A legal argument over whether California sea lions should be sacrificed in order to stop their predation on Columbia River salmon and steelhead passed the penultimate stage, at least for the latest district court go-round, with the filing this month of the last of scheduled legal briefs.
The Humane Society of the United States on Sept. 7 pressed its case that NOAA Fisheries Service has failed to prove that sea lions are actually having a “significant negative impact on the decline or recovery” of listed salmonid stocks, a requirement spelled out by Congress in an amendment to Section 120 of 1972’s Marine Mammal Protection Act. Section 120 says pinnipeds can only be lethally removed if they are identified as having such a negative impact.
HSUS says that in making the decision to authorize sea lion removal under Section 120, NOAA Fisheries also failed to comply with requirements of the Administrative Procedure Act, the Endangered Species Act and the National Environmental Policy Act. The Humane Society has asked a federal judge to declare NOAA Fisheries’ March 2012 decision illegal.
The U.S. Department of Justice says that NOAA Fisheries’ decision earlier this year to grant the states of Idaho, Oregon and Washington authority to lethally remove predatory California sea lions is well reasoned and scientifically and legally defensible.
As an “expert” agency NOAA Fisheries is charged with interpreting ambiguous Section 120 language and deciding whether lethal removal should be allowed, the federal government says in a brief filed Sept. 21 with Oregon’s U.S. District Court in Portland. The federal government asks that NOAA Fisheries decision be upheld.
U.S. District Court Judge Michael H. Simon has scheduled oral argument on the parties' motions and cross motions for summary judgment for Oct. 19 in Portland’s federal courthouse.
A legal decision would follow. Litigants hope that such decision would be forthcoming before the late winter and spring when spring chinook salmon and steelhead begin their spawning run up the Columbia River.
Fishery managers say that predation problems began to grow at the turn of the century when salmon returns ballooned for a few and sea lions began in increased numbers to follow the fish upstream. The area below Bonneville Dam (located at river mile 146) became a favorite hunting ground, with the big pinnipeds congregating to feast on salmon. The salmon and steelhead spawners include five stocks that are listed under the ESA.
Permission was first granted in March 2008 for the states to remove “identifiable” sea lions known to feed on salmon below Bonneville. That NOAA decision was initially upheld in federal district court. That authority, approved by the Commerce Department’s NOAA Fisheries, was revoked late in 2010 by a federal appeals court.
The U.S. Court of Appeals for the Ninth Circuit said NOAA had “not offered a satisfactory explanation” for its decision. The court said 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 findings by NMFS that fisheries and dam operations that cause similar or greater salmon mortality were not judged as having significant negative impacts.
The states have since the spring of 2008 removed 50 California sea lions. The states’ efforts in April and May this year resulted in 12 of the animals being taken from the scene. Eleven were lethally removed and one shipped to a Midwest aquarium. A total of 38 California sea lions were removed, mostly from the area immediately below the dam, in 2008-2010 with 10 going to zoos or aquariums and the rest being euthanized.
The federal agency reissued the authorization in March, saying it had addressed the concerns expressed by the Ninth Circuit. The HSUS immediately responded with a complaint filed in U.S. District Court that says the new authorization contains the same flaws as the discredited decision from 2008.
In creating Section 120 in 1994 “Congress provided that the protection of healthy and abundant stocks of pinnipeds must yield in situations where they are having a significant negative impact on the decline or recovery of at-risk salmonids,”according to the federal brief filed Sept. 21. It left to NOAA Fisheries to decide what is and what is not a “significant” impact, according to the Justice Department.
“In applying this statute, the National Marine Fisheries Service (‘NMFS’) set forth through notice and comment procedures a reasonable interpretation of the ambiguities present in Section 120. It engaged in a careful and searching examination of the actual pinniped-salmonid conflict that exists at Bonneville Dam,” the federal filing says. “And NMFS heeded the instructions given by the Ninth Circuit in remanding its prior Section 120 authorization by providing a reasoned explanation on the interaction between its Section 120 finding and prior decisions issued under different statutes involving other, unrelated sources of mortality.”
“Judicial review under the Administrative Procedure Act (‘APA’) does not require this Court to resolve whether NMFS’s resolution of the issues is better or worse than Plaintiffs’ proposed resolution,” federal attorneys say. “Rather, the APA provides that NMFS’s decisions may be overturned ‘only when the record plainly demonstrates that the [agency] made a clear error in judgment.’
“This high threshold needed to overturn NMFS’s decision is not present on this record.”
It’s not as simple as all that, according to the HSUS.
“In issuing its 2012 lethal removal authorization, NMFS has once again failed to provide a cogent explanation for its decision that sea lions ‘are having a significant negative impact on the recovery of [listed] salmonids’ as required by Section 120 of the MMPA, basic tenets of administrative law, and the Ninth Circuit’s remand order,” according to an HSUS brief filed Sept. 7.
“On remand, NMFS essentially re-issued the exact same decision, and the record on this decision offers no more of a cogent explanation than before. Instead, Defendants are attempting to defend the 2012 decision by re-characterizing NMFS’s prior factual determinations with regard to take by fisheries and dams, regurgitating arguments that failed in the prior litigation, and speculating as to what might happen in the future under a hypothetical, worst-case scenario,” the HSUS brief says. Defendants do not point to any evidence in the record to indicate sea lions are actually having a ‘significant negative impact on the decline or recovery’ of salmonid stocks.
“Nor can they deny that, in the absence of such evidence, NMFS has effectively declared that any ‘measurable’ impact on salmon numbers constitutes a ‘significant negative impact’ on recovery under Section 120 – a construction that impermissibly rewrites the MMPA to allow killing of sea lions for having any ‘impact on listed salmonids.’
“In short, Defendants have wholly failed to comply with the mandate of the Ninth Circuit and fundamental principles of administrative law, once again ‘rais[ing] questions as to whether the agency is fulfilling its statutory mandates impartially and competently.’
“Accordingly, this decision to kill marine mammals protected under the MMPA should be set aside under the standards already set forth by the Ninth Circuit,” HSUS says.