The states of Oregon and Washington last week agreed to suspend their effort to trap and remove California sea lion from the lower Columbia River until at least September to allow newly kindled litigation to unfold in U.S. District Court.
The agreement was forged by the states, the federal government and the Humane Society of the United States. The HSUS had on May 19 filed a complaint in the District of Columbia’s U.S. District Court asking it to vacate a May 13 NOAA Fisheries decision granting the states permission to remove California sea lions known to prey on salmon and steelhead in the waters below Bonneville Dam.
State biologists did manage to capture one California sea lion within days after removal authority was restored. The animal was trapped near the mouth of the Columbia at Astoria, Ore., and transported to Bonneville Dam to be euthanized.
The sea lion was on a list animals, which has been compiled over the past three years, that are eligible for removal under the rules developed as part of the authorization. The animals are eligible for removal if they have been observed feeding on salmon below the dam. The states want to remove animals that have in recent years gathered in relatively large numbers each spring below the dam to feed on salmon searching for fish ladders.
The salmon and steelhead include fish that are protected under the Endangered Species Act. The California sea lions, on the other hand, are protected by the Marine Mammal Protection Act. The lethal removal permit was granted under provisions of Section 120 of the MMPA.
The HSUS says NOAA Fisheries wrongly, and illegally, interpreted Section 120’s provisions both in 2008 when lethal take authority was initially granted the states and again this year. The 2008 authorization was late last year tossed out by the U.S. Court of Appeals for the Ninth Circuit.
NOAA Fisheries said in redrafting the decision it had corrected the legal flaws noted by the Ninth Circuit. The HSUS, Wild Fish Conservancy, and two individual citizens that filed the lawsuit last month say the new three-year authorization still flaunts the MMPA and the Administrative Procedures Act.
The agreement is temporary, but means that no sea lions may be killed before the HSUS' lawsuit challenging the program can be heard by the court, according to a HSUS press release.
"We are relieved to have won this temporary stay of execution for sea lions, but will continue to press our case to see that federal laws, and not the sea lions, are executed," said Jonathan R. Lovvorn, senior vice president and chief counsel for animal protection litigation for The HSUS. "NMFS's decision to kill hundreds of native sea lions is irrational and illegal, and should be permanently shelved."
The agency’s decision allows as many as 85 animals each year during 2011-2013. But NOAA Fisheries says it doubts more than 30 would be trapped in any year. A total of 40 were removed during the 2008-2010 period.
The states too feel it is time, once again, to focus on legal issues.
“Washington and Oregon reserve their rights with respects to all of these issues, and this is without admission on merits. The current season problem at Bonneville is hopefully coming to a close, and so the states were willing to make a decision of the this type so that the issues may be more meaningfully litigated than in emergency motion practice,” according to a letter to HSUS attorneys from state counsel. The states have also requested that they be allowed to participate in the case, as they did in 2008 in support of the federal government.
The opportunity, for trapping, is all but past for spring 2011 even if the agreement was not in place. By the time the new decision letter was issued the California sea lions had already begun to exit the area below the dam. Observers were seeing only three of the big pinnipeds by the end of May in the waters below Bonneville.
CSL numbers were low overall this year compared to previous years with a high daily count being 25. Researchers have now documented close to 50 individual California sea lions at the dam this spring season. The high count since research began in 2002 was 104 in 2003; the lows were 30 in 2002 and 54 in 2009.
The California sea lions that swim up Bonneville are almost exclusively male. They swim north to forage after their summertime breeding season off the southern California coast and in Mexico. They head south again, for the most part, by the beginning of June, following their reproductive urges.
The Sept. 1 termination of the agreement was intended clear up the litigation so that, if NOAA’s decision is upheld, the states could potentially begin removing animals that have again swum north to forage.
“We also have discussed that this matter should be expedited, so that we do not have a similar TRO situation in September,” the states’ letter said of the threat of a request from HSUS for a temporary restraining order. “We look forward to arriving at an agreed upon briefing schedule to resolve these issues as promptly as possible”