steller sea lion. The National Marine Fisheries Service, NMFS, 
still cannot answer basic questions, and is making decisions 
that impact the economies of an entire region and countless 
individual families with grossly limited data.
    Once again, the Agency cannot say with certainty what is 
causing the population decline. But again, fishermen are paying 
the price. While we have no idea if these closures and 
restrictions will benefit the sea lion, we do know they will 
have devastating effects on fishermen and fishing communities.
    From all the evidence I have seen, I can reasonably draw 
only one conclusion: We are confronted with an agency that has 
a premise, but a lack of information to prove or disprove it. 
And out of fear of a lawsuit by extreme organizations, the 
Agency hides behind the ``best available science'' excuse. The 
worst thing, Mr. Chairman, their ``best available science'' did 
not use any science from the State of Washington or the State 
of Alaska. They used excuses and exercised an overabundance of 
precaution akin to someone who cannot swim refusing to bathe.
    I want to commend the States of Alaska and Washington for 
taking it upon themselves to work together to find answers for 
these outstanding questions. Among other things, they found 
that the Biological Opinion's conclusions were contrary to 
their own science, it was not adequately peer reviewed, and was 
not supported by scientific evidence.
    As Alaska and Washington have aptly demonstrated, this NMFS 
proposal does not have the best available science, or even 
complete science, and as a result, our fishermen and 
communities will suffer.
    Mr. Chairman, I do believe this is being driven within the 
Agency. I am trying to find who is pushing this issue, and I 
think there is a political agenda. It is not new. It has 
happened in the past, and it will probably happen in the future 
unless you and I and NMFS and NOAA work together with those 
involved to solve this problem.
    There is no shortage of sea lions. I have always fought 
this issue to arbitrarily set the number of sea lions. It had 
no scientific information behind it, and what it should be. And 
even in their own report, they said there was no availability 
of science to say fishermen are causing the problem. And, in 
fact, the sea lion herds are stabilized. I even called the head 
of NOAA when this occurred and asked them are they the same, 
because the so-called Western stock has declined, but the 
Eastern stock has increased, and it has the same DNA. And yet, 
they are punishing my fishermen, your fishermen, and they are 
doing what I think gives NOAA a black eye.
    NOAA is not really on my favorite list anyway, I want you 
to know that. Over the years I have introduced bills to 
eliminate NMFS because you do some real stupid things. And I 
just argue work together, let us do what is right, and do not 
caught get into this mid-management pushing of something that 
is an agenda. Get everybody off the water. No human fishermen 
will raise all our fish in fish farms off our shores. That is 
coming right out of your department. That is not right.
    With that, I yield back.
    [The prepared statement of Mr. Young follows:]

 Statement of The Honorable Don Young, the Representative in Congress 
                        from the State of Alaska

    Chairman Hastings, thank you for holding this hearing on a topic 
that is of great interest to both of our states, and for hosting me in 
your great state of Washington.
    The other day, I was reminded about a hearing held on this same 
topic in 1999. At that hearing, my friend, former Chairman Jim Saxton 
said,
        ``If you can clearly indentify a problem and a solution, then 
        everyone will work together to accomplish the goal. If there is 
        scientific uncertainty, distrust and animosity, then the 
        process of cooperatively working together to find a solution is 
        doomed to fail.''
    Over a decade later, sadly, nothing has changed and we're talking 
about the same issue and asking the same questions. Most shocking, 
significant taxpayer dollars have been directed towards research on the 
Steller Sea Lion, yet the National Marine Fisheries Service (NMFS) 
still cannot answer basic questions, and is making decisions that 
impact the economies of an entire region and countless individual 
families with grossly limited data.
    Once again, the Agency cannot say with any certainty what is 
causing the population decline, but fishermen and again paying the 
price. While we have no idea if these closures and restrictions will 
benefit the sea lion, we do know that they will have devastating 
affects on the fishermen and fishing communities.
    From all the evidence I've seen, I can reasonably draw only one 
conclusion--we're confronted with an Agency that has a premise, but a 
lack of information to prove or disprove it. And out of fear of a 
lawsuit by extreme organizations the Agency hides behind ``the best 
available science'' excuse and exercises an overabundance of precaution 
akin to someone who can't swim refusing to bathe.
    I want to commend the States of Alaska and Washington for taking it 
upon themselves to work together to find answers to these outstanding 
questions. Among other things, they found that the Biological Opinion's 
(BiOp) conclusions are contradictory to their own science, weren't 
adequately peer reviewed, and are not supported by scientific evidence.
    As Alaska and Washington have aptly demonstrated, this NMFS doesn't 
have the best available science or even complete science, and, as a 
result, our fishermen and communities will suffer.
    Once again, Chairman, thank you for holding this hearing and I, 
like you, look forward to examining this issue more closely today and 
hearing from our witnesses.
                                 ______
                                 
    Mr. Hastings. I thank the gentleman for his opening 
statement, and obviously in your remarks trying to ascertain 
what exactly is happening. That is the reason for this hearing. 
That is why we are holding this hearing here in Seattle--more 
closely to where all this activity happens. So, I thank you 
very much for being here and for your statement.
    On our first panel, we have Mr. Eric Schwaab, Assistant 
Administrator for Fisheries, National Marine Fisheries Service, 
part of NOAA, Mr. Doug Vincent-Lang, Special Projects 
Coordinator of the Alaska Department of Fish and Game, and Mr. 
Bill Tweit, Special Assistant to the Washington Department of 
Fish and Wildlife.
    Thank you all very much for being here. I will just remind 
you, if you have not had an opportunity to testify, your entire 
written statement will appear in the record. But we have these 
lights there sitting right in front of you and sitting right in 
front of me. It is a five-minute light, and when the green 
light goes on, that means you are doing really, really very, 
very well. But when the yellow light goes on, that means you 
have done four minutes, and you have one minute left. And when 
the red light goes on, then that means that your time has 
expired. Now, I want to accommodate you as much as we can, but 
because we have several panels, if you could confine your 
remarks to the five minutes, I would very much appreciate that.
    So, we will start with Mr. Schwaab. Mr. Schwaab, you are 
recognized for five minutes.

    STATEMENT OF ERIC SCHWAAB, ASSISTANT ADMINISTRATOR FOR 
FISHERIES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC 
  AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

    Mr. Schwaab. Chairman Hastings, Congressman Young, thank 
you for the opportunity to testify today on NOAA's Steller sea 
lion science and fishery management decisions to protect the 
species. My name is Eric Schwaab. I am the Assistant 
Administrator for Fisheries within NOAA.
    Also with me today is Dr. Doug DeMaster. Doug has been the 
Science and Research Director of the Alaska Fishery Science 
Center since October 2001. They have directed most of the 
Steller sea lion research for the agency.
    NOAA has been assessing Steller sea lion population status 
and the interactions between Alaskan groundfish fisheries and 
Steller sea lions for many years. Between the late 1970s and 
the late 1990s, the endangered Western population of the 
Steller sea lion declined by almost 90 percent throughout its 
range, reaching its smallest size in 2000.
    In the late 1990s and early 2000s, NOAA and the North 
Pacific Fishery Management Council implemented a number of 
significant changes in fishery management that lessened the 
potential impact of the fisheries on sea lions. Most of these 
changes were made in the area to the east of 178 degrees west 
longitude. In those areas, we have seen significant improvement 
in the numbers of sea lions. However, there appears to be a 
significant problem west of 178.
    This geographic boundary is significant because it is the 
same boundary where the National Marine Fisheries Service 
employed a different management strategy in 2001. The 
management strategies west of 178 degrees provided considerably 
more opportunity for commercial fishermen to prosecute 
fisheries inside of critical habitat.
    More recently in November 2010, NMFS released the 2010 
final groundfish Biological Opinion, and in December 2010 we 
published an interim final rule to implement Steller sea lion 
protection measures. Prior to finalizing the Biological 
Opinion, we provided draft to the public, comments were sought, 
and over 10,000 were received. All of these comments were 
evaluated and analyzed for possible inclusion.
    In addition, an economic analysis was conducted to examine 
a wide range of potential impacts, including costs to the 
fishing industry and local communities.
    In the Biological Opinion, NOAA determined that the 
continued operation of the fishery as it was currently being 
conducted was likely to jeopardize the continued existence of 
the Steller sea lions. Without protective measures, sea lions 
will likely continue to decline in abundance in the Western 
Aleutian Islands in the foreseeable future. Extirpation or 
localized extinction in the Western Aleutian Islands sub-region 
is likely, and possible in the Central Aleutian Island sub-
region as well.
    NMFS is committed to ensuring that all management decisions 
are based on the best available science. In the coming months, 
we will be taking a number of steps to address concerns being 
raised. On October 8th, 2011, the States of Alaska and 
Washington released a review of the Biological Opinion. We will 
review and consider the findings in the final report and any 
future consultations concerning impacts of Federally managed 
groundfish fisheries on Steller sea lions.
    If new information on the impacts of the groundfish 
fisheries on Steller sea lions reveals effects on listed 
species or critical habitat that were not previously 
considered, then re-initiation of formal consultation is 
required and will be undertaken.
    In addition, we will obtain a review of the Biological 
Opinion by the Center of Independent Experts. The CIE will be 
asked to examine information that was available at the time of 
the Biological Opinion's development. The draft terms of 
reference for this review will be provided to the North Pacific 
Fishery Management Council for review and comment during the 
December 2011 Council meeting. The Council's comments will be 
considered by NMFS and the completion of the terms of reference 
for the review.
    Furthermore, the Agency has proposed to the Council that 
the Steller sea lion Mitigation Committee be reconstituted, and 
asked to focus on management issues in the Aleutian Islands. 
The Agency will continue to work with the Council toward this 
goal.
    Finally, the Agency will invite State of Alaska and 
Washington representatives to a meeting to discuss alternative 
approaches to resolving questions concerning the management of 
Steller sea lions under the Endangered Species Act and Marine 
Mammal Protection Act.
    The ultimate goal of the actions taken by NMFS is the 
recovery of the Western Steller sea lion population so it can 
be removed from the list of endangered and threatened wildlife. 
These actions are designed to conserve Steller sea lion prey in 
important times and areas, while allowing as much fishing as 
possible to continue.
    Thank you for the opportunity to discuss NOAA's Steller sea 
lion work. We are available to answer any questions that you 
may have at the appropriate time. Thank you again, Mr. 
Chairman.
    [The prepared statement of Mr. Schwaab follows:]

   Statement of Eric Schwaab, Assistant Administrator for Fisheries, 
  National Marine Fisheries Service, National Oceanic and Atmospheric 
              Administration, U.S. Department of Commerce

    Chairman Hastings and members of the Committee, thank you for the 
opportunity to testify before you today on NOAA's Steller sea lion 
science and fishery management decisions to protect the species. My 
name is Eric Schwaab and I am the Assistant Administrator for 
Fisheries, within the National Oceanic and Atmospheric Administration 
(NOAA), Department of Commerce. NOAA's National Marine Fisheries 
Service (NMFS) is dedicated to the stewardship of living marine 
resources through science-based conservation and management, and the 
promotion of healthy ecosystems. As a steward, NMFS conserves, 
protects, and manages living marine resources to ensure functioning 
marine ecosystems and recreational and economic opportunities for the 
American public.
    On November 24, 2010, NMFS released the 2010 Final Groundfish 
Biological Opinion, which analyzed the effects of the groundfish 
fisheries in Alaska on the western population of the Steller sea lion. 
On December 13, 2010, NMFS published an interim final rule to implement 
Steller sea lion protection measures to insure that the Bering Sea and 
Aleutian Islands management area groundfish fisheries off Alaska are 
not likely to jeopardize the continued existence of the western 
distinct population segment of Steller sea lions or adversely modify 
its designated critical habitat (75 Fed. Reg. 77535). This rule went 
into effect on January 1, 2011. For purposes of consultation under the 
Endangered Species Act (ESA), NMFS was both the action agency as well 
as the consulting agency. The actions taken were designed to conserve 
Steller sea lion prey in important times and areas while allowing as 
much fishing to continue as possible.
    On October 6, 2011, the acting Secretary of Commerce received an 
invitation from the Natural Resources Committee of the House of 
Representatives to testify at a hearing to be held on October 17, 2011 
in Seattle, WA concerning several aspects of management decisions 
regarding the federally managed groundfish fishery in Alaska and 
potential interactions with the endangered population of Steller sea 
lion. In particular, the concerns of the Committee are outlined in a 
series of questions that were posed by the Committee and are addressed 
herein.
Background
    NOAA has been assessing the interactions between Alaskan groundfish 
fisheries and Steller sea lions for many years. The endangered western 
population of Steller sea lion has declined by almost 90% throughout 
its range, reaching its smallest size in 2000. In the late 1990's and 
early 2000's, NOAA and the North Pacific Fishery Management Council 
implemented a number of significant changes towards fisheries 
management that lessened the potential impact of the fisheries on the 
sea lions. Most of these changes were made in the area to the east of 
178+ W longitude and in those areas we have seen significant 
improvement in the numbers of sea lions. However, as Figure 1 
indicates, there appears to be a significant problem west of 178+ W 
longitude.


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




    This boundary at 178+ W longitude is significant because this 
geographic boundary is the same boundary where NMFS changed its 
management strategy in 2001 by implementing the Steller sea lion 
protection measures analyzed in the 2001 Biological Opinion, such that 
the management strategies west of 178+ W longitude provided 
considerably more opportunity for commercial fishermen to prosecute 
fisheries inside of critical habitat.
    The best, peer-reviewed available science indicates that continued 
declines in sea lions in the western and central Aleutian Islands sub-
region are due in part to reduced birth rates. One possible explanation 
for lowered birth rates in marine mammals is insufficient nutrition. 
Atka mackerel and Pacific cod are primary prey of Steller sea lions in 
the Aleutian Islands and they are targeted by the fisheries. Unless pup 
production in the western and central Aleutian Islands sub-regions is 
improved, the recovery of this ESA listed population will remain in 
doubt. As noted, historically, fishing was allowed in closer proximity 
to sea lion rookeries and haulouts in the western and central Aleutian 
Islands sub-regions than other parts of the western population's range. 
NMFS, therefore, took action to reduce fishing pressure in important 
times and areas for sea lions with the expectation that the biomass of 
Pacific cod and Atka mackerel will increase appreciably.
    In its Biological Opinion, NOAA determined that the continued 
operation of the fishery as it was currently being conducted, 
particularly in the western Aleutians, was likely to jeopardize the 
continued existence of the Steller sea lions. NOAA then worked with the 
Council to craft a suite of measures to address the situation in a 
Reasonable and Prudent Alternative or RPA. The Biological Opinion 
required closing the western Aleutian Islands fishery management area 
(543) to fishing for Atka mackerel and Pacific cod, two Steller sea 
lion prey species. Protective measures in the Central Aleutian Islands 
(Area 542 and 541) include establishing a 3 nm no-fishing buffer around 
a newly-established rookery; new closures of important Steller sea lion 
critical habitat foraging zones to fishing for Atka mackerel and 
Pacific cod; reductions in Atka mackerel harvest amounts; and varying 
seasonal closures for various sectors targeting Pacific cod. The 
protective measures implemented as part of the interim final rule in 
2010 are designed to increase the availability of forage fish (e.g., 
Atka mackerel and cod) in the region where sea lion abundance is 
currently in decline. NMFS took action because, without these 
protective measures, sea lions will likely continue to decline in 
abundance in the foreseeable future. Extirpation, or localized 
extinction, in the western Aleutian Islands sub-region is likely, and 
possible in the central Aleutian Islands sub-region.
Development of the 2010 Final Groundfish Biological Opinion
    The fishery management decisions in the 2010 Final Groundfish 
Biological Opinion were developed through a collaborative process 
between the NMFS Alaska Region, Sustainable Fisheries Division and NMFS 
Alaska Region, Protected Resources Division. The Protected Resources 
Division identified the fishing activities that were likely to 
jeopardize the continued existence and recovery or adversely modify 
designated critical habitat for the western distinct population segment 
of Steller sea lion (hereafter referred to as the western population). 
The potential impacts of all Alaska groundfish fisheries on the western 
population of sea lions and their critical habitat were examined. NMFS 
determined through the analysis in the Biological Opinion that it could 
not ensure the groundfish fisheries in the Bering Sea and Aleutian 
Islands Management Area (primarily Atka mackerel and Pacific cod 
fisheries in the Aleutian Islands) were not likely to jeopardize the 
continued existence of the western population of sea lions or adversely 
modify its critical habitat. This determination required changes in 
these fisheries to ensure the effects of these fisheries were not 
likely to adversely impact the western population of Steller sea lion.
    NMFS included an RPA for the management of the Atka mackerel and 
Pacific cod fisheries in the Biological Opinion. The Protected 
Resources Division identified in the Biological Opinion the protective 
measures that were needed to be met to remove the likelihood of 
jeopardizing the continued existence of the western population of sea 
lions and adversely modifying critical habitat in the development of 
the RPA. The Protected Resources Division then worked with the 
Sustainable Fisheries Division on the development of the RPA to ensure 
the fishery management decisions would meet the requirements of the ESA 
and that these measures could be developed and implemented in a timely 
manner for the start of the 2011 fishing year.
    NMFS presented the draft RPA to the North Pacific Fishery 
Management Council (Council) in August 2010. Council and public 
comments were considered in development of the final RPA. In the final 
Biological Opinion, a result of the Council and public comment, 
revisions were made to the RPA as to further reduce the potential 
burden of the RPA on the fishing industry while maintaining the 
protection measures necessary to ensure no likelihood of the action 
jeopardizing the continued existence or adversely modifying critical 
habitat for the western population.
    The RPA was structured to mitigate effects of the fishery in sub-
regions where Steller sea lion abundance continues to decline (western 
and central Aleutian Islands sub-region) and where available 
information indicates that reproduction may be reduced to a level that 
cannot support positive population growth (the western Aleutian Islands 
sub-region). The western and central Aleutian Islands were the two sub-
regions where population growth was negative from 2000-2008 and of most 
concern. NMFS determined that additional mitigation measures in the 
other three sub-regions in U.S. waters were unwarranted (i.e., western, 
central and eastern Gulf of Alaska). Currently, the western population 
of the Steller sea lion is growing at a rate of 1.4% per year. However, 
as explained in Chapter 7 of the Biological Opinion, the western 
population is not meeting the criteria of a recovering population as 
determined by the Revised Recovery Plan and is at risk of being 
extirpated in the western portion of its range in U.S. waters.
Scientific Information for the Biological Opinion
    Information referred to in the Biological Opinion, on which the 
Agency made its determination regarding whether the action was likely 
to jeopardize the continued existence or adversely modify critical 
habitat of the western population, included: (1) counts of pups and 
non-pups by sub-region, (2) food habits data by sub-region, (3) 
telemetry data on foraging behavior, and (4) differences in fishery 
management strategies by sub-region. In addition, NMFS conducted 
research on the abundance of killer whales in the Aleutian Islands.
    One of the most important pieces of information is shown in Fig 
3.10 of the Biological Opinion (change in pup counts from 2005 to 2009 
by degrees of longitude). Another very important piece of information 
is shown in Table 3.6 of the Biological Opinion (pup to non-pup ratios 
by sub-region). A summary of the underlying evidence supporting the RPA 
can be found on pages 359 and 360 of the Biological Opinion.\1\
---------------------------------------------------------------------------
    \1\ NOAA would be happy to provide the referenced documents to 
Committee Members upon request.
---------------------------------------------------------------------------
    These data suggested that some factor was acting west of 178+ W 
longitude that was leading to the declines in pup production. Given the 
presumed linkage between Steller sea lion declines and nutritional 
stress, and the increased fishing effort in this region since 2001, it 
was reasonable to conclude that a restriction in fishing effort would 
remove fishery effects that may contribute to nutritional stress and 
potentially ameliorate the decline in pup production.
Economic Analysis of the Biological Opinion
    The economic analysis examined a wide range of potential impacts, 
including 1) costs to the fishing industry directly affected and the 
communities deriving jobs and income from this fishing activity, and 2) 
benefits derived from recovering Steller sea lion populations.
    The impacts on directly regulated Atka mackerel and Pacific cod 
fishing operations were evaluated by estimating the loss in gross 
revenue in Atka mackerel and Pacific cod production in prior years that 
would have occurred if the proposed measures had been in place. This 
information was supplemented by an analysis (based on past fishing 
patterns, and information on regulatory measures) of how the affected 
vessels might redeploy, what this might mean to their catches, and how 
this might affect other fishing fleets. Information from industry, 
primarily obtained during a special Council meeting in August 2010, and 
from comments on the draft Biological Opinion and draft environmental 
assessment/regulatory impact review, was used in this process.
    Impacts on communities were evaluated in several ways. Licensing 
and permit records were used to identify homes and home ports for 
fishermen and vessels directly involved in the fishery. Case studies 
were performed on regional communities especially likely to be impacted 
by the action, including Adak, Atka, and Unalaska. More general 
discussions were provided for areas not local to the fisheries. A new 
impact model prepared by economists at the Alaska Fisheries Science 
Center was used to make quantitative estimates of job, and other 
impacts, associated with the fishery management decisions. Potential 
impacts on Community Development Quota groups were also discussed.
    Potential benefits of the action were evaluated qualitatively for 
persons placing a value on Steller sea lion population health, and for 
persons using Steller sea lion populations for subsistence purposes.
    While these findings were the primary focus of the analysis, the 
regulatory impact review also discussed impacts on other ecosystem 
resources, on consumers, on in-season management and enforcement, on 
safety, and on the collection of scientific information.
North Pacific Fishery Management Council Involvement in the Development 
        of the Biological Opinion
    Prior to finalizing the Biological Opinion, NMFS provided to the 
public a draft Biological Opinion with a draft RPA. The public review 
process involved a special meeting of the Council and its Scientific 
and Statistical Committee and Advisory Panel in August 2010. Public 
comments were sought, and over ten thousand were provided to NMFS. The 
Council submitted a recommendation for an alternative RPA that was 
initially crafted by its Advisory Panel. The Council's Scientific and 
Statistical Committee also reviewed the draft Biological Opinion and 
RPA, and drafted comments on the scientific analyses and the logic of 
the underpinning science supporting NMFS' recommended draft RPA. All 
comments and the Council's suggested alternative RPA were evaluated by 
NMFS and analyzed for possible inclusion in a revised RPA. NMFS 
ultimately accepted eight modifications to the RPA to the draft 
Biological Opinion. NMFS analyzed these modifications and found that 
there was a comparable conservation benefit in the revised RPA. For 
example, proposed restrictions were relaxed for vessels less than 60' 
in length using nontrawl gear, additional areas inside critical habitat 
in Area 542 was made available to nontrawl vessels, and small portions 
of critical habitat in the central Aleutian Islands were opened to 
trawling in a manner similar but not as extensive as the Council's 
motion. The revised draft RPA was presented to the Council and the 
public in October 2010, and then included in the final Biological 
Opinion.
Independent Scientific Review of the Biological Opinion
    On October 8, 2011, the final version of the States of Alaska and 
Washington's review of the Biological Opinion (Bernard et al. 2011) was 
released. NMFS will review and consider the findings in the final 
report in any future consultations concerning impacts of federally 
managed groundfish fisheries on Steller sea lions. If new information 
on the impacts of the groundfish fisheries on Steller sea lions reveals 
effects on listed species or critical habitat that were not previously 
considered, then reinitiation of formal consultation is required (50 
CFR sec. 402.16).
Future Review of the Biological Opinion
    NMFS will obtain a review of the Biological Opinion by the Center 
of Independent Experts. NMFS has a contract with the Center of 
Independent Experts to conduct independent reviews for the Agency of 
controversial or complex decision documents or assessments. The Center 
of Independent Experts will be asked to examine information that was 
available at the time of the Biological Opinion's development (through 
May 2010). The draft Terms of Reference for this review will be 
provided to the Council for review and comment during the December 2011 
Council meeting. The Council's comments will be considered by NMFS in 
the completion of the Terms of Reference for the Center of Independent 
Experts review, which is scheduled for completion in 2012.
Plans for Gathering Additional Scientific Information about Steller Sea 
        Lions
    NMFS will continue to conduct studies on Steller sea lions in 
Alaska, Washington, Oregon, and California, as well as in collaboration 
with other researchers in the U.S., Russia and Canada. These studies 
address critical data needs to support stock assessment and recovery 
efforts, test multiple hypotheses related to population decline, and 
inform management decisions and monitor protection measure 
effectiveness. Collectively this research encompasses population 
abundance and trend monitoring, estimation of survival and reproductive 
rates, determination of short and long-term movements within and 
between stock, state, and international boundaries, measures of 
foraging behavior, diet, and marine habitat requirements, and 
assessments of sea lion health and condition. The following types of 
research will be undertaken in FY12, assuming funding levels similar to 
those in FY11: (1) monitoring of population trends by sub-region for 
Steller sea lions in Alaska, (2) estimation of vital rates of Steller 
sea lions in Alaska and Russia, (3) research on the foraging ecology 
and composition of the diet in Alaska, and (4) surveys to determine the 
biomass of Atka mackerel and cod in the western, central, and eastern 
Aleutian Islands sub-regions.
Recovery Criteria in the Biological Opinion
    NMFS assembled a Steller Sea Lion Recovery Team (Team) in 2001 to 
assist in revising the Recovery Plan to promote the conservation of the 
Steller sea lion. The Team included: experts on marine mammals from the 
private sector, academia, and government; experts on endangered species 
conservation; and representatives of the commercial fishing industry, 
the Alaska Native Steller sea lion subsistence hunting community, and 
the environmental community. In March 2006, the Team submitted a draft 
of the Recovery Plan to NMFS, at which time it became an agency 
document. NMFS made minor editorial changes prior to releasing the 
first draft for public review and comment in May 2006. Upon review of 
the comments and recommendations submitted by peer reviewers and the 
public, and in light of new information available, NMFS further revised 
and updated the Plan. The changes made by NMFS were reflected in the 
Agency's updated (May 2007 version) Draft Revised Steller Sea Lion 
Recovery Plan, released by NMFS for further public review and comment 
on May 21, 2007 (72 Fed. Reg. 28473), with the comment period closing 
on August 20, 2007. NMFS reviewed the comments and recommendations 
submitted by peer reviewers and the public on the 2007 version of the 
draft revised plan and modified the plan as appropriate to produce the 
Final Revised Steller Sea Lion Recovery Plan in February 2008.
    The Final Revised Steller Sea Lion Recovery Plan (2008) is a 
guidance document for the Agency as it continues to manage Steller sea 
lions and their habitat throughout their range. It contains recovery 
criteria which are described in several chapters of the Biological 
Opinion, and are stated as performance measures by sub-region (sub-
regions from west to east are: Russia/Asia; western, central, and 
eastern Aleutian Islands; western, central, and eastern Gulf of 
Alaska). The Steller Sea Lion Recovery Team believed, and NMFS 
concurred, it was important to consider sub-population vital rates and 
demographic characteristics when considering the status of the western 
population of sea lions relative to recovery. The Recovery Plan notes 
that significant declines over large areas (two or more adjacent 
subareas) could indicate that extinction risk may still be high and 
that further research would be needed to understand the threats and 
would indicate a lack of recovery for the western population as a 
whole. Thus, NMFS believes it was important to maintain viable sub-
populations within the western population and not rely solely on the 
core of the range to provide for increasing population numbers over the 
short term.
    The 2008 Revised Recovery Plan for Steller sea lions provided NMFS' 
rationale for considering sub-population vital rates and demographic 
characteristics when considering whether the western population of 
Steller sea lion was sufficiently recovered to merit delisting. 
According to the Revised Recovery Plan, significant declines over large 
areas could indicate that the extinction risk for the western 
population may still be high and would indicate a lack of recovery. The 
Revised Recovery Plan stressed the importance of maintaining viable 
sub-populations throughout the range of the western population to 
achieve recovery and the ability to delist.
    The current decline in abundance of Steller sea lions in the 
adjacent western and central Aleutian Islands sub-regions is, 
therefore, inconsistent with the recovery criteria of this population. 
Therefore, it was necessary to develop RPAs associated with the 
Biological Opinion for the Fishery Management Plans that could improve 
the availability of forage fish for sea lions in these sub-regions. 
Only then could NMFS ensure that authorization of the federal 
commercial fisheries was not likely to jeopardize the continued 
existence of the western population of sea lions or adversely modify 
its critical habitat.
    The RPA recommended in the Biological Opinion was designed to 
insure that the action, the authorization of Federal fisheries off 
Alaska, was not likely to reduce appreciably the likelihood of recovery 
of the western population of the Steller sea lion. A key consideration 
in making the determination that the action, as modified by the RPA, 
would not reduce appreciably the likelihood of recovery was use of the 
criteria developed by NMFS and the recovery team to determine when 
recovery has been achieved and when the western population no longer 
requires protection under the ESA.
Conclusion
    The ultimate goal of the actions taken by NMFS is the recovery of 
the western Steller sea lion population so it can be removed from the 
list of endangered and threatened wildlife. These actions are designed 
to conserve Steller sea lion prey in important times and areas while 
allowing as much fishing to continue as possible.
    Thank you again for the opportunity to discuss NOAA's Steller sea 
lion science and fishery management decisions. We are available to 
answer any questions you may have.
                                 ______
                                 
    Mr. Hastings. Thank you very much, Mr. Schwaab.
    And next, we will recognize Mr. Vincent-Lang, Special 
Projects Coordinator for the Alaska Fish and Game. You are 
recognized for five minutes. Thank you.

 STATEMENT OF DOUG VINCENT-LANG, SPECIAL PROJECTS COORDINATOR, 
               ALASKA DEPARTMENT OF FISH AND GAME

    Mr. Vincent-Lang. Good morning, Mr. Hastings, Mr. Young. 
Thank you for the opportunity to speak with you today.
    I am going to speak with you regarding concerns the State 
of Alaska has with the National Marine Fisheries Service 
Biological Opinion for the Western stock of Steller sea lions.
    In this Biological Opinion, the Service concluded that 
fishing in some areas of the Aleutian Islands jeopardizes the 
Steller sea lion stock and adversely modifies its critical 
habitat. Based on this finding, the Service adopted expansive 
new area closures and restrictions to fishing of a magnitude 
that cripples the fishing based economy of the Western 
Aleutians and raises environmental justice concerns.
    As many as 900 people are employed by fishing fleets and 
processors in the area facing restrictions. The Service 
acknowledges that implementation of this decision would cause 
fishery losses of up to $61 million annually and 750 jobs.
    Alaska questions whether these restrictions are justified 
in light of evidence that the stock now numbers over 73,000 
animals, is growing overall across its range, and that there is 
a lack of credible data showing that fishing is, in fact, 
jeopardizing Steller sea lions or adversely modifying their 
critical habitat.
    The conclusion that fishing is affecting the Western stock 
is based on speculation, not hard facts. Let us look at the 
scientific data upon which the Service based its jeopardy and 
adverse modification finding.
    First, the Western stock of Steller sea lions as a whole is 
recovering and is not in jeopardy at this time. The stock is 
growing at a rate of 1.4 percent per year, and now numbers over 
73,000 animals.
    Second, recovery objectives established by the 2008 Steller 
sea lion recovery plan are not being violated. Rather, the 
current status of the stock achieves the criteria established 
within the recovery plan.
    Third, the primary rationale for the positive jeopardy and 
adverse modification finding is that Atka mackerel and Pacific 
cod fishing is causing nutritional stress to Steller sea lions. 
However, there is little sound scientific evidence that 
nutritional stress is in fact causing slower than desired rate 
of recovery in the Western Aleutians, and the scant available 
evidence is extremely weak.
    Fourth, the cause for restrictions for Pacific cod as an 
important prey species for Steller sea lions in the Western 
Aleutians is tenuous at best, and the basis for its inclusion 
in the interim final rule is unjustified.
    Fifth, while it may be theoretically possible for 
commercial fisheries to adversely affect the prey field of 
Steller sea lions, the data are very inconclusive. Studies 
founded by the Service itself, and largely ignored in the 
Biological Opinion, reveal that correlations between Steller 
sea lion population growth and fishing intensity over time and 
space indicate no significant relationship, much less a 
negative relationship.
    Sixth, the biomass of both Pacific cod and Atka mackerel 
were increasing under the prior management regime, thus 
negating the need for drastic changes implemented by the 
Service. In fact, the most recent biomass surveys for these two 
species so increasing biomasses in the Western Aleutians, even 
to the level sought as targets in the final rule.
    Finally, even accepting as true the false conclusion that 
fishing is negatively affecting Steller sea lions in the 
Western Aleutians, the Biological Opinion presented no 
information demonstrating that this effect is adversely 
modifying critical habitat as a whole for the Western stock as 
required under the Endangered Species Act.
    In summary, there is simply insufficient scientific 
evidence to conclude that fishing is causing acute nutritional 
stress and, thus, jeopardy to the Western Steller sea lions and 
adverse modification of their critical habitat, much less to 
any level of effect that would require immediate implementation 
of correction actions at this time.
    Alaska submitted extensive comments identifying these 
foundational science issues, as well as issues regarding the 
process used by the Service to reach its decision. We do not 
believe the Service adequately considered the State's concerns. 
Instead, they simply relied on their deference to justify their 
invalid conclusions and discount valid concerns raised by the 
State and others.
    In reaching their conclusions, the Service failed to 
conduct an independent review of their work. In fact, the 
subsequent independent analysis contacted by the States of 
Alaska and Washington substantiated many of the scientific 
concerns identified by affected users.
    We understand that the Service is planning to conduct a CIE 
review in the upcoming months. We strong urge the Service to 
employ the Council-adopted terms of reference and established 
working groups to finalize the CIE process. Specifically, we 
request that the terms of reference mandate all of the science, 
including the report from aforementioned State review be 
examined. We also request that the BiOp findings regarding the 
effects of Steller sea lions be examined. Finally, we request 
that the public process be as transparent as that employed by 
the State panel.
    Also, at the request of the Service, the North Pacific 
Fishery Management Council held a special meeting to review the 
Biological Opinion. The Service maintained that a special 
Council meeting was needed to accommodate its severely 
shortened decision time frame after working on the Biological 
Opinion for over four years. At this meeting, the Council 
developed a reasonable and prudent alternative that would have 
increased protection for Steller sea lions while minimizing the 
effects of fishing as required under the Magnuson-Stevens Act. 
We are disappointed he Service did not more fully incorporate 
the recommendations of the Council in the implemented action.
    Finally, the State is concerned about the lack of 
meaningful public process allowed by the Service in evaluating 
the status of Steller sea lions. Specifically, we have concerns 
about the adequacy of the environmental assessment associated 
with the Biological Opinion. In particular, we question whether 
the economic valuations presented in the economic assessment 
reflect the real impacts to affected communities and fishing 
fleets. For example, the draft environment assessment released 
to the public was missing large pieces of critical information 
necessary to the public to make informed decisions.
    This concludes my remarks. I would be happy to answer any 
questions. Thank you.
    [The prepared statement of Mr. Vincent-Lang follows:]

Statement of Doug Vincent-Lang, Special Assistant to the Commissioner, 
                   Alaska Department of Fish and Game

    Good Morning. Thank you for the opportunity to speak with you 
today.
    My name is Doug Vincent-Lang. I am a Special Assistant to the 
Commissioner of the Alaska Department of Fish and Game (ADF&G). As part 
of my duties I am the Endangered Species Act (ESA) Coordinator for the 
State of Alaska. I have worked in this position since September, 2007. 
Previously I worked for the ADF&G as a biologist and Assistant Director 
for 26 years. I hold a B.S. degree in biology/population dynamics from 
the University of Wisconsin--Green Bay and a M.S. degree in Biological 
Oceanography from the University of Alaska Fairbanks.
    Today I am here to speak with you regarding concerns the State of 
Alaska has with the National Marine Fishery Service's Biological 
Opinion for the western stock of Steller sea lions. In this Biological 
Opinion, the National Marine Fisheries Service (Service) concluded that 
fishing in some areas of the Aleutian Islands jeopardizes the Steller 
sea lion stock and adversely modifies its habitat. Based on this 
finding, the Service adopted expansive new area closures and 
restrictions to fishing of a magnitude that cripples the fishing-based 
economy of the western Aleutians and raises environmental justice 
questions. As many as 900 people are employed by fisheries fleets and 
processors in the area facing restrictions. The Service acknowledges 
that implementation of its decision would cost fishery losses of up to 
$66 million annually.
    Alaska questions whether these restrictions are justified in light 
of evidence that the stock now numbers over 73,000 animals, that it is 
growing overall across its range, and that there is a lack of credible 
data showing that fishing is in fact jeopardizing Steller sea lions or 
adversely modifying their habitat.
    The conclusion that fishing is affecting the western stock of 
Steller sea lions was based on speculation, not hard facts. Let's look 
at the scientific data upon which the National Marine Fisheries Service 
based their jeopardy and adverse modification:
        1.  The western stock of Steller sea lions as a whole is 
        recovering and is not in jeopardy at this time. This stock is 
        growing at a rate of 1.4% per year and now numbers over 73,000 
        animals. As noted in the Biological Opinion itself ``Since 
        2000, the decline has ceased and in most sub-regions the wSSL 
        population is increasing.''
        2.  Recovery objectives established by the 2008 Steller Sea 
        Lion Recovery Plan are not being violated; rather the current 
        status of the stock achieves the criteria established by the 
        Recovery Plan. To achieve recovery, the plan criteria dictate 
        that the population trend in any two adjacent sub-regions 
        cannot be significantly declining. In fact, the data show that 
        no two adjacent sub-regions are significantly declining: one 
        area does show a decline, but it is not possible to determine 
        if this decline is significant. The plan also dictates that the 
        population trend in any one sub-area cannot have declined by 
        more than 50%. The data show that the population in one sub-
        region, the Western Aleutians, has declined, but at a rate less 
        than 50%.
        3.  The primary rationale for the positive jeopardy and adverse 
        modification finding is that the Atka mackerel and Pacific cod 
        fisheries are causing ``nutritional stress'' to Steller sea 
        lions. There is little sound evidence, however, that 
        nutritional stress is causing the slower-than-desired rate of 
        recovery in the western Aleutians, and the scant available 
        evidence is extremely weak. For example, of the 17 possible 
        life history indicators identified to assess nutritional stress 
        for which the Service has data to evaluate, only 1 indicator 
        showed a positive relationship: reduced birth rate. The 
        remaining 16 biological indicators showed a negative 
        relationship. These negative findings included emaciated pups, 
        reduced pup body size, reduced pup weight, reduced growth rate, 
        reduced pup survival, reduced juvenile survival, reduced adult 
        survival, reduced overall survival, reduced pup counts, reduced 
        non-pup counts, changes in blood chemistry, and increased 
        incidence of disease. And even the reduced birth rate 
        relationship should be viewed with caution given the lack of 
        life history data for sea lions in the western Aleutians. Low 
        birth rates could be attributed to factors other than 
        nutritional stress, for example, predation. Other recent data, 
        collected by the ADF&G and funded by cooperative research 
        monies from the Service, confirms that first-year Steller sea 
        lions pups in the western stock show no evidence of poor body 
        condition. This is yet another source of data that calls into 
        question the Service's unproven and untested nutritional stress 
        theory, on which their onerous Reasonable and Prudent 
        Alternative is based. In addition, other National Marine 
        Fisheries Service funded research demonstrates out-migration of 
        branded Steller sea lions that move between the western and 
        eastern Steller sea lion stock boundaries, which calls into 
        question the assertion in the Biological Opinion that there is 
        no cross-migration between the two stocks.
        4.  The case for restrictions for Pacific cod as an important 
        prey species for Steller sea lions in the western Aleutians is 
        tenuous at best and the basis for its inclusion in the 
        Reasonable and Prudent Alternatives and interim final rule is 
        unjustified. Information available to assess sea lion diets in 
        the western Aleutians is extremely limited. Only 46 total scat 
        (feces) samples are available, and within that limited sample, 
        94% of the scat samples collected contained no cod at all. 
        Information to assess the extent of sea lion feeding ranges is 
        also extremely limited. The primary justification for the 
        expansive closures in the western Aleutians is the foraging 
        behavior of 3 juvenile males, which may not be representative 
        of all Steller sea lions, particularly adult females, the 
        population component most critical for determining population 
        trends.
        5.  While it may be theoretically possible for commercial 
        fisheries to adversely impact the prey field of Steller sea 
        lions, the data are very inconclusive. Studies funded by the 
        Service, but largely ignored in the Biological Opinion, reveal 
        that correlations between Steller sea lion population growth 
        and fishing intensity over time and space indicate no 
        significant relationship, much less a negative relationship.
        6.  The biomass of both Pacific cod and Atka mackerel were 
        increasing under the prior management regime, thus negating the 
        need for the drastic changes implemented by the Service. As a 
        result, the management measures imposed by the final Reasonable 
        and Prudent Alternatives are not consistent with the most 
        recent 2010 biomass estimates for either Pacific cod or Atka 
        mackerel, which were not considered in the Biological Opinion 
        and Reasonable and Prudent Alternative analysis even though 
        they were available before the final Biological Opinion was 
        signed. These most recent (November 2010) biomass surveys for 
        these two species show increasing biomass in the western 
        Aleutians, even to levels sought as targets in the Reasonable 
        and Prudent Alternative.
        7.  Finally, even accepting as true the false conclusion that 
        fishing is negatively affecting Steller sea lions in the 
        western Aleutians, the Biological Opinion presented no 
        information demonstrating that this effect is adversely 
        modifying critical habitat as a whole for the western stock, as 
        required under the Endangered Species Act.
    In summary, there is simply insufficient scientific evidence to 
conclude that fishing is causing any nutritional stress and thus 
jeopardy to western Steller sea lions and adverse modification of their 
critical habitat, much less any level of effect that would require 
immediate implementation of corrective actions at this time. The State 
of Alaska submitted extensive comments identifying these foundational 
science issues, as well as regarding issues with the process used by 
the National Marine Fisheries Service to reach their decision. We do 
not believe that the Service adequately considered the State's 
concerns. Instead, they strongly relied on their deference to justify 
their conclusions and discount valid concerns raised by the State and 
others.
    In reaching their conclusion, the Service failed to conduct an 
independent review of their work, as is normally undertaken and which 
we believe would have highlighted these shortcomings. In fact, a 
subsequent independent analysis contracted by the States of Alaska and 
Washington substantiated many of the scientific concerns identified by 
affected users.
    Also, at the request of the National Marine Fisheries Service, the 
North Pacific Fishery Management Council held a special meeting to 
review the Biological Opinion and associated Reasonable and Prudent 
Alternative. The Service maintained that a special Council meeting was 
needed to accommodate a severely shortened decision timeframe--after 
working on the Biological Opinion for over four years. At this meeting 
the Council developed an alternate Reasonable and Prudent Alternative 
that would have increased protections for sea lions while minimizing 
effects on fishing communities as required by the Magnuson-Stevens Act. 
We are disappointed that the National Marine Fisheries Service did not 
more fully incorporate the recommendations of the Council in their 
implemented action.
    Finally, the State is also concerned about the lack of meaningful 
public process allowed by the Service in evaluating the status of 
Steller sea lions. Specifically, we have concerns about the adequacy of 
the Environmental Assessment associated with the Biological Opinion; in 
particular, we question whether the economic valuations presented in 
the Economic Assessment reflect the real impacts to the affected 
communities and fishing fleets. For example, the draft Environmental 
Assessment released to the public was missing large pieces of critical 
information necessary for the public to make informed comments.
    The state is challenging this Biological Opinion and the associated 
fishery restrictions on various scientific and procedural grounds. 
Nevertheless, we fully support the recovery of this stock and will work 
cooperatively with NMFS on joint research.
    This concludes my remarks. I would be happy to answer any 
questions.
                                 ______
                                 
    Mr. Hastings. Thank you very much, Mr. Vincent-Lang. I 
appreciate your testimony.
    And last, we will go to Mr. Bill Tweit, Special Assistant 
for the Washington Department of Fish and Wildlife. You are 
recognized for five minutes.

    STATEMENT OF BILL TWEIT, SPECIAL ASSISTANT, WASHINGTON 
                DEPARTMENT OF FISH AND WILDLIFE

    Mr. Hastings. Press the button on your----
    Mr. Tweit. Thank you. Good morning, Chairman Hastings and 
Representative Young. Thank you for the opportunity to speak 
with you today.
    I work for the Washington Department of Fish and Wildlife 
and represent Director Phil Anderson on the North Pacific 
Council.
    In addition to Council representation, my duties at the 
Department include salmon harvest management, Columbia River 
water management, hydro powered mitigation, and tribal 
relations.
    In my testimony this morning, I will describe the State of 
Washington concerns regarding the Biological Opinion on Steller 
sea lions, the operating guidelines developed by Washington and 
Alaska for the independent science review of this Biological 
Opinion and, third, our suggestions for resolution of the 
science and management conflicts that have been fostered by 
this Biological Opinion.
    The State's fundamental concerns are described by Governor 
Gregoire in a pair of letters to Secretary of Commerce Locke. 
Copies of these letters are attached to my written testimony. 
The Governor expressed two fundamental and interrelated 
concerns: first, the high degree of scientific uncertainty that 
this Biological Opinion is addressing, and, second, the top 
down approach that NMFS has adopted to developing the 
Biological Opinion and its reasonable and prudent alternatives.
    For contrast with the approach they have chosen here, I am 
very familiar with the process for crafting another notable 
Biological Opinion, this one regarding the impacts of the 
operation of the Federal Columbia River power system on listed 
salmonids.
    While that process certainly has some considerable 
difficulties associated with it, the State of Washington 
strongly supports the current Federal approach. This approach 
has not ended all of the controversy or litigation surrounding 
this Biological Opinion, which is probably an impossible task 
anyway, but it has brought many of the parties together to 
focus on solutions and implementation of salmon recovery 
actions. It has become a regionally driven, bottom up process, 
in considerable contrast to the Steller sea lions BiOp, which 
has had virtually no constructive regional engagement and 
represents essentially an edict from the National Marine 
Fisheries Service.
    Washington saw the need for an independent scientific 
review of this Biological Opinion due to the very significant 
scientific uncertainties. We took a great deal of care in 
developing the guidelines for the independent science review to 
ensure that the science advice we received would be unbiased 
and credible. Alaska shared our objectives.
    We wish to avoid, on the one hand, an ill-informed review 
due to the reviewer's lack of familiarity with the subjects. At 
the same time, we also wish to avoid panelists that have 
already drawn their own conclusions about the Biological 
Opinion. Consequently, we in Alaska chose the two co-chairs for 
their extensive knowledge of their fields, their professional 
integrity and credibility, and their lack of engagement in this 
BiOp.
    We gave them free reign to choose the remaining panelists, 
develop their terms of reference, and conduct their review. The 
panel conducted their work in an open and transparent process, 
holding two public meetings to solicit input. Until we received 
their draft report, we had no advance knowledge of their 
findings or even whether they would be able to reach consensus 
on any or all of the issues they examined.
    The fact that these four scientists were able to provide us 
with a consensus final report is very convincing to us. Their 
findings are Washington's position on the economic and 
scientific underpinnings of the Biological Opinion and its 
RPAs.
    Based on their findings, it is apparent to us that the BiOp 
is flawed, likely as a consequence, in our judgment, of the top 
down Federal process that was employed.
    In concluding, I would like to return to a primary theme of 
both of the letters from Governor Gregoire that NMFS commit to 
an open and transparent process to be implemented as quickly as 
possible for revisions to the Biological Opinion that are 
responsive to both the science panel findings and to regional 
comments. If NMFS chooses to initiate its own CIE review of the 
BiOp, their first step should be to develop the terms of 
reference concurrently with the Council. These terms should 
include the CIE's ability to examine the results of the State's 
independent review and should also include opportunity for 
public input.
    I believe the North Pacific Council is willing to 
facilitate a process for engaging all stakeholders. In our 
view, that process should start now, and not wait for the 
results of another science review or for litigation to be 
settled. And most importantly, the top down approach with a 
one-sided and erroneous application of the precautionary 
approach is not acceptable.
    Mr. Chair, the ingredients for a successful regional 
collaboration are present in this case. The North Pacific 
Council is a leader in applying ecosystem management principles 
to fishery management issues. The States of Washington and 
Alaska are experienced with and very supportive of 
collaborative approaches to solving thorny resource management 
issues, and the stakeholders are willing to participate. The 
only missing ingredient at this point appears to be a NOAA 
interest in collaborative development of measures that will 
support sea lion recovery.
    We urge the Committee to express its support for NOAA to 
participate in a regional collaborative process to revise the 
Biological Opinion to address the errors and shortcomings 
identified by the State's independent science review.
    Thank you. I would be pleased to answer any questions the 
Committee may have.
    [The prepared statement of Mr. Tweit follows:]

              Statement of Bill Tweit, Special Assistant, 
               Washington Department of Fish and Wildlife

    Good Morning. Thank you for the opportunity to speak with you 
today.
    My name is Bill Tweit. I represent Director Phil Anderson on the 
North Pacific Fishery Management Council (NPFMC), and it is in that 
capacity that I provide our testimony to you today. I have worked for 
the Department since 1988; in addition to NPFMC representation my 
duties include salmon harvest management, Columbia River water 
management, hydropower mitigation, and tribal relations. I received my 
Bachelors degree in Ecology and Field Biology from The Evergreen State 
College in 1976.
    In my testimony, I will describe the State of Washington concerns 
regarding the NMFS Biological Opinion that addresses potential impacts 
of the North Pacific groundfish fisheries on Stellers Sea Lions (BiOp), 
the operating guidelines developed by Washington and Alaska for the 
Independent Science Review that we commissioned to review this BiOp, 
and our suggestions for resolution of the science and management 
conflicts fostered by this BiOp.
    The State's concerns are described by Governor Gregoire in a pair 
of letters to Secretary of Commerce Locke; copies of those letters are 
attached to my written testimony. The Governor expressed two 
fundamental and inter-related concerns: the high degree of scientific 
uncertainty and the ``top-down'' approach that NMFS adopted to 
developing the BiOp and its Reasonable and Prudent Alternatives (RPA). 
She noted that NMFS was proposing regulations that would have 
significant impacts to the fishing fleets, and that there was 
considerable scientific uncertainty concerning the need for and the 
effect of those regulations.
    In view of the significance of both the impacts and the level of 
scientific uncertainty, in October 2010 she urged NMFS to adopt the 
interim measures proposed by the NPFMC and to initiate a collaborative 
approach to development of the long-term measures. NMFS decided that 
the Council's proposed interim measures were inadequate, implemented 
their own recommended measures on January 1 via an interim final rule 
that allows enactment without public comment, and have yet to describe 
a collaborative approach for either resolution of the uncertainties or 
development of alternative measures.
    In her January letter, following the NMFS interim final rule, 
Governor Gregoire reiterated her support for establishing a 
collaborative process, expressed her concern that the public process 
to-date had allowed little room for substantive public involvement, and 
emphasized her belief that controversial resource management issues 
with high levels of scientific uncertainty are best addressed through 
fair and transparent inclusion of all perspectives, and concluded that 
``there is great benefit in having all sides work together toward a 
solution''.
    I am very familiar with the process for crafting another NMFS 
Biological Opinion, regarding the impacts of the operation of the 
Federal Columbia River Hydropower System on listed salmonids. While 
that process has some difficulties, the State of Washington strongly 
supports the current Federal approach for development of the most 
recent version. The approach is inclusive of all regional governments, 
including plaintiffs, acknowledges the scientific uncertainties, and is 
oriented to solutions that are robust to the uncertainties and 
sensitive to economic impacts. An Adaptive Management process was 
developed to alter the Columbia River BiOp provisions if the 
assumptions proved incorrect.
    This approach has not ended all of the controversy or litigation 
surrounding this BiOp, probably an impossible task, but it has brought 
many of the parties together to focus on solutions and implementation 
of salmon recovery actions. It became a regionally-driven, bottom-up 
process, in considerable contrast to the Stellers Sea Lion BiOp, which 
has had virtually no constructive regional engagement, and is 
essentially an edict from NMFS.
    Washington acknowledged that there are very significant scientific 
uncertainties concerning factors for decline for Stellers Sea Lions in 
the central and western Aleutians, and was hesitant to draw our own 
conclusions regarding the NMFS scientific and economic assessments 
until we had the benefit of an independent review. Consequently, we 
took a great deal of care in developing the guidelines for the 
independent science review, to ensure that science advice would be 
unbiased and credible. Alaska shared our objectives. We wished to avoid 
an ill-informed review due to lack of familiarity with Stellers Sea 
Lion biology and population dynamics, fisheries population assessments, 
or North Pacific fisheries. We also wished to avoid panelists that had 
already made their own conclusions about the BiOp.
    Consequently, we chose the two co-chairs for their extensive 
knowledge of their subjects, and their professional integrity and 
credibility. We gave them free reign to choose the remaining panelists, 
develop their terms of reference and conduct their review. Dr. David 
Bernard, a retired quantitative scientist, has a long and distinguished 
history in international arenas and knows population modeling and 
exploitation issues. Steve Jeffries, a researcher for WDFW, is a coast-
wide authority on pinnipeds. They chose two additional panel members; 
Dr. Andrew Trites and Dr. Gunnar Knapp, finalized their terms of 
reference, and did their review without further policy direction from 
either state. The panel conducted their work in an open and transparent 
process, holding several public meetings to solicit public input. Until 
we reviewed their draft report, we had no advance knowledge of their 
findings, or even whether they would be able to reach consensus on any 
or all of the issues that they examined. The fact that these four 
scientists were able to provide us with a consensus final report is 
very convincing to us. Their findings are Washington's position on the 
economic and scientific underpinnings of the BiOp and its RPAs.
    I understand that Dr. Knapp and Dr. Trites will provide the 
Committee with an overview of the panel's finding at this hearing, so I 
will focus on a few highlights from our perspective. The panel was 
critical of the science used in the NMFS finding of Jeopardy with 
Adverse Modification for the groundfish fisheries, for two reasons. 
They characterized the NMFS logic as a classic fallacy, confusing 
correlation with causation. The panel noted there was very scant 
scientific evidence supporting the fishery induced nutritional stress 
hypothesis, and that evidence is now over a decade old and not 
supported by more recent years' data, so it appears that NMFS applied 
the precautionary principle to fisheries simply because they believed 
that something had to be done.
    As state managers, we value consistency in application of the ESA, 
and we appreciate that this extreme version of the precautionary 
approach has not been applied more broadly. The panel found that there 
is little overlap between sea lion prey and fishery catches; the 
fishery typically harvests larger fish than sea lions eat. NMFS 
acknowledges that reproduction of the primary prey species is not 
affected by fishing, and the science panel notes that the sea lions are 
eating younger fish than the fishery harvests. We conclude that the 
BiOp fishery restrictions are misdirected, will not benefit sea lions, 
but clearly are detrimental to the fishery.
    This hearing comes shortly after the release of the science panel 
final report; I am sure that we will have more suggestions for BiOp 
revisions as we study their report. One conclusion that we draw from 
their report is that the BiOp is very flawed, and we believe that is 
likely a consequence of the ``top-down'' Federal process. In 
concluding, I'd like to return to a primary theme of both of the 
letters from Governor Gregoire: that NMFS commit to an open and 
transparent process, to be implemented as quickly as possible, for 
revisions to the BiOp that are responsive to the panel findings and 
regional comments. NMFS used an interim final rule process to implement 
this BiOp, and while we are still uncertain what that means, we hope 
that it provides more flexibility and timeliness for modification than 
a permanent final rule.
    The North Pacific Council remains willing to facilitate a process 
for engaging all stakeholders in what Governor Gregoire terms a 
``regional collaborative process''. In our view, that process should 
start now, and not wait for the results of a NMFS CIE review, or for 
litigation to be settled. NMFS needs to engage in this process with 
staff from their Sustainable Fisheries Division, not just the Protected 
Resources staff responsible for this flawed BiOp, and most importantly, 
NMFS should be told that their ``top-down'' approach, with a one-sided 
and erroneous application of the precautionary approach, is not 
acceptable.
    The ingredients for a successful regional collaboration are present 
here. The North Pacific Council is a leader in applying ecosystem 
management principles to fishery management; the States of Washington 
and Alaska are experienced with and very supportive of collaborative 
approaches to thorny resource management issues; and the stakeholders 
are willing to engage when the science is solid. The long-list of 
sustainable fishing practices that North Pacific industry has supported 
includes development of seabird avoidance gear, protection of coral 
gardens, bottom trawl gear modifications, bycatch reduction programs, 
and support for scientifically established allowable catch levels. The 
only missing ingredient appears to be NOAA interest in collaborative 
development of measures that will support sea lion recovery.
    We urge the committee to express its support for NOAA to 
immediately initiate a regional, collaborative process to revise the 
BiOp to address the errors and shortcomings identified by the state's 
independent science review.
    Thank you, I would be pleased to answer any questions the Committee 
may have.
                                 ______
                                 
    Mr. Hastings. Thank you very much, Mr. Tweit, and thank all 
three of you for you testified here. As to your last comment, 
Mr. Tweit, that is why we are here.
    Mr. Schwaab, according to Mr. Vincent-Lang's testimony that 
he alluded to orally, and in his written statement, he said 
that the November 2010 biomass survey show that the biomass for 
both cod and Atka mackerel are increasing, and in his written 
testimony he said, and I quote, ``Even to the level sought as 
targets in the reasonable and prudent alternatives.''
    Now, is this not this significantly new information that 
should almost be a requirement for immediate review of the BiOp 
and the RPAs?
    Mr. Schwaab. Thank you, Mr. Chairman. That type of 
information certainly could be grounds for re-initiation.
    Mr. Hastings. Just grounds for?
    Mr. Schwaab. Well, significant new information. Obviously, 
when we reach that critical point at which re-initiation would 
yield some significantly different result is something that we 
would be looking closely at.
    Mr. Hastings. Well, we heard kind of specifically that the 
process by which, at least this decision or this observation 
from this group came about was very transparent.
    Let me just ask a question then. I will use your terms 
``grounds,'' except that there is a process by which you go 
through. But will this information be discussed openly and 
transparently as you go forward?
    Mr. Schwaab. Thank you, Mr. Chairman. Obviously as I 
indicated in my testimony, the new report initiated by----
    Mr. Hastings. Do I take that as a yes then?
    Mr. Schwaab. The answer is that that new report, along with 
a number of other new----
    Mr. Hastings. My question was open and transparent. Do I 
take it as a yes that you will treat that openly and 
transparently?
    Mr. Schwaab. Yes.
    Mr. Hastings. Thank you.
    Another question for you, Mr. Schwaab. Other than the 
funding that was appropriated by Congress for Steller sea lion 
research, and I alluded that $150 million has been appropriated 
on that, what has been the Administration's request for this 
research?
    Mr. Schwaab. This research, you know, generally falls into 
a range of other competing priorities that we put forward.
    Mr. Hastings. Well, let me ask you. The reason I ask, if 
the economic impact is such that you stated in your report of 
up to 750 job loss and an impact of $61 million, should the 
Administration not be requesting money for Steller sea lion 
research rather than saying, OK, it is part of the process if 
this is a big economic impact?
    Mr. Schwaab. We do request money that is allocated to 
Steller sea lion research. I could, if you would like, perhaps 
defer to my colleague, Dr. DeMaster, to say in a little more 
detail what that ask is and to what purpose.
    Mr. Hastings. Real quickly, go ahead.
    Dr. DeMaster. Thank you, Chair. Most of the funding 
requests are on the order of $3 million to $5 million a year 
for the National Marine Fisheries Service's work on Steller sea 
lions. Most of that work goes toward doing pup surveys to 
determine trends in pup counts, trends in non-pup counts in 
terms of abundance whether it is increasing or decreasing, food 
habits work, telemetry work to look at foraging. And our focus 
this year, in fact, right in the next two weeks----
    Mr. Hastings. My question was not so much what you are 
doing because I assume that is all part of that. My question 
was, given the economic impact and the potential job loss by 
your own report, should you not be requesting enough to get 
this done in a very timely manner? That is my question.
    Dr. DeMaster. In the end of last Fiscal Year and this 
Fiscal Year, Fiscal Year 2012, we specifically reprogrammed 
funding to do the telemetry work that the Council asked us to 
do regarding Steller sea lions in the Western Aleutians. We are 
doing that work jointly with ADF&G.
    Mr. Hastings. OK. And finally, and you alluded to this, as 
you go through with this process, and both the witnesses on 
your panel suggested very strongly that their process was open 
and transparent. I will just ask again, because I think it is 
very important just that that process be as open and 
transparent.
    Will you just give me your commitment that you will do that 
in a way that all people that have an interest in this will 
have adequate time in order to respond?
    Mr. Schwaab. Thank you, Mr. Chairman. Can I just clarify? 
Are you speaking specifically to the CIE process or to the 
process in totality that we would introduce CIE information?
    Mr. Hastings. Probably both.
    Mr. Schwaab. So, the CIE process, as I mentioned, would 
involve a process whereby we would initiate with, as I 
indicated, work with the Council on establishing the terms of 
reference. That process then includes outreach to appropriate 
information that was available to the Agency at the time at 
which the BiOp was developed.
    There is, of course, a broader process that involves 
significant opportunity for public engagement, consideration of 
RPAs and the like with the Council going forward.
    Mr. Hastings. My time has run out, but that is the process 
that I want to make sure is more fully open and transparent.
    Mr. Schwaab. Yes, sir, I can commit that to you.
    Mr. Hastings. Thank you.
    Mr. Young?
    Mr. Young. Thank you, Mr. Chairman.
    We are going to have a series of questions because I know 
you have some more, I hope.
    Mr. Hastings. Yes.
    Mr. Young. OK.
    Mr. Schwaab, have you ever worked in Washington, D.C.? Do 
you work in Washington, D.C.?
    Mr. Schwaab. My office is based in Silver Spring. I spend a 
lot of time in Washington, D.C., yes, sir.
    Mr. Young. That explains how you learned how to dance. You 
guys are really good at that. I say, I have watched the 
Administration come down time again, dance around an answer 
better than anybody I have ever seen. So, congratulations.
    Is it true the Agency did a phone survey of the lower 48 
States to ask people how much they would be willing to pay to 
recover the Steller sea lions? And how does that have any 
bearing whatsoever on anything relevant to the scientifically 
based Biological Opinion?
    Mr. Schwaab. Mr. Young, I do not know the answer to that 
question. Perhaps Dr. DeMaster does.
    Dr. DeMaster. The answer is yes.
    Mr. Young. They do not even know what a Steller stock is, 
let alone Steller sea lion. If you took the money and the time 
in your research, Doctor, to call people in the lower 48 and 
ask them whether they would be willing to save--did they ever 
write you a check? Did you ever ask for any money?
    Dr. DeMaster. No, we did not.
    Mr. Young. You did not. So, if I find a check written to 
you, how much they would be willing to pay, you would have to 
take that back, would you not? I would suggest you say yes, OK?
    We have spent $150 million in sea lion research since the 
Fiscal Year of, I believe it is 2001. And we still do not have 
any scientific information. When you have the term ``best 
science available,'' and you do not use the science of other 
peer review groups, is that best science available, Mr. 
Schwaab?
    Mr. Schwaab. Mr. Young, if you are referring to the report 
that we just received, we have indicated that we will take that 
under consideration. If there is new evidence there that is 
useful, we will use that.
    Mr. Young. But I go to what science did you use? What was 
the science that you used to put this species and eliminate the 
fishing? What science was there? What did you do?
    Mr. Schwaab. So, you know, perhaps I can mention a few 
items that we found particularly compelling--declining counts 
of pups and non-pups in the Western Aleutians and Central 
Aleutian Islands sub-region since 2000.
    Mr. Young. But, again, that, by the way, if I can say so 
has been refuted. There is an increase of population, not a 
decrease in population. The fact is there are probably more sea 
lions now in that area than there ever has been. Yet you are 
affecting about $60 million in fisheries and affecting 
communities because you are sitting in Washington, D.C. or 
Silver Springs.
    Now, are you going to listen to gentleman from Washington, 
the gentleman from Alaska? Are you going to review their 
findings?
    Mr. Schwaab. Yes.
    Mr. Young. And what if you find that they are right.
    Mr. Schwaab. If we find new information----
    Mr. Young. How long is that going to take?
    Mr. Schwaab. Obviously there are a number of steps that are 
under way right now.
    Mr. Young. How long is it going to take?
    Mr. Schwaab. I do not have an answer for you right now.
    Mr. Young. So, you mean you are going to shut the fisheries 
down. In fact, there is a paragraph here that really interests 
me, if I can find it, that if there a review of--and some 
things found that there could be a possible threat--I think it 
is in your testimony. It is on independent scientific review. 
That would be the States of Alaska and Washington, am I 
correct? Then I to go ahead and read it and it says, ``NMFS 
will review and consider the findings of the final report of 
any future consultations concerning the impacts of Federally 
managed groundfish or fisheries of Steller sea lions. If any 
new information or impacts of the groundfish fisheries of the 
Steller sea lions reveals effects on the list of species or 
critical habitat that were not previously considered then, a 
formal consultation is required.''
    So, if you review those, do you have another formal 
consultation, or are will you threaten them if they come in 
with their peer review?
    Mr. Schwaab. There would be, at the point at which 
consultation was re-initiated, we would be entering into 
approximately an 18-month process. Obviously some of the 
information that was provided by the State's review might 
either be useful in that consultation or be grounds for 
initiation. There might be new scientific information based on 
some of the research that Dr. DeMaster mentioned that would be 
useful or cause re-initiation. There is new information 
relating to groundfish stocks that could also contribute to--of 
subsequent biological review.
    Mr. Young. Well, what I am looking at here, you say 18 
months. We have communities that are directly affected, 
infrastructure will be directly affected. And you have done 
something from the top down with no consultation, no 
understanding, and no science. You have no science. That is why 
you lean on the term ``best science available,'' I want to 
eliminate that, Mr. Chairman, take it away. The ``best science 
available'' to just say the ``best science'' so we can utilize 
that so you cannot arbitrarily go out and do things as you have 
been doing.
    There is no shortage of sea lions, none. The pups are 
growing. We know that. We have evidence of that, about a 14 
percent increase.
    I am out of time, Mr. Chairman.
    Mr. Hastings. I thank the gentleman. And I have--just have 
a couple of questions and let him proceed if he has more 
questions.
    Mr. Schwaab, my understanding is you are required to make a 
decision by a petition from the State of Alaska, I think, to 
down list the Eastern population of the Steller sea lion by 
August of this year. It is obviously beyond August. When will 
you make that decision, and why did you not make the August 
deadline?
    Mr. Schwaab. Thank you, Mr. Chairman. That process has been 
under way. We did have that August deadline. We are proceeding 
with preparation regarding that finding.
    Mr. Hastings. Wait, wait, and wait, preparation for the 
finding. Now, it was August. When will you--maybe you are 
getting to the point, but when will you have that?
    Mr. Schwaab. Yes, sir. The analysis has taken longer than 
anticipated. We are committed to completing that review and 
publishing our 12-month finding as soon as practicable. Other 
workload associated with Steller sea lion work falls on the 
same people who are following through on that review.
    Mr. Hastings. So, when will it be done?
    Mr. Schwaab. I cannot, as I sit here today, give you an 
exact date, sir.
    Mr. Hastings. One month? One year?
    Mr. Schwaab. I would certainly think it would be within a 
period of months.
    Mr. Hastings. OK, that is plural. That is two months, less 
than six months?
    Mr. Schwaab. More than one month, less than one year, sir.
    Mr. Hastings. You know, if you sense that both of us are a 
little frustrated, you can understand why.
    Mr. Young. Incompetent.
    Mr. Hastings. I mean, it was something that you had agreed 
to in August, and it has not happened. So, I ask you a 
straightforward question, you give me your reasons why, but you 
give me essentially a one year time frame, and we are already 
two months beyond that time frame. And meanwhile, meanwhile, 
the activities here are potentially costing jobs in the fish 
industry by your own support.
    I mean, so I just get pretty frustrated when I hear that. I 
do not know how much more to pursue it seeing that--do I have 
to get down on my hands and knees and plead? Do they have to 
get down on their hands and knees and plead and say, get this 
before a one year time frame? I mean, I just do not know how to 
respond to that sometimes.
    This information that came to me, and I guess I will just 
to have to ask it straight forward. Is it true that some of the 
assumptions on the Steller sea lion feeding behavior was based 
on just three juvenile males?
    Mr. Schwaab. Mr. Chairman, if you do not mind, could I 
defer to Dr. DeMaster?
    Mr. Hastings. If he answers my question, yes.
    Dr. DeMaster. I believe the total number was more like 13.
    Mr. Young. Wow.
    Mr. Hastings. Oh, 13. OK. So, it wasn't three. Now, if one 
were in statistics, you would say, well, it is four times the 
number, but it is still 13. And you are basing everything on 13 
juvenile males in a population--what did I hear you say--of 
over 70,000?
    Dr. DeMaster. The population in the U.S. Western population 
is about 55,000, is our best estimate. But nonetheless, it is a 
large number. The decision was based on all of the available 
information, and part of that information was the telemetry 
data that was based on those 13 or so animals.
    Mr. Hastings. Well, this goes to the frustrations, I think, 
that both of us share here about the scientific data. And I 
think it is something that both our other witnesses on the 
panel probably have a concern with. Thirteen, and I am sorry, I 
thought it was 70,000, but 13 out of 55,000 is still a pretty 
darn small number.
    I recognize the gentleman from Alaska.
    Mr. Young. Thank you, Mr. Chairman.
    You know, Mr. Tsukada notes that the Western DPS since 2000 
has increased 14 percent, yet your opinion relies on a theory 
that birth rate is declining. That seems to be a major 
inconsistency. How can you explain that?
    Mr. Schwaab. I believe that number is 1.4 percent.
    Mr. Young. No, it is 14 percent. It is 14 percent.
    Mr. Schwaab. Oh, I am sorry.
    Mr. Young. That is right.
    Mr. Schwaab. Over the decade. So, the focus obviously has 
been on the sub-regions, particularly the Western Aleutian sub-
region, and that portion of the Central Aleutian sub-region 
that is west of that 178 degree west longitude line.
    Mr. Young. Well, those restrictions were put in in 2000, 
and the pups are increasing significantly, yet you shut that 
area down. What grounds? Where is the science behind that?
    Mr. Schwaab. So, the focus, again, is on those westernmost 
sub-regions.
    Mr. Young. That is where you shut it down, and that is 
where the population increased.
    Mr. Schwaab. I do not think that is accurate.
    Mr. Young. OK. It is accurate. I mean, I got some of the 
best staff in the world on this issue.
    Mr. Schwaab. Could I allow Dr. DeMaster----
    Mr. Young. No. OK. I will leave Mr. Schwaab alone for a 
moment. I have had enough of him.
    Dr. Vincent-Lang, State of Alaska, you noted that research 
conducted by the Alaska Department of Fish and Game confirms 
that the first Steller sea lion pups in the Western stock 
showed no evidence of poor body condition. Was this research 
considered when the Biological Opinion was drafted? And, if so, 
why did NOAA apparently disregard this information?
    Mr. Vincent-Lang. Thank you, Mr. Chair, Mr. Young, some of 
the critical pieces of information that we felt were available 
out in the science were not considered by NMFS in this 
Biological Opinion, including that. And, I guess, one of the 
things that we were most disturbed about was the really lack of 
consultation with the State of Alaska overall in the 
development of the Biological Opinion, or in the significant 
comments that the State provided and having a significant 
amount of interaction with how those comments might have been 
incorporated into the draft Biological Opinion that was 
released, and then the final that was put out upon which the 
RPAs were based.
    Mr. Young. OK. Is your department information best 
available, or is it good science?
    Mr. Vincent-Lang. Well, I think it is both.
    Mr. Young. You get rid of that word ``available.'' Best 
science.
    Mr. Vincent-Lang. It is best science.
    Mr. Young. OK, that is good.
    Another one you say, marine mammal research has argued that 
fisheries are causing localized depletion or nutritional stress 
since the 1990s. Is this inherent bias by those who write the 
Biological Opinion, that it is not supported by available data? 
By the way, who wrote that opinion? Mr. Schwaab, who wrote the 
opinion?
    Mr. Schwaab. The Biological Opinion came out of our 
Protective Resources Division----
    Mr. Young. Who did you hire to write it?
    Mr. Schwaab. I cannot answer that question, sir.
    Mr. Young. Well, we probably can. It was the person who 
wrote the 2000 opinion, I believe. Is that correct? One of the 
people. Yet you went out and hired an outsider outside your 
department. The same person wrote it in 2000. Is that correct?
    Mr. Schwaab. Mr. Chairman--Mr. Young, if I could obtain----
    Mr. Young. You can call me Chairman. It makes him mad; it 
does not make me mad.
    Mr. Schwaab. I could find out for you----
    Mr. Young. I would appreciate that if you would.
    Mr. Schwaab.--on who provided the writings for it, but I do 
not know that answer directly.
    Mr. Young. Who wrote it, if it was an outsider, a 
consultant paid by taxpayers' dollars, and you had somebody 
write an opinion that wrote it in 2000. I want all that 
information for the Committee. Thank you.
    I go back to the amount of fisheries. Have there been any 
studies about how much--I believe you can answer this, Mr. 
Lang. How much fish were--cod was apparently being consumed by 
sea lions? What is the percentage? Do you have any idea? Is 
that their major sources of food?
    Mr. Vincent-Lang. I am not sure what you are asking, Mr. 
Young.
    Mr. Young. Well, I would say, what do sea lions eat?
    Mr. Vincent-Lang. Well, they are fairly opportunistic 
feeders, and I think they will feed on almost any kind of fish 
that are out there that is available to them.
    Mr. Young. OK. And the study----
    Mr. Vincent-Lang. I guess in our opinion that the amount of 
biomass that is out in the Western Aleutians, there is no 
evidence whatsoever that biomass is insufficient or is causing, 
in this case, nutritional stress to Steller sea lion.
    Mr. Young. In fact, there is larger biomass than expected, 
is that correct?
    Mr. Vincent-Lang. The recent biomass estimates that were 
put out after the BiOp release indicating that the target 
levels for the reasonable and prudent alternatives have been 
met. So, in fact, the biomass probably should be sufficient 
even if there was nutritional stress to alleviate that.
    Mr. Young. And it is increasing in numbers as far as the 
biomass?
    Mr. Vincent-Lang. The Western DPS is definitely increasing 
in number.
    Mr. Young. But that is the area that NOAA and NMFS shut 
down, is that correct?
    Mr. Vincent-Lang. They shut down an area west of 178.
    Mr. Young. OK. Mr. Chairman, again, my frustration goes 
beyond this. I have been in this business 40 years, and I have 
negotiated with NMFS and NOAA and they seem to ignore the 
paying customers, the States, and you do that. And those 
directly involved, the shareholders, for a sea lion. I am not 
talking about sea lions at the locks. I am talking about--they 
are all related, you know. It is my aunt or uncle, but they are 
all related, and there is no shortage of sea lions.
    Thank you, Mr. Chairman.
    Mr. Hastings. Thank you, Mr. Young.
    I just have one further question because it came up 
earlier, again, Mr. Schwaab. You asked about the CIE review, 
and my question to you is, why, as I understand it, the CIE 
information is available for only information that is available 
through May 2010? Why is that cutoff date there?
    Mr. Schwaab. The review would be focused on the information 
that was available at the time that the BiOp was undertaken.
    Mr. Hastings. Right. OK. Now, you have new information. Are 
you going to open up that CIE review to the new information, 
for example, or is just going to make a report based on the old 
information?
    Mr. Schwaab. The new information would be a basis for re-
initiation, not evaluation of the BiOp that is currently in 
place.
    Mr. Hastings. Well, are you bound and rigidly saying that 
you can only look at something prior to, and not look ahead in 
that review process?
    Mr. Schwaab. Mr. Chairman, I would just say there are two 
separate processes. One is a review of the Biological Opinion 
that is governed under which actions to date have been 
developed. The second would be a re-initiation which would take 
into account any number of pieces of new information.
    Mr. Hastings. And that will happen?
    Mr. Schwaab. That will happen if, based on any of either 
the information that is presented by the State's review, some 
new scientific information, some new fishery information, or 
any range of other pieces of information might suggest the need 
to do that.
    Mr. Hastings. One last question. Will the CIE be open to 
public input?
    Mr. Schwaab. That would be something that we could consider 
in the terms of reference, sir, that----
    Mr. Hastings. Would you consider that?
    Mr. Schwaab.--that such a provision should be.
    Mr. Hastings. Would you consider that?
    Mr. Schwaab. Yes. Yes.
    Mr. Young. Mr. Chairman?
    Mr. Hastings. Go ahead. I yield to the gentleman from 
Alaska.
    Mr. Young. I go back to Mr. Lang. In scat examples taken, I 
believe, by the State, 94 percent of the scat from sea lions 
shows no cod evidence. What do you have to say about that Mr. 
Doctor? Mr. Schwaab?
    Mr. Schwaab. Could I defer to Dr. DeMaster for that?
    Mr. Young. Yeah.
    Mr. Schwaab. Thank you.
    Dr. DeMaster. I think that number is correct. It is six 
percent of the scats in the summer in the Aleutians contained 
cod. Ninety-four percent did not. In the winter, 26 percent of 
the scats contained cod, and the rest did not. So, there is a 
summer and winter contrast that is reflected in the Biological 
Opinion.
    Mr. Young. It is in the Biological Opinion?
    Dr. DeMaster. Yes.
    Mr. Young. I thought you ignored that. I go back to the 
other one, Mr. Schwaab. NOAA did hire somebody outside the 
Agency to write the BiOp. I wonder, again, I said, that was the 
same person that was involved in drafting the 2000 BiOp. Had a 
lot of irregularities. In fact, it was looked upon as a bad 
piece of work. How much did NOAA spend in hiring that person? 
This is the question I am going to ask you, and I want it in 
writing. How long was the employee of NOAA, and where was he 
working before NOAA brought him back? I just want to know his 
background when it comes to who wrote this thing and why you 
guys did not do it on your own, because you are supposed to be 
the one doing that work, not somebody you hire outside who has 
another special interest.
    Thank you, Mr. Chairman.
    Mr. Hastings. Thank you very much.
    And I want to thank all of you on the panel. Mr. Schwaab, 
it might appear you are treated like a pinata here, but 
sometimes that goes with the territory. But I think that you 
can understand why sometimes we come to this view.
    Now, maybe you are being told that this is what you have to 
say and to follow the company line, and I suppose that is all 
part of it. But I would just get back to what I mentioned in my 
opening statement referencing your BiOp is a potential job loss 
and the costs to the industry, and yet all we are trying to 
ascertain here or get to a point where there is a give and take 
in understanding why all of this is happening.
    And the frustration would be--I am not going to ask you to 
respond to this, but I think anybody that is observing this, 
when we see the wide range of time lines on very specific 
questions, that leads one to become a pinata. And so, I will 
just say that very respectfully.
    And before I dismiss this panel, I do want to say that if 
there are further questions that the two of us or others on the 
Committee would like to ask of you, we will send them to you 
written later, and if you would respond in a very timely 
manner, I would appreciate it very much.
    I want to thank all of you for coming, and I will dismiss 
the first panel. At the same time, we will call up the second 
panel.
    The second panel is Mr. Andrew Trites, Professor and 
Director of Marine Mammal Research at the University of British 
Columbia, Dr. Gunnar Knapp, Professor of Economics at the 
University of Alaska, Dr. Tim Ragen, from the U.S. Marine 
Mammal Commission, and Mr. Larry Cotter, Chair of the North 
Pacific Fishery Management Council. I invite you all to come 
up.
    Thank you all very much for being here. You observed the 
first panel, but I will go through the rules one more time. The 
timing lights are in front of you, and when the green light is 
on, it means you have--you are doing very well. When the yellow 
lights comes on, it means you have one minute, and when the red 
light comes in, it means your five minutes is up. And as I 
mentioned earlier, your entire statement that you submitted for 
the record will be part of the record.
    So, Dr. Trites, we will start with you.

  STATEMENT OF ANDREW TRITES, PROFESSOR AND DIRECTOR, MARINE 
      MAMMAL RESEARCH UNIT, UNIVERSITY OF BRITISH COLUMBIA

    Dr. Trites. Good morning. My name is Andrew Trites. I am a 
Professor at the University of British Columbia's Fishery 
Center, and Director of the Marine Mammal Research Unit. I am 
also the Research Director of the North Pacific University's 
Marine Mammal Research Consortium. I have conducted research on 
marine mammals for the past 31 years, and I focus most of my 
research and understanding on the decline of Steller sea lions 
and other fur seals in Alaska.
    I am one of four scientists who recently completed an 
independent scientific review of the Biological Opinion that 
NMFS finalized in November 2010. One of our first tasks as a 
review panel was to read all 664 pages of the BiOp. Now, this 
is something that not many people can say they have done, 
although everyone seems to have an opinion about the BiOp. 
There are not many people who can actually said that they have 
read it.
    The BiOp is a long document with a plot and a cast of 
characters that is at time difficult to follow. In fact, 
reading the BiOp is much like trying to read John Milton's 
Paradise Lost, or Tolstoy's War and Peace. It requires dutiful 
reading and a keen awareness of the fact to distinguish between 
those facts that are correctly reported and those that are 
misused, mistaken, or missing all together.
    Three of our panel members read the BiOp for the first time 
this summer. This included Dr. Gunnar Knapp, Dr. David Bernard, 
and Mr. Steven Jeffries. As for myself, I spent a good part of 
my summer reading it for a third time.
    As a panel, we were asked by the States of Alaska and 
Washington to determine whether the National Marien Fisheries 
Service used all of the relevant scientific information, and 
whether they were impartial in how they considered the facts in 
the final Biological Opinion.
    We tabled our final report this past week, which is 
available on the Alaska Department of Fish and Game's website.
    Our report draws four conclusions about the science and the 
way in which NMFS chose to use it.
    First, we found that the theory put forward by NMFS that 
Steller sea lions are nutritionally stressed from competition 
with fisheries is not well supported in the BiOp.
    Second, we found that NMFS did not adequately examine and 
consider the alternative scientific explanations to explain the 
current decline, namely that killer whales are eating 
disproportionately greater numbers of sea lions, and that birth 
rates are lower because sea lions are eating too much 
groundfish.
    Third, based on this and the evidence presented in the 
BiOp, we concluded that the finding by NMFS of jeopardy and 
adverse modification were not warranted.
    And, finally, we concluded that the reasonable and prudent 
alternatives that NMFS put forward in the Biological Opinion 
are likely to contribute to sea lion recovery.
    This last conclusion is perhaps the most regrettable 
conclusion of all. To think that the significant fishery 
closures and restrictions that went into effect on January 1st 
of this year in the Western Aleutian Island are unlikely to do 
any good, and could possibly even cause greater harm to sea 
lions.
    In addition to reviewing the BiOp, we conducted a meta-
analysis of the eight studies cited in the BiOp, plus two 
additional studies that looked for a statistical relationship 
between fisheries and sea lion numbers. Two things stood out 
from this analysis. First, there were a few weak statistical 
associations between fisheries and sea lion numbers prior to 
2000; however, none of the studies found statistically 
significant associations consistent with the fisheries causing 
harm to sea lions after 2000. That is 100 percent of the 
statistical tests were consistent with the groundfish fisheries 
not having an effect on sea lion numbers in the last 10 to 20 
years.
    Second, the available data indicate that current harvest 
rate of Atka mackerel have been too low, and that the removals 
of Pacific cod have been too small for the fishery on either 
species to cause nutritional stress to sea lions.
    The BiOp never presented any direct evidence that sea lions 
are not finding enough groundfish to eat; thus, implementing an 
RPA that might increase prey abundance seems to be less about 
correcting a real problem and more about repeating something 
that NMFS did in the past in the Gulf of Alaska in the 1990s 
where sea lion numbers rose after RPAs were implemented.
    Unfortunately, the BiOp provides no evidence that this 
increase in sea lions in the Gulf of Alaska was anything more 
than coincidental with management actions. In fact, the BiOp 
presents a multi-species model that indicates that this 
increase in sea lion numbers was just a coincidence in the last 
decade, and was not due to fishery restrictions.
    So, the belief that RPAs will work in the Aleutian Islands 
was not based on science, and is simply a case of confusing 
cause with coincidence.
    I would like to conclude by noting that as a review panel, 
we appreciate that many people may have difficulty believing 
that the BiOp could have gotten things so wrong, or that the 
BiOp did not properly consider the two leading alternative 
hypotheses. We, therefore, encourage others to read the 664 
pages of the BiOp as we have done, as well as our review, which 
is available online, to judge for themselves.
    Whereas unpleasant as the prospect of reading a Paradise 
Lost or War and Peace might sound, it is only by reading these 
documents that others will fully understand that the science 
simply does not support the decisions made by NMFS. Thank you.
    [The joint prepared statement of Dr. Trites and Dr. Knapp 
follows:]

   Statement of Andrew Trites, Professor and Director, Marine Mammal 
 Research Unit, Fisheries Centre, University of British Columbia; and 
       Gunnar Knapp, Professor of Economics, University of Alaska

    We are two of four scientists who recently completed an independent 
scientific review of the NMFS November 2010 Biological Opinion of the 
Fisheries Management Plan for the Bering Sea/Aleutian Islands 
Management Areas. This written testimony provides background 
information about our review, followed by the Executive Summary of our 
report.
Background of our Review
    Our review was jointly funded by the States of Alaska and 
Washington in response to widely-expressed concerns about the science 
in NMFS' 2010 Biological Opinion (the BiOp). In April 2011, the Alaska 
Department of Fish and Game (ADFG) and the Washington Department of 
Fish and Wildlife WDFW developed initial terms of reference for the 
review and selected two panel co-chairs, who in turn selected two 
additional panel members. We developed the final terms of reference, 
timeline for our work, and format of our report.
    The panel members were:
          Dr. David Bernard (co-chair), a fisheries scientist, 
        biometrician, and private consultant with over 30 years post-
        graduate experience involving management of commercial and 
        recreational fisheries for salmon and non-salmon species in the 
        Pacific Northwest.
          Mr. Steven Jeffries (co-chair), a Research Scientist 
        and marine mammal specialist for the Washington Department of 
        Fish and Wildlife, with more than 30 years of experience 
        working on a variety of Northwest marine mammal issues.
          Dr. Andrew Trites, Professor and Director of the 
        Marine Mammal Research Unit in the Fisheries Centre at the 
        University of British Columbia, who has conducted extensive 
        research on the ecology, population biology and bioenergetics 
        of marine mammals.
          Dr. Gunnar Knapp, Professor of Economics at the 
        University of Alaska Anchorage Institute of Social and Economic 
        Research, who has been engaged in research on fisheries 
        management, seafood markets, and the Alaska economy for the 
        past 30 years.
    We conducted our review fully independently. The conclusions 
expressed are our own and represent our consensus. None of us are 
federal employees. None of us had any role in developing the BiOp or 
the FMP. None of us have any personal or financial involvement in any 
fisheries involved in the BiOp.
    We brought a variety of backgrounds and perspectives to our review. 
One member of the panel (Dr. Trites) has an extensive background in 
Steller sea lion research, is widely cited in the BiOp, and commented 
on the draft BiOp and final BiOp. One member (Mr. Jeffries) has 
extensive experience in sea lion research, marine mammal fishery 
interactions, and is a member of the Pacific Scientific Review Group. 
Two members of the panel (Dr. Bernard and Dr. Knapp) had no previous 
background in or knowledge of Steller sea lion research. Three members 
of the panel (Dr. Bernard, Mr. Jeffries and Dr. Knapp) had never seen 
the BiOp prior to beginning work on this review.
    Various parties are now involved in litigation relating to the 
BiOp. Our review has no relationship to that litigation, and we 
expressed no opinions about the litigation in this review, or about any 
legal questions related to the BiOp or the EA/RIR (Environmental 
Assessment/Regulatory Impact Review). We focused strictly on the 
scientific questions in our Terms of Reference.
    We held two public hearings to provide an opportunity for the 
public to provide comments for our consideration. We also invited and 
received written comments.
    Our full 111-page review is posted on the website of the Washington 
Department of Fish and Wildlife at: http://wdfw.wa.gov/conservation/
steller_sealions/
Summary of our Independent Scientific Review of the Biological Opinion
    We were charged as a review panel to answer a series of questions 
concerning the BiOp and its central conclusion of jeopardy:
        ``After reviewing the current status of critical habitat that 
        has been designated for the western population of Steller sea 
        lions, the environmental baseline for the action area, the 
        proposed action for Alaska Groundfish in the Bering Sea and 
        Aleutian Islands and Gulf of Alaska, and the cumulative 
        effects, it is NMFS' Biological Opinion that the action, as 
        proposed, is likely to adversely modify the designated critical 
        habitat for the western DPS of Steller sea lion.'' [BiOp, 
        xxxiv]
    We answered each of the specific questions in our terms of 
reference (see Chapter 10). For this Executive Summary, however, we 
have grouped our findings into four categories pertaining to:
          the finding of jeopardy of extinction or of adverse 
        modification of habitat (collectively JAM) for groundfish 
        fisheries in the western and central Aleutian Islands;
          the effectiveness of reasonable and prudent 
        alternatives (RPAs) to the federal action under consultation;
          the requirement under the Environmental Policy Act 
        (EPA) that RPAs in the BiOp be the least-cost choice from all 
        efficacious RPAs; and
          consideration of public and peer comment in the 
        writing of the BiOp.
    In our review, we looked for consistencies and inconsistencies 
between data and conclusions in the BiOp based on our experience, 
knowledge of the relevant scientific literature, and relevant public 
comments. Besides information referenced in the BiOp, we considered 
recently published scientific papers, recent stock assessments, and 
recent groundfish surveys. We also considered comments by industry, 
scientists, and the North Pacific Management Council through their 
Scientific and Statistical Committee concerning the BiOp in general and 
specific modifications to RPAs, as well as comments submitted to us at 
public hearings held 2 June, 2011 in Seattle and in Anchorage on 22 
August, 2011 and by e-mail.
The Finding of Jeopardy
    We do not agree with the finding of JAM (jeopardy of extinction and 
adverse modification of habitat) for Steller sea lions in the western 
and central Aleutian Islands as concluded in the BiOp for the FMP. We 
find that NMFS misinterpreted crucial evidence from statistical studies 
of relationships between fishing and sea lion demographics. NMFS also 
failed to scientifically support their explanation of how fisheries 
affected sea lions (fishery-driven nutritional stress), and disregarded 
or misreported evidence that refutes the fishery-driven nutritional 
stress hypothesis. And finally, NMFS did not seriously consider 
alternative ecologically mediated explanations for declines in sea lion 
numbers not involving fisheries (environmentally-driven nutritional 
stress and the killer whale predation hypotheses).
    Statistical analyses are the starting point for examining the 
relationship between fishing and Steller sea lions. If fisheries 
adversely affect sea lion numbers, statistically significant negative 
associations should be detectable between measures of fishing and 
measures of sea lion numbers. Failing to find any such associations 
should lead to a conclusion that there is no adverse effect unless 
there are clear reasons why the effects would not be observable in the 
data (e.g. measurement error, insufficient variation, or low power). 
Eight studies looking for such statistical associations were cited in 
the BiOp. NMFS concluded results from these studies to be ``equivocal'' 
and that ``it is not possible. . .to conclude that commercial fisheries 
are not having a significant impact on the recovery of [sea lions]''. 
We found these studies insightful and their results hardly 
``equivocal''.
    We undertook a meta-analysis of the eight statistical studies cited 
in the BiOp plus two additional studies. The tests in earlier studies 
were based on a few years of data, and as expected, resulted in mostly 
non-significant outcomes with a few negative and a few positive 
associations being statistically significant. These results can be 
considered equivocal. Studies published after 2000 involved more years 
and consequently had more power to detect an association between 
fisheries and Steller sea lions. Results from these studies for years 
prior to 2000 were less equivocal in that 40% of tests produced 
statistically significant associations that were scientifically 
consistent with fisheries having had a negative impact on Steller sea 
lions; the remaining tests (60%) had statistical outcomes that were 
scientifically consistent with fisheries not having had a negative 
impact on sea lions. All of the detected statistical associations for 
years prior to 2000 were weak. However, results for years after 2000 
are unequivocal. None of these studies found statistically significant 
associations consistent with harm by fisheries, that is, 100% of the 
tests resulted in outcomes consistent with the groundfish fisheries 
having had no effect on sea lion numbers in the last 10-20 years. Power 
analyses in these latter studies and the results themselves show that 
even weak statistical associations would have been detected had they 
been present. The methodological issues brought forward through 
comments to the draft BiOp concern statistical significance in tests 
when significance is not warranted. None of the issues would make an 
association less likely to be detected.
    For a specific scientific hypothesis that fisheries negatively 
impact sea lion numbers, significant negative associations between 
fishery and sea lion statistics are evidence that this hypothesis is 
possibly true. Non-significant and statistically significant positive 
associations are evidence this hypothesis is probably false. What the 
meta-analysis provides is evidence that a scientific hypothesis that 
fisheries had a negative impact on Steller sea lions of the WDPS in 
general, and specifically on sea lions in the western and central 
Aleutian Islands, was possibly true in the past, but in the last 10-20 
years, this hypothesis is probably false. On this basis we find that 
not only is it possible ``that commercial fisheries are not having a 
significant impact on the recovery of [sea lions]'', but the 
proposition that fisheries are not negatively affecting Steller sea 
lions is highly likely.
    In our judgment, the fishery-driven nutritional stress hypothesis 
proffered by NMFS as an explanation for population declines in the 
western and central Aleutian Islands should be scientifically rejected. 
We base our conclusion on the process and conditions specified in the 
decision trees given in the BiOp for determining the risk of exposure 
and subsequent nutritional stress [BiOp; Figures 4.24, 4.25]. The BiOp 
drew some incorrect conclusions as it navigated through its own 
decision tree to arrive at the finding Atka mackerel and Pacific cod 
fisheries were fisheries of concern. The BiOp also ignored evidence 
contradicting the hypothesis of fishery-driven nutritional stress.
    The available data and analyses indicate that current harvest rates 
of Atka mackerel have been too low, and the population of Pacific cod 
has been too small for the fishery on either species to cause 
nutritional stress in sea lions. Modeling efforts by NMFS reported in 
the BiOp support this observation, especially the lack of an effect of 
the Pacific cod fishery on sea lion biomass. Attempts in the BiOp to 
show spatial overlap between catches in fisheries and diets of sea 
lions, and hence local depletion of prey, failed to convincingly do so. 
Uncertainty in estimates of forage biomass is large and was ignored in 
the BiOp. Other measures of possible competition between fisheries and 
sea lions (e.g., size overlap, temporal overlap, depth overlap) were 
specified in the BiOp, but not investigated. We provide data that were 
not presented in the BiOp showing limited overlap in sizes of fish 
taken in fisheries and by sea lions, especially limited in regards to 
Pacific cod. Steller sea lions ate younger, smaller fish than fisheries 
caught.
    Arguments presented in the BiOp that Steller sea lions are 
experiencing nutritional stress caused by a lack of groundfish are not 
convincing. Forage ratios of groundfish to sea lions were higher in the 
western and central Aleutians than in regions where sea lions are 
recovering, thereby indicating a quantity of groundfish area-wide 
sufficient for sea lions to avoid nutritional stress. Sea lions in the 
eastern Bering Sea and the Gulf of Alaska (GOA) show no signs of 
nutritional stress despite having forage ratios within critical habitat 
that are lower than in the western and central Aleutian Islands.
    Direct evidence of sea lions being in nutritional stress is lacking 
in the BiOp. We compared the signs of fishery-driven nutritional stress 
listed in Figure 4.26 of the BiOp with data provided in Table 3.17 of 
the BiOp. Of the eight general conditions consistent with fishery-
driven nutritional stress in sea lions, no recent information (after 
2000) was available on four. Nutritional stress was not indicated for 
three conditions (sea lions were not emaciated, body size was not 
reduced, and survival was not reduced). Information on the final 
general condition (reduced reproduction) was contradictory.
    Considering the compelling evidence that the amounts of prey are 
sufficient to support sea lions in the western and central Aleutian 
Islands specifically, and for the western population in general, it 
should not be surprising that direct evidence for fishery-driven 
nutritional stress could not be found as posited. Making two ``yes'' 
decisions at the only two operable decision points of the decision 
process laid out in Figure 4.25 of the BiOp should have ended in a 
decision of ``No Nutritional Stress''. Such a decision would have been 
consistent with the results of the meta-analysis on statistical studies 
described above.
    Of the two leading alternate hypotheses to explain the reduced 
numbers of Steller sea lions in the western and central Aleutian 
Islands, we conclude that neither the hypotheses of environmentally-
driven nutritional stress (the ``junk food'' hypothesis) or killer 
whale predation can be scientifically rejected with available data. 
Both hypotheses remain viable explanations of sea lion demographics. Of 
the five necessary conditions for acceptance of the ``junk food'' 
hypothesis, there is evidence supporting one (good pup condition) in 
the western and central Aleutian Islands. There is no information on 
three of the other necessary conditions (good adult body condition, 
short foraging trips, and older age at weaning for pups) and ambiguity 
on the fourth (low birth rates).
    While the BiOp contained no conclusion as to rejecting or not 
rejecting the ``junk food'' hypothesis, the BiOp did state ``killer 
whale predation can be an important factor in either causing continued 
declines or contributing to a robust recovery [of sea lions].'' We 
interpret this statement as implying that the killer whale predation 
hypothesis cannot be rejected at this time. We concur.
Effectiveness of RPAs
    Based on the evidence presented in the BiOp, we conclude that the 
proposed RPAs will not arrest the decline in the numbers of sea lions 
in the western and central Aleutian Islands. Evidence presented in this 
BiOp from multispecies modeling indicates that any future increase or 
stabilization in sea lion biomass in the western and central Aleutian 
Islands will not be due to restricting fisheries for Pacific cod. There 
is some modeling evidence in the BiOp indicating that halting fishing 
for Atka mackerel in the western and central Aleutian Islands might 
cause sea lion biomass to increase, but it is inconsistent with the 
data on forage ratios showing greater declines of sea lions are 
associated with greater relative biomasses of groundfish. The BiOp does 
not consider this possibility--that increased amounts of groundfish 
might have negative consequences to sea lions as postulated by the 
``junk food'' hypothesis.
    Aydin (2010) predicted a 6% increase in sea lion biomass with a 10% 
reduction in the mortality rate for Atka mackerel. His model assumed 
that sea lions can assimilate the increase in Atka mackerel biomass, 
but did not consider that young sea lions can become full on low-energy 
diets before they have attained enough energy to meet their daily needs 
(see Rosen and Trites 2004).
    The virtual 10 percentage point reduction in Atka mortality 
projected by Aydin (2010) represents closure of the fishery (which 
harvests 8% of the stock) plus an additional two percentage point 
reduction in the mortality rate for this species. Unfortunately certain 
critical bits of information relative to evaluating this finding were 
not included in the BiOp. Most notably, the BiOp did not explain or 
discuss:
          How could mortality rates on Atka mackerel be further 
        reduced beyond the closure of the virtual fishery?
          How many years would be needed to realize virtual 
        increases in sea lion biomass?
          Would these virtual increases persist?
          What would the virtual effect of closing both cod and 
        mackerel fisheries be on sea lion biomass?
    Without such information, the relevance of these simulations 
involving closing the Atka mackerel fishery cannot be fully evaluated. 
However, this full evaluation would probably be of marginal value, 
considering the lack of evidence for the fishery-driven nutritional 
stress hypothesis (our Chapter 4) and the meta-analysis of statistical 
studies we described in Chapter 3 showing no negative effects of 
fishing for Atka mackerel in the western and central Aleutian Islands 
on sea lion demographics in the last 20 years.
    Results from multispecies models can provide insights into the 
effectiveness of RPAs even though the models used in the BiOp were not 
well explained. The food web containing fish, fisheries, and sea lions 
must be modeled as a whole if the best ecological information 
(scientific data) is to be used. While such modeling is at the edge of 
current understanding of the ecosystem in the Aleutian Islands, such 
modeling directly addresses the objective of the consultation, which is 
the response of sea lions to implementation of the RPAs.
    In the BiOp, NMFS appears to have eschewed multispecies modeling in 
favor of the simple dictum that ``what worked there and then, will work 
here and now''--with the ``there'' being the Gulf of Alaska, the 
``then'' being when RPAs from two previous BiOps were implemented, and 
the ``here'' being the western and central Aleutians. Such a simple 
approach is empirical in that it depends on personal experience and 
belief, and does not use the scientific method. In other words, the 
expectation that the RPAs will result in increased numbers of Steller 
sea lions was not determined using science.
    Sea lion numbers in the Gulf of Alaska (GOA) increased following 
implementation of RPAs in the 1990 and early in the last decade. 
However, no evidence was given in the BiOp that this increase in sea 
lions was other than coincidental with management actions. Evidence in 
the BiOp from multispecies modeling for the GOA indicate that the 
increase in sea lion numbers was a coincidence in the last decade and 
was not due to fishery restrictions. While NMFS did use single-species 
modeling of prey species to show the effectiveness of proposed RPAs--
their results were preordained by the model they chose. Thus the models 
do not support the unscientific premise of the BiOp that RPAs had 
worked in the past, and would therefore continue to be effective if 
implemented elsewhere. There is insufficient evidence that past RPAs 
were ever effective.
    The reason given in the BiOp for forgoing a scientific 
investigation in favor of an unscientific argument is that multi-
species modeling is too complex and subject to too much error. We 
disagree. By its very nature, the fishery-driven nutritional stress 
hypothesis requires consideration of the fishery and sea lion food 
webs. Ecosystem considerations and modeling of the food web is a must 
for developing RPAs if the BiOp accepts the fishery-driven nutritional 
stress hypothesis. Such modeling is complex and does have uncertainty 
in outcomes. However, a good scientific investigation would include 
measures of uncertainty in parameters, in initial conditions, and in 
environmental conditions. It would also include an analysis of the 
sensitivity of results to model structure; and would report results in 
probabilistic terms.
    We believe that NMFS has the resources to conduct ecosystem 
modeling, yet relied on the simplest of arguments to support the RPAs 
they proposed. Arguing that sea lions must be nutritionally stressed 
because fishing has occurred where sea lions have declined is prone to 
error in the most obvious of ways by confusing cause with coincidence.
Economic Analysis of RPAs
    In general, the analysis described in the Environmental Assessment 
and Regulatory Impact Review (EA/RIR) of economic impacts of the chosen 
set of RPAs is reasonably complete, scientifically valid and adequate. 
It addresses most of the questions it should have addressed in an 
objective and reasonable manner given the limits of available data and 
confidentiality restrictions. It supports the conclusion that ``. . 
.this action will impose relatively heavy costs on the fishing and 
processing industry that targets Atka mackerel and Pacific cod in the 
Aleutian Islands.'' More detailed analysis might have strengthened but 
not have changed this fundamental conclusion.
    The EA/RIR includes an analysis of the economic benefits of full 
Steller sea lion recovery. This is not an analysis of the economic 
benefits attributable to the uncertain effects of the alternatives. The 
EA/RIR does not provide a cost-benefit analysis of the alternatives.
    The BiOp and RIR failed to demonstrate that the RPAs minimize 
economic and social impacts compared with potential alternatives which 
would achieve the same benefit for Steller sea lion recovery. Neither 
document could demonstrate this because neither demonstrated what the 
benefits of the RPAs would be for sea lion recovery, or demonstrated an 
effort to identify alternatives that would have the same level of 
benefit but lower economic and social impact.
Standard for Likelihood of Jeopardy
    The BiOp responds to the mandate in the ESA that ``Each Federal 
agency shall. . .ensure that any action. . .is not likely to jeopardize 
the continued existence of any endangered species or threatened species 
or result in the destruction or adverse modification of habitat. . .'' 
In reaching or evaluating any conclusion about jeopardy, a key issue is 
what standard of scientific evidence is required to conclude that an 
action is ``likely'' to jeopardize the continued existence of an 
endangered species or result in the destruction or adverse modification 
of its habitat.
    There is no formal scientific standard for ``likely.'' Given a high 
degree of uncertainty about whether fishing jeopardizes Steller sea 
lions, we contend that most scientists would define a scientific 
standard for ``likely'' based on their interpretation of the 
preponderance of available evidence. This is the standard we used for 
our review.
    The BiOp does not explicitly define its standard for ``likely.'' 
Implicitly, it uses a standard which is significantly weaker than the 
scientific standard of preponderance of evidence.
    Representatives of NMFS argue that the Endangered Species Act 
mandates a precautionary standard for ``likely'' and that evidence that 
adverse effects of fishing on Steller sea lions ``may exist'' requires 
a conclusion of jeopardy. We claim no expertise as to the appropriate 
legal standard for a conclusion of jeopardy. However, whatever the 
standard, it should be explicitly defined, and the scientific evidence 
should meet that standard.
Peer and Public Comment
    The BiOp was prepared by NMFS without active interaction with 
scientists outside the agency or with people in the fishing industry 
that could have provided useful insights. The period of time provided 
by NMFS for comment on the draft BiOp was insufficient for serious peer 
and public review. The time between the receipt of review comments and 
NMFS's self-imposed deadline for release of the final document was also 
insufficient for adequate consideration of review comments or any 
substantial revision of the BiOp in response to comments. There is 
little evidence that comments on the draft BiOp's finding of jeopardy 
were seriously considered when developing the final BiOp. There is 
evidence that comments on RPAs in the draft BiOp were considered in 
developing the final RPAs, although responses to these comments were 
very brief and most suggested changes were rejected. NMFS did not 
summarize or address comments received on the draft BiOp as had been 
promised, nor has it scheduled a formal independent review as promised. 
In contrast, the Regulatory Impact Review (RIR) clearly addressed and 
was strengthened by consideration of public and peer comments on the 
economic analysis.
                                 ______
                                 
    Mr. Hastings. Thank you, Dr. Trites. I appreciate your 
testimony.
    Next, we will go to Dr. Gunnar Knapp, who is a Professor of 
Economics at the Institute of Social and Economic Research at 
the University of Alaska Anchorage. Dr. Knapp, you are 
recognized.

STATEMENT OF GUNNAR KNAPP, PROFESSOR OF ECONOMICS, INSTITUTE OF 
  SOCIAL AND ECONOMIC RESEARCH, UNIVERSITY OF ALASKA ANCHORAGE

    Dr. Knapp. Thank you. My name is Gunnar Knapp. I am a 
Professor of Economics at the University of Alaska Anchorage's 
Institute of Social and Economic Research, where I have been 
engaged for the past 30 years on research about the fisheries 
management, fisheries markets, and the Alaska economy. I also 
participated in this independent scientific review of the BiOp.
    I would like to highlight a few findings of our review that 
have to do with the BiOp standard for likelihood of jeopardy, 
the economic analysis associated with the BiOp, and NMFS' 
consideration of peer and public comment.
    Beginning with the standard for likelihood of jeopardy, the 
Endangered Species Act mandates that each Federal agency shall 
ensure that any action is not likely to jeopardize the 
continued existence of any endangered species or threatened 
species, or result in the destruction or adverse modification 
of habitat.
    So, in reaching or evaluating any conclusion about 
jeopardy, a key issue is what standard of scientific evidence 
is required to conclude that an action is ``likely'' to 
jeopardize the continued existence of the species or result in 
the destruction or adverse modification of its habitat.
    Now, there is not any formal scientific standard for 
likely, but most scientists would base a conclusion about 
whether or not something is likely based on their 
interpretation of the preponderance of available evidence. The 
BiOp's conclusions are not based on the preponderance of 
scientific evidence; rather, the conclusion of jeopardy is 
based on the possibility that fishing might affect Steller sea 
lions, or that that possibility cannot be excluded.
    So, for example, here is some of the language from the 
BiOp's conclusions about its conclusion of jeopardy. ``Analysis 
of available data indicate that an adverse relationship between 
Steller sea lion and the commercial fisheries may exist,'' or, 
``Fishery removals of prey in the Western and Central Aleutian 
Islands sub-region may be adversely affecting the Western 
DPS,'' or, ``The possibility that this interaction may be one 
of several primary causes of the observed declines in non-pup 
counts cannot be eliminated.''
    What this means in effect is that NMFS is not basing its 
conclusions on the preponderance of scientific evidence. The 
possibility that an effect could exist trumps the fact that 
there is almost no scientific evidence that it does exist.
    Now, NMFS argues that it is legally mandated to be 
precautionary in its evaluation of the science. We do not claim 
any expertise on how NMFS is legally mandated to evaluate the 
evidence. But if you use the argument that you cannot prove 
that fishing does not have an effect to trump the available 
scientific evidence, it is hard for scientists or the public to 
understand the reasoning, and it is also hard to call it 
science.
    Next, I will comment on the economic analysis associated 
with the regulatory impact analysis that accompanied the BiOp.
    In general, the analysis of the economic impacts of the 
RPAs is reasonably complete, scientifically valid, and 
adequate. It correctly concludes that this action will impose 
relatively heavy costs on the fishing and processing industry 
that targets Atka mackerel and Pacific cod in the Aleutian 
Islands.
    What the analysis does not do is to demonstrate any attempt 
to reduce economic impacts of the RPAs. NMFS only considered 
one alternative for RPAs to address its conclusion of jeopardy. 
It invited almost no input from industry about whether there 
might be a less costly way to achieve the same benefits for 
Steller sea lions. And that is a striking contrast with the 
collaboration that occurred in developing the RPAs for the 2001 
BiOp through the work of the North Pacific Fishery Management 
Council's Reasonable and Prudent Alternatives Committee.
    Finally, I will address NMFS' consideration of peer and 
public comment in preparing the BiOp. The BiOp was prepared by 
NMFS without active interaction with scientists outside the 
Agency or with people in the fishing industry who could have 
provided useful insights. The period of time provided by NMFS 
for comment on the draft BiOp was insufficient for serious peer 
and public review.
    The time between the receipt of review and NMFS' self-
imposed deadline for release of the final document was also 
insufficient for adequate consideration of review comments for 
any substantial revision of the BiOp in response to comments.
    There is little evidence that comments on the draft BiOp's 
finding of jeopardy were seriously considered when developing 
the final BiOp.
    Finally, NMFS did not address or summarize comments 
received on the draft BiOp as had been promised, nor has it yet 
undertaken any formal independent review. Why does this matter? 
The BiOp addresses very complex issues. Even for good 
scientists, understanding these issues is difficult without 
actively interacting with and learning from other people who 
have insights about the issues and data, including both 
independent scientists and people in industry.
    Listening to comments does not mean you have to agree with 
the people who are commenting, but if you do not listen to 
comments, there is a much higher chance that you will make 
mistakes and miss or misinterpret relevant evidence. Good 
science actively seeks review. In preparing the BiOp, NMFS 
avoided review.
    Thank you.
    Mr. Hastings. Thank you very much, Dr. Knapp.
    And next, we will go to Dr. Ragen, Executive Director of 
the U.S. Marine Mammal Commission. Dr. Ragen, you are 
recognized.

          STATEMENT OF TIM RAGEN, EXECUTIVE DIRECTOR, 
                 U.S. MARINE MAMMAL COMMISSION

    Dr. Ragen. Thank you, Chairman Hastings and Congressman 
Young, for the privilege of appearing before you on this 
matter.
    I am Tim Ragen. I am the Executive Director of the Marine 
Mammal Commission. From 1998 to 2000, I was the Steller sea 
lion Recovery Coordinator for NOAA Fisheries based in the 
Alaska region.
    Section 7 are critical to the way that we manage these 
fisheries, and I have focused my testimony on the process by 
which we conduct those consultations. I will just make a few 
points this morning.
    First of all, with regard to information, I think the most 
meaningful opportunity for all participants in this issue, all 
the various parties, is to share information or input into this 
process. In fact, there are massive amounts of information 
available on the topic, and as a rule, parties should be able 
to provide input into the Section 7 consultation.
    Transparency is critical, and one way to promote 
transparency is through the open sharing of information. 
However, NOAA must weigh all of that information based on its 
relevance and quality.
    With regard to analysis of effects, the fundamental 
question here is whether there is a clear and reasoned 
relationship between the available information and the effects 
analysis. And my guess is that much of what you will hear and 
be interested in today pertains to the question of whether or 
not NOAA arrived at its conclusions given the information 
available to it.
    Compiling and analyzing all the data is a daunting task, 
and with the exception of one major point, the Commission 
supports NOAA's analysis.
    Decision making. My third point involves decision making in 
the consultation process. First, other agencies and 
organizations can and should conduct their own reviews and form 
their own conclusions. But those reviews and conclusions are 
not a substitute for the responsibilities of the consulting 
agency.
    If you look back over the past decade, you will see a long 
series of reviews, and although they may be helpful, they do 
not usurp or in any way diminish NOAA's responsibilities.
    That brings me to the role of the Council. I believe the 
Council has a very important role in the consultation process 
as a source of information, a facilitator of coordination, a 
supporter of research, and a forum for developing management 
measures to meet standards imposed by NOAA Fisheries.
    However, the constitution of the Council is such that it is 
subject to conflicts of interest, and for that reason, it does 
not have and should not share the responsibilities of a 
consulting agency for decision making purposes.
    My last two points are my most important. With regard to 
the recovery plan criteria, the recovery plan laid out three 
general principles for consideration for recovery. One is to 
continue with research and monitoring. The second is to 
maintain the same or equivalent protections from fishery 
effects. And the third was to develop an adaptive management 
plan for assessing the ecological effects of fishing on Steller 
sea lions.
    In my view, NOAA Fisheries and Fisheries Management 
generally have not developed an adequate adaptive plan for 
assessing the ecological effects of fishing. This is a major 
shortcoming of the Agency's current approach to fisheries 
management. Our fishing strategy under the Magnuson-Stevens 
Fishery Conservation and Management Act is based on the concept 
of an optimum view, but optimum is defined in terms of the 
maximum sustainable yield as reduced by any relevant social, 
economic, or ecological factor.
    Although we have a relatively good understanding of the 
theory behind MSY and its effects in a single species context, 
we do not have a good understanding of it in an ecological 
context. Again, NOAA has not developed the kind of adaptive 
research and management program to clarify those facts. Doing 
so would be a considerable challenge and would require 
cooperation from all interested parties. But until we do so, 
and by we I mean all interested parties, I fear we will 
continue to engage in the kind of back and forth debates that 
are undermined by this ecological uncertainty.
    Doing so likely imposed unnecessary constraints on the 
fishing industry, and exposes our marine resources to 
unnecessary risk. Unless we tackle this challenge, we will 
simply end up foisting it on to the future generations for them 
to deal with. I would like to think that none of us consider 
that the best plan forward.
    Again, Chairman Hastings, thank you for the opportunity of 
appearing before the Committee, and I look forward to your 
questions and thoughts.
    [The prepared statement of Dr. Ragen follows:]

       Statement of Timothy J. Ragen, Ph.D., Executive Director, 
                        Marine Mammal Commission

    Chairman Hastings, members of the House of Representatives 
Committee on Natural Resources, thank you for inviting me to testify 
before you on ``NOAA's Steller Sea Lion Science and Fishery Management 
Restrictions: Does the Science Support the Decisions?'' I am Timothy 
Ragen, Executive Director of the Marine Mammal Commission. From 1998 to 
2000, I served as the Steller Sea Lion Recovery Coordinator for the 
Alaska Region, National Marine Fisheries Service. In that position, I 
was responsible for drafting a number of biological opinions on fishery 
effects on sea lions under section 7 of the Endangered Species Act.
Section 7 consultations
    Debates regarding the nature and quality of NOAA's science are 
heightened during section 7 consultations concerning fishery 
management, as is evident from the number of law suits related to 
consultations over the past decade. The Marine Mammal Commission's 
concerns regarding those consultations fall under three separate but 
related headings.
    Information management: With regard to managing the information 
needed for section 7 consultations, the Commission believes that--
          Consultations should be based on the best scientific 
        and commercial data available;
          All affected parties should be allowed to contribute 
        information to the consultation process as long as it is 
        related to the proposed activity and falls within the limits 
        established by the Endangered Species Act;
          Such parties could include state agencies, fishery 
        management councils, the industry, tribal governments or 
        organizations, non-governmental conservation organizations, and 
        the public;
          Information management should be transparent--that 
        is, the information used in a section 7 consultation should be 
        available for all to see (with some exceptions for certain 
        classes of information, e.g., national security information); 
        and
          The information involved in such consultations should 
        be weighted by its relevance and quality, and clear standards 
        are needed to do so.
    Analysis of effects: For a variety of reasons, analysis-of-effects 
chapters of biological opinions often are the weakest elements of 
section 7 consultations. Here, the Commission believes that--
          Such analyses must be comprehensive, including 
        assessment of cumulative effects;
          They must be clearly linked to the available 
        information and describe important information that is needed 
        but lacking;
          They must include measures of uncertainty or 
        confidence in their results; and
          They must be described fully in the resulting 
        biological opinion or in available references.
    Decision-making: Conclusions regarding jeopardy to a species or 
destruction or adverse modification of critical habitat often are the 
most controversial elements of a section 7 consultation. The 
Commission's main concerns with regard to such decision-making are 
that--
          Biological opinions resulting from section 7 
        consultations, and all decision-making therein, remain the 
        responsibility of the expert or consulting agency. However, 
        that agency should work closely with the action agency to 
        ensure that all relevant information is considered in each 
        consultation process;
          The consulting or expert agency must not have a 
        conflict of interest with regard to the proposed action and the 
        outcome of the consultation;
          The National Marine Fisheries Service is in a 
        potentially conflicted position when one branch of the agency 
        consults with another on fishery-related actions; maintaining 
        the integrity of the consultation process is essential and in 
        such cases the agency must impose strong measures and 
        procedures to avoid such conflicts;
          Decisions regarding the two standards of jeopardy to 
        a listed species and destruction or adverse modification of 
        critical habitat must be clearly explained in biological 
        opinions; and
          Decisions and supporting rationale must provide the 
        basis for any reasonable and prudent alternatives needed to 
        avoid jeopardy or adverse modification.
          Although other agencies or organizations may wish to, 
        or may be invited to, conduct reviews of the same information, 
        the expert or consulting agency alone remains responsible for 
        final decisions in section 7 consultations and the accompanying 
        biological opinions.
    Under each of these headings, the Commission's primary concern is 
with maintaining the integrity of the process as described in section 7 
of the Endangered Species Act.
Role of the North Pacific Fishery Management Council
    Section 7 consultations on the management of Alaska groundfish 
fisheries clearly are relevant to the North Pacific Fishery Management 
Council. Given its important role in fishery management, the Council 
should have ample opportunity to provide information considered during 
section 7 consultations. The Council also may play a number of other 
important roles:
          It may serve as a conduit through which the industry 
        can provide input;
          It may serve as a forum for helping to develop 
        reasonable and prudent alternatives as long as the framework 
        and/or standards for those measures are clearly articulated by 
        the consulting agency--in this case, NOAA Fisheries' Office of 
        Protected Resources;
          It also may serve as a forum for developing and 
        recommending research to address important uncertainties; and
          It may help foster cooperation between research 
        organizations and the industry.
    However, the Council is not part of the consulting or expert agency 
and should not assume the responsibilities of the consulting or expert 
agency because it is subject to potential conflicts of interest.
Recovery Plan Criteria
    Ultimately, the purpose of the recovery plan is the same as the 
purpose of the Endangered Species Act: ``. . .to provide a means 
whereby the ecosystems upon which endangered species and threatened 
species depend may be conserved, to provide a program for the 
conservation of such endangered species and threatened species. . ..'' 
More specifically, the recovery plan should include reasoned criteria 
for determining when the species of concern is no longer at risk of 
extinction and when the protections provided under the Endangered 
Species Act are no longer needed. The Commission believes that the 
Steller Sea Lion Recovery Team and the National Marine Fisheries 
Service should have given more weight to the population viability 
analysis used to support the recovery criteria. Such analyses provide 
the best possible indication of the risk of extinction, which is the 
key measure of success in the management of endangered and threatened 
species under the Act. That being said, the recovery plan criteria were 
based on a reasoned analysis of the five listing factors set forth in 
the Endangered Species Act. In addition, the criteria gave appropriate 
emphasis to three important principles calling for--
        (1)  Continued population monitoring and research on the key 
        threats potentially impeding sea lion recovery;
        (2)  Maintaining current or equivalent fishery conservation 
        measures until new information indicates that changes are 
        warranted; and
        (3)  Designing and implementing an adaptive management program 
        to evaluate fishery conservation measures.
    In the Commission's view, the third principle has not been given 
adequate consideration in fisheries management. In the Alaska 
groundfish case, a disproportionate share of research has been focused 
on Steller sea lions, without adequate attention to assessing the 
ecological effects of fishing to obtain the optimum yield. The 
Magnuson-Stevens Fishery Conservation Act defines the optimum yield to 
be based on the maximum sustainable yield as reduced by any relevant 
social, economic, or ecological factors. However, NOAA Fisheries has 
yet to develop a robust research program to investigate the ecological 
effects of such fishing. This fundamental issue has been neglected for 
several decades and must be addressed if the United States is to assert 
with justification that its fishery management paradigm is ecosystem-
based.
The need for scientific information
    The information used to manage fisheries is not what all parties 
would like it to be. In the case of the Alaska groundfish fisheries, 
the primary concern is that the fisheries severely out-compete sea 
lions for their prey. Such competition may occur in the form of 
fishery-induced localized depletion of prey, where fishing effort is 
concentrated in space and time and causes marked reductions in the 
availability of prey to sea lions. These types of depletions were 
clearly evident in fisheries data collected in the late 1990s. The 
other type of depletion results from the long-term effects of 
harvesting a fish stock year after year, causing intentional reductions 
of 60 percent or more in the total stock biomass. This type of effect 
has not been evaluated but is at the heart of the debate over the 
ecological effects of fishing.
    Regarding the scientific information used to justify the fishery 
restrictions in the recent biological opinion, the Commission assumes 
that all parties would like to have better information to guide the 
development and implementation of fishery management measures. However, 
the Commission would respectfully suggest that the issue should be 
rephrased to recognize that the burden for providing the necessary 
information appropriately lies with the action agency--in this case the 
Office of Sustainable Fisheries. Section 7(a)(2) of the Endangered 
Species Act clearly places that burden on the action agency, requiring 
it 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 
destruction or adverse modification of [critical] habitat of such 
species. . ..''
    Gathering the necessary information on the ecological effects of 
fishing will be a challenge, particularly if research budgets for 
fisheries-related research remain at current levels or are reduced in 
the foreseeable future. In the Commission's view, the best approach for 
collecting the needed information would be through a long-term, well 
conceived, and well planned adaptive management approach aimed at 
investigating the ecological effects of fishing. To the Commission's 
knowledge, NOAA Fisheries does not now have such a plan in place.
Conclusion
    The issue to be resolved here involves the ecological interactions 
between the Alaska groundfish fisheries and Steller sea lions. NOAA 
Fisheries has done an admirable job of reducing direct interactions 
between the fisheries and sea lions. However, it has not evaluated, in 
a suitably rigorous way, the ecological effects of fishing aimed at 
achieving, on an ongoing basis, the maximum sustainable yield from a 
single target fish stock. Unless and until it does so, the ecological 
consequences of fishing under this paradigm will be left for future 
generations to resolve.
                                 ______
                                 
    Mr. Hastings. Thank you very much, Dr. Ragen.
    And our last panelist is Mr. Larry Cotter, Chair of the 
North Pacific Fishery Management Council, Steller Sea Lion 
Mitigation Committee, and Chief Executive Officer of the 
Aleutian Pribilof Island Community Development Association.
    Mr. Cotter, you are recognized.

    STATEMENT OF LARRY COTTER, CHAIR, NORTH PACIFIC FISHERY 
MANAGEMENT, COUNCIL'S STELLER SEA LION MITIGATION COMMITTEE AND 
  CHIEF EXECUTIVE OFFICER, ALEUTIAN PRIBILOF ISLAND COMMUNITY 
                    DEVELOPMENT ASSOCIATION

    Mr. Cotter. Thank you, Chairman Hastings and Congressman 
Young. I appreciate the opportunity to testify before you 
today.
    I have been down this road twice before--the National 
Marine Fisheries Service Biological Opinion road. The first 
time was in 2001. At that time, the RPA Committee was formed in 
February with myself as chair. The Committee was given two 
tasks. The first was to provide the North Pacific Council with 
draft emergency rules to implement fishery management changes 
by mid-summer to allow the groundfish fisheries in the Gulf and 
Bering Sea Aleutian Islands to continue without causing 
jeopardy or adverse modification. The second role was to 
provide the Council with draft emergency rules by the fall for 
subsequent years, so that those fishers could continue, again, 
without causing jeopardy or adverse modification.
    Both of those tasks were successfully completed. In my 
opinion, this was one of the highlights of fishery management 
in the North Pacific. An enormous amount of work, cooperation, 
and collaboration were necessary. Everyone participated, 
including the Agency. Protected resources staff were not walled 
off from us, nor were they walled off from sustainable 
fisheries. We all worked together, and we got it done.
    Somehow the world changed between then and 2006, and then 
it simply deteriorated continuously. I am going to be very 
blunt. There was not a single moment of this most recent 
process when any action by NMFS resembled the development of an 
unbiased scientific evaluation of Steller sea lions and issues 
they face regarding recovery.
    The Agency was simply on a mission, and they still are. 
Even Dr. Schwaab includes a series of references to the Steller 
sea lion recovery team in his testimony to you today concluding 
with, ``NMFS' review of the comments and recommendations 
submitted by peer reviewers and the public on the 2007 version 
of the draft revised plan and modified the plan as appropriate 
to produce the final revised Steller sea lion recovery plan in 
February 2008.''
    There is really only one small problem with that. Eight of 
the 17 recovery plan members signed a letter repudiating the 
recovery plan, and NMFS continues to this day to pretend that 
that did not happen. It did.
    Our Mitigation Committee paid its own way. Easily in excess 
of half a million dollars was spent on behalf of the volunteers 
who sat on the Committee. From the beginning, the process was 
tortured.
    The Committee first started to meet in the winter of 2006. 
We were told to expect a BiOp in the fall. We met seven times 
that year. The due for the BiOp was delayed repeatedly until 
finally it was delayed until June 2008. The Committee met five 
more times in 2007.
    That jeopardy and adverse modification review found in this 
BiOp was guaranteed, in my opinion, from the beginning. The 
cornerstone for the recovery plan and ultimately the Biological 
Opinion is something referred to as Holmes et al. Holmes et al. 
is a model that was constructed to predict that decreasing pup 
rates by female sea lions was inhibiting the recovery of the 
species. In fact, we were told the increases we were observing 
in the sea lion population would prove to be an anomaly, and 
would, in fact, start reversing themselves.
    NMFS assumed that that study was accurate, and assumed that 
that study applied to all sea lions throughout their range, 
despite the fact that the study focused only on one area in the 
Central Gulf. If the Agency is going to assume that Holmes et 
al. is accurate and applies across the entire range of the 
WDPS, then it will be impossible to avoid jeopardy and adverse 
modification since the population will continue to decline. In 
essence, the recovery plan, with its down and delisting 
criteria, were doomed for failure.
    I personally pointed this out to major senior members of 
National Marine Fisheries Service, proclaiming that a train 
wreck was just around the bend, but no one cared.
    A few years later, the Seward Sealife Center, through an 
individual whose name I am going to mispronounce, Maniskopo, 
presented a paper that directly contradicted Holmes, et al., by 
reviewing the photographic proof of female sea lions at 
Chiswell Island pupping consistently over the preceding eight 
years. NMFS did everything they could possibly do to debunk 
this paper. There was no way they were going to let new 
scientific information get in the way.
    The development of the new BiOp commenced in 2006. NMFS 
delayed the release of the BiOp 10 times before issuing it in 
August 2010. Along the way, in late 2009 or 2010, they totally 
changed their writing staff. They even sought to retain on a 
sole source contract a former Alaska Region protected resources 
employee to write the new BiOp. NMFS reportedly offered this 
individual a six-figure contract to do the job.
    That individual, by the way, was then employed by the 
Department of Energy, and presumably could have been made 
available on an inter-agency employment loan. I do not know 
what ultimately happened with that contract.
    The next thing that happened was Alaska Regional Director 
Jim Balsiger rejected the draft BiOp in April 2010. If you 
think about that, that was really an incredible act of courage. 
It was then, and remains now, an almost singular clarion call 
from one person in the Agency to call a spade a spade.
    Mr. Hastings. Mr. Cotter, if you could wrap up. The time is 
over. So, if you could----
    Mr. Cotter. I am so sorry.
    Mr. Hastings. Well, your full statement is in the record, 
so if you would just conclude, I would appreciate it.
    Mr. Cotter. I am going to conclude if I can with four 
questions, and they will be brief.
    Mr. Hastings. Quickly. Very quickly.
    Mr. Cotter. Is the ESA being applied consistently between 
the Fish and Wildlife Service and the National Marine Fisheries 
Service? And is it being applied consistently with the regions 
of both agencies?
    How can the delisting criteria for Steller sea lions 
require a less than one percent if they will go extinct in the 
next 100 years, and gray wolves only require 10 breeding pairs 
in four States, or California sea otters, a population excess 
of 3,000 animals for three consecutive years?
    Last, how can Fish and Wildlife Service conclude that 
transient marine mammal eating orcas are the reason for the 
collapse of sea otter populations in the Aleutian Islands, yet 
NMFS concludes predation by the same orcas has no impact on sea 
lions in the same area? Should this not be----
    Mr. Hastings. Just the question. Just the question. OK.
    Mr. Cotter. Thank you.
    [The prepared statement of Mr. Cotter follows:]

 Statement of Larry Cotter, Chairman, North Pacific Fishery Management 
   Council Sea Lion Mitigation Committee, and CEO, Aleutian Pribilof 
           Island Community Development Organization (APICDA)

    Chairman Hastings and Congressman Young: I would like to thank you 
for inviting me to testify before your committee today. As I believe 
you are aware I had major back surgery one week ago. That made it 
impossible for me to complete my written testimony in advance. I 
apologize for that and have copies available now.
    My invitation to testify asked that I share my views, as Chair of 
the North Pacific Council's Steller Sea Lion Mitigation Committee, 
regarding the process used to develop the Biological Opinion, my views 
of the role of the North Pacific Council in the process, my concerns 
with the recovery plan criteria and my concerns with the science relied 
upon in justifying the fishery restrictions.
    I have been down this road twice with NMFS. The first time was in 
2001. At that time the RPA Committee was formed in February with me as 
Chair. We were given two tasks: the first was to provide the North 
Pacific Council with draft emergency rules to implement fishery 
management changes by mid-summer to allow the groundfish fisheries in 
the Gulf and Bering Sea/Aleutian Islands to continue without causing 
jeopardy or adverse modification; the second was to provide the North 
Pacific Council with draft emergency rules to implement fishery 
management changes by October to allow the groundfish fisheries in the 
Gulf and Bering Sea/Aleutian Islands to continue operating into 
subsequent without causing jeopardy or adverse modification.
    Both of these tasks were successfully completed. In my opinion this 
was one of the highlights of fishery management in the North Pacific. 
An enormous amount of work, cooperation and collaboration were 
necessary. Everyone participated, including the agency. Protected 
resources staff were not walled off from us and sustainable fisheries--
we all worked together and got smart together.
    Somehow the world changed between then and 2006, and then they 
simply deteriorated. I am going to be very blunt. There was not a 
single moment of this most recent process when any action by NMFS 
resembled the development of an unbiased scientific evaluation of 
Steller sea lions and issues they face regarding recovery. The agency 
was simply on a mission. They still are. Even Dr. Schwab includes a 
nice series of references to the Steller Sea Lion Recover Team in his 
testimony to you today, concluding with ``NMFS reviewed the comments 
and recommendations submitted by peer reviewers and the public on the 
2007 version of the draft revised plan and modified the plan as 
appropriate to produce the Final Revised Steller Sea Lion Recovery Plan 
in February 2008.'' Only one small problem with that statement--8 out 
of 17 recovery plan team members signed a letter repudiating the 
recovery plan, and NMFS continues to this day to pretend that didn't 
happen.
    Our mitigation committee paid its own way. Easily in excess of 
$500,000 was spent on behalf of the volunteers who sat on the 
committee. From the beginning the process was tortured. The committee 
first started to meet in winter, 2006. We were told to expect a draft 
BiOp in the fall. We met seven times that year. The due date for the 
BiOp was delayed repeatedly, until June, 2008. The committee met five 
more times in 2007.
    That jeopardy and adverse modification would be found in this BiOp 
was guaranteed from the beginning. The cornerstone for the recovery 
plan and ultimately the BiOp is something referred to as Homes, et al. 
Homes et al is a model that was constructed to predict that decreasing 
pup rates by female sea lions was inhibiting the population recovery of 
the species. In fact, we were told the increases we were observing in 
the sea lion population would prove to be an anomaly. NMFS assumed the 
study was accurate, and assumed it applied to all sea lions throughout 
their range--despite the fact that the study only focused on one area 
in the central Gulf of Alaska.
    If the agency is going to assume that Holmes et al is accurate and 
applies across the entire range of the WDPS, then it will be impossible 
to avoid jeopardy and adverse modification since the population will be 
continuing to decline. In essence, the Recovery plan with its down and 
de-listing criteria were doomed for failure. I personally pointed this 
out to the most senior members of NMFS, proclaiming that a huge train 
wreck was now just around the bend, but they were contentedly fixed on 
their position.
    A few years later the Seward Sea life Center presented a paper that 
directly contradicted Homes et al by reviewing the photographic proof 
of female sea lions at Chiswel Island pupping consistently over the 
preceding eight years. NMFS did everything they could possibly do to 
debunk this paper. There was no way they were going to let new 
scientific information get in their way.
    The development of the new BiOp commenced in 2006. NMFS delayed the 
release of the BiOp ten times before finally issuing it in August, 
2010. Along the way--in late 2009 or early 2010--they totally changed 
their writing staff. They even sought to retain on a sole source 
contract a former Alaska Region Protected Resources employee to write 
the new BiOp. NMFS reportedly offered this individual a six figure 
contract to do the job. That individual, by the way, was then employed 
by the Department of Energy and presumably could have been made 
available on an intra-agency employment loan. I do not know what 
ultimately happened with that contract.
    The next thing that happened was Alaska Regional Director Jim 
Balsiger rejected the draft BiOp in April, 2010. If you think about it, 
that was really an incredible act of courage. It was then and remains 
now an almost singular clarion call from one person in the Agency to 
call a spade a spade--this BiOp process has failed!
    Unfortunately, there was no time to start the process anew and do 
it right. The environmental NGO litigants were pounding on the door at 
NOAA in Washington DC--do it our way or we sue. So, having no choice, 
Dr. Balsiger put together a new BiOp team that spent the next four 
months pounding together the best, flawed BiOp they could. 4
    This was a crazy, frantic, keystone cops type of process that 
clearly violated the APA, NEPA Magnuson-Stevens Act and other laws. 
NMFS was not focused on sound science--they simply had to get jeopardy/
adverse modification BiOp in place before the environmental NGOs would 
sue. This was political, pure and simple. And incompetently handled. 
The Agency should be ashamed of themselves. And thank you for the 
hearing, but what we really need is a whole scale investigation.
    In conclusion, I do think some question must be posed and answered:
        1.  Is the ESA being applied consistently between the Fish & 
        Wildlife Service and the National Marine Fisheries Service, and 
        is it being applied consistently within the regions of both 
        agencies?
        2.  How can the delisting criteria for Steller sea lions 
        require a less than one percent chance that they will go 
        extinct in the next 100 years, and grey wolves only require ten 
        breeding paids in for states, or California sea otters simply 
        need a population in excess of 3,000 animals for three 
        consecutive years?
        3.  How can Fish & Wildlife Service conclude that transient 
        marine mammal eating orcas are the reason for the collapse of 
        sea otter populations in the Aleutian Islands (resulting in 
        their status as endangered), yet NMFS concludes predation by 
        the same orcas has no impact on sea lions in the same area? 
        Shouldn't this be an issue to be resolved and agreed upon by 
        these two agencies?
        4.  How is it that the Seward Sea Life Center is able to do 
        such high quality research on sea lions in Russia when NMFS can 
        never find the time to do anything in the western Aleutians?
        5.  Should it mean anything to discover what we already know--
        there is no commercial fishing with 50 miles of the Komondorski 
        Islands just west of our Aleutian Islands, and their sea lions 
        are apparently doing the same thing as ours.
    Thank you.
                                 ______
                                 
    Mr. Hastings. Thank you, Mr. Cotter. And I want to thank 
all of you for your testimony.
    Dr. Trites, you alluded to this several times in various 
ways in your testimony what I am going to ask you. And the BiOp 
appears to rely significantly on the research that you have 
done. So, my question to you is really pretty direct in that 
regard.
    Do you believe that NOAA correctly interpreted your data, 
and are the NOAA conclusions supported by your research?
    Dr. Trites. I guess the short answer is, no. We have 
published through the research that I have worked with a lot of 
research, and that research is cited in the BiOp. But there are 
different ways of citing information. One is you can just put 
the author's name and list the paper, or you can actually 
reference the work and try to put some understanding into it.
    And I would say for the most part, the BiOp is a fairly 
complete list of the scientific record in terms of what was 
studied. But in terms of how they chose to expand the sub 
parts, overlook others, and, in some cases, even misinterpret 
what was published, it has got those shortcomings.
    Mr. Hastings. Well, you alluded to that. That is why I 
asked the question directly.
    Dr. Knapp, you also talked about economics. So, do you 
believe that any future review of any BiOp should include a 
review of all the economic impacts?
    Dr. Knapp. Yes, I certainly believe that when you are 
studying economic impacts, you should study all the economic 
impacts.
    Mr. Hastings. OK. And if I heard your testimony correct, 
there were some major parts were left out of this, is that 
correct?
    Dr. Knapp. My main point actually was the--I actually do 
not have any particular criticism of the analysis of the 
economic impacts that was done. There was an analysis done, and 
it looked at many different kinds of impacts, and came to the 
conclusion that they were quite substantial from these RPAs.
    The major point that I wanted to make was that there was no 
evidence whatsoever of any attempt to ask the question, how can 
we reduce these economic impacts. Is there a way to do this 
that would have a lower economic impact.
    Mr. Hastings. Which falls under the category of looking at 
all economic impacts. I mean, clearly if you are going to have 
some impact, then what is potentially to mitigate that. That is 
what you are saying, is that correct?
    Dr. Knapp. Yes, sir.
    Mr. Hastings. OK. I agree with that.
    Dr. Ragen, you said there is one thing you do not agree 
with on the BiOp. What is that?
    Dr. Ragen. Mr. Chairman, if you look at the types of 
analyses that go into fisheries' effects, most of them are 
focused on the effects of removal within a given year. Our 
strategy under the maximum sustainable yield approach is to 
reduce the biomass of the target species by roughly 60 percent.
    The analyses that are often done in fisheries management do 
not deal with that. They look at the 10 percent, so that over 
time, because these are age structured stocks, if you have 
knocked the biomass down by 60 percent, and then you only focus 
on taking 10 percent of that remaining 40 percent, I think you 
have missed what is probably the major driver in terms of 
fishery effects; that is, the nature of fishing under the MSY 
paradigm. We have never really examined the ecological effects 
of those kinds of reductions.
    Mr. Hastings. Why? Why has that not been done?
    Dr. Ragen. I do not understand that, and that was one of 
the key questions that really came up in the 2000 Biological 
Opinion is, what are the impacts of removing 60 percent of 
Pacific cod, Atka mackerel, flat fish, et cetera, on an 
ecosystem.
    Mr. Hastings. Let me ask you another question because maybe 
this lends into what you are talking about. Because new 
information has been referenced several times, available since 
the BiOp on the Atka mackerel stock assessment, do you believe 
that the Agency has responsibility to re-initiate consultation 
based on this new information? I think that is in line with 
what you are saying.
    Dr. Ragen. I think the Agency has to look at all of its new 
information to decide whether or not it is significant enough 
for a renewal. You have to recognize that the information on 
these stocks that is available in any given year or any given 
season is going to change, and they will need to look and see 
does this warrant a reexamination of their overall approach.
    So, surely they should be tuned into new information, but I 
also would not say outright that any time there is new 
information, they should start a consultation, or they would be 
locked into----
    Mr. Hastings. Unless it is significant, I suppose that is 
in the eye of the beholder, is that correct?
    Dr. Ragen. I think they have to make their best judgment in 
terms of what the----
    Mr. Hastings. Which unfortunately does not make it 
objective; it makes it subjective potentially.
    Dr. Ragen. I do not think it necessarily means that you are 
being subjective. I think you need to look at the information 
and say what constitutes sufficient new information to make a 
decision. And that sort of thing is best served by making that 
judgment in advance.
    Mr. Hastings. My time has expired. Mr. Young?
    Mr. Young. Thank you, Mr. Chairman.
    Mr. Cotter, would you repeat those last four questions you 
were going to read? Because they are good questions, I want 
them in the record totally.
    Mr. Cotter. The first question is, is the ESA being applied 
consistently between the Fish and Wildlife Service and the 
National Marine Fisheries Service, and is it being applied 
consistently within the regions of both agencies?
    The second question, how can the delisting criteria for 
Steller sea lions require a less than one percent chance that 
they will go extinct in the next 100 years, and gray wolves 
only require 10 breeding pairs in four States, or California 
sea otters simply need a population in excess of 3,000 animals 
for three consecutive years?
    Third question. How can Fish and Wildlife Service conclude 
that transient marine mammal eating orcas are the reason for 
the collapse of sea otter populations in the Aleutian Islands 
resulting in their status as endangered, yet NMFS concludes 
predation by those same orcas has no impact on sea lions in the 
same area? Should this not be an issue that demands to be 
resolved and agreed upon between the two agencies.
    The fourth question, how is it that the Seward Sealife 
Center is able to do such high quality research on sea lions in 
Russia when NMFS has difficulty getting anything done in the 
Western Aleutians.
    And the last question, should it mean anything to discover 
what we already know? There is no commercial fishing within 50 
miles of the Komandorski Islands just west of our Aleutian 
Islands. And their sea lions are apparently doing the same 
thing as ours.
    Mr. Young. Thank you, Mr. Cotter, and I appreciate that. 
That is a good comment. It is the same area, same conditions.
    In Mr. Schwaab's testimony, any future scientific review 
will only be allowed to look at information available to May 
10th--I do not understand that--and will not include 
information, like the most recent Atka mackerel assessment. 
What do you think of this restriction, Mr. Cotter?
    Mr. Cotter. Well, I think that is ridiculous, quite 
frankly. Any time we have access to new information, we need to 
incorporate that new information; otherwise, why are we seeking 
new information? Why do we seek to improve our knowledge base 
if we are not going to use it?
    Mr. Young. Thank you.
    Mr. Chairman, I cannot understand the reluctance of not 
accepting new information. I know Dr. Trites, you know, you 
made a comment--by the way, I understand you are the expert on 
sea lions, and I congratulate you. At least you give some 
common knowledge on things that can be done and should be done. 
And I do think they have misinterpreted your report or your 
information.
    Question to Mr. Cotter, any one of you. I may, with the 
help of the Chairman, ask for an independent review of the 
Steller sea lion funding. Do you think the marine mammal 
scientists who already seem to have a bias against fisheries, 
have used the funding in an unbiased manner? Any one of you? 
Mr. Cotter, do you want to go first?
    Mr. Cotter. Well, I would ask Dr. Trites to speak candidly 
to that.
    Mr. Young. Dr. Trites?
    Dr. Trites. Yeah. I would like to say that there has been a 
lot of research done, a lot of money was put into this. And a 
lot of very, very good research has been done by broad group of 
individuals. So, I do not think we can fault the science per se 
outside of perhaps saying, why did people not get into the 
Aleutians sooner.
    I think what the problem comes down to in the end is who is 
interpreting the scientific record. There is a huge amount of 
information, and unfortunately, I mean, my take from the BiOp 
is it is almost as though we have not learned anything, and 
that is so far from the truth. So much has been published. We 
know so much more today. And if it was not for congressional 
support, we would literally still be in the forest.
    So, we know a lot more. I think really the issue is the 
interpretation of----
    Mr. Young. How would we correct that, because this is what 
I am asking. NMFS is an agency that has no real qualification 
for anything, and they are maintaining their brown envelope 
jobs. How would we do that, independently, or how could that be 
done?
    Dr. Trites. And this would be just be my opinion----
    Mr. Young. It is my opinion, too, but you go ahead.
    Dr. Trites. I think the Agency has some excellent 
scientists, and some of the leading marine scientists, marine 
mammal scientists as well. The trouble comes down to who in the 
end is going to help write these management documents?
    I do not think it is a leading scientist. They are not 
raising their hand to volunteer for this. And I think until 
there is a system put in place where you ensure that the best 
scientists help interpret the scientific record as opposed to 
perhaps, from my impression, it is more like looking for 
volunteers who will help write these. I think then the system 
is open to abuse, and perhaps some of the people writing it do 
not necessarily have the qualification to understand the 
science that has been done.
    Perhaps there should be a better relationship between 
protecting resources and science, and in particular, not just 
the science done within the Agency, but also science done by 
the non-Agency.
    Mr. Young. What I am saying, though, they write this 
thing--Mr. Chairman, if I may.
    Mr. Hastings. Go right ahead.
    Mr. Young. I could take this panel of four here--I do not 
agree with Dr. Ragen, that is OK, but he has got to be on this 
side anyway--and probably interpret the science. What you are 
telling me, the science is not bad in NOAA, it is the people. 
And I asked the question, who writes it? So, maybe we ought to 
have an independent peer board involved in the interpretation 
of the science, because they cannot interpret themselves, Mr. 
Chairman. You do not have to answer that, but I would like to 
think about that anyway.
    Mr. Hastings. That may be something that we should look at 
directly. There are a lot of ``what ifs'' involved in Dr. 
Trites' response.
    I have no other questions for this panel. Mr. Young, if you 
would like to ask more, then I will yield to you?
    Mr. Young. I want to thank the panel. This is my 40th year 
on marine mammal and fisheries, and this issue is over actually 
20 years old. It started earlier than that. It started with the 
Endangered Species Act. And we have to straighten it out 
because if we are going to do these things and give faith back 
into the government, there has to be accountability. That is 
why I am interested in the concept of an independent panel. You 
guys all may be paid a job, you do not know. I will ask for 
volunteers and see how many do it.
    But we have to do something that makes this work, or I 
would just as soon dis-fund the organization. This is my pet 
peeve. If you are not doing the job, if you run an agenda 
without putting all the shareholders in it, we are doing a very 
poor job. And we as congressmen have the oversight privileges 
in actually funding these agencies. So, I think that is our 
job. And if they are not doing it correctly, let them go out 
and ask with a tin cup.
    Mr. Hastings. Well, I want to thank the panel very much for 
your testimony. And as usual--I will not say as usual, but many 
times questions arise afterwards. If we submit questions to 
you, if you would respond in a timely way, I would very much 
appreciate it.
    I will dismiss this panel, and at the same time we will 
call up our third and final panel. We have Mr. Todd Loomis, 
Government and Industry Affairs with Cascade Fishing, Inc., Mr. 
Dave Little, President of the Freezer Longline Coalition, Mr. 
Rudy Tsukada, President of Aleut Enterprise, LLC, and Mr. 
Michael LeVine, Senior Counsel of Oceana.
    Thank you all for joining me. And by now you have heard, if 
you were sitting through the first two panels, what the ground 
rules with the timing lights in front of you.
    Your entire statement that you have submitted will appear 
in the record. The entire statement will. And so, I would ask 
you to, with your oral statements, to keep it confined, if you 
would, to the five minutes.
    And, again, the timing lights, when the green light is on, 
that means you are doing very, very well. When the yellow light 
goes on, it means you have one minute, and when the red light 
goes on, that means that the five minutes have expired.
    So, Mr. Loomis, we will recognize you, Government and 
Industry Affairs with Cascade Fishing. You are recognized for 
five minutes. Turn on that mic.

  STATEMENT OF TODD LOOMIS, GOVERNMENT AND INDUSTRY AFFAIRS, 
                     CASCADE FISHING, INC.

    Mr. Loomis. Good morning, Mr. Chairman, and thank you for 
the opportunity to be here today. For the record, my name is 
Todd Loomis, and I work for Cascade Fishing, a company that 
catches, processes, and sells frozen seafood. We have been in 
business since 1988 and are the largest single vessel quota 
holder of Atka mackerel.
    Our company has also been involved in research in the 
Aleutians for nearly a decade.
    We employ 110 individuals, and our payroll will exceed $4 
million this year, but we have been deeply impacted by the 
Biological Opinion.
    I would like to accomplish several things today. I will 
begin by describing how the closures in the Aleutians are 
impacting businesses and people, how the BiOp's analysis 
presented no evidence that fisheries were impacting sea lions. 
I will provide some examples of how the economic analysis was 
insufficient, and then I will close with suggestions for how we 
should proceed from here.
    Prior to the closures, each year we fished about 140 days 
in the Aleutians. Under the closures, we lost about 70 of those 
days at a cost of just under $4 million to our crew, vendors, 
the State of Alaska, and our CDQ partner, APICTA.
    NMFS estimated aggregate annual losses of up to 750 jobs 
and $83 million, but the closures also impact the U.S. trade 
balance and exports to countries such as China, Japan, and 
Korea. Losses in the trade imbalance could be even more 
dramatic in coming years if the current measures are kept in 
place.
    The North Pacific fisheries are among the best managed in 
the world, and we are fortunate to be part of the Amendment 80 
sector. Amendment 80 ended nearly 20 years of Olympic style 
derby fishing and allowed us to form harvesting cooperatives. 
This has resulted in stability for our sector and increased 
earnings for our crew.
    Amendment 80 also brought additional costs and monitoring 
requirements for our fisheries, but these came with the 
benefits of being able to very accurately manage and monitor 
our catch. I am very proud of our company, our industry, and 
the benefits that we provide to our employees and the Nation, 
but the BiOp and the fishery closures threaten to derail all of 
our hard work and progress.
    NMFS has put our livelihood at risk by instituting fishery 
restrictions in an area twice the size of New England and 
foreclosing on the harvest of over 70 million pounds of 
mackerel. As you heard this morning from representatives from 
the State's review panel, their case was anything but rock 
solid, and there is no established link between fisheries and 
the Steller sea lion decline.
    NMFS built their case around assertions that the Aleutians 
were an unproductive ecosystem, that a high fraction of the 
local biomass was being removed, and that sea lions were 
suffering from nutritional stress. But all of these statements 
are not true, Mr. Chairman, and the science simply does not 
support these claims. Both the public and independent 
scientists challenged NMFS on many of their assertions, and 
while much of the information was corrected in the final BiOp, 
the closures remain.
    The North Pacific Council made a herculean effort to review 
the draft BiOp and take public comment on it. They looked at 
the available science and made surgical recommendations that 
would have allowed mackerel fisheries to continue outside the 
critical habitat in the West and continue inside critical 
habitat in the Central Aleutians. The Council's motion passed 
unanimously, but was largely ignored by NMFS in the final BiOp, 
and they opted instead for sweeping fishery restrictions.
    Instead of preparing an environmental analysis for this 
action, NMFS should have prepared an EIS, which would have 
provided a more rigorous assessment of the impacts. The EA 
assumed revenue would be made up by moving to fisheries such as 
yellow fin and rock sole. Unfortunately, we are mackerel boats, 
and we earned a large portion of our catch history in the 
Aleutians. Our larger vessels need more crew and are costlier 
to operate than flat fish boats.
    As such, we do not have the quota portfolio necessary to 
make a wholesale change from mackerel and code to flat fish in 
the Bering Sea. And even if we did, it would not be a one-to-
one replacement for the revenue we have lost in the Aleutians.
    To state it plainly, Mr. Chairman, the information NMFS had 
before them simply does not support their findings or the 
fishery closures they have implemented. NMFS has been reluctant 
to proceed with a review similar to the one conducted by the 
States of Alaska and Washington, but I think that type of 
review is critical to bringing some sanity to this process.
    If NMFS will not accept the State's review, then they 
should conduct their own, but it must be one that is open and 
transparent, conducted jointly by NMFS and the Council. It 
should consider all of the scientific information and public 
comment to date, as well as the conclusions reached in the 
BiOp.
    In a recent meeting between several industry leaders and 
Dr. Lubchenco, we discussed this very type of review, and I am 
hopeful that it will be conducted as I have described.
    In closing, I would like to recommend that perhaps it is 
time for a broader scientific review of the sea lion programs. 
We have spent roughly $180 million and counting, and we still 
have many unanswered questions and are lacking crucial data. We 
need this information to make informed decisions as opposed to 
precautionary guesses at what needs to be done. Perhaps the 
National Science Foundation or a similar body should audit this 
program and prescribe some recommendations as to how we should 
proceed.
    I think this approach is the best way to get some of the 
basic questions answered so that we may truly understand what 
is happening with sea lions in the North Pacific.
    Thank you.
    [The prepared statement of Mr. Loomis follows:]

      Statement of Todd M. Loomis, Government & Industry Affairs, 
                         Cascade Fishing, Inc.

    Mr. Chairman, thank you for giving me the opportunity to testify on 
the recent Steller Sea Lion (SSL) biological opinion (BiOp) and the 
resultant Aleutian Islands fishery closures that were put in place 
earlier this year. I work for Cascade Fishing, Inc., a Seattle-based 
seafood company that has been in business since 1988 and one that is 
heavily dependent on the Aleutian Islands Atka mackerel and Pacific cod 
fisheries. Our company owns one catcher/processor and is the largest 
single-vessel quota holder of Atka mackerel. Our vessel catches, 
processes, and freezes various species of groundfish and in recent 
years has operated over 225 days each year in the Bering Sea, Gulf of 
Alaska, and the Aleutian Islands. Our company is also heavily involved 
in research and has partnered with NMFS, the University of British 
Columbia, and the University of Alaska Fairbanks on numerous projects.
    I'd like to accomplish several things in my testimony today. First, 
I want to describe our company so you can see how the unnecessary 
fishery closures that NMFS has imposed are impacting real businesses 
and real people. Second, I'd like to touch on the analysis that led to 
these closures and illustrate how NMFS failed to take into account 
important information that showed their analysis was flawed and that 
there is no evidence these closures will promote SSL recovery. And 
finally, I'd like to give you some examples of how the economic 
analysis (EA) that was prepared was insufficient for this highly 
controversial action. I'll close with several suggestions for a way 
forward including the idea of a high level scientific audit of NMFS' 
SSL scientific programs.
    Prior to the BiOp and implementation of the fishery closures, our 
vessel annually fished approximately 140 days in the Aleutian Islands 
targeting mackerel and cod. This year, under the new fishery closures, 
we lost about 70 fishing days in the central and western Aleutians. We 
estimate these lost days came at a cost of just under $4 million to our 
crew and vendors and we are just one of the affected companies. The 
combined loss for all participants in the Aleutian Islands fisheries 
was estimated by NMFS to be up to 750 jobs and over $83 million in lost 
annual earnings. There are seven catcher processors and several catcher 
vessels that participate in the mackerel fishery and all have been 
similarly impacted by the fishery closures NMFS has imposed. We expect 
losses to be even bigger over the next few years if NMFS continues the 
measures that are now in place.
    As a seafood company, we produce high-quality all natural, 
affordable frozen food that we believe is one of the best protein 
sources in the world. We are also exporters, with most of our product 
going overseas to China, Japan and Korea, a plus for the U.S. trade 
balance. And most importantly, we create and sustain jobs during these 
uncertain economic times. Our company employs 110 people and our 
payroll will exceed $4 million this year.
    The North Pacific fisheries are among the best managed in the 
world. We have a healthy resource, conservative management by the North 
Pacific Fishery Management Council (Council), and we are part of a 
catch share program created by Amendment 80 (A80) to the Fishery 
Management Plan for the Bering Sea and Aleutian Islands. A80 ended 
nearly 20 years of Olympic-style derby fishing for our sector and 
empowered us to form harvesting cooperatives. We have taken full 
advantage of this opportunity and have fished as a member of a 
cooperative since the program's inception in 2008. A80 has resulted in 
stability to our sector and increased annual pay for our crew by 
enabling us to operate more efficiently. While A80 brought additional 
costs and monitoring requirements it has resulted in improved 
management and conservation measures for our fisheries. We now carry 
two fisheries observers at all times, have electronic monitoring of our 
catch and fishing locations, use motion-compensated scales to weigh all 
catch, and every haul is sampled by an observer. All of these tools and 
technologies have enabled us to very accurately manage and monitor our 
catch such that we can manage harvest very precisely. We are very proud 
of our company, the industry we work in, the accomplishments we've 
made, and the benefits we provide to both our employees and the Nation. 
The BiOp and the fishery closures, however, threaten to derail all of 
our hard work and efforts.
    To put this at risk, NMFS surely must have had strong evidence and 
scientific proof that fisheries were causing jeopardy and adverse 
modification for SSL before closing or restricting fisheries in 145,000 
square miles of ocean (that's more than twice the size of New England 
or roughly the size of the Dakotas) and causing over 32,000 mt (70 
million lbs.) of mackerel to become unavailable for harvest and sale? 
Unfortunately, if you review the BiOp, I think you'll come to the same 
conclusion that the States of Washington and Alaska came to in their 
recent review of the BiOp--the information that NMFS had before them 
does not support a jeopardy or adverse modification finding and there 
is no established scientific link between fisheries and the SSL decline 
or recovery. Also recall that, as a whole, the western distinct 
population segment (DPS) of SSL has increased in numbers over the past 
decade to the point that they may be on track for downlisting. With 
this BiOp however, NMFS has chosen to manage SSL for recovery in sub-
units smaller than the DPS, which we believe is not consistent with the 
letter or spirit of the Endangered Species Act.
    To put it plainly Mr. Chairman, what you have is an agency that is 
taking what it deems are `precautionary measures' that will likely have 
no impact on the status of SSL, but they are having a profound negative 
impact on the commercial fishing industry, support services, and 
communities. Much of the work that the public and the Council have done 
to participate in the process has fallen on deaf ears. Critiques of the 
analysis by independent scientists were dismissed and the work of the 
Council to develop more practical measures designed to meet NMFS 
criteria were ignored. To date, responses from NMFS have not been 
received by anyone that took the time to review and submit comments on 
the draft BiOp and the interim final rule and that is not acceptable. 
The process that NMFS has undertaken has been driven by an artificial 
timeline and a pre-conceived notion that the problem is fisheries in 
spite of the fact that no scientific link to fisheries has been 
established. NMFS has not responded to public comments as is common 
practice with Federal actions of this nature and in my opinion, did not 
allow for adequate external review of the BiOp (including its 
conclusions and mitigation measures) prior to its release.
    I think you'll also find that many of the statements that NMFS made 
in the draft BiOp and then later corrected based on public input (e.g., 
the Aleutians are an unproductive ecosystem) should have resulted in 
different conclusions or persuaded NMFS to modify the fishery closures 
they originally proposed. For example, NMFS' original assertion in the 
draft BiOp that fisheries were removing a high fraction of the local 
biomass of mackerel was turned on its head when challenged in public 
comments. In reality, the fishery in the western Aleutians was shown to 
have a relatively low harvest rate--a rate that was even lower than 
other areas of the Aleutians where the SSL population is more stable. 
There are several other examples of areas where NMFS' draft BiOp 
reached to make a case that fishing was affecting SSL and each of their 
arguments fell apart in the face of comments and information brought 
forward by outside scientists and the public. In some cases NMFS did 
modify the final BiOp to correct their mistakes, but they failed to 
measurably change their conclusions and resulting fishery closures. One 
would think that NMFS would have reconsidered the closures and the 
possibility that nutritional stress wasn't to blame, but they just 
rolled on as if the closures were a pre-ordained outcome that couldn't 
be modified because they were too far down the road.
    In my view, NMFS has become entrenched in their nutritional stress 
hypotheses and cannot seem to find a way to believe that perhaps 
something else caused the decline or is preventing recovery. I find 
this very frustrating in light of the fact that 13 of 14 nutritional 
stress indicators that have been studied show that nutritional stress 
is not present in SSL. I remain hopeful, Mr. Chairman, that you and 
your committee can bring some sanity to this process--a process that 
has, without good cause, closed fisheries upon which my company's 
livelihood depends.
    What is particularly appalling is the total disregard NMFS had for 
the efforts put forth by the Council who worked under an extremely 
tight timeline to address a serious management issue. In my opinion, 
the Council did an admirable job given the schedule set by NMFS. The 
Council took the time and made the effort to digest the huge amount of 
information that NMFS made available when it released the draft BiOp on 
August 2, 2010. The Council and public had a mere two weeks to review 
nearly a thousand pages of materials and provide substantive comments 
during a special Council session that was held August 16--20, 2010. It 
was made clear that this would be the only opportunity to comment as 
there would be no time for the Council to make adjustments to the 
proposed fishery closures at their regularly scheduled October 2010 
meeting.
    While no small task, the Council deliberated and unanimously passed 
a motion that recommended NMFS consider less restrictive mackerel 
fishery closures in the western and central Aleutians. The Council's 
motion was crafted to meet SSL forage needs while preserving as much of 
the commercial fishery as possible. To do so the Council relied heavily 
upon the available scientific information to propose measures that 
allowed fishing outside of critical habitat in the western Aleutians 
and a geographically spread out fishery inside critical habitat in the 
central Aleutians. The Council also relied on appropriate science to 
allow fishing in a limited portion of SSL critical habitat where 
research had shown relatively low commercial harvest rates of mackerel 
and protected areas where it appeared harvest rates of the local 
biomass were larger than they thought prudent given the status of SSL. 
In most cases the Council's alternative used science that NMFS itself 
had done (Alaska Fisheries Science Center has done ongoing studies to 
examine local biomass and harvest rates in areas adjacent to SSL 
sites). Unfortunately, NMFS largely ignored the Council's motion in the 
final BiOp and instead of using science to make surgical changes to the 
fisheries they made sweeping changes and largely ignored the Council's 
recommendations and the most relevant scientific studies.
    I'd also like to point out that the EA that NMFS prepared for this 
action was woefully deficient. The agency should have completed an 
Environmental Impact Statement (EIS) because the proposed major Federal 
action has clearly significantly affected the quality of the human 
environment (i.e., had a significant economic impact). An EIS is what 
was prepared during an evaluation of SSL conservation measures in the 
early 2000's. Given the significance of the proposed action and the 
clear economic impacts, NMFS should have prepared an EIS, which would 
have provided a more robust and rigorous assessment of the proposed 
action and its impacts.
    When we got locked out of the mackerel fishery it was assumed in 
the EA that we would simply move to other fisheries to make up the lost 
revenue. The EA hypothesized that we could make up the estimated 10 
weeks of lost fishing time in the Aleutians by moving into the rock 
sole fishery for 3 weeks and yellowfin sole for the remaining 7 weeks. 
While a nice idea, it isn't that simple Mr. Chairman. The EA correctly 
points out the size difference between mackerel boats and flatfish 
boats--our boats are larger, we have more crew, and they are costlier 
to operate. We also earned a different quota portfolio because of the 
fisheries we historically participated in. Without sufficient 
prohibited species and other necessary quota allowances, expansion into 
the more multi-species target fisheries such as flatfish is nearly 
impossible. If it were profitable for us to target rock sole and 
yellowfin sole instead of mackerel we would have done so years ago, but 
that is not the case and we do not have the flexibility to change. I'm 
also quite certain that other members of our cooperative do not want us 
crowding them out of their traditional fishing grounds when we should 
be fishing mackerel and cod in the Aleutians.
    As a final point, Mr. Chairman, I would like to call the 
Committee's attention to some recent developments that may point to a 
way forward, at least in part. In August, several industry leaders had 
a meeting with Dr. Lubchenko, head of NOAA. In that meeting we 
discussed NMFS plans for a scientific evaluation of the BiOp by the 
Center for Independent Experts (CIE). We believe that NMFS is pursuing 
a CIE review partly as a response to the scientific review recently 
completed by the States of Washington and Alaska. Unfortunately, the 
CIE process is not an open process like the one the States used, and 
NMFS has up to now repeatedly refused to include the North Pacific 
Fishery Management Council in the design and implementation of any 
review of the SSL BiOp despite clear guidance in the Magnuson-Stevens 
Act (MSA) that such peer reviews should be jointly conducted by NMFS 
and the Council.
    At the August meeting, Dr. Lubchenko agreed that the CIE review 
should be transparent, and that the Council should be involved in its 
design and implementation. At the Council's October meeting, they 
accepted this apparent change of heart, adopted terms of reference for 
the CIE review, and appointed a workgroup to work with NMFS to finalize 
the process for review of the BiOp. We support this effort, and hope 
the Committee will monitor this process as it unfolds. It is imperative 
that any further review be conducted in as open and transparent a 
manner as that employed by the States, and that all of the scientific 
information regarding SSLs be evaluated as well as NMFS conclusions. 
Following such an evaluation, there should be a complete review of the 
fishery restrictions and revisions to them as appropriate. This should 
be done through the MSA process, with full participation by the 
Council, and not behind closed doors with artificial timelines as was 
done with the current BiOp and fishery closures.
    We also believe that it is time for a broader review of NMFS 
scientific program for SSLs. Over the past decade or so, the United 
States has spent roughly $180 million to better understand the factors 
affecting SSL recovery. Yet, when it comes time to make decisions 
regarding our fisheries, crucial data are lacking and we are left with 
these ``precautionary measures''. Perhaps the National Science 
Foundation or a similar high level scientific organization should audit 
this program and make recommendations on how we can better use taxpayer 
funds to get at the basic scientific questions about SSL population 
status and factors affecting them.
    In conclusion Mr. Chairman, I'd like to ask this committee to 
embark on a mission to rein in NMFS and the broad latitude they have 
displayed during the development of this BiOp to interpret the science 
as they see fit and to eliminate economic activity under the guise of 
being precautionary. Our company supports science and the use of 
science in the decision making process, but we cannot support what has 
been done here. If fisheries had been clearly implicated in the SSL 
issue we would accept the need for fishery restrictions and adjust to 
the necessary changes. But lacking that scientific proof and having 
NMFS simply guessing at what needs to be done is not acceptable. NMFS 
is supposed to be our Nation's premier scientific agency, but this 
reckless disregard for science and the law is untenable. In our current 
economic situation our government should not be undertaking this type 
of devastating action.
                                 ______
                                 
    Mr. Hastings. Mr. Loomis, thank you very much for your 
testimony.
    Next, we will go to Mr. Dave Little, who is President of 
the Freezer Longline Coalition. You are recognized for five 
minutes, Mr. Little.

             STATEMENT OF DAVID LITTLE, PRESIDENT, 
                   FREEZER LONGLINE COALITION

    Mr. Little. Thank you, Chairman Hastings, Congressman 
Young. My name is David Little. I am here today to testify as 
the President of the Freezer Longline Coalition. I am also the 
President of Clipper Seafoods.
    The Freezer Longline Coalition would like to thank the 
Committee on Natural Resources for holding this oversight 
hearing. I believe it is particularly important for Congress to 
address the questions of whether the science contained in the 
Steller sea lion Biological Opinion supports the decisions by 
NMFS to move forward with an interim final rule that imposes 
vast closures on the Aleutian Islands, Pacific cod, and Atka 
mackerel fisheries.
    The Aleutian Islands cod fishery is important for the 
Freezer Longline fleet. Many vessels in our fleet have 
specialized in the high value fish that are caught in this 
area. For some members, this makes up 50 percent of their 
revenues.
    As the interim final rule is still in its first year, the 
full effect of the rule are not yet well known. However, the 
anticipated economic impacts in the BiOp state that the losses 
could be as high as 44 percent of gross revenue.
    The loss of valuable Aleutian Islands cod will have long-
term unrecoverable damages to the Freezer Longline fleet.
    This Committee has asked, does the science support the 
decision? No, Mr. Chairman, it does not. The NMFS Biological 
Opinion was not reviewed by any independent scientific panels, 
despite NMFS' public statements that it would undergo such a 
review. In fact, the only peer reviewed analysis was recently 
conducted, as you heard this morning, by scientists 
commissioned by Washington and Alaska States.
    This review panel found, and we concur, that the 
determination of jeopardy by National Marine Fisheries Service 
is not supported by the best available science.
    It is unbelievable to us that the scientific underpinnings 
of the BiOp and the RPAs were never peer reviewed, even though 
thousands of pages of public testimony directly criticized the 
science. This is about bad science costing jobs and driving 
well-managed, sustainable fisheries out of business. The 
fishing fleet has been forced into litigation because the 
Agency has made an irresponsible decision that, if allowed to 
stand, will set a new legal precedent.
    The Agency cannot be allowed to unlawfully regulate 
sustainable American fisheries based upon bad science to 
support a political agenda of a select few.
    The single basis for the National Marine Fisheries 
Service's jeopardy and adverse modification determination is 
the hypothesis that fisheries compete with Steller sea lions 
for food. This is otherwise known as the nutritional stress 
theory. The Agency's stated position is that it does not know 
whether nutritional stress is even occurring, and even if the 
evidence showed that nutritional stress is occurring, NMFS does 
not know whether the fisheries are the cause of such stress.
    As acknowledged by the Agency, the Biological Opinion 
findings and supporting information are equivocal at best.
    NMFS's hypothesis that fisheries affect Steller sea lions 
is contradicted by current studies that were ignored. A study 
mandated and funded by Congress, Calkins 2008, found that there 
is no correlation between the Freezer Longline cod fishery and 
Steller sea lion population dynamics. Unfortunately, this study 
receives essentially no attention in the Agency's Biological 
Opinion.
    Throughout the BiOp, the Agency ignored good science for no 
other reason than science did not support the Agency's 
preconceived conclusions.
    Mr. Chairman, given the best scientific information 
available, there is little factual basis to support the 
restrictions on the fisheries. The scientific record does not 
support NMFS' findings of jeopardy and adverse modification. 
Those findings are flawed for several reasons. One, they are 
based only a small subsection of the Western DPS, and not the 
Western DPS as a whole. They are based on the Agency's 
assessment of whether the DPS is meeting recovery criteria and 
not ESA Section 7 standards. They are unsupported by any 
determination that fisheries cause jeopardy in adverse 
modification, and they are not consistent with the best 
available science.
    The BiOp focuses upon a foregone conclusion that is built 
largely on advocacy rather than science. The authors of the 
BiOp make selected use of data and scientific papers to support 
their conclusion, while at the same time, ignoring or 
dismissing any data that might not support the adopted 
position.
    Thank you again for the Committee's time and resources and 
the opportunity to speak on behalf of the Freezer Longline 
Coalition. That concludes my comments.
    [The prepared statement of Mr. Little follows:]

    Statement of David Little, President, Freezer Longline Coalition

    Good afternoon Chairman Hastings, Congressman Young and other 
Members of the Committee,
    My name is David Little, I am here today testifying as the 
President of the Freezer Longline Coalition. I am also the founder and 
President of Clipper Seafoods, Ltd. I have served as a member of the 
North Pacific Fishery Management Council's Steller Sea Lion Mitigation 
Committee as well as a member of the Council's Advisory Panel and have 
been involved for more than 15 years in following Steller sea lion 
science.
    The Freezer Longline Coalition would like to thank the Committee on 
Natural Resources for holding this oversight hearing and especially for 
this opportunity to provide comments on NOAA's Steller sea lion science 
and fishery management restrictions. I believe it is particularly 
important for Congress to address the question of whether the science 
contained in the Steller Sea-Lion Biological Opinion supports the 
decisions by NMFS to move forward with an ``interim'' final rule and 
impose vast closures on the Aleutian Islands Pacific cod and Atka 
mackerel fisheries.
    The Freezer Longline Coalition represents a Washington and Alaska 
based fleet that participates in the Aleutian Islands Pacific cod 
longline fishery. The Aleutian Islands cod fishery is important for the 
freezer-longline fleet as a whole, as well as for individual vessels; 
many vessels in our fleet have specialized in the high value fish that 
are caught in these areas. For some members, up to 50% of their 
revenues have come from Aleutian Islands cod. Because the interim final 
rule is still in the first year of its implementation, the full 
financial effects of the rule are not yet well known. However, the 
anticipated economic impacts of the rule, as evaluated by NMFS in the 
BiOp state that resulting losses could be as high as 44% of gross 
revenue. Certainly the loss of access for valuable Aleutian Islands cod 
will have long-term, unrecoverable damages to the freezer longline 
fleet.
    This Committee has asked: Does the Science Support the Decisions? 
No, Mr. Chairman, it does not. My testimony and documents we have 
submitted for the record show how NMFS has used incomplete and 
misleading science to impose sweeping and unnecessary restrictions on 
the Freezer longline fleet.
    Mr. Chairman, NMFS's biological opinion supporting the interim 
final rule was not reviewed by any independent science panels or 
independent individual experts before the rule's implementation, 
despite NMFS's public statements that it would undergo such a review. 
In fact, the only peer reviewed analysis of the science supporting 
NMFS's decision was recently conducted by a panel of well-established 
scientists commissioned by the states of Washington and Alaska. This 
review panel found, and we concur, ``That the determination of jeopardy 
by NMFS is not supported by the best available science.''
    It is unbelievable to us that the scientific underpinnings of the 
BiOp and RPA's were never peer reviewed, even though thousands of pages 
of testimony were received by the agency much of it questioning and 
directly criticizing the science. This is about bad science, costing 
jobs and driving well-managed sustainable fisheries out of business. 
The freezer longline fleet has been forced into litigation because the 
agency has made an irresponsible decision that if allowed to stand, 
will set a new legal precedent in a very fundamental respect. We have 
also challenged the rule because we cannot idly sit by while the agency 
proposes to unreasonably and unlawfully regulate sustainable American 
fisheries based upon bad science to support the political agenda of a 
select few.
    As to the content of the biological opinion, the single basis for 
NMFS's ``jeopardy and adverse modification'' determination is the 
agency's hypothesis that fisheries compete with Steller sea lions for 
food, otherwise known as the ``nutritional stress theory.'' However, 
the agency's stated position in the biological opinion is that it 
``does not know'' whether nutritional stress is even occurring in the 
sea lion population. And, even if the evidence showed that nutritional 
stress is occurring, NMFS states in the biological opinion that it does 
not know whether the fisheries are the cause of any such stress. As 
acknowledged by the agency the biological opinion's findings and 
supporting information are at best ``equivocal''. Good science and the 
legal requirements of the ESA do not permit the imposition of highly 
burdensome regulations based on this type of speculation.
    NMFS's statement that it does not have sufficient evidence to 
determine whether fisheries affect Steller sea lions is contradicted by 
current studies that were ignored by the agency. As an example, a study 
mandated and specifically funded by Congress, (Calkins 2008), found 
that there is no correlation between the freezer-longline cod fishery 
and Steller sea lion population dynamics. Unfortunately this study 
receives essentially no attention in the agency's biological opinion 
and this is just one case. Throughout the BiOp the agency ignored good 
science for no other reason than the science did not support the 
agency's preconceived conclusion.
    Additionally, the agency's conclusion that the entire Steller sea 
lion Western Distinct Population Segment (WDPS) is ``jeopardized'' is 
not consistent with the fact that the WDPS as a whole is experiencing a 
robust increase in abundance. In fact, again according to NMFS, the pup 
count in the WDPS has increased14% (from 2001-02 to 2009) and the non-
pup trend site count has increased 12% (from 2000-2008). The NMFS 
population estimate of the WDPS as of 2009 is greater than 75,000 with 
50,040 in the U.S. portion. Other estimates used in the past such as 
(Trites and Larkin 1996) suggest a population of 56,712 for the U.S. 
portion in 2009. For reference, the ESA downlisting criteria for the 
U.S. portion is 53,100 by 2015. We do not understand how a DPS that is 
increasing in abundance, and is indisputably in better condition than 
it was a decade ago, can also be said to be ``jeopardized'' by a single 
action that has been occurring over the course of the same decade. 
Indeed, there is no legal or scientific support for such a conclusion. 
The agency's decision is not consistent with the evidence and its 
conclusions are illogical, arbitrary, and unreasoned.
    Mr. Chairman, given the best scientific information available, 
there is little factual basis to support the restrictions on the 
fisheries in the Aleutian Islands. More generally, the scientific 
record does not support NMFS's findings of jeopardy and adverse 
modification, as set forth in the 2010 BiOp. Those findings are flawed 
because, among other things:
          they are based only on a small subsection of the WDPS 
        and not the WDPS as a whole;
          they are based on the agency's assessment of whether 
        the DPS is meeting recovery criteria, and not ESA's Section 7 
        standards;
          they are unsupported by any determination that any 
        fisheries cause ``jeopardy and adverse modification''; and
          they are not consistent with the best available 
        science and were made without consideration of scientific data 
        and information that are directly relevant to the issues 
        addressed in the BiOp.
    The BIOP failed to present a careful analysis of all relevant 
factors and information and then failed to arrive at a reasoned 
conclusion that is supported by factual evidence. The BiOp focuses upon 
a foregone conclusion that is built largely on advocacy rather than 
science. The authors of BiOp then make selective use of data and 
scientific papers to support their conclusion while at the same time 
ignoring or dismissing any data that might not support the adopted 
position.
    In closing I would like to quote Dr. Ian Boyd, a leading marine 
mammal researcher. ``The document lacks a rigorous approach to the 
assessment of `evidence' and fails to use evidence consistently; 
information that has much associated uncertainty when first introduced 
in the analysis gradually drifts to information of high certainty as 
the document develops'' Dr. Boyd continues ``one should not condone the 
twisting of data to achieve what is, in essence, a political 
objective.'' This view was echoed by the North Pacific Fishery 
Management Council's Scientific and Statistical Committee, which 
concluded upon review of the draft biological opinion that ``. . .the 
conclusion chapter has retained some tone of advocacy, stating in fact 
as some conclusions that still have a great deal of uncertainty about 
them.''
    Thank you again for the Committee's time and resources and the 
opportunity to speak on behalf of the FLC.
    The Freezer Longline Coalition submitted for the record the 
following documents:
        1.)  Comments on SSL 2010 Biological Opinion submitted to the 
        Scientific Review Panel, June 2, 2011. These comments also 
        contain public comments to date submitted by the FLC to NMFS on 
        the draft and final BIOP.
        2.)  Comments on SSL 2010 Biological Opinion submitted by the 
        to the Scientific Review Panel, August 22, 2011
        3.)  State of Washington and Alaska Scientific Review Panel, 
        final report
        4.)  Legal filings Freezer Longline Coalition v. Lubchenco et 
        al.
                                 ______
                                 
    Mr. Hastings. Thank you very much, Mr. Little.
    And next, we will call on Mr. Rudy Tsukada, President of 
Aleut Enterprise, LLC. Mr. Tsukada, you are recognized.

             STATEMENT OF RUDY TSUKADA, PRESIDENT, 
                     ALEUT ENTERPRISE, LLC

    Mr. Tsukada. Good morning, Mr. Chairman, Congressman Young. 
My name is Rudy Tsukada appearing on behalf of Aleut 
Enterprise, LLC, a wholly owned subsidiary of the Aleut 
Corporation, and we operate a non-8A fuel distribution business 
of Adak Island.
    The Aleut Corporation was created pursuant to Alaska Native 
Claim Settlement Act to represent the native people of the 
Aleutian region by promoting economic development and social 
welfare, and preserving their traditional ways of life. Our 
shareholders are native Aleuts, their families, and their 
descendants.
    I am here today because I believe the National Marine 
Fisheries' groundfish restrictions have severely undermined any 
possibility of economic development on Adak Island, and 
directly impacts the welfare of the Aleut people.
    Adak Island sits on the Western edge of the Aleutian 
Islands, 1,300 miles southwest of Anchorage. The island is the 
25th largest in the United States, and according to the U.S. 
Census Bureau, is currently home to 300 residents.
    Nine thousand years ago, the Aleuts became the first 
inhabitants of Adak Island. They hunted whales, seals, otters, 
sea lions, and island birds, and fished in Adak's rich waters. 
There is no better or stronger or more caring constituency than 
my shareholders. They are not just sitting there dreaming about 
sea lions; they actively utilize them, co-inhabit with them. 
They are part of their culture.
    In 1998, the Aleut Corporation acquired Adak and its 
facilities in a land exchange with the U.S. Navy and the 
Department of the Interior. In return for Adak, the Navy and 
Interior Department received other lands held by the Aleut 
Corporation elsewhere on the Aleutian Islands. We thought this 
was a good deal. We wanted to make something happen to Adak and 
to grow it.
    Therefore, the Aleut Corporation invested large monies into 
companies like mine, Aleut Enterprise, to promote economic 
development and to try to create businesses in these far flung 
regions in Western Alaska.
    The NMFS fisheries and restrictions on the Aleutian Islands 
is a severe concern to us. Much of my testimony written has 
already been repeated, so I will go ahead and try to emphasize 
some of the other aspects.
    The decline that we saw in the first quarter of this year 
was more than a 50 percent decline in my fuel sales. This was 
100 percent related to the restrictions imposed by these 
regulations--unfounded regulations. What is the impact of that? 
Congressman Young, you understand the importance of heating 
fuel prices in Alaska. In Adak, because of the fisheries, we 
can sell heating fuel for $4.49. Those were the June, 2011 
prices per gallon. Because of these restrictions and lower 
volumes, what you will now see is us pricing fuel in volumes 
similar to our neighbors. Our closest neighbor is Atka and St. 
George. Atka at the time was paying $7.43 per gallon for 
heating oil, St. George, $6.34. This is not just a matter of 
lost opportunity, but it is a matter of ability to heat homes.
    Realizing these impacts of the NMFS' rules that we believe 
violates Magnuson-Stevens, NEPA. It goes directly contrary to 
the Environmental Justice Proclamation by this current 
Administration. We had to something to ensure that this would 
not happen to our shareholders.
    Several hundred years ago, the Russians came in and 
enslaved the Aleut people. That was a tragedy. World War II, 
both the Japanese and the U.S. Government sent my shareholders 
to intern camps, a forced relocation. This is no different. 
This is something that is completely avoidable, makes 
absolutely no sense, and is certainly not justified by science. 
But the impacts are being felt already, and will be felt 
further on.
    My previous job was with the Quinault Nation's Enterprise 
Board in Taholah, Washington. While I was not a part of that 
discussion of the marbled murrelet and the owls, I did see what 
the impacts were. I will not allow that to happen within any of 
the powers that I have while I work for Aleut Enterprise.
    When you look at the graphs, I can show you another graph, 
a graph that shows the number of shareholders in region. It 
looks very much like the Steller sea lion graphs. How can I go 
back to my shareholders and tell them that not only are they 
second class citizens once again, they are now being placed 
underneath the Steller sea lion, animals that they care about, 
that they need, that they interact with?
    And with my time up, I will end my testimony there.
    [The prepared statement of Mr. Tsukada follows:]

  Statement of Ryuichi Rudy Tsukada, President, Aleut Enterprise, LLC

    Good morning, Mr. Chairman. My name is Rudy Tsukada, appearing on 
behalf of Aleut Enterprise, LLC, a wholly-owned subsidiary of the Aleut 
Corporation that operates a fuel distribution business on Adak Island. 
The Aleut Corporation was created pursuant to the Alaska Native Claims 
Settlement Act (``ANCSA'') to represent the Native people of the 
Aleutian region of Alaska by promoting their economic and social 
welfare and preserving their traditional ways of life. Its shareholders 
are Native Aleuts, their families, and descendants. National Marine 
Fisheries Service (NFMS) groundfish restrictions have severely 
undermined the economic development of Adak Island and the welfare of 
the Aleut people.
    Adak Island sits on the western edge of the Aleutian Islands in 
Alaska, 1300 miles (a three-hour jet ride) southwest of Anchorage. The 
island, the 25th-largest in the United States, is currently home to 
over 300 residents, all of whom live in the City of Adak. Nine-thousand 
years ago, the Aleuts became the first inhabitants of Adak Island. They 
hunted whales, seals, otters, sea lions, and islands birds and fished 
Adak's freshwater streams and surrounding seas. Adak was later settled 
by the Russians and eventually purchased by the United States. In the 
early 1940s, Adak Island became the site of a military base operation 
by the Army Air Corps for offensive action against Japanese military 
forces occupying the Aleutian Islands of Attu and Kiska. By the spring 
of 1944, an estimated 90,000 military personnel lived on Adak Island, 
preparing for strikes against Axis forces in the Pacific arena. After 
World War II, Adak continued to serve as a naval air station during the 
Cold War, but its population slowly dwindled over the years. The naval 
station formally closed in March 1997, and the EPA began performing 
cleanup of the site, which had been polluted by hazardous substances 
and explosives.
    In 1998, the Aleut Corporation acquired Adak and its facilities in 
a land exchange agreement with the U.S. Navy and Department of the 
Interior. In return for Adak, the Navy and Interior Department received 
other lands held by the Aleut Corporation elsewhere in the Aleutian 
Islands. The Aleut Corporation pursued the exchange in part because the 
island historically had been the location of an early Aleut community 
and in part because it saw value in the island's existing facilities. 
Since the Aleut Corporation acquired the land, numerous families have 
relocated to Adak. The Aleut Corporation has taken a very active role 
in the development of the city of Adak, taking action to bring new 
business to the community. For example, it formed Aleut Enterprise, LLC 
to encourage commerce on the island. Aleut Enterprise owns a Seafood 
processing facility on the island that processes Pacific cod, Atka 
mackerel, halibut, and other Bering Sea groundfish. Another of Aleut 
Enterprise's primary businesses in Adak is refueling marine vessels, 
many of which are fishing boats. In order to further promote economic 
development on Adak, in 2004, Congress granted the Aleut Corporation 
the exclusive right to the non-Community Development Quota (non-CDQ) 
directed ollock fishery in the Aleutian Islands Subarea of the Bering 
Sea-Aleutian Islands Management Area. The Aleuts have the right to 
assign their harvest rights to others within the Aleutian Island 
Subarea.
    NMFS fisheries restrictions in the Aleutian Islands related to 
concerns regarding Stellar sea lion populations threaten to destroy 
Adak's economy and the well-being of its people. In November of 2010, 
NMFS published its long-delayed biological opinion, or BiOp, on Stellar 
sea lions. Based on conclusions made in the BiOp, NMFS published an 
Interim Final Rule on December 13, 2010 that restricted fishing for 
Pacific cod and Atka mackerel in Management Areas 541, 542, and 543 of 
the western Aleutian Islands. These restrictions included broad fishing 
prohibitions in areas near suspected sea lion rookeries, including many 
areas directly offshore of the Aleutian Islands.
    In the BiOp, NFMS concluded that two of the seven subregions within 
the western distinct population segment (DPS) of Stellar sea lions were 
not meeting recovery goals and suggested nutritional stress as the 
cause. The fact is, however, that science does not back up this 
assertion. First, the western distinct population segment of Steller 
sea lions has increased in abundance over the past decade. According to 
NMFS, pup production across the western distinct population segment has 
increased 14 percent and non-pup production has increased 12 to 16 
percent. Second, the available data does not support NFMS' claim that 
sea lions aren't getting enough to eat. Of fourteen indicators of 
nutritional stress, NMFS identified reduced natality as the sole 
indicator to support its theory that chronic nutritional stress has 
caused Steller sea lion declines in the western Aleutian islands. The 
other thirteen indicators suggested that western distinct population 
sea lions were not nutritionally stressed. Furthermore, NMFS found that 
available groundfish forage inside critical habitat was actually higher 
in the western Aleutian Islands, where NMFS restricted fishing, than 
elsewhere, such as the Bering Sea and Gulf of Alaska. The NMFS 
conclusion that sea lions are under nutritional stress is contrary to 
the scientific evidence.
    NMFS even questioned its science. In a November 2010 memorandum to 
NMFS' Assistant Administrator for Fisheries, NMFS Alaska Region 
Administrator Jim Balsiger identified that: ``The controversy around 
this action centers on the lack of unequivocal evidence that groundfish 
fisheries impact Steller sea lions. Failure to implement fishery 
restrictions similar to the reasonable and prudent alternative in the 
biological opinion is likely to result in litigation by environmental 
organizations.'' Dr. Balsiger admitted that NMFS hastily forced 
unfounded, ideologically-based fisheries restrictions down the throats 
of rural Alaskans. Despite these facts, NMFS decided to completely shut 
down fishing for Pacific cod and Atka mackerel in Management Area 543--
an area about half the size of Texas--in the Aleutian Islands. NMFS 
also instated other, somewhat more limited closures, in central 
Aleutian Islands management areas 541 and 542.
    Realizing that the disastrous impacts of the NFMS rule--which 
violates the Magnuson-Stevens Fishery Conservation Act (MSA), the 
National Environmental Policy Act (NEPA), the Administrative Procedures 
Act (APA) and the Endangered Species Act (ESA)--the State of Alaska 
filed a lawsuit in U.S. District Court the next day against now-
departed Department of Commerce Secretary Gary Locke, National Oceanic 
and Atmospheric Administration (NOAA) Director Jane Lubchenco, and NMFS 
Alaska Region. Alaska Governor Sean Parnell said that ``The agency's 
conclusion that additional fishing restrictions are necessary is not 
supported by the best available scientific information. The drastic 
measures proposed by NMFS are simply not necessary given the overall 
health of the Stellar sea lion population. This decision will have 
immediate and significant impacts on local communities and fishermen in 
the area.'' The Aleut Corporation joined the lawsuit as amicus curiae 
because NMFS' restrictions on the fishing industry in the Aleutian 
Islands have severe negative impacts on the Aleut Corporation, its 
Native shareholders, and their communities, particularly the community 
of Adak. The NMFS restrictions harm Adak's economy, interfere with 
Aleuts' connection to their natural environment, and undermine the 
ability of the Aleut Corporation to pass the intended benefits of its 
pollock allocation along to the Aleut people.
    NMFS' restrictions will greatly shrink Adak's economy, which relies 
heavily on a vibrant fishing industry. Fishing vessels regularly visit 
Adak to purchase fuel, provisions, food, lodging, and other goods and 
services. The fisheries closures severely threaten Adak businesses, 
many of which are subsidiaries of the Aleut Corporation. Numerous fish 
processing facilities, including Aleut Enterprise subsidiary Aleut 
Fisheries, LLC, are a critical part of the Adak economy, providing jobs 
to the Aleut Community in and near Adak. Commercial fishing vessels 
that target Atka mackerel and Pacific cod account for the majority of 
Aleut Enterprise's total fuel sales. Based on my experience as the 
President of Aleut Enterprise, I believe that marine fuel sales in Adak 
are likely to drop by over 50 percent as a result of NMFS fisheries 
closures and restrictions. Furthermore, the fishing restrictions will 
result in a sharp decline in tax revenues to support Adak. Local taxes 
paid by Aleut Corporation companies comprise nearly two-thirds of the 
City of Adak's revenue base. The loss of business and subsequent loss 
of tax revenue will severely cripple the City's ability to provide 
municipal services to an already underserved community.
    In addition to harming Adak's economy, NFMS fishing restrictions 
adversely impact Native Aleut culture. The Aleuts have traditionally 
been very closely tied to their environment, including oceans, 
fisheries, and marine mammals. They have traditionally fished in the 
waters now classified as ``Management Areas 541, 542, and 543'' for 
thousands of years. Bureaucratic fishing restrictions in these areas 
sever the Native Aleuts' connection to their natural environment.
    NMFS restrictions on harvesting Pacific cod and Atka mackerel also 
undermine the ability of the Aleut Corporation, its Native 
shareholders, and the city of Adak to realize the economic benefit of 
its statutorily directed Aleutian Islands Subarea pollock allocation. 
The restrictions make it extremely impractical for vessels to fish for 
pollock in the Aleutian Islands Subarea. It is financially impossible 
for fishermen to fish for pollock in the Aleutians when fishing 
restrictions have closed access to the very locations inhabited by 
those pollock.
    This spring, realizing that the Aleut Corporation was not going to 
harvest its statutorily directed 2011 pollock allocation in the 
Aleutian Islands Subarea, NMFS reallocated the majority of the 
allocation to the Bering Sea Subarea. NMFS reallocated it to parties 
other than the Aleut Corporation, without providing any compensation to 
the Aleut Corporation for the value of the resource it was unilaterally 
taking away. Because NMFS fishing restrictions make it difficult, if 
not impossible, for the Aleut Corporation or their designees to harvest 
the Aleut Corporation's pollock allocation within the Aleutian Islands 
Subarea, the Aleut Corporation and its Native shareholders will 
continue to be unable to reap the benefits of its pollock allocation. 
In the future, when NMFS restrictions prevent the Aleut Corporation or 
its designees from harvesting the Aleut Corporation's pollock 
allocation, NFMS is likely to reallocate the Aleut Corporation's 
pollock allocation outside the Aleutian Islands Subarea and away from 
its intended beneficiaries. This will continue to prevent the Aleut 
Corporation and its Native shareholders to realize the benefits of its 
pollock allocation.
    Hopefully, the unfounded fisheries restrictions in Management Areas 
541, 542, and 543 of the Aleutian Islands will be reversed. While the 
lawsuit against the Commerce Department, NOAA and NMFS plays out, the 
Aleut Corporation asks the Committee to consider a provision that would 
allow the voluntary transfer of the Aleut Corporation's pollock 
allocation outside areas affected by the NFMS fisheries restrictions. 
This option already exists for Community Development Quota (CDQ) 
groups. According to existing law (16 U.S.C. Sec. 1855(i)(C)), CDQs may 
be reassigned or reallocated to another management area or subarea 
through a voluntary transfer. The option to voluntarily transfer its 
pollock allocation outside the Aleutian Islands subarea would allow the 
Aleut Corporation and its shareholders, many of whom live on Adak 
Island, to realize the benefit from is pollock allocation. This would 
be a small consolation for the Aleut people, whose economy and 
connection to the environment have been devastated by unnecessary 
government restrictions.
                                 ______
                                 
    Mr. Hastings. Thank you very much, Mr. Tsukada.
    And our last witness on this panel is Mr. Michael LeVine, 
Pacific Senior Counsel with Oceana. You are recognized for five 
minutes.

                 STATEMENT OF MICHAEL LeVINE, 
                 PACIFIC SENIOR COUNSEL, OCEANA

    Mr. LeVine. Thank you, Chairman Hastings and Representative 
Young. Thank you for the opportunity to present testimony 
today.
    Oceana is an international non-profit organization 
dedicated to using science, law, and policy to protect and 
restore our oceans.
    Our Pacific work is headquartered in Juneau, Alaska, and I 
along with nine colleagues live and work there.
    Mr. Chairman, we all depend on healthy oceans, and in 
Alaska perhaps more than other places, ocean ecosystems are 
central to our economic and cultural well-being. Healthy ocean 
ecosystems include long-term sustainable fisheries that provide 
jobs and support communities.
    The conversation we are having here today is about how best 
to achieve that shared goal. We are having that conversation in 
the context of the Endangered Species Act because our 
management choices have pushed us up against that backstop.
    The ongoing decline and failure to recover of the Western 
population of Steller sea lion has forced us to reconsider 
fisheries' management decisions under very specific conditions. 
Our shared goal should be to move out of this box, to listen to 
the story being told by the Western population, and to work 
together to ensure healthy ocean ecosystems, including 
sustainable fisheries and vibrant communities.
    To that end, I hope to leave you today with three main 
points. First, the basic scientific information is clear. The 
Western population of Steller sea lion is not meeting recovery 
goals and continues to decline in some areas. Second, there is 
a clear legal obligation to take action in light of that 
information. Third, and most importantly, we can and should 
make policy choices that move us toward sustainable management 
by accounting for the needs of Steller sea lions and other Apex 
predators.
    Much of the scientific information about the Western 
population of Steller sea lions is unequivocal. The population 
in Alaska has declined by more than 80 percent. That decline 
began as we shot the animals and coincided with the expansion 
of commercial fishing. It also continued until new fishery 
management measures were put in place in 2001. Those new 
measures appear to be helping to stem the decline in most 
areas, and the population overall appears to be holding steady 
or growing slightly.
    There are, however, still significant declines in some 
areas, including a 45 percent decline in the Western Aleutians 
between 2000 and 2008. In addition, birth rates appear to be 
down across the population, which means that adult females are 
having fewer pups, and the population is aging.
    Steller sea lions live in and depend on an ocean that 
supports some of the largest fisheries in the world. These 
fisheries target important prey for Steller sea lions, and we 
have reduced that prey, including Atka mackerel, Pacific cod, 
and pollock, by 50 to 70 percent. We also fished Aleutian 
Islands pollock, for example, to the point that it could no 
longer support a fishery.
    Much of the ongoing debate has been about how much and 
whether these large fisheries are affecting Steller sea lions. 
In this regard, the law is absolutely clear. Fisheries cannot 
be authorized unless the National Marine Fisheries Service can 
ensure that they are not likely to cause jeopardy to Steller 
sea lions or adversely modify their critical habitat. This 
standard requires the Agency to give the benefit of the doubt 
to the species and requires that it allow for the species to 
recover.
    It is true that other factors may be affecting sea lions. 
However, the fact that predation by killer whales or natural 
variability in the ocean, for example, might also be 
contributing to the decline or failure to recover in no way 
lessens the obligation to reduce impacts from fisheries.
    Given the continuing decline in the Western Aleutian 
Islands and the population's overall failure to recover, the 
National Marine Fisheries Service had no choice but to take 
action. By reducing competition in the areas in which sea lion 
are still declining most rapidly, the Agency did the bare 
minimum needed. The new measures still allow for extensive 
commercial fishing while closing areas only where the 
population continues to decline and is at risk of being 
extirpated from portions of its range. These measures are not 
as restrictive as some scientists recommended and low birth 
rates may warrant.
    Ultimately, the fact that this conversation is happening in 
the context of the Endangered Species Act should serve as a 
wake-up call to rethink the way we make decisions about 
fisheries. The most obvious place to start is by determining 
how to allow for the needs of top predators, like Steller sea 
lions, when fishing levels are set. We can do better than 
single species stock assessment models, and should move toward 
addressing ecosystem needs as fishing levels are set.
    The Council has begun this process with the Aleutian 
Islands Fishery Ecosystem Plan, and we should take the steps 
toward ecosystem base management called for in that document 
and others.
    We can also find better ways to take fish from the ocean 
and to favor more sustainable gear, such as long lines, pots, 
and jigs.
    Finally, rather than looking to find causes other than 
fishing for Steller sea lions' continued decline and failure to 
recover, we should dedicate funding to better understanding 
ocean ecosystems and the impacts of fisheries on them.
    In the end, we all support healthy ocean ecosystems, 
including sustainable fisheries and vibrant communities. As we 
toward that goal, we should make choices based on clear 
scientific information, our basic obligations, and a policy 
that moves us toward sustainable management.
    Thank you again, and I am happy to answer any questions.
    [The prepared statement of Mr. LeVine follows:]

      Statement of Michael LeVine, Pacific Senior Counsel, Oceana

    Good morning, Mr. Chairman and Members of the Committee. Thank you 
for the invitation to participate in today's hearing. My name is 
Michael LeVine, and I am Pacific Senior Counsel for Oceana. Oceana is 
an international marine conservation organization dedicated to using 
science, law, and policy to protect the world's oceans. Our 
headquarters are in Washington, DC, and we have offices in five states 
as well as Belgium, Belize, Spain, Denmark, and Chile. Oceana has more 
than 500,000 members and supporters from all 50 states and from 150 
countries around the globe. Our Pacific work is headquartered in 
Juneau, Alaska, and, together, our Pacific staff has more than 180 
years of experience working and living in Alaska.
    Oceana works toward healthy ocean ecosystems, sustainable 
fisheries, and vibrant communities. We have been active in issues 
surrounding the endangered Western Population of Steller sea lions 
since our inception because the health of that population and the 
management of the prey species on which it depends are an appropriate 
lens through which to evaluate progress toward those goals. Despite the 
contentious history and current controversy surrounding this issue, the 
facts are clear: the western stock of Steller sea lions has declined by 
more than 80% since the 1960s. Though management changes implemented in 
2001 appear to have some beneficial effect, the population as a whole 
is not meeting established recovery criteria and, irrespective of its 
overall status, continues to decline sharply in the western Aleutian 
Islands.
    While there may be other factors contributing to the ongoing 
decline and failure to recover, competition with fisheries for food is 
the only one we have the ability--and obligation--to mitigate directly. 
The best way to achieve this goal, while allowing for sustainable 
fisheries and supporting communities, is to move toward ecosystem-based 
management for our oceans. The North Pacific Fishery Management Council 
and National Marine Fisheries Service (NMFS) have made important 
strides in this direction, including preparing the Aleutian Islands 
Fishery Ecosystem Plan (AIFEP) and protecting important seafloor 
habitat from bottom trawling. The population of Steller sea lions, 
however, is telling us clearly that more can and should be done.
    Ultimately, this conversation is about our oceans and the way we 
are managing large industrial fisheries. Accordingly, I will begin this 
testimony by discussing the importance and health of the North Pacific 
ocean ecosystems, with a particular focus on the Aleutian Islands, the 
Western Population of Steller sea lions, and the impacts of large-scale 
industrial fisheries. I will then outline the extensive process 
undertaken by NMFS, including the role played by the Council, and the 
justification and clear need for the management changes implemented by 
NMFS pursuant to the recent Biological Opinion (BiOp). Finally, I will 
discuss additional steps toward ecosystem-based management that should 
be implemented.
I. The North Pacific Can Support and Maintain Healthy Ocean Ecosystems, 
        Sustainable Fisheries, and Vibrant Communities.
A. Oceans are Central to Our Well-Being, and the Aleutian Islands 
        Ecosystem, in Particular, is Unique and Important.
    Covering more than 70% of the world's surface, oceans and seas are 
our largest public domain, and good stewardship of our ocean resources 
is vital to our lives and livelihoods. As the U.S. Commission on Ocean 
Policy stated, ``the importance of our oceans, coasts, and Great Lakes 
cannot be overstated; they are critical to the very existence and 
wellbeing of the nation and its people.'' An Ocean Blueprint for the 
21st Century 1 (Sept. 20, 2004); see also Exec. Order No. 13547 (2010) 
(``America's stewardship of the ocean, our coasts, and the Great Lakes 
is intrinsically linked to environmental sustainability, human health 
and well-being, national prosperity, adaptation to climate and other 
environmental changes, social justice, international diplomacy, and 
national and homeland security.''). Thus, we must be careful not to 
risk the long-term viability of our ocean resources by prioritizing 
short-term economic gains or making poorly informed decisions that 
could foreclose future opportunities to manage sustainably.
    Nowhere are these statements and the management considerations they 
engender more important than Alaska and, in particular, the vast, 
productive expanses of the North Pacific Ocean. The North Pacific, 
including the Bering Sea, Aleutian Islands, and the Gulf of Alaska, 
contains some of the most productive waters on Earth and supports rich 
and diverse marine life.
    The Aleutian Islands ecosystem is one of the most vibrant, dynamic, 
productive and rare ocean environments in the world. At more than 1,000 
miles, the Aleutian Islands form the longest archipelago in the world. 
These islands are stretched along a narrow shelf, and the bathymetry 
changes dramatically, from greater than 7,000 meters deep in the depths 
of the Aleutian Trench to the nearshore shallows, in a distance of less 
than 150 km. This unique geological setting creates rich habitat that 
draws millions of seabirds and hundreds of thousands of marine mammals 
each year.
    The Aleutian Islands support more than 450 species of fish and 
shellfish, 260 species of migratory birds, and 25 species of marine 
mammals. Whales--humpback, blue, minke, bowhead, and orca--as well as 
sea lions, seals, and other marine mammals frequent these waters. More 
than 38 million seabirds--including a wide variety of geese, gulls, 
petrels, puffins, murres, auklets, and terns--flock to the islands to 
nest. The ocean waters support salmon, halibut, rockfish, cod, and 
crab, among other fish and shellfish.
    The Aleutian Islands also harbor incredible aggregations of cold 
water corals. The density and diversity of these Alaskan corals rival 
tropical coral reefs, and there are deep-sea coral gardens that are 
unique to the Aleutian Islands. This living seafloor forms habitat that 
provides nurseries, places to feed, shelter from currents and 
predators, and spawning areas for many marine species.
    This bounty in the Aleutian Islands has been overexploited. After 
the overhunting of sea otters and commercial whaling, early commercial 
fisheries in the Aleutians were characterized by a boom-and-bust cycle. 
See North Pacific Fishery Management Council, Aleutian Islands Fishery 
Ecosystem Plan 9, 16-19 (December 2007) (hereinafter ``AIFEP''). 
Currently, between 220 and 440 million pounds of groundfish, primarily 
Atka mackerel, Pacific cod, and Pacific ocean perch, are removed 
annually from the Aleutian Islands region. Much of this biomass is 
removed from important feeding habitat for marine mammals, including 
Steller sea lions.
B. The Decline and Continued Failure to Recover of the Western 
        Population of Steller Sea Lions Tell an Important Story About 
        the Health of North Pacific Ecosystems.
    Despite its incredible productivity, not all is well in the North 
Pacific. The past several decades have witnessed significant declines 
in some marine mammal, bird, and fish populations. The continued 
decline and failure to recover of the Western Population of Steller sea 
lions, in particular, are telling an important story about the 
conditions under which large-scale industrial fisheries are authorized.
    The Steller sea lion's range extends around the North Pacific Ocean 
rim from northern Japan through the Aleutian Islands and Bering Sea, 
and south to California. Based on DNA analysis and other factors, the 
U.S. population is divided into a Western Population, consisting of 
animals in the Gulf of Alaska and the Bering Sea/Aleutian Islands, and 
an Eastern Population, which is primarily in Southeast Alaska and along 
the west coast of North America. Despite their expansive range, the 
Steller sea lions breed at only a handful of discrete locations. The 
Western Population now occupies only 48 breeding sites (or 
``rookeries''), 38 of which are in Alaska. See National Marine 
Fisheries Service, Endangered Species Act--Section 7 Consultation 
Biological Opinion on the Authorization of Groundfish Fisheries under 
the Fishery Management Plans for the Bering Sea and Aleutian Islands 
Management Area and the Gulf of Alaska 80, 85-86(Nov. 24, 2010) 
(hereinafter ``2010 BiOp''). As the Western Population has declined, 
the centers of production for the population have contracted and 
condensed. Now, twelve of the rookeries produce more than 60% of the 
population's pups.
    The worldwide abundance of Steller sea lions was estimated to be 
approximately 240,000 to 300,000 animals from the 1950s through the 
late 1970s; the vast majority of which were part of what is now 
recognized as the Western Population. That population declined 
precipitously, and it reached a low point in 2000, when it was 
estimated at 42,500 individuals--a decline of more than 80%. Id. at 80, 
332. Much of this significant decline likely was caused by a 
combination of commercial and subsistence harvests and intentional 
shooting of the animals. Id. at 343. Though this direct mortality was 
largely ended in the early 1980s, the Western Population continued to 
decline.
    Prior to 2000, NMFS had implemented only very limited protections 
for the Western Population. To address the continuing decline and its 
obligations under the Endangered Species Act, NMFS put in place new 
management measures in 2001. These new measures appear to have 
beneficial effects, and, overall the Western Population grew by 
approximately 3% annually from 2000 to 2004. According to NMFS, this 
brief period from 2000 to 2004 is the ``the only increasing period 
observed since trend information began to be collected in the 1970s.'' 
Id. at 287.
    Unfortunately, this growth appears to have been temporary. From 
2004-2008, the population was stable or slightly declining. Thus, as a 
whole, it is estimated that the Western Population grew by 
approximately 1.4 percent annually from 2000-2008. This growth, 
however, is not statistically significant, which means that we cannot 
tell whether it is actually increasing, decreasing, or staying steady. 
Thus, the population can be most appropriately described, overall, as 
stable.
    Moreover, the population continues to experience significant 
declines in some areas. The most severe decline was observed in the 
western Aleutian Islands, where the already greatly diminished adult 
population declined an additional 45% from 2000 to 2008. In the central 
Aleutian Islands during the same period, the adult population declined 
by 11%. Id. at 333.
    In addition to the declines observed in the western and central 
Aleutian Islands, the population of Steller sea lions is showing 
another sign of stress--decreased natality. Data collected in the last 
decade indicate that adult females are having many fewer pups than they 
did historically. The current birth rate estimated to be about 30% 
lower than it was before the population began to decline in the 1970s. 
Id. at xxviii. Although natality is low in the western and central 
Aleutian Islands--the areas in which population declines are ongoing--
it appears to be down across the rest of the population as well. A 
female pup born ten years ago would be of prime breeding age, and she 
should have produced 3 or 4 pups by now. The decrease in natality, 
however, means that it is likely she has produced only 2 or fewer pups.
    It is very likely that the small increase in the Western Population 
was due to increased survivorship. Pups are more likely to survive into 
adulthood than they were before the protection measures were put in 
place. Without a concurrent increase in natality, however, the growth 
of the population cannot be sustained. If pup production is not greater 
than mortality, the population will not grow. Further, the population 
will age as higher survival of adults and juveniles outpaces the lower 
birthrates. A population with this structure is less resilient to 
disturbance and cannot quickly recover from population fluctuations. 
Thus, the risk of extinction for the Western Population increases as it 
ages and birth rates stay low.
    Significantly, in contrast to the Western Population, the once 
relatively small Eastern Population of Steller sea lions has doubled 
since the 1970s. The population has grown so substantially that NMFS 
currently is considering petitions to remove the population from the 
list of species protected by the Endangered Species Act. The Eastern 
and Western populations share similar characteristics and depend on 
some of the same prey species--including pollock and Pacific cod. The 
most apparent difference between these two distinct populations is that 
no high volume groundfish trawling occurs in Southeast Alaska.
C. Industrial Fishing in the North Pacific Has Significant Impacts on 
        the Ocean Ecosystem.
    In addition to ecological riches, the North Pacific also supports 
some of the largest fisheries in the world. Though these fisheries 
began in the 1920s, they started to take their current form in the 
1950s. Currently, the Bering Sea/Aleutian Islands and Gulf of Alaska 
support fisheries that remove more than four billion pounds of 
groundfish each year. This exploitation has expanded 7,500 percent 
since 1950. See Greenpeace v. NMFS, 106 F. Supp. 2d 1066, 1070 (W.D. 
Wash. 2000). Of this catch, between 220 and 440 million pounds of fish 
are removed annually from the Aleutian Islands region.
    The vast majority of the fish caught are groundfish, among them 
Atka mackerel, Pacific cod, and walleye pollock. These same species are 
important prey for top predators, including Steller sea lions. 
Approximately 90% of these groundfish are caught by large trawl 
vessels, most of which are owned by individuals and companies from 
outside Alaska. These trawl vessels can remove huge quantities of fish 
in a short time. One pass of a trawl can net 40 to 100 tons of fish.
    Such intense fishing reduces fish populations significantly. 
Projections for 2011 show that important prey stocks have been reduced 
by between 50-70% from their historic, non-fished levels. Aleutian 
Island Atka mackerel is expected to be at 56% of historic biomass; 
Aleutian Island pollock at 30%; Gulf of Alaska pollock at 29%; Bering 
Sea pollock at 48%; Bering Sea/Aleutian Islands Pacific cod at 37%; and 
Gulf of Alaska Pacific cod at 48%. See NMFS, North Pacific Groundfish 
Stock Assessment and Fishery Evaluation Reports for 2011, available at 
http://www.afsc.noaa.gov/REFM/stocks/assessments.htm. These projections 
will be updated with information from this year's stock assessments in 
December.
    Moreover, there have been significant local depletion of important 
prey species. These depletions began when sea otters were hunted to 
near extinction by fur traders, continued with several decades of 
unsustainable commercial whaling, and led, in the 1960s, to the rise of 
the first industrial fishery for Pacific Ocean perch, which were 
overharvested within 15 years. See AIEP at 9, 16-19. Around the same 
time, red king crabs were overexploited and have not yet recovered. In 
the late 1980s through the mid-1990s, the stock of pollock in the 
Aleutians was quickly depleted. See Barbeaux, S. et al., ``Assessment 
of the Pollock stock in the Aleutian Islands'' 213 (Nov. 2009). 
Similarly, the stock of Atka mackerel in the Gulf of Alaska was 
overharvested in the late 1970s. See Lowe, S. et al., ``Assessment of 
Gulf of Alaska Atka Mackerel'' 1166, Tbl 16.1 (Dec. 2009).
    These fisheries are huge economic engines, and the companies that 
run them are very powerful. Indeed, the value of the pollock fishery 
alone is over $1 billion dollars annually. Certainly, these fisheries 
provide economic benefit in Alaska, and Oceana supports commercial 
fisheries that are managed sustainably. Neither the economic benefit, 
nor the will of the companies receiving it, however, is a sufficient 
justification for allowing unsustainable fishing practices.
II. NMFS Has Undertaken a Detailed and Extensive Process, and its 
        Actions are Clearly Justified.
A. Fisheries are Managed By the Secretary of Commerce to Achieve the 
        Greatest Benefit to the Nation.
    The Magnuson-Stevens Fishery Conservation and Management Act 
(``MSA''), 16 U.S.C. Sec. 1801 et seq., is the overarching statute 
governing fisheries management in United States waters. The first 
stated purpose of the statute is ``to conserve and manage [] fishery 
resources,'' and it makes the Secretary of Commerce responsible for 
fulfilling that obligation. The Secretary implements Fishery Management 
Plans that provide the measures necessary for the conservation and 
management of fisheries. These conservation and management measures are 
``all of the rules, regulations, conditions, methods, and other 
measures''
        (A)  which are required to rebuild, restore, or maintain, and 
        which are useful in rebuilding, restoring, or maintaining, any 
        fishery resource and the marine environment; and
        (B)  which are designed to assure that--
                  (i)  a supply of food and other products may be 
                taken, and that recreational benefits may be obtained, 
                on a continuing basis;
                 (ii)  irreversible or long-term adverse effects on 
                fishery resources and the marine environment are 
                avoided; and
                (iii)  there will be a multiplicity of options 
                available with respect to future uses of these 
                resources.
    Id. Sec. 1802(5). These measures define the fishery in terms of 
amount of fish caught, the time of year when fishery may occur, the 
gear types authorized, and other strictures. They are intended to 
provide the ``optimum yield'' from a fishery, which is defined as ``the 
amount of fish which. . .will provide the greatest overall benefit to 
the Nation, particularly with respect to food production and 
recreational opportunities, and taking into account the protection of 
marine ecosystems.'' Id. Sec. 1802(33). Thus, protection of the fish 
stocks and marine environment is a central consideration in making 
decisions to authorize commercial fishing.
    In determining how best to meet these obligations and others under 
the statute, the Secretary of Commerce is advised by eight regional 
councils comprised of certain state and federal government 
representatives and other stakeholders that are nominated by the 
governors of affected states and are generally representatives of the 
commercial fishing industry. The North Pacific Fishery Management 
Council is the regional body that advises the Secretary about 
conservation and management of fisheries in Alaska.
    The MSA, however, is not the only statute that affects fisheries. 
In making final decisions about fisheries management, the Secretary of 
Commerce must also ensure compliance with other substantive statutes--
including the Endangered Species Act (``ESA''), 16 U.S.C. Sec. 1531 et 
seq. The ESA is designed ``to provide a means whereby the ecosystems 
upon which endangered species and threatened species depend may be 
conserved,'' and ``to provide a program for the conservation of such. . 
.species.'' Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978) 
(quoting 16 U.S.C. Sec. 1531(b)). The statute reflects ``a conscious 
decision by Congress to give endangered species priority over the 
`primary missions' of federal agencies.'' Id. at 184.
    To effectuate this purpose, the ESA places on all federal agencies 
the substantive obligation to ``insure that any action. . .is not 
likely to jeopardize the continued existence of any endangered species. 
. .or result in the destruction or adverse modification of habitat for 
such species.'' 16 U.S.C. Sec. 1536(a)(1). Agencies must engage in a 
consultation process with the appropriate expert wildlife agency on the 
impacts of any federal action to listed species. As it evaluates the 
BSAI and GOA groundfish fisheries, NMFS is both ``action'' and 
``expert'' agency: ``NMFS's Office of Sustainable Fisheries is the 
`Action' Agency'' because it is responsible for authorizing the 
fisheries, ``and NMFS's Office of Protected Resources is the `Expert' 
Agency'' because it provides the opinion about whether those fisheries 
comply with the ESA. See Greenpeace v. National Marine Fisheries Serv., 
237 F. Supp. 2d 1181, 1185 n.2 (W.D. Wash 2002). These consultation 
processes are completed in NMFS's regional offices and are signed by 
the Regional Administrator, who oversees the regional divisions of both 
Protected Resources and Sustainable Fisheries. The agency, therefore, 
must pay particular attention to its procedural obligations and must 
take all necessary precautions to protect the scientific process within 
the Office of Protected Resources, as expert agency, as it prepares a 
BiOp.
    NMFS's obligation to prevent jeopardy and adverse modification 
includes not just ensuring survival of the species but also allowing 
for recovery--an action can cause jeopardy or adverse modification when 
it does not allow for the recovery of the listed species. See Gifford 
Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 
1069-70 (9th Cir. 2004). Recovery means an ``improvement in the status 
of listed species to the point at which'' the protections of the 
statute are no longer necessary.
    Thus, in determining whether to authorize fisheries and under what 
conditions, the Secretary of Commerce and NMFS, as advised by the 
Councils, must strive to ``provide the greatest overall benefit to the 
Nation'' while ``taking into account the protection of marine 
ecosystems'' and ensuring that the actions do not cause jeopardy to 
species protected under the ESA or adversely modify critical habitat.
B. NMFS Has Undertaken a Detailed and Extensive Process To Ensure That 
        the Groundfish Fisheries Comply With the MSA and ESA.
    Difficulty in balancing the complementary legal obligations for 
management of the groundfish fisheries in Alaska and controversy about 
competition with Steller sea lions are not new phenomena. In fact, this 
hearing is another chapter in a conversation that goes back two 
decades. The population declines explained above led the Western 
Population to be listed under the ESA as a threatened species in 1990. 
Critical habitat was designated for the species in 1993, and in 1997, 
it was reclassified as endangered. At that time, NMFS had concluded 
that the groundfish fisheries were not likely to cause jeopardy to 
Steller sea lions or adversely modify their critical habitat. The 
rationale for that conclusion was the subject of lengthy and often 
contentious litigation beginning in 1998. See Greenpeace, 237 F. Supp. 
2d at 1184. In the course of that litigation, the court repeatedly 
rejected the agency's rationale and even enjoined all trawl fishing in 
designated critical habitat from July through August 2000.
    NMFS issued a revised BiOp in 2000 which concludes that the 
groundfish fisheries, as managed under the Bering Sea/Aleutian Islands 
and Gulf of Alaska FMPs are likely to jeopardize endangered Steller sea 
lions and adversely modify their designated critical habitat by 
competing with Steller sea lions for prey. It, therefore, proposed a 
reasonable and prudent alternative (RPA), which was subsequently 
amended. That Amended RPA includes measures designed to reduce 
competition with Steller sea lions and was the subject of a 2001 BiOp. 
The 2001 BiOp was supplemented in 2003 with additional analysis of the 
RPA. The 2003 Supplement was not subject to court challenge and, 
therefore, concluded that consultation process.
    Those analyses all reached the same conclusion--the groundfish 
fisheries compete with Steller sea lions for prey and that competition 
may cause jeopardy to the species and adversely modify its critical 
habitat. Accordingly, management measures are needed to address that 
competition and ensure the viability and recovery of the population.
    Further, NMFS worked to revise the recovery plan for the species 
and, in 2008, issued a revised Recovery Plan for the Steller Sea Lion. 
See http://www.fakr.noaa.gov/protectedresources/stellers/recovery/
sslrpfinalrev030408.pdf (hereinafter ``Recovery Plan''). That plan 
establishes very clear demographic criteria for recovery of the Western 
Population of Steller sea lions. To be considered for delisting, the 
population must have ``increased (statistically significant) for 30 
years (at an average annual growth rate of 3%), based on counts of non-
pups (i.e., juveniles and adults).'' Id. at V-21. In addition, the 
population also must be stable or increasing ``in at least 5 of the 7 
sub-regions. The population trend in any two adjacent sub-regions can 
not be declining significantly[,] and the population trend in any sub-
region can not have declined by more than 50%.'' Id. At this time, 
those criteria represent the best available scientific understanding 
about the changes in the population that are necessary to ensure 
recovery.
    This plan was subject to extensive review. A draft was reviewed by 
the public and peer reviewers in 2006, and it was subsequently revised 
and updated. The Draft Revised Recovery Plan was again reviewed by the 
public in 2007, underwent an independent scientific review by the 
Center for Independent Experts and a North Pacific Fishery Management 
Council Review (contracted to the North Pacific Research Board), and 
was then revised and updated again.
    Throughout this time, significant time and money was dedicated to 
research about Steller sea lions and the causes of the continued 
decline and failure to recover. All told, more than $100 million was 
spent on research into these questions. Much of this research, however, 
has been designed to look for causes other than commercial fishing for 
the ongoing decline and failure to recover. Relatively little funding 
was directed toward a better understanding of the effects on predators 
of removing large volumes of prey.
    In 2006, perhaps in response to encouraging signs in the population 
trend, the Council encouraged the NMFS Office of Sustainable Fisheries 
to request a re-initiation of ESA consultation. The Office of 
Sustainable Fisheries did so, and the NMFS Office of Protected 
Resources agreed to start a new consultation process to revisit the 
conclusions in the 2000 BiOp, as amended in 2001 and 2003, about the 
effects of the groundfish fisheries on Steller sea lions. In 2008, the 
NMFS Office of Protected Resources agreed to delay the BiOp in order to 
allow for consideration new survey data.
    In August 2010, NMFS released a draft BiOp. That draft concluded 
that the management measures put in place in 2001 were not sufficient 
to prevent jeopardy to Steller sea lions or to prevent adverse 
modification of their critical habitat. It, therefore, included an RPA 
further restricting fishing in the far western Aleutian Islands, where 
the significant population declines continued.
    The release of a draft was unusual, as the ESA does not contemplate 
public comment on draft BiOps. Nonetheless, public comment was accepted 
on that by the agency until September 3, 2010. In addition, the Council 
held a special meeting in August 2010 to discuss that draft. NMFS also 
made a presentation regarding the BiOp process at the Council's normal 
October meeting, and the agency stated that it would consider the 
Council's input from that meeting.
    The agency's actions should not have come as a surprise. As 
explained above, there was clear population information showing the 
continued decline and failure to recover; these data were publicly 
available and were presented to the Council. Throughout this process, 
the Council could have recommended changes to the groundfish fisheries 
management in an effort to address the problems with the population. 
See 18 U.S.C. Sec. 1853(c) (stating that a council may submit proposed 
regulations it ``deems necessary or appropriate''). It, however, did 
not do so.
    NMFS completed the consultation process in December 2010 with 
issuance of the final BiOp and interim final rule. See 75 Fed. Reg. 
77535 (Dec. 13, 2010). The rule implements the proposed RPA with minor 
changes; it puts in place badly needed protections for the portion of 
the Western Population in the far western Aleutian Islands that is 
still declining significantly. NMFS accepted public comment on the 
interim final rule, and it will eventually be supplanted by a final 
rule.
    Currently, NMFS is beginning a review of the BiOp by the Center for 
Independent Experts (CIE). That review is part of the agency's normal 
process for scientific documents like this one. The CIE is equipped to 
undertake a true scientific peer review, using reviewers who have the 
requisite scientific expertise and who are independent of the various 
stakeholders in the process. By contrast, the review panel organized by 
the States of Washington and Alaska cannot be considered an independent 
scientific review. Indeed, the State of Alaska has a clearly 
established position with regards to the current status and trend of 
the Steller sea lion and has made that position clear in its legal 
challenge to the BiOp and interim final rule. See Alaska v. Lubchenco, 
No. 3:10-cv-00271-TMB (D. Alaska, filed Dec. 14, 2010)
    Oceana supports decisions based on sound science and encourages 
agencies to gather and review basic information at all stages of the 
decision-making process. We also support established processes, have 
participated in those processes to the extent we are permitted or able, 
and will continue to do so.
C. The Conclusions in the BiOp are Justified and the Management Changes 
        Clearly Are Necessary.
    As explained above, the Western Population of Steller sea lions is 
not recovering and, in fact, continues to decline significantly in the 
far western Aleutian Islands. The population is not growing at a 
statistically significant rate, and, whether stable or slightly 
increasing, is not close to the 3% annual growth needed to meet the 
delisting criteria established in the Recovery Plan. Moreover, since 
2000, the population has declined by more than 45% in the far western 
Aleutian Islands. Based on this information, NMFS concluded 
appropriately that the management changes implemented in 2001 were not 
sufficient to prevent jeopardy to Steller sea lions or to prevent 
adverse modification of their critical habitat. As the law requires, 
NMFS addressed that problem by increasing protections in the western 
Aleutian Islands. The agency's conclusion and subsequent action clearly 
are justified, and challenges to the cause of the decline or necessity 
of the management changes implemented are not credible.
    As it has in every analysis since 2000, NMFS based the 2010 BiOp 
and interim final rule on its well-documented rationale that commercial 
fisheries adversely affect sea lions by competing with them for food. 
See 2010 BiOp at 197-202. The large-scale industrial fisheries 
described above remove incredible quantities of fish that otherwise 
would be available to Steller sea lions as prey. Much of this fishing 
effort occurs in important areas for Steller sea lions, and a 
significant amount of prey is removed from their designated critical 
habitat. It is difficult to imagine that reducing the availability of 
prey by 60 or 70 percent would not affect the population's ability to 
grow.
    Moreover, there is evidence that such interactions are occurring. 
For example, sea lion populations have fared better in some regions 
than others, and the areas of improvement coincide with areas where 
conservation measures have been implemented. Conversely, the areas of 
sharpest Steller sea lion declines coincide with areas where sea lion 
protection measures are the fewest and fishing intensity within 
critical habitat is the greatest. See 2010 BiOp at 389, 392. The most 
likely mechanism for this correlation is nutritional stress resulting 
from the competition and leading to low birth rates, or ``natality.'' 
As explained above, natality is down across the population. Further, 
pup counts in the central Gulf of Alaska have not increased 
significantly since 1998. Id. at Tbl 3.2. Rookery counts in the central 
Gulf are possibly stable or declining, and pup counts are declining 
rapidly in several major rookeries. Id. at Fig. 3.10. These declines 
correspond with substantial fisheries in critical habitat for important 
prey species.
    It may very well be true that other factors, such as changing ocean 
conditions, contribute to the ongoing decline and failure to recover. 
The existence of those factors, whether or not they are contributing to 
the decline or failure to recover, does not in any way affect our 
obligation to manage the one--commercial fishing--that we can control. 
The law requires it; in the face of scientific uncertainty, the ESA 
requires federal agencies ``to provide the benefit of the doubt to the 
species concerned with respect to such gaps in the information base.'' 
NMFS and US Fish and Wildlife Service, ``Consultation Handbook'' 1-7 
(March 1998) (citing H.R. Conf. Rep. No. 697, 96th Cong., 2nd Sess. 12 
(1979)). Scientific information supports it; other stresses on the 
population may result in cumulative impacts that make it even more 
important to ensure sufficient prey for sea lions. And, such action is 
good policy; protection for top predators is one important step toward 
better management and a healthy ecosystem.
    Once NMFS found that the groundfish fisheries, as currently managed 
did not adequately protect the Western Population of Steller sea lions, 
the agency was required to take action to address that failing. In 
light of the clear, continuing, and significant decline of the Steller 
sea lion population in the western Aleutian Islands and the evidence 
that nutritional stress may be contributing to it, the additional 
closures in the far western Aleutian Islands clearly are warranted.
    The new measures are not draconian. They are targeted only to that 
portion of the Steller lions' range in which the most significant 
declines are occurring and still allow for extensive commercial 
fishing. There are new closures only in the westernmost portion of the 
Aleutian Islands, and the total allowable catch is reduced only for the 
Atka mackerel fishery. Even that reduction will not close the fishery; 
the allowable Atka mackerel catch will be reduced in 2011 by only 23% 
from 2010 levels. Moreover, the Pacific cod quota will not be reduced, 
and the pollock fishery is not affected by the new measures at all. 
Further, an earlier version of the BiOp required significant reductions 
in pollock catch around Kodiak to address low natality there. 
Ultimately, those protections were not implemented.
    Contrary to the assertions that the management changes are 
unnecessary, it is clear that more should be done to address the 
ongoing failure to recover of the Western Population and to move toward 
ecosystem-based management.
III. Additional Protections are Likely Warranted, and Additional Steps 
        are Needed to Move Toward Ecosystem-Based Management.
    While the management changes in the far western Aleutian Islands 
clearly are necessary, they are likely not sufficient. For example, and 
as explained above, we have not addressed low natality in all regions. 
There are several steps that could be taken to further move toward 
ecosystem-based management.
    The most obvious place to start is by determining how to allow for 
the needs of top predators, like Steller sea lions, when fishing levels 
are set. Currently, the stock-assessment models on which catch levels 
are based simply assume a level of mortality for the fish species (for 
Atka mackerel, for example, it is 30%) and then assume that all 
consumers--other than the fisheries--can survive on that percent of the 
population. As evidenced by the ongoing decline of the Steller sea lion 
population, these assumptions are not sufficient.
    Thus, we should implement the suggestion in the AIFEP to address 
predator-prey interactions and work toward an integrated management 
approach in which ecosystem considerations and the needs of predators, 
such as Steller sea lions are considered as fishing levels are set. An 
earlier version of the BiOp sought to implement such a process as part 
of the new management regime. See Endangered Species Act--Section 7 
Consultation Draft Biological Opinion Final PRD Version 375 (May 3, 
2010) (requiring, as part of the RPA, a revision to ``the Harvest 
Management Strategy (e.g., optimum yield, harvest control rules, tier 
system) for exploited groundfish forage species (pollock, Atka 
mackerel, and Pacific cod) that explicitly incorporates the needs of 
non-exploited apex predators (e.g., marine birds, marine mammals), and 
in particular, the needs of ESA listed species to meet their recovery 
goals''). In addition to more effective management under the MSA, such 
a process would help meet the ESA's policy of protecting ecosystems and 
would be an important step toward implementing the AIFEP.
    Further, we must move toward viable sustainable fisheries, that 
could include fixed gear fisheries such as longline, pots, and jigs, 
that can support local communities. Where tradeoffs are possible, NMFS 
should favor these more sustainable alternatives. The agency cannot 
simply weaken necessary protections to allow additional fishing for 
Steller sea lion prey, but it can consider strengthening other 
protections to allow these fisheries to continue and to continue to 
develop in a sustainable manner. For example, NMFS could strengthen 
protections by addressing overall harvest levels, further reducing the 
biomass taken from the western Aleutian Islands by the cod and Atka 
mackerel trawl fisheries.
    It is important to note that current allocation of Atka mackerel 
catches in the Aleutians do not allow for any of that catch to be 
delivered and processed in Alaskan communities. Almost no Atka mackerel 
quota is caught by Alaskan residents. Through Amendment 80 to the 
Bering Sea/Aleutian Islands Fishery Management Plan, almost all of the 
Atka mackerel quota has been allocated to a handful of factory trawl 
vessels which catch and process Atka mackerel offshore. The Atka 
mackerel quota does not provide processing opportunities for the fish 
processing plant in Adak or elsewhere in the Aleutians.
    In addition, the overfishing of Aleutian Islands pollock described 
above ended a substantial portion of the large-scale commercial fishing 
opportunities in the Aleutian Islands. In addition to sea lions, the 
fish processing plant in Adak, which was built to rely on a 
congressional allocation of fish from an Aleutian pollock stock that 
can no longer support sustainable fisheries, is another victim of this 
unsustainable management. While it may be unfortunate that the 
remaining large-scale fisheries that target Steller sea lion prey must 
bear the brunt of recovery efforts, that process is not the appropriate 
mechanism through which to address the Adak processing plant. Oceana 
supports efforts to maintain communities like Adak and to provide 
sustainable Alaskan fisheries. Together, we can find a way to do that 
without sacrificing our ocean resources.
    Finally, as we move toward ecosystem-based management, all Alaskans 
should insist on the best available science and process. We cannot let 
political considerations--at the federal, state, or local level--get in 
the way of decisions about our oceans, and we must let the experts 
fulfil their obligations under the MSA and ESA.
IV. Conclusion
    With an extensive coastline and many cultural, recreational, 
subsistence, and commercial benefits inextricably linked to our oceans, 
all Alaskans should support healthy ocean ecosystems, sustainable 
fisheries, and vibrant communities. The Western Population of Steller 
sea lions provides a lens through which we can evaluate our progress 
toward those goals. The science is clear--the Western Population of 
Steller sea lions is not recovering and continues to decline in some 
areas. The law is clear--we cannot authorize fisheries that may cause 
jeopardy to a listed species or adversely modify critical habitat. And, 
the policy is clear--Steller sea lions are telling us that if we want 
to manage oceans sustainably, we must change the way we manage 
fisheries to account for the prey needs of apex predators.
                                 ______
                                 
    Mr. Hastings. Thank you, Mr. LeVine, and thank all of you 
for your testimony.
    Mr. LeVine, this hearing today is on Steller sea lions, and 
yet--I will not say and yet. But I note in your written 
testimony, you say there are between 220 and 440 million pounds 
of groundfish that have been removed annually from the Aleutian 
Islands region.
    I do not know what you are saying exactly there, but are 
you suggesting that the North Pacific Fishery Management 
Council has not been doing an adequate job in managing those 
fisheries?
    Mr. LeVine. Thank you, Chairman Hastings. No, that 
statement in written testimony is no way intended to denigrate 
the work of the North Pacific Fishery Management Council. 
Oceana supports the work of the Council. We have been involved 
there.
    To begin with, that statement and the ones referencing the 
4 billion pounds of fish that are removed from the North 
Pacific ecosystem every year is intended to show what the real 
issue here is. We are here talking about fishing, and the 
decisions we are making to authorize large-scale commercial 
fisheries in the ocean, and what impacts those fisheries might 
have.
    It is unfortunate that we have to have that conversation in 
the context of the Endangered Species Act----
    Mr. Hastings. In what context did you say it in? I mean, I 
am hearing you saying yes, and I am hearing you saying no. I am 
just asking for a clarification.
    Mr. LeVine. Yeah. We have pushed against the backstop of 
the Endangered Species Act. And with a better understanding of 
what is in the ocean and a movement toward ecosystems----
    Mr. Hastings. I asked you about the other side of the 
equation, and I did hear you talk about the Endangered Species 
Act.
    Your last statement in your oral testimony was something 
like we need to have clear scientific review or something to 
that extent. I can go back and look exactly. And I assume you 
believe that.
    Do you believe that a ratio in part of studying 13 pups in 
a population of 55,000 is adequate?
    Mr. LeVine. Thank you, Mr. Chairman. Oceana would support 
additional studies and research, both----
    Mr. Hastings. Well, I asked you if you thought that was 
adequate.
    Mr. LeVine. I run the risk of running afoul of 
Representative Young by stating that it is the best science, 
and that is the best science that we have. And the Agency is 
charged----
    Mr. Hastings. So, the best science is 13 out of 55,000.
    Mr. LeVine. That is the science we have right now.
    Mr. Hastings. Or is that the science that was chosen?
    Mr. LeVine. My understanding is that is the science that we 
have.
    Mr. Hastings. I just find that hard to believe because I 
think the testimony that has been referenced--well. Let me go 
back to Mr. Loomis. Maybe you can shed some light because you 
know that your company participated in the research. Can you 
describe that research? Did it touch on this at all?
    Mr. Loomis. Thank you, Mr. Chair. We were not part of the 
research that tagged the sea lions, the juvenile males. But my 
understanding is that I believe there were 13 males that were 
tagged, and I think three of those males wandered around 
outside of critical habitat. And juvenile males are the part of 
the population that we are least concerned about. We are 
concerned about adult females and what is happening to pups.
    Mr. Hastings. Well, let me ask you this then. Do you think 
a ratio of 13 or 10, if three of them--do you think that is 
adequate to base decisions that are made?
    Mr. Loomis. Mr. Chairman, I think what is adequate is to 
take the science that you have and see if it passed the red 
face test. And I think if you look at using information from 
three juvenile males, which are known to wander.
    Mr. Hastings. Are you suggesting that does not pass the red 
face test?
    Mr. Loomis. I am suggesting exactly that.
    Mr. Hastings. I thought that was where you were going. I 
just wanted to get a clarification.
    Mr. Tsukada, one last point. You referenced the fuel costs. 
Do you believe that the BiOp adequately took into account all 
of the economic impacts?
    Mr. Tsukada. I do not.
    Mr. Hastings. Would you like to elaborate?
    Mr. Tsukada. As Professor Knapp mentioned, a lot of the 
economic analysis, the standard ones, were done fairly well, 
fairly broad scope. But I did not receive a phone call. Nobody 
at the Aleut Corporation received a phone call. Very little was 
done on the impact. I do not see anywhere where our lost fuel 
sales, which translates into salaries for the residents, were 
included. So, no, I believe that the economic analysis, as 
large as it is, is severely understated, and has a higher 
proportion of direct impacts to the low income folks on the 
Aleutian Islands.
    Mr. Hastings. Thank you very much.
    Mr. Young?
    Mr. Young. Thank you, Mr. Chairman. Mr. Looms, you note 
that in 2008, your fleet developed a harvesting cooperative, 
which changed the way you fished in the Bering Sea. Was this 
change analyzed in the Biological Opinion? And if not, do you 
think it would have made a difference in fishing restriction?
    Mr. Loomis.--through the Chair, I do not recall 
specifically. I do not believe it was analyzed in the BiOp, and 
with those changes, we carry two observers on all of our 
vessels that fish in the Aleutians. We have every hull sampled 
by observers. They monitor for marine mammal interaction. So, 
we have cameras that run 24/7 on most of our boats while we are 
processing fish, so we are probably the most observed fleet out 
there. But I do not believe----
    Mr. Young. Did NOAA use any of that information? You do not 
know.
    Mr. Loomis. I do not.
    Mr. Young. We should have asked that question. We will find 
out again. We will ask it in writing.
    NOAA has complained that it is hard to observe the Western 
Aleutian Islands, and I happen to agree. I have been out there. 
I have been all the way out to Kiska and Adak, by the way, Mr. 
Tsukada, and had a great time. Great potential out there. But 
you are being robbed right now by a Federal agency. You are 
absolutely correct.
    If I had any suggestions, probably do not follow them; it 
will get you in trouble. Go catch the fish. Let the darn Navy 
come out and try to take you down, or NMFS, because that is 
right, what you said the history of the Aleuts has been one of 
a tragedy. And you established a situation out there and gave 
them hope and a chance, and they are eliminating that. They do 
not care. They live in Silver Spring or someplace like that, 
you know. They got their heating oil at probably $3 a gallon, I 
will say that. But they took that away from you.
    Let me see what else I have here. Again, I will ask the 
same thing of Mr. Little. Did they use your fleet? Did they ask 
to use your fleet, both of you, Mr. Loomis, that they can do 
any research at all?
    I have not found out what research they have done. They 
never answered that question. I want you to comment on it.
    Mr. Loomis. Through the Chair, as far as the research goes, 
our company has been actively working with a number of 
institutions to try and fill in the gaps. We have gone as far 
as training crew to collect samples. We have spent hundreds of 
thousands of dollars of our own money through a private 
foundation to do research to try and fill in some of these 
gaps. And the issue, Dr. Trites alluded to one of the issues, 
funding. I would like to see Oceana and their members instead 
of putting money into lawsuits, I would like to see them fund 
some active research.
    Mr. Young. Hallelujah. Go ahead.
    Mr. Loomis. I would also like to see some relief in the 
permitting process. We cannot get permits to work in the 
Western Aleutians to go study the fishery interactions.
    Mr. Young. Now, who gives the permits, NOAA and NMFS?
    Mr. Loomis. They come out of the permitting office in 
Silver Spring, I believe.
    Mr. Young. Silver Spring. So, it means if you wanted to go 
out and observe pups and actions of the sea lions, you have to 
get a permit?
    Mr. Loomis. That is correct.
    Mr. Young. Do they go out there?
    Mr. Loomis. The particular research I am referencing was to 
be conducted by the National Marine Fisheries Service. We had 
funding in place through the North Pacific Research Board. We 
had a match from----
    Mr. Young. Speed it up. I mean, did they go out there?
    Mr. Loomis. They did not because they could not get the 
permit to do it.
    Mr. Young. You mean, from their own operation, or you could 
not get it?
    Mr. Loomis. They could not get it. National Marine 
Fisheries Service would not issue themselves a permit to do the 
work.
    Mr. Young. Oh, boy. Does that sound like our great 
government? I am going to ask that question, too. I mean, the 
idea they could not issue a permit to themselves, yet they will 
come down and stop a fisheries, and they are going to make 
decisions?
    You guys got to support my new bill, Mr. Chairman. I am 
going to eliminate all regulations from every Agency from '91 
to 2011 until they can justify it. To me, that makes sense. 
There is no justification for this. This is driven inside.
    Dr. LeVine, you do believe in science, do you not?
    Mr. LeVine. Yes, I do.
    Mr. Young. You do? But you file lawsuits against scientific 
findings many times in your organization. Supposing they clean 
the seas up. Now, where are you cleaning the seas up? What does 
the sea lion got to do with it?
    Mr. LeVine. Representative Young, in this situation with 
regard to the sea lions, the litigation has been brought by the 
State of Alaska and the fishing industry. Oceana has gotten 
involved to defend what we believe were scientifically 
necessary----
    Mr. Young. On what grounds? In fact, every testimony I have 
had here, science is flawed. Everybody's testimony, other NMFS 
themselves, who did not issue themselves a permit to go out and 
do the studying.
    The fact is, Mr. Chairman, I think that is probably a sign 
of total incompetency. You could not issue yourself a permit? I 
can get a permit to go to the bathroom in a heartbeat, and they 
could not issue themselves a permit? I mean, where is the 
science behind that?
    Mr. LeVine. Representative Young, I am not in the position 
to comment on the Agency's internal process about permits or 
otherwise.
    Mr. Young. But you joined the lawsuit against the State and 
against the State of Washington, correct?
    Mr. LeVine. In this situation, Representative Young, the 
Steller sea lions in the far Western Aleutians continue to 
decline, and Oceana is involved in litigation and other efforts 
in order to further----
    Mr. Young. What basis? There is no science to back that up. 
It does not decline. In fact, we got reports that the pup 
population is increasing. In fact, after the year 2000, yes, 
from 60 then, they may have declined, but they are actually 
increasing. The species is healthy and the biomass is strong to 
feed the--so what does Oceana. You are going get me like Sierra 
Club pretty quick, buddy, because you do it to gain on the side 
without looking at the science.
    So, what is the science you joined that lawsuit?
    Mr. LeVine. Representative Young, overall, the population 
is either holding steady or growing slightly.
    Mr. Young. Holding steady and growing slightly, yet you are 
part of that lawsuit to back up the non-scientific NMFS/NOAA 
findings.
    Mr. LeVine. In the Western Aleutian Islands, the population 
has declined by 45 percent between 2000 and 2011.
    Mr. Young. And it increased where?
    Mr. LeVine. I am sorry, I did not understand----
    Mr. Young. Where did it increase?
    Mr. LeVine. It increased to the east of that population.
    Mr. Young. And is that DNA of those sea lions exactly the 
same thing?
    Mr. LeVine. The Agency has treated that population as one 
stock, yes.
    Mr. Young. As one stock. But is the DNA the same?
    Mr. LeVine. My understanding is that it is.
    Mr. Young. That is right. So, they just went where they 
thought they could do--maybe they wanted to visit their aunt 
and uncles. You ever think about that? When you filed that 
lawsuit, the people in Adak and the Aleuts, did you take them 
into consideration?
    Mr. LeVine. Yes, we did, Representative Young.
    Mr. Young. You did? And you contribute to them? You helped 
them make up that fuel price? I know I am running out of time.
    Mr. LeVine. It is unfortunate that the large scale 
fisheries have to bear the brunt of the situation that we found 
ourselves in. And we support long-term sustainable fisheries 
that will help provide for communities. And that is our job as 
an ocean conservation organization.
    Mr. Hastings. Will the gentleman yield?
    Mr. Young. Yes, gladly. I know you got to go.
    Mr. Hastings. That graph over there shows the Aleutian 
Islands from West to East. And you can see the green line there 
shows an increase, and there are a few places there admittedly 
going down. But on the whole, it is an increase. I just think 
that is--one can pick out any individual part and base a whole 
lot of conclusions, I guess, like sampling 13 out of 55 and 
come up with a conclusion. But that graph there, which is 
NOAA's data, by the way, I think is somewhat significant. So, I 
will yield back to the gentleman.
    Mr. Young. It goes back to I get very frustrated, and then 
everybody else should be frustrated. There is no science to 
back up what was done by NOAA/NMFS. And, Mr. LeVine, my problem 
is you are supposed to be a reputable group of people, but you 
are falling into that trap of not following science. Again, Mr. 
Chairman, available science. We should have best science.
    What NMFS did is not the best science. What NMFS is an 
agenda, and you should not be part of an agenda unless you 
really believe the fact that people do not count. There are 
groups of people in the United States that believe people are 
the evil thing. Everything is bad we create. Everything we 
create. That is nonsense. You ought to think about that.
    You are a legal man. There is no law that says that they 
could not have taken and considered this and the other options. 
That is in the law. I want a few people to know a little bit 
about the law. I did not read everything, but I know a little 
bit about it. And what you have to think as an organization is 
maybe we ought to analyze this a little more and not back up an 
agency that has gone rogue. That is what they have done. It is 
not the first time. But they have collectively got worse as 
time goes by.
    And, Mr. Chairman, again, I will tell you our Congress with 
its oversight ability ought to look at the funding pots of 
these agencies. And maybe understand that maybe there is 
another side of this coin. And I will tell you right now, there 
is a big side.
    So, Mr. Chairman, I am tired of raving, but I can do more 
of it. But go ahead.
    Mr. Hastings. Well, listen, the gentleman is--many of his 
constituents are directly impacted by this, so I can understand 
his passion. And frankly I think it is very well placed. And 
the mere fact that we are out here having a hearing in areas 
that are impacted shows the seriousness that this Committee and 
this Chairman takes with this issue. But I want to thank you 
very much for coming down.
    And I want to thank this panel for your testimony. There 
may be some follow-up questions to you. Certainly there is 
going to be a follow-up question to other panels that came from 
this panel, and I appreciate very much your making that 
suggestion. But if there are follow-up questions to you, I 
would hope that you would respond in a timely manner.
    And with that, I will dismiss the panel. And, again, I want 
to thank everybody, all three panels, members of the panel, for 
being here, and those that came.
    And with that, no further business before the Committee, 
the Committee stands adjourned.
    [Whereupon, at 11:44 a.m., the Committee was adjourned.]

                                 
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