NOAA Fisheries, in effect, rewrote language in the Marine Mammal Protection Act, and ignored other language, in granting authority for the lethal removal of California sea lions that prey on salmon below the Columbia River's Bonneville Dam, according to a motion filed last week in U.S. District Court asking that the decision be rescinded.

The July 3 motion filed by the Humane Society of the United States, the Wild Fish Conservancy and two individuals launches a court debate about whether or not the states of Idaho, Oregon and Washington can remove sea lions that congregate each spring below the dam. Their feast includes steelhead and spring chinook salmon that are listed under the Endangered Species Act.

NOAA in March approved an application via section 120 of the Marine Animal Protection Act that would allow the removal, lethal or otherwise, of up to 85 California each year for five years. In its decision NOAA said says it is unlikely that more than 30 could be removed annually.

The decision says that the removals would not harm the health of the sea lion population overall and would reduce mortality of the listed fish.

The HSUS immediately sought a district court injunction to stop planned removals this spring but was denied. The animal rights group appealed that decision and ultimately won a stay in the U.S. Court of Appeals for the Ninth Circuit that allowed capture and transfer of pinnipeds to zoos, but prevented the states from killing animals.

The HSUS, federal government and states reached an agreement whereby the appeal would be dismissed and no more California sea lions would be removed from the Columbia before March 1, 2009. Portland's U.S. District Court adopted the agreement and set a briefing schedule on the original complaint with will culminate with oral arguments Sept. 9.

The agreement requests a decision from the court by Sept. 15, which would allow an appeal to play out before next spring. Judge Michael W. Mosman is presiding in the case.

The sea lions typically begin arriving in the Columbia in winter with their numbers peaking in April and May, the same time that the annual spring chinook salmon spawning run is building. Researchers have estimated that the sea lions have picked off as much as 4 percent of the upriver spring chinook run.

Before activity was stalled this year, the states managed to capture seven California sea lions for relocation to zoological facilities. Six sea lions were flown to SeaWorld facilities in Orlando, Fla., and San Antonio, Tex. The seventh died when it failed to resume breathing after being sedated for a health examination.

Four California and two Steller sea lions were found dead May 4 in floating traps below the dam that had been used to capture the animals. The cause of death has initially been identified as heat prostration but is unknown how they became trapped. State biologists had left the trap doors open. An investigation is ongoing with a report likely by the end of July, according to NOAA's Brian Gorman.

The July 3 motion for summary judgment says the NOAA decision to allow lethal removal is arbitrary and capricious under the federal Administrative Procedures Act and contrary to the MMPA and the National Environmental Policy Act.

"NMFS has decided that sea lions in the Columbia River must be killed because their feeding, taken as a whole, has a 'measurable' and allegedly 'growing' effect on the number of listed salmonids," according to the motion

The motion says the terms "measurable" and "growing" don't satisfy MMPA language that allows the legal taking only of "individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks."

The HSUS filing and support documents say NOAA "re-wrote the MMPA statutory standard to fit the facts presented" in approving lethal removal.

"In reaching this conclusion, which could justify the killing of any sea lion that is documented eating fish, the agency made no attempt to declare what level of 'measurable' taking of salmon actually constitutes a 'significant negative impact' -- the applicable statutory standard of the MMPA.

"NMFS has (1) failed to apply a rational legal standard for what constitutes 'significant' pinniped take under the MMPA; (2) neglected to explain how the taking of 4 percent of salmon can possibly be considered 'significant' in light of the plain meaning of statutory language; and (3) failed to explain how 4 percent take can be significant in light of other, much higher sources of mortality that NMFS has previously authorized and determined to be not 'significant.'"

The HSUS filings also say NOAA's decision and support documents wrongly ignored impacts to protected salmon caused by other factors, such as harvests and the federal Columbia/Snake hydro system.

In writing the MMPA, "Congress unequivocally stated that it 'recognizes that a variety of factors may be contributing to the declines of [listed fish] stocks and intends that the current levels of protection afforded to seals and sea lions under the Act should not be lifted without first giving careful consideration to other reasons for the decline,'" according to HSUS.

The HSUS filings cited state and federal documents that show NMFS has authorized commercial fisheries, recreational fisheries, and tribal fisheries to take up to 17 percent of listed salmonid species, and hydro system operations that kill "up to 59.9 percent of juvenile salmonids and up to 16.8 percent of adult salmonids."

NMFS' lethal take approval "reached a conclusion that flies in the face of more than a decade of past administrative decisions concerning the relative significance of those 'other reasons for the decline' of salmonids," according to HSUS.

The July 3 filings also say the federal agency violated NEPA by failing to produce an environmental impact statement and not preparing an adequate environmental assessment of the proposal sea lion removal.

The federal defendants and defendant-intervenors now have until July 23 to file opposition to the HSUS request, and cross-motions for summary judgment. The Oregon and Washington departments of fish and wildlife joined the lawsuit as defendant-intervenors.

The plaintiffs then have until Aug. 8 to file their opposition and reply in support of their summary judgment. The briefing in district court would be complete by Aug. 22 when the federal government and states file their replies.

Preliminary data compiled by U.S. Army Corps of Engineer researchers estimates that 3,942 chinook, 288 steelhead, 607 sturgeon (21 larger than 5 feet), 72 lamprey and 703 unidentified fish were taken by sea lions this past spring in the water immediately below the dam. A total of nearly 152,000 "spring" chinook salmon were counted passing over Bonneville's fish ladders.

The researchers emphasize that the data is preliminary and the numbers could change.

The research indicates that most of the unidentified fish are likely chinook. The California sea lions focus almost exclusively on salmon and steelhead while the Stellers focus on sturgeon.