Sea lions eat endangered salmon, but 9th Circuit demands further explanation of NOAA decision allowing sea lion culling to reduce salmon predation
HUMANE SOCIETY OF THE UNITED STATES v. CARLOS GUTIERREZ, Case No. 08-36038 (9th Cir. Nov. 23, 2010).
BACKGROUND: In March 2008, the National Marine Fisheries Service (NMFS) authorized the states of Oregon, Washington and Idaho to kill up to 85 California sea lions annually at Bonneville Dam. NMFS made the decision under section 120 of the Marine Mammal Protection Act (MMPA), which allows “the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks” that have been listed as threatened or endangered under the Endangered Species Act (ESA). 16 U.S.C. Sec. 1389(b)(1). We must decide whether the agency’s action was “arbitrary” or “capricious” within the meaning of the Administrative Procedure Act (APA), as well as whether the agency violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement.
Like seals and walruses, California sea lions are pinnipeds — marine mammals having fin-like flippers for locomotion. The Bonneville Dam is on the Columbia River, which serves as a migration path for a number of ESA-listed salmonid populations, including five salmon and steelhead populations. Before 2001, few California sea lions were observed feeding in the area of the dam. In recent years, however, sea lion predation has become more prevalent. In November 2006, the states of Washington, Oregon and Idaho applied to NMFS for authorization to lethally remove California sea lions from the Bonneville Dam area. NMFS found that California sea lions collectively were having a significant negative impact on the decline or recovery of the listed salmonid populations. NMFS authorized the states to kill California sea lions meeting these criteria for an initial period of five years, with the possibility of a renewal for an additional five years. Caption text from 9th Circuit opinion, photo from NOAA.
HOLDING: 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. 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.
ADDITIONAL EXCERPT: NMFS cannot avoid its duty to confront these inconsistencies by blinding itself to them. 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. The issue surfaced prominently in the task force proceedings, see generally Minority Report, Final Report and Recommendations of the Marine Mammal Protection Act, Section 120 Pinniped-Fishery Interaction Task Force: Columbia River (Nov. 5, 2007), click link here, and has been raised repeatedly and forcefully by the Marine Mammal Commission, which is a federal entity possessing expertise on issues relating to the protection of marine mammals, see 16 U.S.C. § 1402, throughout the
administrative decisional process...
In so holding, we do not impose an undue burden on NMFS on remand. The APA requires only a “cogent explanation.” Nw. Envtl. Def. Ctr., 477 F.3d at 691. 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 onthe ground. 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.
KEITHINKING: As the 9th Circuit noted, a 2005 agreement between NMFS, the states of Oregon and Washington and several Indian tribes, allows fisheries to take between 5.5 and 17 percent of listed Columbia River salmonids annually, depending on the size of the run. Humans, therefore, were allowed to take salmon, and the take was not deemed to be significant. But when NOAA sought to curtail a take of salmon by sea lions, the 9th Circuit demanded further explanation of why humans can take double-digit percentages of the fish while sea lions must take less than 1 percent. Has the 9th Circuit rejected anthropocentrism, and given humans, and sea lions, equal rights to fish?
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