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Request For Preliminary Injunction Filed As States Continue Trapping, Euthanizing Sea Lions
Posted on Friday, April 13, 2012 (PST)

The confrontations between those who want the California sea lion presence lessened in the lower Columbia River and those who do not continued this week both on the river and in the courtroom.

 

Oregon and Washington officials continued their effort to trap and lethally remove California sea lions that are known to prey on protected salmon and steelhead below the lower (river mile 146) Columbia’s Bonneville Dam. The states this week trapped two animals that were deemed eligible for removal. The two animals were euthanized, bringing the 2012 toll to four California sea lions.

 

Also on the river, representatives of Sea Shepherd and the Sea Lion Defense Brigade have launched a campaign to alert the public and the governors of Oregon and Washington about what the animal rights activists believe is a scapegoating of the marine mammals for the human-caused decline of the basin’s salmon population.

 

Sharing that opinion is the Humane Society of the United States, which last week filed with the U.S. District Court a request for a preliminary injunction to stop the lethal removals. The states were granted lethal removal authority under the federal Marine Mammal Protection Act via a March 15 by NOAA Fisheries Service. That decision was immediately challenged with a complaint filed March 19 by HSUS.

 

“We’re still formulating our plan” Scott West, the Sea Shepherd’s director of Intelligence and Investigations, said of the group’s potential future attempts to discourage the removals.

 

And while some monitoring of the sea lion trapping activities has been ongoing over the past two weeks, the organizations want it beefed up.

 

“We want to put a lot of people on the ground to monitor the situation” and “to keep attention drawn to this.” An effort is being made online to encourage people that are opposed to the removal program to call their governor.

 

He called the sea lions scapegoats.

 

“The real issues are all human induced,” West said of decline of salmon populations. He cited hydro power development, pollution, “rigid” tribal rights, fishing and other causes that are bigger limiting factors for salmon populations.

 

The states, using four floating traps below the dams, captured five California sea lions this week. The first captured Tuesday, which was euthanized, had been observed previously at the dam feeding on salmon. On Wednesday, a pair of sea lions were captured and outfitted with GPS tags so their whereabouts could be monitored, and released. They were not on the list of animals that are eligible under the authorization for removal.

 

Another eligible California sea lion was captured and removed Thursday and an ineligible animal was captured, branded for identification purposes, and released.

 

California sea lion activity at the dam so far has been relatively light, according to researchers at the dam who observe the pinnipeds comings and goings and predation activity.

 

The maximum number California sea lions seen below the dam his year on any one day through Wednesday has been eight which is the lowest count through that date since the year the study began in 2002. The researchers have documented 18 different California sea lions at the dam so far this season. Last year’s total for the entire season, which ends at the end of May, was 54.

 

So far, fewer salmon are being taken this year, according to the researchers. The salmon counts in Bonneville’s fish ladders are the lowest in recent years.

 

“Total salmonid catch by sea lions through April 11 (255 expanded by interpolating for weekends) is lower than any year since we began observing (2011 – 659, 2010 – 1479, 2009 – 1,289, 2008 – 1,463, 2007 - 877, 2006 – 732, 2005 – 276, 2004 – 1,478, 2003 - 959, 2002 - 447),” according to the researchers weekly update.

 

The court battle over the authorization has begun. The initial complaint was followed up April 6 with the filing of the preliminary injunction request by HSUS and the Wild Fish Conservancy in the District of Columbia’s U.S. District Court. The lawsuit was transferred late last week to Oregon’s U.S. District Court. The lawsuit was assigned Thursday to Judge Michael H. Simon.

 

“…without the Court’s immediate intervention, the States will kill federally protected sea lions based on an administrative decision which is virtually identical to a previous decision set aside as unlawful by the U.S. Court of Appeals for the Ninth Circuit…,” the injunction request says.

 

NOAA Fisheries in 2008 granted authority to the states under the MMPA’s Section 120 to lethally remove California sea lions that were known to have a “significant” impact on the recovery of listed salmon and steelhead stocks.

 

The states say the sea lion predation, which sprouted since the turn of the century, is hindering efforts to recover wild salmon and steelhead stocks that are ESA listed.

 

The 2008 decision was upheld in district court, but later struck down by the U.S. Court of Appeals for the Ninth Circuit, which said the federal agency failed to adequately explain why it determined that the animals were having a significant impact, or how the animals impact could be deemed significant when other causes of fish mortality were more severe.

 

While the authority was in place from 2008 through 2010, a total of 38 California sea lions were removed.

 

The states reapplied for the lethal removal authority and it was granted by NOAA Fisheries, which has said it remedied the legal deficiencies cited by the appellate court.

 

The injunction request says those flaws remain.

 

“NMFS’s 2012 decision suffers from similar defects. NMFS failed to offer a cogent rationale for why killing California sea lions, who eat at most 4.2 percent of adult salmon and steelhead runs (and a mere 1.1 percent of the run last year), is warranted in light of its prior factual findings that much greater takes by fisheries and dams, both of which NMFS authorizes to take up to 17 percent of adult salmonid runs, are not significant,” the April 6 HSUS injunction memo says.

 

“Indeed, NMFS itself has flatly conceded that “[i]n general, predation rates on salmon are considered to be an insignificant contribution to the large declines observed in west coast populations”, the memo says in citing NMFS” Pacific Salmonids: Major Threats and Impacts, http://www.nmfs.noaa.gov/pr/species/fish/salmon.htm “and did not list predation by native species among the factors limiting salmon recovery in its 2011 Report to Congress. NMFS, 2011 Report to Congress: Pacific Coastal Salmon Recovery Fund FY 2000-2010.”

 

“In short, NMFS has failed to comply with the Ninth Circuit’s remand and its obligations under law. There is nothing in the record on NMFS’s 2012 authorization that might support a finding that sea lions must be killed immediately, and certainly not before this case can be resolved on the merits,” the memo says.

 

“Plaintiffs and their members regularly see, enjoy watching, and recognize specific sea lions at the Dam, including some of the “individually identifiable” animals targeted to be killed, and thus will be irreparably harmed if these federally protected animals are killed simply for eating fish before such time as the Court can resolve Plaintiffs’ request for preliminary injunction. Thus, in order to stop the unlawful killing of federally protected sea lions, prevent irreparable harm to Plaintiffs, and simply preserve the status quo as it has existed for over 35 years, Plaintiffs ask that the Court issue the requested injunction.”

 

The parties have agreed to a proposed briefing schedule that would allow the defendant federal government to respond to the plaintiffs’ motion on or before April 20 and then give the HSUS until April 27 to reply.

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