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
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 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
"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."