Columbia Basin Bulletin

NOAA Fisheries announced last Wednesday it won't seek further review of an appellate court decision that, in effect, requires the agency to rethink its authorization that allows Washington, Oregon and Idaho to trap and kill California sea lions that feed on salmon below the lower Columbia River's Bonneville Dam.

A U.S. Court of Appeals for the Ninth Circuit panel in a Nov. 23 opinion remanded the issue to Portland's U.S. District Court "with instructions to vacate the decision of NMFS and remand to NMFS." ?In November 2009, the lower federal court had declared NOAA Fisheries' March 2008 decision legal under the Marine Mammal Protection Act as well as the Administrative Procedures Act and National Environmental Policy Act.

The NOAA decision was challenged in district court by the Humane Society of the United States, which also filed the appeal of the lower court decision.

The agency and federal attorneys decided "not to pursue this through the court," NOAA Fisheries' Garth Griffin said of the option of asking the appellate court for a rehearing. The court rules allow 45 days from the date of the judicial decision to make such a request.

The fisheries agency said in a Wednesday press release that it believes the Ninth Circuit decision gives it sufficient flexibility to potentially fix what the court described as "flaws" in the 2008 authorization. The agency also said resolving the conflict between a robust population of California sea lions and Endangered Species Act-listed salmon and steelhead is a high priority.

Griffin, who led the process leading to the decision on lethal take authority, said it is time to get to work again to analyze whether lethal take authority is justified, and legal, under the MMPA and NEPA. It has not been decided yet whether the agency will be rethinking the lethal-take decision that requires that agency develop a new NEPA environmental assessment, a relatively lengthy process.

It will consider the advice of a task force reconvened this past fall to offer advice on how, and if, the five-year program should proceed into its fourth year.

Foremost will be consideration of those "flaws" outlined by the Ninth Circuit panel. The press release said the agency has the goal of completing its new determination by early spring. That's when numbers of spring Chinook, particularly, and California sea lions begin to rise.

The Ninth Circuit order said:

"Plaintiffs contend that NMFS's application of the MMPA is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' We agree with their contention, at least to the extent that we conclude that NMFS has not satisfactorily explained the basis of its decision."

The Ninth Circuit noted that according to federal estimates, California sea lions kill between 0.4 and 4.2 percent of migrating salmonids each year over the past decade, though the estimates are considered to be minimums because predation events elsewhere in the river are not charted by dam-based researchers who compile the estimates.

"NMFS has not adequately explained its finding that sea lion predation is having a significant negative impact on salmonid decline or recovery in light of its positive environmental assessments of harvest plans having greater mortality impacts," the Ninth Circuit order says.

"The absence of an explanation is particularly concerning with respect to the 2005 fishery environmental assessment. In that assessment, NMFS found that a plan providing for fisheries to take between 5.5 and 17 percent of listed salmonids annually, depending on run size, would be expected to result in ‘minimal adverse effects on Listed Salmonid [populations] in the Columbia River Basin,' and that the ‘[c]umulative impacts from NMFS's Proposed Action would be minor if at all measurable.'"

The panel also concluded that further explanation is required for NMFS' conclusion that California sea lion predation greater than 1 percent would have a significant negative impact on the decline or recovery or the listed salmonid populations. NOAA Fisheries letter of approval said that if predation fell to below 1 percent of the salmon run in any given year, no lethal take of pinnipeds could be undertaken the following year.

The Ninth Circuit order said that the federal government's explanations were "incomplete and inadequate to permit meaningful judicial review," and thus the agency's action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

"In so holding, we do not impose an undue burden on NMFS on remand. The APA requires only a ‘cogent explanation.'

"We recognize the challenges NMFS faces in addressing salmonid conservation and recovery in the Columbia River, the efforts it has taken to address multiple sources of mortality and the practical difficulties presented by uncertainties and changing conditions on the ground," the Nov. 23 order says. "We also recognize that sea lion predation is a serious and potentially significant problem in this location, and that Congress, in enacting section 120 of the MMPA, has authorized NMFS to give priority to ESA-listed salmonid populations over MMPA-protected pinnipeds under specific circumstances.

"As judges, our limited role is to ensure that NMFS has properly determined that those specific circumstances exist. To do so, we require an explanation from the agency that enables meaningful judicial review. We conclude that a remand is necessary in this case to permit us to fulfill our function."

The states in November 2006 applied to NMFS for the authorization to lethally remove California sea lions under the terms of Section 120 of the MMPA, which "authorize[s] the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks which . . . have been listed as threatened . . . or endangered species under the [ESA]."

Sea lions have in recent years gathered in greater numbers in springtime below the dam to hunt spawning salmon and steelhead that are searching for passage up and over the dam.

During the first three years of the program removed a total of only 37 animals that were trapped at the dam. Predation on the spring salmon run has continues at least 2-3 percent annually. Goals were to remove at least 30 animals per year (and as many as 85).

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