Wednesday, October 4, 2023
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Court Stops States|From Killing Sea Lions

(CN) - The 9th Circuit on Tuesday barred Oregon, Washington and Idaho from killing up to 85 California sea lions annually, as ordered by the National Marine Fisheries Service. The court said the agency failed to explain why sea lions pose a greater threat to endangered fish than commercial fisheries and hydroelectric power plants.

The Bonneville Dam on the Columbia River, a major migration path for various salmon and steelhead species, has seen a steady increase of hungry sea lions since 2002, according to data collected by the Army Corps of Engineers.

When the National Marine Fisheries Service (NMFS) found in 2008 that the sea lions were contributing to the decline of endangered salmon species, they gave the states permission to kill up to 85 lions at the dam every year for five years.

The sea lions were killing salmon in the area at an estimated annual predation rate ranging from 3.6 percent to 12.6 percent.

The Humane Society, the Wild Fish Conservancy and two individuals sued several state and federal wildlife agencies, claiming that the decision violated federal environmental laws.

Both parties sought summary judgment, and the defendants filed a motion to strike previous environmental assessments relating to fisheries and dams. The Oregon district court granted summary judgment to the defendants and partially granted the motion to strike.

The plaintiffs appealed, arguing that the defendants' conclusion to allow the killing of sea lions ignored previous orders allowing fisheries and dam-related activities such as hydropower generation to take between 5.5 and 17 percent of the salmon run every year.

The federal appeals court in San Francisco agreed with the Humane Society, ruling that the service had made an "arbitrary, capricious" decision.

"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," Judge Raymond Fisher wrote for the circuit court in Pasadena, Calif. "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 'cumulative impacts from NMFS's proposed action would be minor if at all measurable.'"

Though the NMFS offered reasons why sea lion predation differs from fisheries and dam-related activity, the three-judge panel refused to hear them because they weren't included in the original decision.

"NMFS cannot avoid its duty to confront these inconsistencies by blinding itself to them," Fisher wrote. "We do not suggest that an agency has a duty to identify and address any potential tension between current and earlier factual determinations in marginally related administrative actions. But in this case the agency's seemingly inconsistent approach to, on the one hand, fishery and hydropower activities, which are deemed not to be significant obstacles to the recovery of listed salmonid populations, and, on the other hand, sea lion predation, which is deemed to be a significant barrier to salmonid recovery, has occupied the center of this controversy from the start."

Holding that the NMFS's "explanation is incomplete and inadequate to permit meaningful judicial review," the 9th Circuit ordered the district court to vacate the decision, reversing summary judgment on plaintiffs' claim and vacating the district court's order granting defendants' motion to strike.

Fisher added that the lower court properly rejected the environmental groups' claim that the NMFS violated the National Environmental Policy Act by failing to prepare an environmental impact statement.

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