A federal judge on
Wednesday denied an attempt to block the planned removal, by
lethal means or otherwise, of California sea lions feasting on
protected salmon in the waters below the Columbia River's
Portland-based U.S. District Court Judge
Michael W. Mosman said he would deny a request from the Humane
Society of the United States for a preliminary injunction that
would have stalled implementation of the mammal removal plan.
He said that evidence of harm to HSUS members and other
plaintiffs was "less weighty" than evidence of harm posed to
salmon and those that depend on them, such as tribal members.
The judge's decision was immediately challenged by the HSUS,
which on Thursday filed a notice of appeal with the U.S. Court
of Appeals for the Ninth Circuit. HSUS also asked the
appellate court for an emergency stay to prevent sea lion
removals. Attorney Rebecca Judd said the Ninth Circuit could
respond to the stay request as early as next week.
The stay is needed to prevent lethal removal that could
begin as soon as today, the HSUS says. An agreement reached in
U.S. District Court forestalled lethal removals until April 18
while that injunction request was debated. State officials say
lethal removals will not begin anytime soon.
To win an injunction, the law requires that plaintiffs
demonstrate "a strong likelihood of success on the merits"
that its legal arguments might prevail during the course of a
lawsuit. They must also show "the possibility of irreparable
injury" or harm. The sea lion-salmon issues have been debated
over the past two weeks via legal briefs, and during a
preliminary injunction hearing in Portland Wednesday.
Mosman said at the end of the hearing that the HSUS had
down "a slight preponderance of success on the merits." But
its claims of irreparable harm from the sea lion removal fell
The Humane Society in a legal memo supporting its district
court request said harm will come from the loss of the
"Sea lions that Plaintiffs and Plaintiffs' members view,
photograph and observe on a regular basis some of that whom
they have developed unique and treasured relationships with,
while they kayak and hike in and along the Columbia River and
the Bonneville Dam area will be forever lost unless the
Court issues injunctive relief to preserve the status quo
while the Court decides the merits of the case," the memo
"If that is all, I think it was justified in making its
decision," Mosman said of NOAA Fisheries' approval of lethal
removal authority for the states of Idaho, Oregon and
Washington. The Marine Mammal Protection Act allows a waiver
of its protections for "individually identifiable pinnipeds"
(seals and sea lions) that "are having a significant negative
impact on the decline or recovery of salmonids listed under
the Endangered Species Act
The NOAA decision authorized the taking of up to 85
California each year for five years, but says it is unlikely
that more than 30 could be removed annually.
Mosman said a "serious imbalance" existed between the harm
faced by salmon and others if sea lion predation goes
unchecked, and the harm outlined by the sea lion advocates.
The sea lions' taking of salmon can affect "the religious
life of these confederated tribes," Mosman said, by limiting
the tribes' ability to perform ceremonial functions.
Mosman on Wednesday said that no one has suggested the
planned sea lion removals would do damage to the species. The
authorization would allow removal of 1 percent of the sea
lions "potential biological removal" level. PBR level is
defined by the MMPA as "the maximum number of animals, not
including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or
maintain its optimum sustainable population."
In denying the preliminary injunction, the judge offered an
expedited process for hearing HSUS' claims, culminating with
oral arguments May 13 or May 14. The HSUS complaint says
NOAA's decision violated both the MMPA and the National
Environmental Policy Act. The organization's attorneys said
they would discuss the proposal.
A judicial decision in late May could be too late block
removals this year. The California sea lions typically have
left the river by the end of May to return their breeding
grounds off the Southern California coast.
The states had intended to begin trapping sea lions at the
dam Tuesday but equipment problems have pushed that start date
back, perhaps into the following week. The Oregon Department
of Fish and Wildlife will lead the effort.
The states do not relish the job but feel it's necessary.
"It gives us a tool, another link in the (salmon) recovery
chain," said Guy Norman of the Washington Department of Fish
and Wildlife. The NOAA approval allows the states to trap and
euthanize California sea lions or shoot them, or ship them off
to captivity. The states say they will focus first on placing
captured animals zoos and aquariums. Norman said as many as 20
sea lions have been spoken for so far, with Sea World
indicating a desire for as many as 12 to infuse new genes into
"There's not going to be any lethal removals of animals" at
least in the near term, said Rick Hargrave of the Oregon
Department of Fish and Wildlife. "We want to move them out" to
captive display facilities. Potentially, if an animal doesn't
meet medical criteria for transfer to a zoo, it may have to be
euthanized rather released back into the wild, he said.
"We're hoping that they do that and not start shooting them
in the water," the HSUS's Sharon Young said following
"We need to ask the federal (appellate) court to
intervene," she said.
Young said she was disappointed with Mosman's decision, but
encouraged that he gave an edge to the organization's
arguments on the merits.
"The court is saying that the Humane Society has a good
NOAA estimates that the 30 California sea lions that would
be removed this season could eat between 212 and 2,094 listed
chinook salmon this year.
The HSUS says such a loss is "likely to be negligible"
because large salmon and steelhead runs are expected to arrive
The organization also argues that NOAA is required to put
the sea lion take of salmon in context with other
human-approved causes of mortality such as harvests and the
federal hydro system.
The judge said a comparison with hydro mortality may not be
appropriate because most of its take is of juvenile fish as
opposed to adult spawners that have nearly completed their
The failure to measure sea lion take against human harvest
has, however, "at first blush, the appearance of
arbitrariness," Mosman said. HSUS is seeking a ruling that the
NOAA decision is arbitrary and capricious under the ESA.
The sea lions, of course, are unaware of the legal stir,
and potential threat. The number of California sea lions at
the dam has grown steadily in recent weeks, coincident with a
surging upriver spring chinook salmon run. The pinnipeds camp
out below the dam and pouncing on spawners as they search for
As of April 13, observers at the dam have seen 50 different
California sea lions at the dam, at least 37 of which have
made the 146-mile trip upstream from the ocean in previous
years, according to a report compiled weekly by U.S. Army
Corps of Engineers researchers.
Of the 60 animals listed in NOAA's authorization as
qualified for immediate removal, "30 have been seen at
Bonneville Dam so far this year, with about 19 of those being
seen on the single trap already, and several others hauled out
nearby," the report says. An ODFW trap was placed on-site so
the marine mammals would become used to its presence. Three
new traps will also be used in the effort.
Researchers say that an additional four branded animals and
possibly seven others now qualify to be added to the removal
list, having been hazed, seen to eat at least one salmon, and
having been at the dam more than five days.
The authorization only allows the removal of idenfiable
-- have been observed eating salmonids in the "observation
area" below Bonneville Dam between Jan. 1 and May 31 of any
-- have been observed in the observation area below
Bonneville Dam on a total of any five days (consecutive days,
days within a single season, or days over multiple years)
between Jan. 1 and May 31 of any year; and
-- have been sighted in the observation area below
Bonneville Dam after they have been subjected to active
Researchers have seen 1,264 chinook salmon and 249
steelhead taken by sea lions this year, according to
"unexpanded" numbers for the Jan. 11-April 13 period.
Additionally, 506 unnidentified fish were observed taken, most
believed to be salmon.
The district court complaint, and injunction request, were
filed by the Humane Society of the United States, Wild Fish
Conservancy and two individuals against NOAA Fisheries. The
states of Oregon and Washington joined the proceedings as
The Warm Springs Tribe joined as amicus, as did the
Columbia Pacific Anglers, Vancouver Wildlife League, Oregon
Anglers, Westport Charterboat Association, Ilwaco Charter
Association, Puget Sound Anglers, Washington Trollers
Association, The Association of Northwest Steelheaders, and
Columbia River Fishermen's Protective Union, the Northwest
Sportfishing Industry Association and the Northwest Guides and