PETITION TO LIST THE NORTHEASTERN PACIFIC OCEAN DISTINCT POPULATION SEGMENT OF Great White Shark (Carcharodon carcharias) UNDER THE U.S. ENDANGERED SPECIES ACT Photo: Terry Goss Petition Submitted to the U.S. Secretary of Commerce, Acting through the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service Petitioner: WildEarth Guardians 1536 Wynkoop Street, Suite 301 Denver, Colorado 80202 303.573.4898 June 20, 2012 INTRODUCTION WildEarth Guardians (“Guardians”) requests that the Secretary of Commerce, acting through the National Marine Fisheries Service (NMFS),1 an agency within the National Oceanic and Atmospheric Administration (NOAA), list the northeastern Pacific Distinct Population Segment (DPS) of Great White Shark, Carcharodon carcharias, under the Endangered Species Act (ESA) (16 U.S.C. §§ 1531-1544). WildEarth Guardians also requests that NMFS designate critical habitat for the species in U. S. waters. Despite its reputation, the Great White Shark needs our protection more than our fear. Over 100 million sharks, of all species, are killed annually by humans. In contrast, sharks of any type only claim approximately 10 human lives per year (NOAA 2012 at 2). A human is 15 times more likely to be killed by a falling coconut than by a shark (Id.). The Great White Shark’s imperilment is part of a concerning pattern of shark endangerment globally (for example see Baum et al. 2003; Dulvy et al. 2008). Sharks are both intentionally targeted by fisheries and are killed when caught as bycatch. Sometimes they are simply “finned” – a cruel technique wherein a shark’s fin is cut off but the living shark is discarded to die a lingering death from drowning or starvation at the bottom of the ocean. Whether finned or otherwise killed, the Great White Shark is very vulnerable to fishing and bycatch, given its low reproductive rate and the depletion of its populations in the northeastern Pacific and elsewhere. In light of the Great White Shark’s imperilment, Guardians requests listing of the northeastern Pacific DPS under the Endangered Species Act (ESA). NOAA has acknowledged the importance of preserving dwindling populations of Great White Sharks (NOAA 2012 at 2) and recognizes that shark biology “makes them highly susceptible to the threats of fishing and other human activities” (Id.), citing statistics on shark and skate imperilment from the International Union for Conservation of Nature (IUCN), which lists the global population of Great White Shark as “vulnerable” (IUCN 2009 at 1). WildEarth Guardians requests that NOAA do its part to protect the global population by listing the petitioned DPS as “endangered.” PETITIONER WildEarth Guardians is a nonprofit environmental advocacy organization that works to protect endangered species and biodiversity, in part, by attempting to obtain Endangered Species Act listing for all deserving species. The organization has more than 4,500 members and 10,000 supporters located throughout the United States and in several foreign countries. WildEarth Guardians has an active endangered species program that works to protect imperiled marine and terrestrial species and their habitat throughout the United States and beyond. ENDANGERED SPECIES ACT AND IMPLEMENTING REGULATIONS The Endangered Species Act of 1973 protects plants and animals that are listed by the federal government as “endangered” or “threatened” (16 U.S.C. § 1531 et seq.). Any interested person may submit a written petition to the Secretary of Commerce requesting him or her to list a 1 NOAA Fisheries. Petition to List the Northeastern Pacific Ocean DPS of Great White Shark under the ESA 2 species as “endangered” or “threatened” under the ESA (50 C.F.R. § 424.14(a)). An “endangered species” is “any species that is in danger of extinction throughout all or a significant portion of its range” (16 U.S.C. § 1532(6)). A “threatened species” is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” (16 U.S.C § 1532(20)). “Species” includes subspecies and distinct population segments of vertebrate taxa (16 U.S.C § 1532(16)). The ESA sets forth listing factors under which a species can qualify for protection (16 U.S.C. § 1533(a)(1)): A. The present or threatened destruction, modification, or curtailment of habitat or range; B. Overutilization for commercial, recreational, scientific, or educational purposes; C. Disease or predation; D. The inadequacy of existing regulatory mechanisms; or E. Other natural or manmade factors affecting its continued existence. A taxon need only meet one of the listing criteria outlined in the ESA to qualify for federal listing. If the Secretary determines that a species warrants a listing as “endangered” or “threatened” under the ESA, and the species lives within the United States or its waters, he or she is obligated to designate critical habitat for that species based on the best scientific data available (16 U.S.C. § 1533(b)(2)). The National Marine Fisheries Service and Fish and Wildlife Service2 have jointly published a policy document defining the statutory term “distinct population segment” (61 Fed. Reg. 4722). This joint policy employs a three-part analysis to determine the status of a possible distinct population segment as endangered or threatened under the ESA: (1) the “discreteness” of the population segment; (2) the “significance” of the population segment; and (3) its conservation status (61 Fed. Reg. at 4725). The joint policy provides that in a decision to list a distinct population segment under the ESA the responsible agency will evaluate: (1) the discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment’s conservation status in relation to the ESA’s standards for listing (i.e. does the population segment, when treated as if it were a species, meet the ESA’s definition of endangered or threatened?) (Id.). 2 The ESA delegates listing decisions to two cabinet-level Secretaries, Interior and Commerce (16 U.S.C. § 1532(15)). The Secretary of Interior has sub-delegated authority to the Fish and Wildlife Service (FWS). The Secretary of Commerce has sub-delegated authority to the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS). In general, the Secretary of Interior has responsibility for terrestrial and freshwater species and the Secretary of Commerce has responsibility for marine and anadromous species. Petition to List the Northeastern Pacific Ocean DPS of Great White Shark under the ESA 3 As to discreteness, the joint policy provides a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: 1. It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation; or 2. It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D)3 of the Act. As to significance, the joint policy provides that if a population segment is considered discrete under one or more of the above conditions, its biological and ecological significance will then be considered in light of Congressional guidance (see Senate Report 151, 96th Congress, 1st Session) that the authority to list distinct population segments be used “sparingly” while encouraging the conservation of genetic diversity. In carrying out this examination, the agencies will consider the available scientific evidence of the discrete population segment’s importance to the taxon to which it belongs. This consideration may include, but is not limited to, the following: 1. Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; 2. Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon; 3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or 4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. (61 Fed. Reg. at 4725) Although these guidelines are not regulations and serve only as policy guidance for the agencies (Id. at 4723), they have been upheld as a reasonable interpretation of ambiguous statutory language (Maine v. Norton, 257 F. Supp. 2d 357 (D. Maine 2003)). Accordingly, if the responsible agency determines a potential distinct population segment of vertebrate fish or wildlife is both discrete and significant, it will then evaluate the population segments’ conservation status under the ESA as though the distinct population segment were in fact a species and it is eligible for listing. CLASSIFICATION AND NOMENCLATURE Common Name. Carcharodon carcharias is commonly known as the “great white shark,” “white pointer,” or “white shark” (CCSA undated at 1). This petition refers to the species as Great White Shark or White Shark. 3 Section 4(a)(1)(D) of the Act, 16 U.S.C.