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Judge Upholds Lethal Sea Lion Removal,
Says 'Significant Negative Impact' Can Be Less Than 'Jeopardy'

by Staff
Columbia Basin Bulletin, February 22, 2013

Sea Lion eats its prey in a well-lit photo. A Portland-based U.S. District judge on Feb. 15 dismissed a lawsuit that had asked the court to declare illegal a federally approved program to remove, lethally or otherwise, California sea lions that have in recent years made a habit of coursing up the Columbia River to feed on salmon protected under the Endangered Species Act.

". . ., the Court concludes that NMFS did not act arbitrarily or capriciously when it issued the lethal removal authorizations to the States," Judge Michael H. Simon wrote in an "order and opinion" issued last Friday.

The National Marine Fisheries Service, also known as NOAA Fisheries, in March 2012 issued authorization under Section 120 of the Marine Mammal Protection that would allow the states of Idaho, Oregon and Washington to remove annually as many as 92 California sea lions that are known to prey on salmon and steelhead in the lower Columbia. The court late decreed that a 30-pinniped limit be imposed for the 2012 season.

The California sea lion removal program below Bonneville conducted by the states in April and May 2012 resulted in 12 of the animals being taken from the scene. Eleven were euthanized via lethal injection and one was shipped to a Midwest aquarium. Another California sea lion designated for removal was captured later in the season near the river mouth at Astoria.

The program has been on-again-off-again since the states first received removal authority in March of 2008. A total of 40 California sea lions were removed in 2008-2010 with 10 going to zoos aquariums and the rest being euthanized.

The states say control measures are necessary to limit predation impacts on ESA listed fish that the federal government, states, tribes and others are working to recover. The five listed stocks that can be found in springtime spawning runs up the river are the Upper Columbia River spring-run chinook salmon, the Snake River spring/summer-run chinook salmon and Snake River, Middle Columbia River and Lower Columbia River steelhead.

California sea lions over the past decade have had a greater presence in the lower Columbia than they had in times past. They are seen in the river in greatest numbers in April and May and congregate at the base of Bonneville Dam to feed on salmon and other fish species.

The NOAA Fisheries decision was immediately challenged last year in U.S. District Court by the Humane Society of the United States, the Wild Fish Conservancy and two individuals. They say the removal program is illegal persecution of sea lions, and that NOAA Fisheries has in the past authorized fish harvests and dams that cause a much greater salmon mortality than sea lions.

As an example, fisheries that are expected to have impacts on wild, listed fish must receive NOAA Fisheries permission to proceed.

The plaintiffs said NOAA Fisheries' wrongly interpreted provisions of Section 120, which allows a limited exemption from MMPA protections for sea lions. They also said the federal agency failed to satisfy requirements under the National Environmental Policy Act.

Judge Simon's decision says "that NMFS complied with the National Environmental Policy Act ("NEPA") when it issued a supplemental information report in lieu of supplementing its environmental assessment."

The HSUS is not willing to accept the decision. As it did in response to an earlier district court decision, the organization will ask the U.S. Court of Appeals for the Ninth Circuit to overturn the lower court's decision.

"Obviously we were very disappointed, and surprised," at Simon's decision, said the HSUS's Sharon Young.

"It's clear we're going to appeal," said Young.

"The program is illegal on its face," and unnecessary, she said.

"The predation is so low there's really no justification," Young said. Observed predation by sea lions on salmon and steelhead below Bonneville Dam was slightly more than 1 percent of the run last year.

NOAA Fisheries initially issued Section 120 authority to the states in 2008. That decision was upheld in district court, but overturned by the Ninth Circuit in 2010.

The Ninth Circuit said NOAA had 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 mortality among these populations are not having significant negative impacts. The significant negative impact language comes directly from the MMPA's Section 120.

The 2010 Ninth Circuit decision also said "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 2008 NOAA Fisheries decision had said the removal program would be discontinued if observed predation on salmon in the area below the dam dropped below 1 percent.

Most of the legal arguments last year focused on whether or not NOAA addressed the Ninth's concerns properly in its 2012 authorization.

Simon's order said NOAA Fisheries had indeed addressed that Ninth Circuit's points.

". . .the Court concludes that NMFS has reasonably explained any apparent inconsistencies among its findings for two reasons: first, NMFS identified substantive differences among the applicable statutory standards, and second, NMFS identified relevant qualitative differences between the impacts caused by fisheries and the mortality caused by pinniped predation."

Simon's order says that "Plaintiffs argue that the 'significant negative impact' standard sets a high bar akin to the 'jeopardize' standard used in the ESA. The structure of Section 120, however, suggests that Congress did not intend for the agency to apply a jeopardy-like standard.

"For one thing, Congress did not use the language of the ESA's well-known jeopardy standard: pinniped protection gives way to salmonid protection under Section 120 when pinnipeds are impacting salmonid survival or recovery to a significant degree, even if that impact does not rise to the level of appreciably reducing the likelihood that the salmonids will survive and recover.

"Indeed, Section 120 allows the protection of salmonids to take precedence over that of pinnipeds even before the salmonids are listed as threatened or endangered under the ESA, which indicates that Congress intended the Section 120 standard to trigger action before the problem escalated to jeopardizing salmonid populations," Simon wrote. "It is thus reasonable for NMFS to interpret 'significant negative impact' to mean something less than jeopardy."

Simon also said that NMFS made the choice in concluding in the 2012 decision that in lieu of a quantified lower limit, i.e. the 1 percent predation threshold for evaluating the success of the sea lion removals, it would be more appropriate to evaluate the effectiveness of the program after five years of implementation.

The authorization issued by NOAA Fisheries is scheduled to stay in effect until June 1, 2016.

Related Pages:
Predators' Toll Below Bonneville Dips; Stellers Take Lions' Share for First Time in Study History by Staff, Columbia Basin Bulletin, 10/12/12

Judge Upholds Lethal Sea Lion Removal, Says 'Significant Negative Impact' Can Be Less Than 'Jeopardy'
Columbia Basin Bulletin, February 22, 2013

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