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Briefs Filed Defending Sea Lion Removal; Oral Arguments May 15 On Preliminary Injunction Request
Posted on Friday, April 27, 2012 (PST)

NOAA Fisheries “provided reasoned interpretations” of Marine Mammal Protection Act provisions earlier this year in granting the states of Idaho, Oregon and Washington authority to kill California sea lions that are known to be preying on wild salmon stocks in the lower Columbia River, according to recent federal court filings.


The statement filed by the U.S. Department of Justice says that because NOAA Fisheries provided a “cogent explanation” for its action, federal law requires that courts give the agency deference and uphold its decision.


The federal government and Northwest states and tribes all weighed in April 20 in response to an April 6 request to the U.S. District Court that it issue a preliminary injunction to stop sea lion removals while a lawsuit filed earlier by the Humane Society of the United States plays out.


The states were granted lethal removal authority under the MMPA’s Section 120 on March 15. The NOAA Fisheries Service decision was immediately challenged with a complaint filed March 19 by HSUS. The letter of authority said as many as 92 California sea lions could be removed annually for the next five year without causing harm to what has been a growing sea lion population.


The states have said that curbing sea lion consumption is a necessary part of an overall effort to improve the lot of protected salmon and steelhead. In all 13 stocks that call the Columbia-Snake river basin home are listed under the Endangered Species Act. The California sea lions are protected under the MMPA but are not ESA listed.


Section 120 allows under certain circumstances, and with federal permission, that identifiable California sea lions can be removed if they are known to have a significant impact on listed salmon.


The Humane Society has argued, in this litigation and in a prior lawsuit challenging a 2008 Section 120 authorization, that NOAA cannot call the sea lions’ impact “significant” while at the same time allowing human caused mortality, such as fishing, that has a greater impact on fish populations.


The 2008 decision was upheld in district court but was judged illegal by the U.S. Court of Appeals for the Ninth Circuit. The federal government has claimed it has repaired the legal flaws sited by the appeals court, which said NOAA Fisheries had failed to adequately explain how the sea lion predation was significant.


The HSUS has said that the sea lion removals should stop while the legal merits of the lawsuit are being argued and judged.


“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 April 6 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,” HSUS said.


So far this spring six “eligible” California sea lions have hauled out on floating traps positioned just below Bonneville and been removed. Four were trapped in previous weeks and euthanized. Two trapped on Wednesday were being held as of late Thursday “because there is a request from Shedd Aquarium” for one animal, said Rick Hargrave of the Oregon Department of Fish and Wildlife.


The animals become eligible for removal based on observed predation salmon below the dam and continued presence at Bonneville despite human efforts to chase the California sea lions away.


Blood tests were taken for analysis “to see if they are free and clean of any disease,” Hargrave said. If one or both receive a clean bill of health, one of the big marine mammals would be moved to the Chicago aquarium and the other would be euthanized. So far this year Shedd is the only facility that has offered to make a home for any of the sea lions.


Briefs filed April 20 by the three states, the federal government and the Umatilla, Warm Springs and Yakama tribes defend the decision, and ask that the preliminary injunction be denied.


The parties to the lawsuit have proposed that the plaintiffs – HSUS and the Wild Fish Conservancy – have until the end of the day today to respond to the federal, state and tribal arguments.


U.S. District Court Judge Michael H. Simon on Tuesday scheduled oral argument on HSUS's motion for a preliminary injunction to take place at 9 a.m. on May 15 at the federal courthouse in Portland, Courtroom 13B. A decision from the judge would then be forthcoming.


The April 20 federal memorandum says NOAA Fisheries has followed a legal path.


“After an extensive administrative process and through repeated consultation with a statutorily created Pinniped-Fishery Interaction Task Force (“Task Force”), NMFS has determined that pinniped predation at Bonneville dam poses a serious risk to ESA-listed salmonids; that is, sea lions at Bonneville dam are having a ‘significant negative impact’,” on the decline or recovery of these listed salmonids, the federal brief said, noting Section 120 language.


“In this exact circumstance, Congress has spoken directly to this issue and clearly instructed NMFS to favor ESA-listed salmon and steelhead over a healthy population of sea lions.”


The federal filing says the HSUS arguments “are not reasoned and do not present viable claims under the law.


“The crux of their claims is that other factors on the Columbia River, like treaty-based harvest of salmon and mortality through the Federal Columbia River Power System (“hydrosystem”), have a far greater impact on listed salmon and steelhead than sea lion predation. This, they contend, means that NMFS must address all of these other threats to ESA-listed salmonids first, before NMFS can ever authorize lethal take of predatory California Sea lions.


“It is true that the hydrosystem and harvest, among other threats, result in mortality to salmon and steelhead. What Plaintiffs have consistently failed to address, however, is that Congress did not condition the applicability of Section 120 to only those instances where pinniped predation is the only source of mortality affecting the decline or recovery of ESA-listed stocks,” according to a joint filing from the three states. “Plaintiffs also fail to acknowledge that the threats they identify have been carefully managed and mitigated for decades, while sea lion predation is a relatively new and unmanaged threat that, according to Congress, must be actively pursued.”


The April 20 memo filed by the three tribes says plaintiffs’ assertion that sea lion predation is insignificant is “based on a false construct.”


“They take a small sliver of sea lion predation in the Columbia River, that which occurs only within the one-quarter mile ‘observation area’ of Bonneville Dam, and then shut their eyes and cover their ears to sea lion predation in the rest of the River, which is an order of magnitude larger,” the tribal brief says.


“Plaintiffs then compare that sliver of predation against harvest that occurs throughout the entire River and cry “Foul! Look, the impacts of sea lion predation are not significant as compared to fishery harvest.”


If a truer assessment was employed “the only conclusion that can be made, once the totality of sea lion predation on listed fish is measured, is that predation and the harms it causes greatly exceeds that of status quo harvest.


“Plaintiffs also ignore the fact that fisheries are managed under the jurisdiction of federal courts pursuant to court orders, constitutionally protected treaty rights, and federal mitigation obligations that weave together and form the backdrop for tribal and non-tribal harvest. For these and the other points and authorities discussed below, the Motion for Preliminary Injunction should be denied,” the tribes say.


For more information see CBB, April 13, 2012, “Request For Preliminary Injunction Filed As States Continue Trapping, Euthanizing Sea Lions”


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