A federal judge ruled Wednesday that California sea lion defenders may, in the end, have a case but that for now the balance of harm “tilts sharply” in the direction of efforts aimed at reducing the impact of the big marine mammals on Columbia River basin salmon and steelhead that are protected under the Endangered Species Act.
The court order notes that a preliminary injunction, which was requested by Humane Society of the United States, is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”
To do that a plaintiff must show: that they are likely to succeed on the merits – the legal arguments of the case – and that they are likely to suffer irreparable harm in the absence of preliminary relief and/or that they are likely to be more sorely harmed than the defendant – in this case the states and federal agencies that manage fish and wildlife in the region.
But, legal arguments put forth before and during a May 15 hearing have not proven that immediate harm to the sea lion defenders surmounts damage caused by the marine mammals’ predation on protected Columbia River salmon, the court said.
U.S. District Court Judge Michael H. Simon in a May 30 order denied a request from the HSUS that the states of Oregon and Washington be prevented from lethally removing California sea lions that are known to prey on salmon that are huddled below Bonneville Dam each spring.
The Simon order said “plaintiffs have established a likelihood that they will be irreparably harmed if the States are allowed to lethally remove CSL pursuant to the Section 120 letters of authority. The individually-named Plaintiffs have filed declarations with the court that describe their enjoyment of viewing the CSL in the Columbia River, their photography of and interactions with sea lions, and the relationships they have developed with specific CSL.”
But, the judge wrote, “Unlike the statutory purpose of the MMPA, the ESA aims to protect the viability of endangered or threatened species. The loss of an individual animal that does not jeopardize the species as a whole may not offend the purpose of the ESA (a question that this court has no need to resolve at this time), but it may well offend the purpose of the MMPA.”
“The harm identified by Plaintiffs is primarily a personal harm: their own aesthetic and recreational interest. The court presumes that other members of the public share this interest in observing sea lions in the Columbia River, but the public interest in ensuring the survival of salmonid stocks, as expressed through the ESA, weighs more heavily,” the judge wrote.
“Indeed, this is the balance struck by Congress itself in enacting Section 120, which acknowledges that at-risk salmonid stocks should take precedence over the protection of individual pinnipeds (provided that those pinnipeds are not themselves threatened or endangered).
“Given the ESA interests that weigh against Plaintiffs’ motion, the court cannot find that the balance of the equities tips sharply in Plaintiffs’ favor or that the issuance of a preliminary injunction would further the public interest more than it might harm it.”
The fish are on a spawning run; the sea lions have in recent years, in greater numbers than they did historically, dipped into the river to take advantage of the food supply that the salmon represent. Upper Columbia and Snake River wild stocks included in the spawning run are protected under the Endangered Species Act while harm to the sea lions is largely shielded by the Marine Mammal Protection Act.
The request for a preliminary injunction to stop sea lion removals may be to large extent moot.
Federal agencies that operate the dams report this week report that few, if any, California sea lions remain stationed below the dam as May ended. The almost entirely male sea lion contingent typically exits the Columbia River system by the end of May to pursue mating activities in early summer at more southerly sites along the Pacific coast.
The states have in recent years trapped near the river mouth at Astoria, Ore., and removed three animals in late summer or early fall, according to Sharon Young of the HSUS. And floating traps have been staged upstream of Bonneville Dam, where at least three California sea lions have been identified. The animals are believed to have ascended via the dam’s navigation locks and not yet found their way back downstream.
“At this point it’s kind of a mixed blessing,” Young said. The court has ruled that the HSUS arguments seem to have some validity; but has not ruled against additional animal removals.
“There is still the possibility that animals could be killed,” Young said. “That’s something we were trying to avoid with our motion” for a preliminary injunction. She said her organization was undecided about whether to pursue an appeal of Simon’s decision.
The states of Idaho, Oregon and Washington this year received authority from NOAA Fisheries March 15 under Section 120 of the MMPA to remove up to 92 sea lions per year that are identified as having a significant impact on the recovery of listed salmon stocks. Legal proceedings resulted in that removal limit be reduced to 30 animals this year. Trapping and removal efforts have resulted in the lethal removal of 11 California sea lions this spring; one other animal was trapped and placed in a captive care facility, the Shedd Aquarium in Chicago.
That NOAA Fisheries decision was immediately challenged with a complaint filed March 19 by HSUS. Soon after the HSUS filed the request for a preliminary injunction to stop sea lion trapping and removal activities in the near term.
The lawsuit filed by HSUS, the Wild Fish Conservancy and individuals interested in protecting the marine mammals is under way. The plaintiffs want NOAA Fisheries’ decision to be vacated.
Simon earlier this month asked the parties involved to reach agreement on a lawsuit briefing schedule. He adopted a schedule that calls for the federal government to file the “administrative record” related to the decision by June 22. HSUS would then have until July 23 to file a motion for summary judgment which presumably, like a complaint filed earlier, would ask that the NOAA Fisheries decision be invalidated. The schedule calls for briefing to be ended by Sept. 21. The idea is to complete the legal arguments and get an opinion on the legality of NOAA’s decision before next spring when the sea lions and salmon begin once again to funnel into the Columbia.
For more information see CBB, May 18, 2012, “Judge Hears Arguments On Preliminary Injunction To Halt Sea Lion Killings; 11 Euthanized So Far” http://www.cbbulletin.com/420583.aspx