Ninth Circuit Offers No Help to Steller Sea Lions

ANCHORAGE (CN) — Environmentalists failed to prove that increased industrial fishing in the Aleutian Islands will hurt endangered Steller sea lions, the Ninth Circuit said this week in affirming summary judgment for the National Marine Fisheries Service.

Oceana and Greenpeace claimed that hundreds of endangered Steller sea lions could die from loss of prey and habitat if the government allows more industrial fishing in the central and western Aleutian Islands, in violation of the Endangered Species Act and the National Environmental Policy Act.

They said that in reducing protections for the sea lions the Department of Commerce and the Fisheries Service used “a novel scientific approach” that contravenes conclusions and scientific analyses from more than a decade of biological opinions. The environmentalists appealed a 2014 grant of summary judgment to the government.

The Ninth Circuit rejected it on Tuesday.

“The Service violated neither the Endangered Species Act of 1973 nor the Administrative Procedure Act when it concluded, in its 2014 biological opinion, that the proposed fishing regulations were ‘not likely to jeopardize the continued existence of’ the Steller sea lions and were not likely to ‘result in the destruction or adverse modification of [designated critical] habitat’ of the pinnipeds, the ruling states.

“Although the Service concluded, four years earlier, that fishing regulations were likely to jeopardize the Steller sea lions, the 2014 biological opinion explained, in detail and by reference to significant expert analyses that post-dated the 2010 opinion, why the Service reached a different conclusion this time.”

It became evident during the Aug. 17 appeals hearing that the environmentalists faced an uphill battle.

“The content of the data seems to run counter to your argument,” Ninth Circuit Judge Susan Graber told Rebecca Noblin, an attorney with Earthjustice, at the hearing. “I’m uncertain how you think you can succeed if we disagree with you on the overlap analysis.”

Noblin cited two internal critiques of a draft of the biological opinion.

“NMFS’ own scientists said that overlap analysis shouldn’t be used for this purpose,” Noblin said. “They can’t point to anywhere in the [biological opinion] that upholds the decision without relying on the overlap analysis.”

In its unpublished, 7-page memorandum, the Ninth Circuit panel disagreed.

“The Service’s determinations here survive that scrutiny,” the unsigned memo states.

The data used by the Fisheries Service were imperfect, but no other data exist, and the Service acknowledged the limitations of the data and used its best scientific judgment. When better information exists, the Service must use that information or explain why it did not use it, the court said.

While acknowledging that the 2014 biological opinion did not disclose that some of its scientists criticized an earlier draft, the panel found no error in the lack of disclosure because the Service did adopt some of the points made in the critique, and explained why a limited cautious view of the data was warranted.

Steller sea lions, also known as the northern sea lion, are the largest of the eared seals, exceeded in size only by the walrus and two species of elephant seals. They live in colder temperate to subarctic waters of the Pacific Ocean, from northern Japan to California. Males typically grow up to 11 feet and weigh up to 2,500 pounds; females grow up to 9½ feet long and 770 pounds.

With light blond to reddish-brown coats and long white whiskers, Steller sea primarily feed on fish such as cod and Atka mackerel, bivalves, squid and gastropods. They come ashore to rest, molt and breed, and can use their 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.

The western population, in the Gulf of Alaska, Bering Sea and Aleutian Islands, has lost 90 percent of its members since the 1950s. Only 42,000 survived there in 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.

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