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Humane Society Arguments Open Briefing In Appeals Court Sea Lion Removal Case

March 27, 2009
The Humane Society of the United States re-launched its legal effort to reverse federal agency and court decisions allowing the lethal removal of California sea lions from below Bonneville Dam on the lower Columbia River.

In a legal brief filed Monday (March 23) the HSUS argues that NOAA Fisheries Service has failed to explain how it can judge as "significant" the impacts predatory sea lions have on Columbia basin salmon runs while deciding that other, greater sources of mortality are not significant.

"To accept the agency's view of administrative law would, for example, allow the Social Security Administration to grant benefits to a person that suffers from a 4 percent disability despite, and without ever explaining, numerous past decisions denying such benefits for people that suffer from a 15 to 20 percent disability," according to the HSUS brief filed in the U.S. Court of Appeals for the Ninth Circuit.

The brief also faults U.S. District Court Judge Michael W. Mosman for accepting NOAA Fisheries arguments about the legitimacy of the lethal take authority granted to the states of Idaho, Oregon and Washington under Section 120 of the Marine Mammal Protection Act.

The society wants the appeals court to overturn Mosman's Nov. 26 ruling in favor of NOAA Fisheries and to set aside the federal agency's lethal-removal decision.

HSUS filed its appeal of Mosman's decision on Dec. 5. Monday's filing is the opening brief in the appeal. According to a schedule established by the appellate court, the federal government and states have until April 21 to respond to HSUS' opening brief. The HSUS would then have 14 days to reply. The judicial panel assigned the appeal has the option of holding oral arguments after briefing is completed.

The opening brief says " NMFS's decision to authorize the killing of native, federally protected animals that are having a documented 0.4 to 4.2 percent impact on the spring salmon run is impossible to reconcile with: (1) NMFS's 2005 decision finding that fishermen's annual take of up to 17 percent of listed salmon is not significant and has only 'minimal adverse effects on Listed Salmonid ESUs in the Columbia River Basin;' (2) the States' 2008 decision to increase fishing quotas from 9 percent to 12 percent of the total spring run; and (3) NMFS's 2007 decision finding that hydroelectric dam take up to 60 percent of listed juvenile salmonids and up to 17 percent of listed adult salmonids 'meet[s] or exceed[s] the objectives of doing no harm and contributing to recovery with respect to the ESUs.'"

The 0.4 to 4.2 percent represent the lowest and highest "observed" predation below the dam annually from 2002 through 2007. The fishing and hydro system impact totals are taken from documents prepared for Endangered Species Act and National Environmental Policy Act processes.

HSUS attorneys cite Ninth Circuit precedent that says federal agencies "must clearly set forth the ground for its departure from prior norms so that we may understand the basis of the [agency's] action and judge the consistency of that action with the [agency's] mandate. They also say Congress wanted such comparisons made before the lethal removal authority is granted.

The brief cites the MMPA's legislative history, a conference report, which says that the agency must not lift the "current levels of protection afforded to seals and sea lions under the [MMPA] . . . without first giving careful consideration to other reasons for the decline."

Mosman's ruling said the plaintiffs' arguments represent an apples and oranges comparison.

"The statutes' different foci necessarily require different inquiries and analyses," Mosman wrote. "NMFS therefore was not obligated to discuss and explain previous decisions under NEPA or the ESA when it determined pinnipeds are having a significant negative impact on salmonids at Bonneville Dam."

He also deflected the "careful consideration" argument, saying he focused on the statutory text of the act, and not the legislative history.

Section 120 says "A State may apply to the Secretary to authorize the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks which . . . have been listed as threatened species or endangered species . . . ."

"Congress outlined what the Secretary must consider when deciding whether to authorize a lethal take under section 120," Mosman wrote. "Section 120 is clear and unambiguous; the Secretary does not need to consider 'other reasons for the decline' of salmonid stocks.

The HSUS brief says that NOAA's decision-making process violated NEPA, as well as the MMPA and Administrative Procedures Act. The process required preparation of an environmental impact statement, according to the Humane Society.

"The district court also erred by concluding that NMFS did not have to prepare an EIS for this project because it is ostensibly not 'significant' under NEPA, even though the agency claims that its decision under section 120 of the MMPA would address a purportedly 'significant' negative effect on the environment," the brief says.

"The Council on Environmental Quality regulations explicitly require preparation of an EIS for 'impacts that may be both beneficial and adverse . . . even if the Federal agency believes that on balance the effect will be beneficial,' and the district court's ruling to the contrary effectively nullifies a CEQ regulation that has been on the books for decades.

"Moreover, NMFS wholly failed to adequately analyze several adverse impacts in its FONSI and Final EA, including the potential for lethal take of federally listed Steller sea lions. The Final EA inserted into the selected action alternative the authorization for marksmen to shoot sea lions while 'on shore or in the water,' and explicitly admitted that as a consequence of shooting animals in the water, 'it is possible that . . . some Steller sea lions would be mistakenly shot' because 'it may be difficult for marksmen . . . to distinguish between California and Steller sea lions.'"

Mosman's order said NEPA issues were "adequately addressed" by the federal agency.

"In general, NEPA requires agencies to evaluate the environmental consequences of their actions," Mosman wrote. "That is accomplished through an EA and, if necessary, an EIS.

"Here, NMFS completed an EA, and made a finding of no significant impact ("FONSI"). Therefore, no EIS was necessary," the judge said. "Essentially, NMFS determined that killing a small number of California sea lions would not significantly impact the total population of California sea lions and would marginally benefit salmonids."

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