9th Circuit Revisits Sea Lion 'Kill List'

     (CN) - Animal-rights groups urged the 9th Circuit on Friday to halt a plan to trap and kill California sea lions that feed on protected fish species near the Bonneville Dam, asking the court, "When does it end? When does the killing stop?"
     Ralph Henry, a lawyer with the Humane Society of the United States, said the National Marine Fisheries Service (NMFS) had invoked a "narrow exception to kill sea lions," but could not point to the specific conditions needed for it to end.
     This is the second time the issue has been raised in the 9th Circuit; the same three judges on Friday's panel vacated a similar federal authorization three years ago.
     Oregon, Washington and Idaho first asked the NMFS in 2006 for permission to "take" California sea lions that eat salmon and steelhead just below the dam, which acts as a bottleneck to fish migrating upstream in the Columbia River.
     The request was part of an effort to protect threatened or endangered populations of salmon and steelhead.
     But California sea lions are also protected. The Marine Mammals Protection Act bans the taking of all marine mammals, unless individual animals "are having a significant impact on the decline or recovery" of threatened or endangered species.
     Another species of sea lion, the Steller sea lion, also feeds at the dam but is off limits because it's protected by both the Marine Mammals Protection Act and the Endangered Species Act.
     In 2008 the states were permitted to kill up to 85 California sea lions per year, but the 9th Circuit vacated that authorization in 2010. The federal appeals court said NMFS failed to explain why sea lions posed a greater threat to endangered fish than commercial fisheries and hydroelectric power plants.
     The agency had authorized fisheries to take up to 17 percent of the dam's protected fish, yet determined that the maximum 4.2 percent of fish killed by sea lions, according to the Army Corps of Engineers, had a "significant negative impact" on the species.
     After the ruling, the states resubmitted their applications, and the NMFS issued new letters of authorization in 2011 after a shortened review process. This triggered another lawsuit, prompting the agency to cancel the new authorizations.
     In March 2012 the agency granted yet another round of authorizations, this time to kill or permanently capture up to 92 California sea lions per year. The authorizations are good until June 2016, and allow the states to trap and euthanize individual animals or to shoot them under certain conditions.
     The Humane Society, along with the Wild Fish Conservancy, filed a new lawsuit under the Administrative Procedures Act, the Endangered Species Act and the Marine Mammals Protection Act. They claim NMFS simply recycled its analysis to support the kill authorizations without addressing the problems raised by the 9th Circuit.
     "NMFS's March 2012 decision to authorize the eradication of several hundred native sea lions - while a significant loss of native, federally protected wildlife - is highly unlikely to have any effect on the decline or recovery of listed salmonids, and thus is not only arbitrary and capricious, but continues to stand in stark contrast to many past NMFS decisions finding that salmon take far in excess of 4 percent by fishermen, tribes, and other resources users does not have a 'significant' impact on the same species of salmon," the groups argued in their complaint.
     But U.S. District Judge Michael Simon upheld the agency's authorizations earlier this year, saying NMFS had "considered the relevant data and articulated a satisfactory explanation for its decision."
     NMFS attorney Vivian Wang told the court Friday that the agency looks at seven factors to determine whether sea lions are having a "significant impact'" on the protected fish species.
     Arguing for the Humane Society, Henry said, "It may be difficult to set a quantifiable standard, but what's interesting is they've invoked this narrow exception to kill sea lions based on predation rates and based on the situation at the dam. If you look at their factors, those situations are all about numbers and data."
     The 9th Circuit also focused on the agency's reliance on qualitative factors, rather than hard numbers, to figure out how many sea lions to put on what Judge Raymond Fisher called "the hit list" or "the kill list," adding, "Let's call it what it is."
     U.S. District Judge Jeremy Fogel of San Jose, sitting by designation, asked, "How do we review a decision to determine what is a 'significant impact'? I mean, it can't just be, 'Trust us, we're the agency, we know what we're doing.' What is the standard that we apply?"
     "Is it one salmon being eaten by one sea lion?" he continued. "I know you have the seven-factor test, but can you summarize how you decide whether the California sea lions are having a significant negative impact if you don't use a quantitative standard?"
     Wang replied that the court can review the factors that went into the decision.
     "Two critical factors at issue here impacting salmon mortality are that sea lion predation is increasing and salmon run size is decreasing," she replied.
     Fogel asked whether NMFS had only recently begun to assert that predation was up and run size was down. Wang said the data was collected before the 9th Circuit vacated the previous authorizations, but was analyzed after.
     Fisher wondered if the new analysis amounted to a new theory, calling it "pretty central" to the authorizations.
     "It's not a new theory in the sense that the agency and the scientific reports it relies on have consistently noted a concern about the biological impact of predation that is at a constant rate when salmon runs decrease," Wang said.
     The court also quizzed Cecil Reniche-Smith, an attorney from the Oregon Department of Justice who is representing the states as intervenor-defendants.
     "What's the bottom line?" Fogel asked. "At what point do the states think [the sea lions] aren't a problem anymore?"
     "It's simply impossible from the models to say, 'This number is the number at which it becomes insignificant,'" Cecil Reniche-Smith replied.
     When pressed to explain what needed to happen for the sea lions to no longer pose a threat, Reniche-Smith said, "If every year we were getting greater and greater runs and fewer and fewer sea lions, yes there would come a point," though that point could not come any sooner than five years.
     Her time was up, but she insisted on making a final point: "There's been a theme throughout this that all the states want to do is kill sea lions and that is simply not true."
     She said the states have many obligations to protect the salmon population but have not been able to address mortality caused by sea lions.
     The Humane Society's Henry said in rebuttal, "I find it amazing that the states and the federal government found a way to authorize, under some qualitative standard they claim they have, the killing of otherwise federally protected sea lions, but nowhere in counsels' arguments today ... could they identify any point at which that should end."
     Judge Richard Paez is on the 9th Circuit panel with Fisher and Fogel.