Federal Appeals Court Green-lights
by Hank Lacey
A federal appeals court has rejected an effort to prevent the National Marine Fisheries Service from killing California sea lions near Bonneville Dam as part of a program to conserve imperiled Pacific salmon species.
The decision likely brings to an end a dispute that has been ongoing since 2008. The administration of former President George W. Bush had authorized the states of Idaho, Oregon, and Washington to annually kill a maximum of either 85 sea lions or "the number required to reduce the observed predation rate to 1 percent of the salmonid run at Bonneville Dam."
The National Marine Fisheries Service granted the necessary permission based on a clause of the Marine Mammal Protection Act that allows killing of pinnipeds that interfere with the recovery of species included on the federal list of threatened and endangered species.
The Humane Society of the United States challenged the approval, arguing that NMFS had not adequately explained the basis of its decision that sea lions should be killed as an impediment to salmon conservation and that the agency had also failed to justify the maximum number of kills allowed.
In 2010 the U.S. Court of Appeals for the Ninth Circuit held that NMFS had not provided a sufficient explanation for its belief that a salmon predation rate of one percent should trigger section 120(a) of the MMPA. The opinion pointed to earlier federal government decisions that would allow fishers to take more of the population of protected Columbia River salmon each year than would sea lions.
The court also ruled in its 2010 decision that NMFS had not adequately explained why killing of sea lions would be permissible as an interference with salmon recovery when the agency was simultaneously willing to tolerate the killing of a greater percentage of the runs by hydroelectric dams and fishing.
The agency, upon reconsideration, limited the annual take of sea lions to 92 individuals per year and committed to a review of the decision to authorize the program after five years. NMFS also adopted a qualitative, as opposed to a quantitative, standard as justification for the kill authorization.
The Humane Society of the United States and the Wild Fish Conservancy filed another lawsuit against the program in March 2012. U.S. District Judge Michael Simon decided in May 2012 not to issue a preliminary injunction that would block NMFS from carrying it out.
The Ninth Circuit, in an unpublished opinion announced Sept. 27, affirmed Simon's ruling, holding that NMFS had complied with both MMPA and the National Environmental Policy Act.
Hatcheries and birds also kill more protected salmon on the Columbia River each year than do sea lions.
A 2012 report by the U.S. Army Corps of Engineers estimated that the annual toll of salmon lost to California sea lions at Bonneville Dam is about 0.6 percent of the run.
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