ANCHORAGE, Alaska (CN) – Environmentalists took their fight against the feds’ authorization of more commercial fishing in Alaska’s Aleutian Islands to the Ninth Circuit on Thursday, reiterating their argument that more fishing means less fish for the endangered Steller sea lion.
Earthjustice, Oceana Inc. and Greenpeace appealed a federal judge’s 2014 summary judgment in favor of National Marine Fisheries Service. The groups had sued the National Marine Fisheries Service, the U.S. Department of Commerce, and two top federal fisheries officials claiming that hundreds of endangered Steller sea lions may die from loss of prey and habitat if the government allows more industrial fishing in the Aleutian Islands.
They claim the service’s final rule allowing more industrial fishing in the western and central Aleutian Islands – critical habitat for the Steller sea lion – violates the Endangered Species Act and the National Environmental Policy Act.
“The final rule removes significant protections deemed necessary by defendants four years earlier to ensure compliance with the ESA,” the 2014 complaint stated. “Those protections were intended to reduce competition between large-scale commercial fisheries and endangered Steller sea lions for prey species in the western and central Aleutian Islands, where sea lion populations continue to decline. For more than two decades, the best available science has supported the need for an adoption of protective measures to limit intensive fishing within important Steller sea lion foraging areas.”
Rebecca Noblin, staff attorney for the Alaska regional office of the San Francisco-based Earthjustice, reiterated this view Thursday as she fielded multiple interruptions and questions from Circuit Judges Susan Graber and Milan Smith, two members of the three-judge Ninth Circuit panel.
Graber and Smith repeatedly asked Noblin whether her clients’ case depends on “internal NMFS scientists’ comments regarding reliance on overlap analysis” against the agency’s decision to open up areas previously closed to commercial fishing of Pacific cod, pollock and Atka mackerel, rather than the “massive record of data modeling” from both internal and external scientists showing these openings do not jeopardize Stellar sea lions.
The groups maintain that in reducing protections for the sea lions, the government used “a novel scientific approach” that contravenes its previous conclusions and scientific analyses from more than a decade of biological opinions.
“The 2014 [biological opinion] is premised on an assumption that competition between the fisheries and Steller sea lions is only likely if Steller sea lion foraging activity and fishing activity overlap to a high degree in all four potential respects – time, space, depth, and size of prey – and a conclusion that there is not sufficient overlap in the Aleutian Islands fisheries to jeopardize Steller sea lions or adversely modify their critical habitat,” the groups said in their appeal brief. “The [biological opinion’s] key assumptions and conclusions on overlap are unsupported, disputed by agency and other scientists, and reverse previous analyses by NMFS without adequate explanation or justification.”
“The content of the data seems to run counter to your argument,” Graber told Noblin. “I’m uncertain how you think you can succeed if we disagree with you on the overlap analysis.”
Noblin said conclusions that affect an endangered species should be made on evidence, not on speculative data.
“NMFS’ own scientists said that overlap analysis shouldn’t be used for this purpose,” she said. “They can’t point to anywhere in the [biological opinion] that upholds the decision without relying on the overlap analysis.”
She added there is a danger in relying on new speculative science to reduce restrictions that have an impact on an endangered species.
Justice Department attorney Daniel Pollack said there will always be disagreement when a number of scientists work on an issue. He pointed to extensive data showing no extinction of the western population of Stellar sea lions for next 100 years, and said the fisheries service used data for its decision that was more complete than what it had used three years earlier.
“Differences in 2010 and 2014 should not be a weakness but a strength, because allowing for changing decisions based on changing science is what the Endangered Species Act promotes,” Pollack said.
Judge Smith asked Pollack and attorneys for the fishing industry whether the burden of proof shifts to the fisheries service to show why its analysis changed between 2010 and 2014.
“Do we say that there is a benefit of the doubt that the agency does not have to resolve?” he asked, noting that the law requires courts must defer to an agency’s decision when evidence indicates no jeopardy to the species.
Linda Larson, attorney for Alaska Seafood Cooperative and other Aleutian Island intervenors, gave the reason for the change in opinion from one that was more restrictive in 2011 to the opening of areas in 2014.
“During the initial opinion that closed areas to fishing, scientist only had telemetry data from three animals versus 45 in 2014,” she said, noting that 90 percent of critical habitat for the sea lions is still closed.
Larson told the judges this issue came up in the 1990s, in her early days of representing fishermen in the Aleutians.
“[Oceana] is inviting this court to become fisheries managers, and I urge this court to decline that offer,” she said.
Noblin used her rebuttal time to stress that Stellar sea lions are an endangered species.
Also known as the northern sea lion, Steller sea lions are found in colder temperate to subarctic waters of the Pacific Ocean, from northern Japan to California. They are the largest species in the eared seal family, with males typically growing up to 11 feet and weighing up to 2,500 pounds and females growing up to 9 ½ feet long and weighing 770 pounds.
Characterized by light blond to reddish-brown coats and long white whiskers, Steller sea lions primarily feed on fish such as cod and Atka mackerel as well as bivalves, squid, and gastropods. They come on shore to rest, molt, and breed, and can use their hind flippers to walk.
In response to petitions from several environmental groups, the National Marine Fisheries Service listed the Steller sea lion as threatened under the Endangered Species Act in 1990 and established critical habitat for the species in 1993. In 1997, the agency split the species into two distinct population segments: Eastern and Western populations.
Found in the Gulf of Alaska and the Bering Sea and Aleutian Islands, the Western population of Steller sea lion has lost 90 percent of its members since the 1950s, and had only 42,000 animals as of 2000. Its numbers continued to decline at an average of 7 percent a year from 2000 to 2012, according to the environmentalists’ complaint.
Though federal protection put an end to legal hunting, the Western population’s shrinking numbers still face threats from industrial fishing, illegal hunting, offshore oil and gas exploration, and being hit by ships and boats, according to the National Marine Fisheries Service’s sea lion page.