An appellate panel on Nov. 6 focused almost exclusively on the contention that the federal government illegally scapegoated salmon-eating California sea lions by allowing their lethal removal from the Columbia River even while endorsing activities that cause greater fish mortality.

"At the very least, they have to explain why sea lions have a significant impact on [salmon] recovery when dams and fisheries do not," Sarah Uhlemann, an attorney for the Humane Society of the United States, argued during oral arguments before a three-member judicial panel last week in Portland.

At the end of the hearing, Uhlemann was asked what she wanted of the court. She said the HSUS wanted the court to overturn NOAA Fisheries Service's March 2008 decision to allow the removals and that the agency be ordered to provide that explanation as well as a more thorough evaluation of the proposed removals under provisions of the National Environmental Policy Act.

"Why wouldn't the explanation be the place to start? Why do we have to get into an EIS review and a NEPA process if they are able to explain themselves?" one of the judges asked.

Uhlemann said the development of a proper explanation, as required by the Administrative Procedures Act, would suffice.

The U.S. Court of Appeals for the Ninth Circuit panel will now ponder the oral arguments, as well as legal briefs filed this summer, before rendering a decision.

The legal battle was triggered by NOAA Fisheries' decision to authorize the states of Idaho, Oregon and Washington to remove salmon-eating California sea lions from below Bonneville Dam. The authorization process is described in Section 120 of the Marine Mammal Protection Act. The spawning salmon and steelhead include stocks that are listed under the Endangered Species Act.

The HSUS immediately challenged the decision in Portland's U.S. District Court but the decision was upheld.

In a Nov. 25, 2008 order, U.S. District Court Judge Michael W. Mosman said that despite the interplay of three federal statues in the lawsuit, "it is fundamentally an Administrative Procedure Act ("APA") challenge to NMFS's decision."

"Viewing NMFS's actions in light of the APA's deferential standard, NMFS properly evaluated whether individually identifiable pinnipeds were having a significant negative impact on the decline or recovery of salmonids," Mosman wrote. "Its decision in this case was not arbitrary and capricious in comparison with other agency decisions under NEPA and the ESA. Furthermore, NMFS was not required to prepare an EIS because beneficial impacts do not trigger the need for an EIS."

That decision was then appealed to the Ninth Circuit.

The HSUS argues that NOAA Fisheries' decision was contrary to law because the agency failed to apply the correct legal standard for authorizing a lethal taking of sea lions under MMPA section 120 and was inconsistent with other agency decisions related to the federal Columbia-Snake hydro system and fishing that were made under NEPA and the ESA. It also said the agency violated NEPA by preparing an environmental assessment when a more comprehensive environmental impact statement was appropriate.

Section 120 allows the removal of "individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks." It also says that current levels of protections for seals and sea lions cannot be lifted "without first giving careful consideration to other reasons for the decline."

HSUS has argued that NOAA Fisheries has "failed to reconcile this decision" with past decisions. Uhlemann told the panel that the sea lions are estimated to eat about 4 percent of the returning salmon spawners each spring in the area immediately below the dam, a level NOAA Fisheries decided is significant under the MMPA.

In the past the agency has given ESA sanction for fisheries that kill from 5.5 percent to 17 percent of the run and the operation of Federal Columbia River Power System, which takes from 9 percent to 17 percent of the returning adult salmon, and up to 60 percent of juveniles, she said. Neither was described as significant in NOAA decisions, according to the HSUS.

HSUS attorneys have cited Ninth Circuit precedent that says, under the APA, federal agencies "must clearly set forth the ground for its departure from prior norms so that we may understand the basis of the [agency's] action and judge the consistency of that action with the [agency's] mandate."

Federal attorneys and attorneys for the states argue that different decisions are based on different laws, different congressional directives and different legal standards. The APA requires that the involved expert agency's decisions be given deference, and in the MMPA Congress gave NOAA Fisheries "the authority and discretion to identify those circumstances" where sea lion removals is necessary, Justice Department attorney Mark Haag told the panel.

The panel of judges included Jeremy D. Fogel, Raymond C. Fisher and Richard H. Paez. They peppered Haag with questions about where in the NOAA decision the agency had provided its rationale for determining the sea lions take of salmon was significant in light of its decisions regarding mortality caused by dams and fisheries.

"… I don't see it in the administrative rule," one judge said.

"There's no requirement that everyone be treated equally," Haag said. He pointed out that dam operations and fisheries can be manipulated in order to reduce fish mortality and had indeed seen severe restrictions in recent years. Sea lions behavior, on the other hand, cannot be controlled.

Haag said that "it was Congress' intent that endangered salmon trump a healthy population of California sea lions."

The panel asked Uhlemann if she agreed with the federal government's "ultimate point" -- that it is within agency discretion "to subject sea lions to more stringent conditions" if they can explain why those conditions are necessary.

"Yes, they need to explain in detail why sea lions are having a significant impact on salmon recovery and fishermen and dams are not," she said.