The states of Oregon and Washington are ready to retrench after hearing late last week that the federal government has revoked their authorization to remove, lethally or otherwise, salmon-chomping California sea lions that feed in the Columbia River.
“We have evaluated the litigation risks and discussed with your staffs various options for proceeding,” according to a July 22 letter to the states from James H. Lecky, director of NOAA Fisheries Office of Protected Resources. “In light of the fact that sea lion activity will be limited until next spring, we have concluded it is in our collective interest to permanently suspend the 2011 LOA and instead consider a new request for 2012.”
NOAA Fisheries on May 11 delivered a “letter of authorization” under Section 120 of the Marine Mammal Protection Act that permitted the removal of up to 85 California sea lions annually, although the agency said it was unlikely that large a number would be taken each year. The agency's authorization to the states was set to expire in June 2013, but could have been extended. Instead, that LOA was revoked effective Wednesday, July 27.
Now the states are back at work on what will be their second application for permission to removal California sea lions that have over the past 10 years congregated in springtime below Bonneville Dam to gorge on spring chinook salmon spawners searching for the hydro project’s fish ladders. Among the prey are wild salmon and steelhead stocks that are listed under the Endangered Species Act.
“We’re planning on submitting a new application within the next 2-3 weeks,” said Guy Norman, director of the Washington Department of Fish and Wildlife’s Southwest Region.
“The focus is on that spring period,” Norman said of the states’ desire to regain authority by the time the sea lions begin to return in numbers. The California sea lion males annually swim north to feed following their summertime breeding season off the coast of Southern California and in Mexico. They seem to be drawn upriver by the lure of a ready food source, the spring chinook.
Lecky’s letter said that, if a new application is submitted, “we will immediately begin to fulfill the statutory requirements, with the goal of making a final decision no later than February 29, 2012.
Lecky’s letter can be found at:
The states and federal agency decided to take a step back.
“I think there’s some legal uncertainty,” Norman said. Working through the Section 120 process again will allow all those involved to make sure “everything is covered procedurally.”
Conservation groups who have fought in federal court to stop sea lion killings said it’s time to leave the big marine mammals alone. A total of 40 California sea lions were removed from 2008-2010.
“Blaming sea lions is nothing but a distraction from facing up to the more politically difficult reasons why salmon are in trouble,” said Kurt Beardslee, executive director of Wild Fish Conservancy. “We’re glad that NMFS has chosen to halt plans to kill sea lions at this time, but the agency now needs to look objectively at dam operations and over-harvest, hatchery practices, and the stocking of non-native fish. Addressing a single one of these pervasive problems would help salmon far more than killing sea lions at Bonneville.”
The states first applied for authorization under Section 120 in December 2006. Section 120 provides an exception to what are blanket protections for marine mammals and permits in special cases the lethal taking of seals and sea lions that are having a “significant negative impact on the decline or recovery of salmon and steelhead listed under the Endangered Species Act.” The states believe that California sea lions are having such an impact on ESA-listed fish in the Columbia River basin.
NOAA initially gave the states authorization in March 2008 to permanently remove problem California sea lions, including relocating them to zoos or trapping and euthanizing them. A lawsuit filed that year by the Humane Society of the United States and Wild Fish Conservancy resulted in a 2009 federal district court ruling that upheld NOAA Fisheries’ decision to grant the states lethal removal authorization.
But an appeals court in late 2010 overturned the lower court decision and sent the decision back to NOAA to better explain its rationale for protecting salmon by removing offending California sea lions.
The Ninth Circuit order said that “NMFS has not satisfactorily explained the basis of its decision.”
“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 order said. “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 2008 NOAA approval called for sea lion removals to be ended if predation dipped to or below 1 percent of upriver fish run.
NOAA Fisheries in reissuing the authorization in May said it had addressed the high court’s concerns.
A complaint filed one week later in U.S. District Court, District of Columbia says the federal agency had not addressed the appellate court panel’s concerns.
“Plaintiffs also challenge NMFS’s decisions to disregard Section 120’s procedural requirements and to forego any supplement to its Environmental Assessment issued in 2008,” according to the complaint filed by HSUS and the Wild Fish Conservancy. “NMFS’s May 2011 decision to eradicate several hundred native animals to improve salmon runs by, under the most optimistic projections, a couple percentage points continues to stand in stark contrast to many past NMFS decisions finding that salmon take far in excess of 4 percent by fishermen, tribes and other resources users does not have a ‘significant’ impact on the species.
“Moreover, the May 2011 decision fails to articulate a rational explanation for reconciling this disparity in factual findings as required after the prior ruling of the Court of Appeals for the Ninth Circuit,” the complaint says.
“NMFS stated that it was not re-opening the Environmental Assessment, despite the previous Environmental Assessment now being more than 3 years old, and despite new evidence that salmon and steelhead run sizes are growing and not declining, that the rate of sea lion predation is decreasing, that the fisheries have exceeded their allocations in recent years, and that there are sources of salmon and steelhead mortality that are newly recognized by NMFS,” the complaint says.
The complaint asked the court to vacate NOAA Fisheries’ May 2011 decision and “enjoin any killing of sea lions at Bonneville Dam until the agency has fully required with the requirements of the MMPA.”
“After seeing our complaint they recognized that they had not really done what they were supposed to do,” HSUS’ field director for marine issues, Sharon Young, said of NOAA Fisheries’ withdrawal of the lethal take authority.
“We’re delighted the agency has changed its mind and revoked the state’s authorization to kill hundreds of native sea lions for having the audacity to eat fish for dinner,” said Jonathan R. Lovvorn, senior vice president and chief counsel for animal protection litigation for the HSUS. “It’s time to face the fact that killing sea lions doesn’t do anything for salmon, and focus instead on real salmon conservation threats, like hydropower and commercial fishing.”
The Section 120 process says that, once an application is received, the Secretary of Commerce has 15 days to decide if there is "sufficient evidence" to warrant establishing a Pinniped-Fishery Interaction Task Force to address the situation described in the application. The creation of a task force would be published in the Federal Register with a public comment period to follow.
If a task force is created, it would have 60 days to produce a recommendation regarding whether or not the application should be approved or denied. The secretary would then have 30 days to approve or deny the application.
The task force would be composed of state and federal agencies, tribes, scientists, representatives of conservation and fishing groups and other organizations.
National Environmental Policy Act requirements, such as the development of an environmental assessment, also need to be fulfilled.
The Humane Society of the United States is the nation's largest animal protection organization 11 million backers. The Wild Fish Conservancy “is a non-profit organization dedicated to the recovery and conservation of the Northwest region’s wild-fish ecosystems, with about 2,400 members. Wild Fish Conservancy’s staff of over 20 scientists, advocates, and educators work to promote technically and socially responsible habitat, hatchery, and harvest management to better sustain the region’s wild fish heritage.”