Humane Society Files Opening Brief in Appeals Court
NOAA Fisheries "ignored" prior court directives last year in a making a decision that once again authorized the states of Idaho, Oregon and Washington to lethally remove California sea lions that gobble up salmon in the Columbia River, according to an opening legal brief filed April 22 federal court by plaintiff Humane Society of the United States.
The filing comes in appeal of a Feb. 15 U.S. District Court order and opinion that upheld the federal government decision issued in March 2012.
HSUS asks the U.S. Court of Appeals for the Ninth Circuit to overturn U.S. District Court Judge Michael Simon's decision. (See CBB, Feb. 22, 2013, "Judge Upholds Lethal Sea Lion Removal, Says 'Significant Negative Impact' Can Be Less Than 'Jeopardy")
The issue has bounced back forth between federal courts since NOAA Fisheries first authorized lethal removal in March 2008.That decision was based on a 2006 application from the states, consideration of the issues by an assembled panel of experts and completion by NOAA of a National Environmental Policy Act environmental assessment.
That initial authorization was immediately challenged in U.S. District Court, which upheld NOAA Fisheries' decision. That court opinion, however, was appealed by HSUS, and the authorization was vacated by the Ninth Circuit in November 2010.
The 2008 decision authorized the states of Idaho, Oregon and Washington to remove "individually identifiable" California sea lions that are having a "significant negative impact on the decline or recovery of these salmonid populations," two requirements of Section 120. The 2010 Ninth Circuit opinion said NOAA Fisheries failed to properly explain how its decision satisfied the two Section 120 guidelines.
"Here, we hold that NMFS has not offered a satisfactory explanation for its action. First, 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 factual findings by NMFS that fisheries that cause similar or greater mortality among these populations are not having significant negative impacts," the Ninth Circuit opinion says.
Legal arguments have highlighted NOAA Fisheries decisions permitting Columbia mainstem harvests and the operation of the federal hydro system, both of which involve the "incidental take" of listed salmon and steelhead.
"Second, the agency has not adequately explained why a California sea lion predation rate of 1 percent would have a significant negative impact on the decline or recovery of these salmonid populations," the 2010 Ninth Circuit opinion says. The 2008 NOAA approval said the lethal removal program would be stopped if sea lion take of the salmon run dropped below 1 percent.
"These procedural errors require us to direct the district court to vacate NMFS's decision and remand to the agency to reconsider the action or provide a fuller explanation," according to the 2010 Ninth Circuit opinion.
Another application was submitted the states, and a second authorization was issued in May 2011. Later that month HSUS filed suit again.
The authorization was then withdrawn but reissued in March 2012, and immediately challenged in U.S. District Court.
The plaintiffs say, despite Judge Simon's decision, NOAA's failed to address the concerns outlined in the appeals court's 2010 decision that vacated the lethal take authorization issued in 2008.
"Plaintiffs filed suit and sought summary judgment because, among other reasons, rather than reconsidering its authorization in light of earlier decisions the agency had ignored completely, NMFS issued essentially the same lethal removal authorization as in 2008," according to the April 22 HSUS brief.
"In so doing, instead of examining the relevant data first and making a decision based on that examination as required by fundamental concepts of administrative law, NMFS has already decided upon a particular course of action and is now grasping at whatever straws it can to justify its pre-determined outcome," the April 22 HSUS brief says. "Such backwards decisionmaking predictably leads to the arbitrary and capricious action under review."
"None of the agency's few new arguments attempting to distinguish sea lion predation from take by fisheries and dams provides a cogent rationale for why killing California sea lions, who eat at most 4.2 percent of adult salmonid runs (and a mere 1.1 percent of the run in 2011), 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 the very same fish, do not have significant impacts on these salmonids."
HSUS also said that NOAA Fisheries failed to explain its 1 percent "significance" threshold in the new document, instead eliminating it.
"NMFS has decided that sea lions in the Columbia River must be killed because their feeding, taken as a whole, has a 'meaningful' and 'not insignificant or meaningless' effect on the number of listed salmonids. But this interpretation would allow sea lions to be killed if they have any impact on salmonids, rather than the 'significant negative impact' that Section 120 requires.
"On its face, the statute sets the bar much higher than NMFS has set here," the HSUS brief says. The plaintiffs says the NOAA Fisheries' process was at legal fault for not preparing a new EA for the 2012 decision.
In briefing last summer in district court regarding the appeals court opinion, federal attorneys said, "In issuing the 2012 LOAs, NMFS heeded this direction by giving careful consideration to the requirements of Section 120, the facts as they exist at Bonneville Dam, and the science relating to the impact of pinniped predation on ESA-listed stocks. This is exactly what is required of NMFS under the law," the federal brief says.
"Plaintiffs' instant challenge, by contrast, is premised on mischaracterizations of the administrative record and the agency's rationale, disagreement with the agency's scientific judgments and policy determinations, and, ultimately, fundamental opposition with Congress' decision to permit lethal removals to manage emerging conflicts between pinnipeds and at-risk salmonids."
Briefing continues in the appeals court, with the federal defendants and states scheduled to file answering briefs by June 5 with an appellant's optional reply brief due June 17. Oral arguments potentially could be scheduled. An appellate decision would follow.
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