11/23/10

The Ninth Circuit Court of Appeals in San Francisco on Tuesday ruled that the federal government in a March 2008 decision failed to explain how the killing of sea lions that prey on salmon below the Columbia River’s Bonneville Dam is consistent with the Marine Mammal Protection Act.

The opinion reverses a Nov. 25, 2008, order by U.S. District Court Michael W. Mosman that said the National Marine Fisheries Service, in granting states authority to lethally remove sea lions, “properly evaluated whether individually identifiable pinnipeds were having a significant negative impact on the decline or recovery of salmonids” that are listed as threatened or endangered under the Endangered Species Act.

The MMPA’s Section 120 requires such a determination before its protections can be relaxed to allow the removal, lethal or otherwise, of pinnipeds.

A total of 40 California sea lions have been removed since the authority was granted in March 2008. Soon thereafter the Humane Society of the United States and the Wild Fish Conservancy filed a lawsuit contesting NMFS’ decision and followed with an appeal of Mosman’s decision. The appeal was debated during 2009 with the appellate panel hearing oral arguments more than a year ago, Nov. 6, 2009.

The Ninth Circuit opinion ordered that the lawsuit be remanded to the district court “with instructions to vacate the decision of NMFS and remand to NMFS.”

“Here, we hold that NMFS has not offered a satisfactory explanation for its action. First, the agency has not adequately explained its finding that sea lions are having a ‘significant negative impact’ on the decline or recovery of listed salmonid populations given earlier factual findings by NMFS that fisheries that cause similar or greater mortality among these populations are not having significant negative impacts,” according to the Nov. 23 opinion penned by Raymond C. Fisher. The three-member panel that decided the appeal included Ninth Circuit Judges Fisher and Richard A. Paez and District Judge Jeremy D. Fogel. Fogel, a federal judge for the Northern District of California, was sitting on the panel by designation.

“Second, the agency has not adequately explained why a California sea lion predation rate of 1 percent would have a significant negative impact on the decline or recovery of these salmonid populations. These procedural errors require us to direct the district court to vacate NMFS’s decision and remand to the agency to reconsider the action or provide a fuller explanation,” the Ninth Circuit opinion said. The lethal take program approved by NMFS, which is also called NOAA Fisheries Service, set a goal of reducing predation to three-year average of 1 percent or less of salmon runs.

“In this respect we once again echo the concerns of the Marine Mammal Commission, which repeatedly emphasized to NMFS the need to ‘identify the level at which predation of salmonids by pinnipeds no longer would be considered significant,’ because ‘the taking authority should lapse once predation is reduced to a level where it no longer is having a significant impact,’” the opinion says.

As of this morning (Tuesday) state and federal officials had not yet fully reviewed the opinion or discussed a course of legal or other action.

“Obviously I’m disappointed after receiving what we thought was a strong opinion from the district court,” NMFS’ Garth Griffin said.

The defendants say the Ninth Circuit got it right.

“The government’s plan to kill sea lions for eating fish, while at the same time authorizing fishermen to take four times as many fish as sea lions is irrational, and the court has rightly put a stop to it,” said Jonathan R. Lovvorn, vice president and chief counsel for animal protection litigation for The HSUS. “It’s time for the agency to abandon this plan and work cooperatively with us to protect both sea lions and salmon in the Columbia River.”

The lawsuit challenged NMFS’ conclusion that sea lions must be killed to prevent them from consuming an average of 0.4 to 4.2 percent of salmon returns, even as the agency allows fishermen to take up to 17 percent of the salmon run, according to the plaintiffs.

“Blaming sea lions is nothing but a distraction,” said Kurt Beardslee, executive director of Wild Fish Conservancy. “We’re glad the court recognized that the agency must consider its salmon conservation decisions openly and carefully, considering all impacts to salmon — including dams, fisheries and habitat degradation.”

The opinion declared the NOAA Fisheries decision “arbitrary and capricious” under the Administrative Procedures Act.

“Accordingly, we direct the district court to vacate NMFS’s decision approving the states’ MMPA application and remand to NMFS to afford the agency the opportunity either to articulate a reasoned explanation for its action or to adopt a different action with a reasoned explanation that supports it.

“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 opinion 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.”