Humane Society asks Ninth Circuit to
"If Defendants truly believed that a less than 1.3 percent impact by sea lions this season was likely to inflict irreparable harm on the spring Chinook stock, they could simply decrease fishing by a percentage or two."
Saying its members and other plaintiffs would be irreparably harmed, the Humane Society of the United States this week asked a federal appeals court to block the planned removal of California sea lions from waters below the Columbia River's Bonneville Dam.
The HSUS' Feb. 3 brief also said the organization is "likely to prevail" in litigation over the scheduled sea lion removals and thus should be granted the "urgent motion for a stay pending appeal…."
The authority to undertake lethal removals was granted to the states of Idaho, Oregon and Washington 11 months ago by the federal government. The authorization came under the federal Marine Mammal Protection Act's Section 120, which allows lethal removal of "individually identifiable predatory California sea lions that are having a significant negative impact on the decline or recovery of ESA listed salmonids…." Sea lions that gather below the dam each late winter and spring prey on spring chinook salmon and steelhead stocks, some of which are listed under the Endangered Species Act.
The NOAA Fisheries Service decision was challenged in U.S. District Court, but Judge Michael W. Mosman in a Nov. 25 order said the agency did not violate federal law.
HSUS then appealed that opinion and order to the U.S. Court of Appeals for the Ninth Circuit, again asking that lethal removal authorization be declared illegal. Legal arguments in the appeal do not start until March 23, more than three weeks after the potential March 1 launch of the sea lion removal effort. So the organization has asked the Ninth Circuit to forbid removals while the appeal is being argued.
The HSUS motion asks that a decision on the stay request be made by Feb. 27.
Mosman last week denied a request that his court stay the state effort while the appeal is being considered.
A Ninth Circuit panel said last year that, in deciding whether to issue a stay pending appeal, the court considers "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."
The motion filed Tuesday says "Plaintiffs will suffer significant irreparable harm when scores of federally protected sea lions that Plaintiffs recognize, visit, photograph, and regularly interact with are illegally and irretrievably eliminated -- the exact type of harm courts have repeatedly recognized as fundamentally non-compensable with money damages."
The stay motion says that if sea lions this year eat from 3,000 to 4,000 spring chinook out of a predicted return of 298,900 adult fish, the impact on the run would be 1.3 percent at most. The 3,000-4,000 represents the sea lion take observed below the dam by researchers in recent years. It pales in comparison to the salmon impacts allowed under NOAA permits for mainstem fisheries, HSUS says.
"Therefore, staying the removal of sea lions pending appellate review will not have any adverse impact on the stock, particularly since fishermen will be allowed to take nearly 40,000 spring Chinook during this period -- nearly 10 times what sea lions could consume," the HSUS motion says.
"If Defendants truly believed that a less than 1.3 percent impact by sea lions this season was likely to inflict irreparable harm on the spring Chinook stock, they could simply decrease fishing by a percentage or two," the HSUS motion says.
NOAA's decision "swerves from prior precedents," something that is prohibited under federal law, according to the motion. Throughout the litigation the organization has stressed that the MMBA says "current levels of protection afforded to . . . sea lions . . . should not be lifted without first giving careful consideration to other reasons for the decline."
The HSUS claims that NOAA decision failed to give proper consideration to other causes of the fishes' decline, such as harvest and the operation of the Federal Columbia River Power System. Such failures make it likely that the plaintiffs will succeed in their appeal, the motion says.
In denying the stay request in district court, Mosman said that in his view "the balance of equity tips in favor of protecting the salmon run." The killing of sea lions represents irreparable harm, but so does the killing of salmon by the big marine mammals.
While the sea lions take a relatively small percentage of the overall run below Bonneville, they could by chance wipe out uniquely evolved, wild tributary populations that are each species building blocks.
"There's nothing comparable" that could befall the California sea lions if the removal plan moves forward, the judge said.
NOAA Fisheries in March of 2008 approved the states of Idaho, Oregon and Washington's application to lethally remove sea lions. The 5-year authorization allows the removal, lethal or otherwise, of up to 85 California sea lions annually, although NOAA officials have said it was doubtful that more than 30 could actually be removed annually.
The agency in 2007 estimated that the total population of the United States stock of California sea lions is 238,000 and stable, if not growing. The stock has reached its "optimum sustainable population size, as defined by the MMPA, and carrying capacity for ocean and breeding conditions.
Agency documents and testimony say that the planned Columbia River removals won't have a significant effect on the California sea lion as a species because the population is large and robust.
On the other hand, many of the salmon populations are depressed and listed under the ESA. Congress amended the MMPA to add the lethal removal provision in response to a situation at Seattle's Ballard Locks in the mid-1990s in which sea lion predation help push a steelhead stock over the brink to functional extinction.
"Congress has a slightly greater concern about their loss," Mosman said of ESA listed salmon.
Mosman in November ruled that NMFS followed the proper legal course.
"MMPA section 120 addresses a relatively narrow interaction between two species -- pinnipeds and salmonids," Mosman's opinion says. "NEPA and the ESA, which generally provide broader frameworks for assessing the 'other reasons for the decline,' address different issues.
"As discussed above, because the inquires and factual circumstances are so different, the agency could reasonably conclude that an action is not significant for purposes of NEPA or the ESA but is significant for purposes of MMPA section 120," Mosman said. "Thus, even if NMFS had to consider 'other reasons for the decline,' its decision to authorize a lethal take of California sea lions under MMPA section 120 does not "fl[y] in the face of more than a decade of past administrative decisions" as HSUS had alleged.
"NMFS was not obligated to discuss and explain other decisions made under other statutory schemes. Given the factual circumstances, NMFS's decision was not inconsistent with previous decisions under other statutory schemes."
The HSUS on April 23, 2008, was granted a stay by the Ninth Circuit after Mosman had rejected a request for a preliminary injunction to stop planned sea lion removals that year.
That Ninth Circuit decision said that "Three facts inform the court's analysis of this motion. First, the lethal taking of the California sea lions is, by definition, irreparable. This logic also applies to the salmon consumed by the sea lions. Second, any stay of the NMFS Approval by this court at this time will affect only the 2008 salmon run at the Bonneville Dam, as we expect this case will be resolved on the merits before next year's salmon run. Third, all parties agree that the 2008 salmon run is estimated to be large, indeed much larger than in the past several years."
It said "the balance of harms tips in favor" of HSUS and acknowledged that Mosman's injunction denial "found the question of likelihood of success on the merits tips slightly in favor of appellants."
Mosman noted last week that the actual upriver spring chinook return in 2008 numbered 178,564, well below the number forecast.
"It turned out to be quite a bit more significant than the Ninth Circuit could have known," Mosman said.
Investigation Concludes Trapped Sea Lions Died From Heat, Not Human Intervention by Columbia Basin Bulletin, 2/6/9
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