NOAA Fisheries Service continues to mull over its options for responding to a Nov. 23 appellate court’s decision that struck down the federal agency’s decision to authorize the lethal removal of California sea lions that prey each spring on Columbia and Snake River salmon spawners.
The federal government can seek a rehearing in the U.S. Court of Appeals for the Ninth Circuit, or appearl to the U.S. Supreme Court. It also has the option of attempting to answer the concerns of the appeals court. Or it could also just drop the issue.
An appeal of the decision is not necessarily a given, NOAA Fisheries Garth Griffin said Tuesday in response to a question from the Northwest Power and Conservation Council. Griffin was asked to brief the Council on the status of the sea lion removal program. which was approved under Section 120 of the Marine Mammal Protection Act in March 2008.
The agency decision authorized the states of Idaho, Oregon and Washington to remove “individually identifiable” California sea lions that are having a “significant negative impact on the decline or recovery of these salmonid populations,” two requirements of Section 120. The Ninth Circuit opinion said NOAA Fisheries failed to properly explain how its decision satisfied the significant impact question.
“Here, we hold that NMFS has not offered a satisfactory explanation for its action. First, the agency has not adequately explained its finding that sea lions are having a ‘significant negative impact’ on the decline or recovery of listed salmonid populations given earlier factual findings by NMFS that fisheries that cause similar or greater mortality among these populations are not having significant negative impacts,” the Ninth Circuit opinion says.
Legal arguments have highlighted NOAA Fisheries decisions to permit Columbia mainstem harvests and the operation of the federal hydro system, both of which involve the “incidental take” of listed salmon and steelhead.
Among the spring chinook salmon and steelhead preyed on by the sea lions are naturally produced fish that are protected under the Endangered Species Act. The California sea lions are protected under the MMPA. Both laws were passed in the early ‘70s. Since then sea lion populations have shot up, and 13 Columbia River basin salmon and steelhead stocks have become ESA listed.
“Second, the agency has not adequately explained why a California sea lion predation rate of 1 percent would have a significant negative impact on the decline or recovery of these salmonid populations,” the opinion said. NOAA Fisheries’ decision said that holding down impact on the salmon runs for three straight years would be considered a success. Observed predation by sea lions congregated below the dam has been estimated to be as high as 4.2 percent of one year’s run and as low as 0.4 percent, according to ongoing research that began in 2002.
“These procedural errors require us to direct the district court to vacate NMFS’s decision and remand to the agency to reconsider the action or provide a fuller explanation,” according to the opinion.
“NMFS cannot avoid its duty to confront these inconsistencies by blinding itself to them,” the appellate panel said. “We do not suggest that an agency has a duty to identify and address any potential tension between current and earlier factual determinations in marginally related administrative actions. But in this case the agency’s seemingly inconsistent approach to, on the one hand, fishery and hydropower activities, which are deemed not to be significant obstacles to the recovery of listed salmonid populations, and, on the other hand, sea lion predation, which is
deemed to be a significant barrier to salmonid recovery, has occupied the center of this controversy from the start.
“Accordingly, we direct the district court to vacate NMFS’s decision approving the states’ MMPA application and remand to NMFS to afford the agency the opportunity either to articulate a reasoned explanation for its action or to adopt a different action with a reasoned explanation that supports it,” the opinion says.
The remedy option is still being considered.
“There are a number of things in the Ninth Circuit findings that validated the approach we used,” Griffin said. “They are giving us another shot at making that case.”
Griffin said the agency stands by its opinion that the sea lions are having a significant impact on listed salmon stocks. He noted that the sea lion impacts used for comparison in the lawsuit include only observed predation “in a half-mile stretch of river” immediately below the dam. No definitive predation data is available for the 146 river miles from the dam down to the river mouth.
“We believed it was significant before; we feel it is significant still,” Griffin told the Council.
“The problem isn’t going away,” Griffin said of predation that climbed to the observed take of 6,000 salmonids this year, a record over the course of the study.
He told the Council that over the three years of program implementation removals, 37 California sea lions in all, may have “stemmed a little bit” the predation.
That falls far short of expectations that as many as 85, and 30 at minimum, would be removed each year. The biggest problem was getting the right animals – California sea lions identified as eligible for removal – on any of three floating traps at the right time.
“The removal program has not been as successful at reducing predation as they’d hoped,” Griffin said of the states and the Pinniped-Fishery Interaction Task Force, which was convened in 2007 to offer recommendations about whether or how the program should be implemented.
The task force was reassembled in Portland for two days in late October and another two days in early November to review of removal program’s effectiveness through the first three years of what was to be a five-year program. The panel includes representatives from academia, scientific and conservation communities, tribes and federal and state agencies.
Griffin said that anticipated findings from the task force, which are expected by today (Dec. 17) or early next week, include:
-- Removal program has not succeeded in reducing salmonid predation problem below Bonneville Dam;
-- Goal of reducing predation to less than 1 percent is still a reasonable target;
-- Relax criteria for adding problem animals to removal list;
-- Increase resources (e.g., traps) to improve effectiveness;
He noted that during meetings this fall some task force members expressed doubt that MMPA Section 120 can address the conflict.