After three hours of
legal debate, U.S. District Court Judge Michael W. Mosman said
Wednesday that his "tentative thoughts now" were that NOAA's
Fisheries Service had complied with federal law in granting
authority for the lethal removal of California sea lions from
below the Columbia River's Bonneville Dam.
But at least one
issue gave the judge reason to pause -- whether the federal
agency had given proper consideration to the impact sea lion
removal would have on recreationists that enjoy viewing the
large marine mammals.
"This is the point I'm most tentative about," Mosman said
at the end of the hearing in Portland.
In its challenge of the NOAA decision, the Humane Society
of the United States alleges the federal agency violated the
Administrative Procedure Act, the Marine Mammal Protection Act
and the National Environmental Policy Act.
A NEPA failing, the HSUS has said, is that "NMFS did not
consider the effect of sea lion removal on aesthetic,
wildlife-viewing, and other wildlife-dependent recreational
interests in this National Landmark and National Scenic area."
Nor did NOAA in its March 12 environmental assessment properly
weigh the risk posed to Steller sea lions by the proposed
shootings of California sea lions that also frequent the area
below the dam, HSUS says.
In concluding remarks the judge said he was satisfied the
Steller sea lion issue was "given a hard look by the agency."
NEPA requires an EA or a more exhaustive environmental
impact statement to determine whether a proposed action will
have a significant impact on the human environment. HSUS
argues that the proposed sea lion removal deserved a more
Federal attorneys say that kayaking and wildlife viewing
were considered in the EA and pointed out that the area where
the pinnipeds congregate is off limits to the public. Federal
briefs also note that there will undoubtedly still be sea
lions below the dam and in the river even after the removal of
up to 85 sea lions each year.
Mosman said Wednesday that on most of the points argued his
initial thoughts favored the federal decision making. He said
he planned to produce a written opinion "in the very near
future" but needed time ponder those tentative inclinations.
The review of the arguments, applicable case law and writing
time would take about two weeks, he said.
A July 3 HSUS summary judgment motion asks the court to set
aside NOAA's March decision granting five-year authorization
to the states of Idaho, Oregon and Washington to lethally
remove California sea lions, which prey on salmon, steelhead
and other fishes below the dam and elsewhere in the lower
In making the decision, the agency determined that the
situation satisfied the MMPA's requirement that only
"individually identifiable pinnipeds which are having a
significant negative impact on the decline or recovery of
salmonid fishery stocks…" can be lethally removed. There are
13 Columbia River basin salmon and steelhead stocks listed
under the Endangered Species Act
HSUS says that NOAA violated the MMPA by failing to
properly define in its documents what level of salmon catch by
the sea lions represents "a significant negative impact."
Mosman pointed out at several points in the debate that he
is "not supposed to dive too deeply into the science." He
cited recent precedent established in the U.S. Court of
Appeals for the Ninth Circuit that says the science of the
expert agency must be heeded.
The opinion in that case said the appellate court had been
asked "to act as a panel of scientists," and that "in recent
years, our environmental jurisprudence has, at times, shifted
away from the appropriate standard of review and could be read
to suggest that this court should play such a role."
"We defied well-established law concerning the deference we
owe to agencies and their methodological choices," the en banc
order said of an earlier decision by a three-member Ninth
The Ninth Circuit "has some very pointed remarks about what
the standard of review is," Mosman said. His task, he said, is
to judge whether the decision is grounded in science and
rational, and he cannot "pick" the science offered by HSUS
over NOAA's unless the organization proves NOAA's choices are
The judge said Wednesday it is "within the authority and
expertise of the agency to attempt to define" what is
relatively ambiguous MMPA language regarding significance.
"It's not beautifully written, but I am unable to say it's
contrary to the law," Mosman said of NOAA's criteria.
HSUS also argues that NOAA failed to consider other impacts
to salmon, as required by the MMPA, and improperly left
documents from the administrative record relating to previous
ESA decisions allowing harvest and hydro system impacts on
listed fish that are greater than sea lion impacts. HSUS
attorneys said coming to "no significant impact" or no
jeopardy conclusions in prior decisions while finding sea lion
take significant is contrary to APA mandates.
Federal attorneys say that "NMFS appropriately considered
the effects of the Columbia River power system and fishing on
these species in the context of their MMPA decision process,"
and that NMFS's MMPA Section 120 finding does not "swerve from
prior precedents" as HSUS contends.
HSUS attorney Rebecca Judd argued that the NOAA decision is
"They still haven't explained why 17 percent is not
significant" while a sea lion take of 12.6 percent is
significant, she said. Judd referred to the maximum allowable
harvest of a salmon run. "I don't see any reasonable
explanation in the record."
Mosman agreed with federal arguments, saying that the
decisions are "made in very different settings" and answer to
different statutory demands.
"I don't find the decision here to be arbitrary or
capricious or irrational," Mosman said, again qualifying his
conclusion as tentative.
More Fish, More
Sea Lions Lead To Record Sea Lion 'Catch' In 2008
September 05, 2008
A stronger spring chinook salmon run and the larger
contingent of predatory sea lions below the Columbia River's
Bonneville Dam added up this spring to a jump in overall fish
consumption over last year, according to a 2008 field report
released this week by the U.S. Army Corps of Engineers.
The estimated sea lion "catch" of salmon and steelhead at
the dam this year totals 4,927, the most ever recorded over
the seven year history of the Corps research. The previous
high was last year's 4,355 total.
The sea lions "impact" on the run was not, however, the
greatest it has been. That "adjusted salmonid catch estimate"
represented 3.2 percent of the 147,543 salmon passing the dam
during the Jan. 1 to May 31 study period. Last year the toll
was 4.7 percent on a smaller run, 88,474.
The adjusted estimate includes a tally of fish taken by sea
lions actually observed by members of the research team from
atop the dam. They recorded the prey species in as many
instances as they could. The total was adjusted upward with
estimates of the number of fish likely taken when observers
were not present and with an apportioning of "unidentified
salmonid" catch among the various predators -- California and
Steller sea lions and harbor seals.
The research was launched in 2002 to evaluate a growing
pinniped presence below the dam. In the several previous
decades, few of the large marine mammals made the 146-mile
trip from the Pacific Ocean. But, coincident with a rise in
spring chinook salmon numbers, more and more sea lions have
been seen at the dam during this decade.
The researchers have used surface observations to evaluate
the seasonal presence, abundance, and predation activities of
pinnipeds in the Bonneville Dam tailrace. The monitoring
program is part of an ongoing effort to understand and
appropriately manage pinniped predation on threatened and
endangered salmonids, according to the 2008 report. A total of
13 Columbia basin salmon and steelhead stocks, including
spring chinook and steelhead trout, are listed under the
Endangered Species Act.
Observers were stationed at each of the three major
tailrace areas of the dam -- two powerhouses and the spillway.
In 2008, regular observations began on Jan. 11, Mondays
through Fridays, and increased to seven days per week on Feb.
4. The regular observations -- from an hour before sunrise to
an hour after sunset -- ended on May 31.
The report, "Evaluation of Pinniped Predation on Adult
Salmonids and Other Fishes in the Bonneville Dam Tailrace,"
can be found online at:
The report was produced by Sean Tackley, Robert Stansell
and Karrie Gibbons.
Sea lions this spring nearly doubled their take of white
sturgeon over last year's study record. A total of 606
sturgeon were observed taken as compared to 360 in 2007. The
adjusted sturgeon take is estimated to be 1,139 this year.
The report says that Steller sea lions -- which are also a
listed species -- again targeted white sturgeon, accounting
for 97.7 percent of the observed catch this year. The Columbia
River white sturgeon are not listed.
"Steller sea lions were known to be catching sturgeon in
the vicinity of Bonneville Dam as early as November 2007, so
observed and expanded catches represent minimum catch," the
report says. The estimated total lengths of sturgeon caught in
2008 ranged from less than 2 feet long up to 7 feet long, ,
but 85.9 percent of the observed take were estimated to be 4
feet long or shorter.
California sea lions were the primary predator on salmonids,
accounting for 96.2 percent of the 4,243 observed catches.
That percentage was lower than what has been seen previously
with Steller sea lions' increased interest in salmon and
steelhead this year. Stellers took only 0.3 percent of the
observed salmon take last year but were estimated to take 3.8
percent of the passing spawners in the spring of 2008.
Chinook salmon made up 93.2 percent of the observed sea
lion adult salmonid catch in 2008. The expanded chinook catch
estimate for the Bonneville Dam tailrace observation area was
4,115 or 2.3 percent of the chinook run at Bonneville Dam from
Jan. 1 through June 15, according to the report.
Steelhead comprised about 6.8 percent of the observed adult
salmonid catch during the same period. Steelhead, which are
present in the Bonneville Dam tailrace throughout the winter
and spring months, comprised the majority of salmonid catches
prior to the onset of the spring chinook salmon run.
A total of 103 pinnipeds were observed below the dam during
the research period this year. The number of California sea
lions increased from 69 in 2007 to 84 in 2008 and the number
of Stellers jumped from nine to 17. Two Pacific harbor seals
In the first year of the study only 30 individual
California sea lions observed at the dam. The number spiked to
106 in 2003 and 101 in 204 in 2005, then dropped to 80 and 72
the next two years.
The sea lions' bite on listed salmon has caused concern
among Columbia basin states, which expend much time and money
to help improve the status of protected salmon. Idaho, Oregon
and Washington late last year filed an application under the
Marine Mammal Protection Act to lethally remove California sea
The states' application was approved this spring by NOAA
Fisheries Service. A lawsuit was immediately filed in an
attempt to halt lethal removals. An agreement was reached,
however, allowing the capture and transport of specific sea
lions to zoos and/or aquariums, but no lethal removals. Six
California sea lions were trapped and flown to SeaWorld
facilities in Orlando, Fla., and San Antonio, Tex.
The states halted the trapping effort in early May after
six sea lions were found dead in the traps, having apparently
died of heat prostration. An investigation is under way in an
attempt to determine how the sea lions became caged in the
unmanned traps, which had been left open overnight.
The lawsuit meanwhile is ongoing. The Humane Society of the
United States is asking the U.S. District Court to declare
NOAA's decision of the lethal removal application illegal.
Again in 2008 the states, tribes and federal agencies tried
non-lethal means to deter sea lion predation.
"As in previous years, hazing activity temporarily moved
some sea lions out of tailrace areas, but the animals
typically returned and resumed foraging shortly after hazers
left the area. The high adult salmonid and sturgeon catch
estimates seen in 2008 suggest that at best, hazing at the
current level of intensity only blunts the ever-increasing
predation trend," the report says.
Hazing from the dam itself involved a combination of
acoustic, visual, and tactile non-lethal deterrents, including
vessel chasing, above-water pyrotechnics (cracker shells,
screamer shells or rockets), rubber bullets, rubber buckshot,
and beanbags. Boat-based crews also used underwater percussive
devices known as seal bombs.
"The Corps should continue to assist in the pursuit and
evaluation of potential non-lethal deterrent technologies as
part of a long-term strategy to reduce pinniped predation on
adult salmonids, sturgeon, and lamprey in the Bonneville Dam
tailrace," the report recommends.
"Acoustic deterrent devices (ADDs) were again installed at
all main fishway entrances" as an attempt to scare off the
pinnipeds, the report says. "As in previous years, pinnipeds
were observed swimming and eating fish within 20 ft (6.1 m) to
50 ft (15.2 m) of some of the ADDs, with no obvious deterrent
"The Corps should consider discontinuing the use of
acoustic deterrent devices (ADDs), as this device has
demonstrated little or no usefulness as a sea lion deterrent
at fishway entrances," the report recommends.