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April 11, 2008
Any trapping and removal of California sea lions feeding on salmon below the Columbia River's Bonneville Dam will be postponed while a tightly scheduled legal fight is waged in Portland's U.S. District Court.

The first volley was fired March 24 when the Humane Society of the United States filed a complaint that alleges a federal decision allowing lethal removal of the pinnipeds violates the Marine Mammal Protection Act. On March 28 the HSUS asked the court of enjoin the decision – effectively stopping immediate implementation of the sea lion removal plan – while the lawsuit is debated.

Last week the parties to the lawsuit struck an agreement that would put off the killing of California sea lions until at least April 18, but in the meantime allow the trapping of specific animals for transfer to zoos and aquariums.

With suitable, and willing, captive display facilities identified, Oregon and Washington state officials last week considered launching a trapping effort as early as this week. But, they've decided wait until after an April 16 court hearing.

"We're not going to do anything on the river prior to that," according to Rick Hargrave, a spokesman for the Oregon Department of Fish and Wildlife. He said state officials decided it made no sense to trap and haul California sea lions to holding facilities at Pt. Defiance Zoo and Aquarium in Tacoma with court decisions looming as early as next week. The agencies could soon begin to put equipment in place at the dam to prepare for trapping.

Researchers this year have seen at least 45 different California sea lions at the dam, as well as 12 Steller sea lions and two harbor seals. At least 35 of the California sea lions have been visited the dam in previous years, according to a weekly report issued Tuesday. The male California sea lions surge north in winter, foraging to gird themselves for their summer breeding season off the coast of Southern California.

Of the 60 animals listed for potential lethal take under the NOAA authorization, 28 had been seen at Bonneville Dam so far through April 6. Of those, about 19 of those have been seen on an ODFW trap positioned below the dam several weeks ago, according to the research report.

The agreement filed with the federal court was adopted by Judge Michael W. Mosman Monday. It called for the federal government to respond to the request for a preliminary injunction by Wednesday (April 9) and allows the plaintiffs to reply by Monday. The agreement asks that the judge render a decision by April 18. It says that if no decision is possible in that timeframe, the HSUS could seek a temporary restraining to prevent any sea lion removals.

The HSUS, along with the Wild Fish Conservancy and two individuals, filed the lawsuit against the NOAA Fisheries Service, which on March 18 announced it was granting the authorization under the MMPA for the states of Idaho, Oregon and Washington to permanently remove up to 85 California sea lions each year. Oregon and Washington have joined the lawsuit as defendant intervenors. The case was initially assigned to Magistrate Judge Dennis J. Hubel, but reassigned this week to Mosman.

In seeking authorization for lethal removal the states said the California sea lion predation each spring was having a significant negative effect on salmon, and on costly efforts to revive beleaguered fish stocks. Historically few sea lions have been observed below the dam but in recent years more of the marine mammals have followed spawning spring chinook salmon inland.

Last year an estimated 80 California sea lions made the 145-mile quest to the dam. Observers documented a sea lion "take" of 4.2 percent of the salmonid run in the waters immediately below the dam. Those fish include five salmon and steelhead stocks that are listed under the Endangered Species Act.

NOAA Fisheries' approval of the states' request judged that "individually identifiable pinnipeds" (seals and sea lions) "are having a significant negative impact on the decline or recovery of salmonids listed under the Endangered Species Act…," the MMPA standard that must be met to allow lethal removal.

The HSUS complaint says the federal agency violated MMPA by authorizing lethal take of California sea lions "without adequately determining whether predation is having a 'significant negative impact on the decline or recovery'" of listed salmonids.

"In reaching this conclusion, which could justify the killing of any sea lion that is documented eating fish, the agency made no attempt to declare what level of 'measurable' taking of salmon actually constitutes a 'significant negative impact' -- the applicable statutory standard of the MMPA," according to HSUS's March 24 preliminary injunction request. It says the NOAA decision amounts to making sea lions scapegoats for the decline of salmon runs.

"In comparison, fishermen are permitted to take up to 17 percent of salmonids, birds take 18 percent of juvenile salmonids, and hydroelectric dams take a whopping 59 percent of juveniles," according to HSUS.

The response filed Wednesday by the state of Oregon acknowledges that "Salmon and steelhead (together 'salmonids') mortality in the Columbia River basin is the product of a complex combination of natural and human-influenced causes; sport and commercial fishermen, tribes, hydro-electric dams, and birds and other natural predators all play a role."

But the Oregon Department of Justice brief says the sea lions' discovery that "salmonid cluster near the fish ladders at the Bonneville Dam, where they are easy prey" has produced a dramatic increase in mortality.

"Contrary to plaintiffs' assumption that 'only' 4.2 percent of the affected salmonids are taken by CSLs, which assumes that the only takings are those occurring during daylight hours in the immediate vicinity of the Bonneville Dam, this recent incursion of CSLs into the Columbia is responsible for taking between an estimated sixteen to twenty percent of the five salmon populations that return to the Columbia from February through May of each year.

"Such a depredation is, by any legal or common sense measure, significant. If left unchecked it would add a new source of mortality for fish that already are on a downward spiral toward extinction," the Oregon brief says.

Meanwhile, the California sea lion population is thriving, according to the Oregon document.

"The number of animals affected by the federal authorization will have no effect on the CSLs, which already have a huge surplus of males beyond the number necessary for reproduction of the species." The Oregon brief asks that the injunction be denied.

A declaration submitted from Robin Brown says the sea lions impact significance "is not lessened by the fact that the Bonneville Dam itself, humans and birds also take fish.". Brown is chief of Oregon Department of Fish and Wildlife Marine Mammal Research.

Sea lions "are a new, growing, and unaccounted for addition to the overall mortality of salmonids in the lower Columbia River. This loss must be managed and minimized as much as possible, in concert with all other salmonid recovery efforts under way," according to Brown's declaration.

The MMPA's Section 120 was created specifically to address such sea lion-salmon interactions, according to a federal motion filed Wednesday in opposition to the injunction request.

"Granting the Plaintiffs' motion would undo the careful balance that Congress struck when it amended the MMPA. The predatory sea lions at Bonneville Dam pose a threat to salmon and steelhead. Congress has given NMFS the authority to respond to that threat," the federal brief says. The federal and Oregon filings both say that the "harm" claimed by the HSUS from the killing of sea lions is not sufficient to overturn the NOAA decision.

"Plaintiffs contend that such takings will cause them emotional pain. Whether the taking will or will not cause such pain should not be a determinative factor," the Oregon filing says. The law requires harm be proven to win an injunction.

"Allowing such a low threshold for blocking the rigorously supported efforts of the States to preserve endangered and threatened salmon goes beyond existing law and would not fulfill the Congressional intent of the MMPA, which explicitly contemplated the need to take seals or sea lions in order to protect ESA-listed salmon."



April 11, 2008
A total of 35,000 cracker shells, rubber bullets and seal bombs were fired off last year in what was a doubling of the effort to discourage sea lion predation on salmon and steelhead below the Columbia River's Bonneville Dam.

But without the desired effect.

"Although hazing activity has noticeably altered the behavior of both California and Steller sea lions, total salmonid catch has not declined in response to hazing efforts," according to an April 2 report produced by U.S. Army Corps of Engineers researchers Sean C. Tackley, Robert J. Stansell and Karrie M. Gibbons.

The report, "Pinniped Predation on Adult Salmonids and Other Fish in the Bonneville Dam Tailrace, 2005-2007," details results of an ongoing study to evaluate sea lion eating habits, and impacts on spawning salmon and steelhead.

The report, dated April 2, can be found online at: http://www.nwd-wc.usace.army.mil/tmt/documents/fish/

The report does not make a recommendation regarding sea lion hazing, which began again this winter with renewed vigor.

"That's something we struggled with internally," Stansell said. Some of those involved say the effort should continue while others say it is a costly venture that doesn't seem to be reducing impacts on salmon and steelhead. A number of the passing fish are protected under the Endangered Species Act.

"It makes our job more difficult," Stansell said of the dam- and boat-based harassment of hunting California and Steller sea lions.

"The spillway became a kind of sea lion sanctuary in 2007, as full-time, intensive hazing efforts at PH1 and PH2 encouraged California sea lions to use the spillway tailrace," according to the report. "The spillway was extremely turbulent after April 10, which prevented boat access and limited the effectiveness of noise-based deterrents used by dam-based hazers." The dam's operators begin spilling water April 10 to facilitate downstream passage for juvenile salmon and steelhead.

"Observers reported that California sea lions became more secretive in response to hazing, spending more time below the surface than usual; making individual identification more difficult," the report says.

It would seem the hazing would have to continue in some form if the states Idaho, Oregon and Washington are to implement their newly won authorization to remove, lethally or otherwise, California sea lions that are having a significant negative impact on listed salmonid stocks. One of the conditions of that approval by the NOAA Fisheries Service says that animals can only be targeted if they are seen again below the dam after having been "subjected to active non-lethal deterrence."

The researchers have only been observing sea lion predation during the daylight hours, but this year they have done limited nighttime monitoring. A weekly report released Tuesday says that nighttime hunting has been both by California sea lions and Steller sea lions.

"This may explain why we see many animals only hauled out during the day and not hunting. Whether this is a result of daytime hazing activities, less dominant animals being pushed from daytime predation by larger numbers of dominant animals, or if it extends throughout the night has yet to be determined," the weekly report says.

Hazing efforts began in 2005 and have been stepped up in each of the succeeding springs, principally March through May.

Research carried out in 2006 indicated that hazing and acoustic deterrent efforts "failed to reduce the number of salmon taken or the total number of pinnipeds present at the project. Total observed salmonid catch was actually significantly higher on days with hazing and acoustics, but fewer pinnipeds were present within 100 feet of fishway entrances on those days.

There were no significant differences in salmonid catch or pinniped presence between days with or without boat-based hazing. Slightly fewer salmon were taken on days when boat hazing occurred, but more pinnipeds were present near the entrances," the 2005-2007 report says. "This may be because the boats had limited access and could not get too close to the dam, having the occasional effect of chasing some pinnipeds closer to the dam. Steller sea lions were responsive to hazing activities, and sturgeon predation in the study area was effectively halted when boat-based hazing began.

Stansell says that the Steller sea lions are not responding to the hazing this year as they have in the past.

The research has been ongoing since 2001, triggered by NOAA Fisheries' 2000 biological opinion on federal hydro system effects on listed salmon and steelhead. That document cited high rates of marine mammal tooth and claw abrasions on fish examined at the lower Snake River's Lower Granite Dam adult trapping facility.

Few sea lions were noted as far upstream, 145 miles, as Bonneville until the turn of the century. Early in the decade their presence grew rapidly, numbering more than a 100 in the springs of 2003 and 2004. The spring California sea lion population has stabilized at about 80 in each of the past three years.

"Annual expanded estimates of pinniped predation on adult salmonids in the Bonneville Dam tailrace increased each year, from 2,920 fish in 2005 to 3,859 fish in 2007 ," the report says. "The relative impact, expressed as the estimated percentage of the salmonid run taken by pinnipeds, varied with run size and the expanded estimate of salmonid catch. The estimated percentage of the salmonid run taken by pinnipeds in the Bonneville Dam tailrace between 2005 and 2007 averaged 3.5 percent with a high of 4.2 percent in 2007."

Adult salmon and steelhead were the primary prey item, comprising at least 75.6 percent of observed catches. Pacific lamprey and white sturgeon were the second and third most commonly identified prey species, comprising 9.4 percent and 5.3 percent of total observed catch, respectively, according to the report. Chinook salmon are the mostly commonly identified prey of the sea lions.

California sea lions were the primary predator of adult salmonids in the Bonneville Dam tailrace, accounting for 99.0 percent of the 8,946 observed adult salmonid catches over the recent three-year period, and 99.8 percent of the 4,957 observed chinook salmon catches.

"About 91.4 percent of observed steelhead catches were attributed to California sea lions during this period, with Steller sea lions reportedly catching 8.5 percent of the total," the report says.

"White sturgeon was the most commonly observed prey item for Steller sea lions, which made 97.8 percent of the 626 observed sturgeon catches since 2002."

The report notes that "The sea lion season at Bonneville Dam has grown more protracted in recent years, as a few California sea lions and most Steller sea lions have arrived earlier each year. This increased predation activity prior to the mid-March through mid-June spring Chinook salmon run has resulted in increased impacts on steelhead and white sturgeon."

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