Legal Killing of Sea Lions Halted

SandBar Printer-Friendly Article
SandBar 10.2, April, 2011 Recommended citation: Barton Norfleet, Legal Killing of Sea Lions Halted 10:2 SandBar 8 (2011). Legal Killing of Sea Lions Halted Barton Norfleet 2012 J.D. Candidate, University of Mississippi School of Law In a lawsuit brought by the Humane Society of the United States, the Ninth Circuit Court of Appeals ruled that the National Marine Fisheries Service (NMFS) did not provide an adequate explanation for allowing three states to kill sea lions in order to prevent a “significant negative impact” on salmon populations.1 The court sent the case back to NMFS for further explanation, noting that earlier NMFS findings showed that fisheries paralleled if not surpassed sea lions in causing negative impacts on salmon populations. The court also found that NMFS failed to explain why the California sea lion’s predation rate would significantly damage the salmon population if it exceeded one percent.2 Background In March 2008, NMFS allowed the states of Oregon, Washington, and Idaho to kill a maximum of 85 California sea lions per year around the Bonneville Dam on the Columbia River. The Marine Mammal Protection Act (MMPA) generally prohibits the taking of marine mammals; however, § 120 of the Act allows states to apply for “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 under the Endangered Species Act (ESA).3 The Humane Society brought suit against NMFS alleging that the agency’s application of the MMPA was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The suit also claimed that the agency failed to prepare an environmental impact statement (EIS) in violation of the National Environmental Protection Act (NEPA), which requires an EIS for “major Federal actions significantly affecting the quality of the human environment.” The U.S. District Court of Oregon granted summary judgment in favor of NMFS declaring that its actions were not “arbitrary and capricious” under the APA and also stating that an EIS was not required by NEPA.4 The Humane Society ultimately, through a series of appeals, presented its case to the U.S. Court of Appeals for the Ninth Circuit. Dismissal of the NEPA Claim On appeal, the Humane Society again claimed that NMFS had violated NEPA by not conducting an EIS. First, the Humane Society claimed that the authorization of the killing of sea lions inferred that the killings would have a significant beneficial effect on the environment. The group argued that the beneficial environmental impact required an EIS.5 The court dismissed this claim due to the fact that there was no evidence that killing sea lions, whether beneficial to the salmon population or not, would significantly affect the “quality of the human environment.”6 The plaintiffs next advanced three theories in support of its argument that NMFS should have prepared an EIS due to the significant adverse impacts of killing sea lions. The plaintiffs first pointed to 40 C.F.R. § 1508.27(b)(4), which states that in deciding whether an EIS is required an agency should consider the degree to which the effects on the quality of the human environment are likely to be highly controversial.7 However, after reviewing cases interpreting the term “controversial”, the court decided that NMFS’s final conclusion of no significant controversy was valid. “The term ‘controversial’ refers ‘to cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use’... Here, the Commission criticized some aspects of NMFS’s draft EA, but it did not disagree with the EA’s primary conclusions that an EIS was not required, that sea lions are having a significant impact under § 120 and that some sort of lethal removal is reasonable.”8 Next, the plaintiffs claimed that an EIS was required under 40 C.F.R. § 1508.27(b)(9), which states that in considering an EIS the “welfare of threatened or endangered species” must be considered. This claim arose from the fact that the Steller sea lion, which is listed as threatened under the ESA, might be accidentally mistaken for a California sea lion and killed. The court dismissed this argument as well because NMFS has set measures in place to ensure that only the California sea lions would be taken.9 Finally, the plaintiffs argued that the killing of the sea lions would reduce sea lion viewing opportunities, but the court rejected this argument stating that “wildlife viewing opportunities” are not a major factor considered when contemplating an EIS.10 Affirmation of the MMPA Claim Although the court concluded that an EIS was not required, the court ruled in the Humane Society’s favor on the claim that NMFS acted in an “arbitrary and capricious” manner in authorizing “the killing of sea lions without a substantial explanation of its reasoning.”11 According to the APA, “an agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”12 The court found NMFS’s claim that sea lions were having a significant negative impact on the salmon population contradicted an earlier finding which showed that fisheries were having the same or greater impact on the salmon and were not considered to be significant negative impacts.13 NMFS argued that the impact of the sea lion was assessed under the MMPA while the impact of the fisheries was assessed under NEPA, therefore they could not be compared.14 The court dismissed this argument and stated that although the two impacts were assessed under two different acts, the impact of the fisheries is “relevant” data that should have been considered in later findings, and that NMFS could not turn a blind eye to this connection without an explanation.15 Due to lack of adequate evidence, the court also found issue with NMFS’s claim that the California sea lion’s predation rate, if greater than one percent, would cause a significant negative impact.16 First, the court noted that NMFS failed to explain “why this level of predation amounts to a ‘significant negative impact,’ and, secondly, it observed that NMFS had also neglected to describe “how this level of removal is related to the decline or recovery of listed salmonids.”17 Timothy J. Hagen, Executive Director for the Marine Mammal Commission, summed up what an adequate explanation might entail in a letter to NMFS which states: There are two issues about which the Service should be particularly clear in its rationale. The first is the basis for determining the extent to which predation must be reduced to promote conservation and recovery of the salmonid stocks. . . . The second is the manner and rationale by which the Service is, in effect, allocating allowable salmonid mortality among different sources of mortality.18 NMFS argued that the predation rate was set to try and balance protecting all the sea lions under the MMPA while also protecting salmon/endangered species under the ESA. The court said that although this might be a good public policy strategy it still does not meet the “satisfactory explanation” standard under the APA.19 Conclusion In this case, the Humane Society prevailed in stopping an action which it found to be offensive. However, the Society did not prevail because the humane treatment of sea lions was required by the law; rather the Society won due to an error in the procedural process leading up to the agency’s decision. So although the Society may have halted the killing of sea lions for a while, NMFS could resume the killings if it shows a “cogent explanation” as to the reasoning behind its decisions.20 According to an article in the Seattle Times a spokesman for NMFS, Brian Gorman, is quoted stating that “the agency is disappointed with the decision but hadn’t decided on its next step.”21 But, at least for a while, the California sea lion can swim worry free. Endnotes 1. Humane Soc’y of the United States v. Locke, 626 F.3d 1040, 1048 (9th Cir. 2010). 2. Id. at 1050. 3. 16 U.S.C. § 1389(b)(1) (2010). 4. Humane Soc’y of the United States v. Gutierrez, 625 F. Supp. 2d 1052, 1072 (D. Or. 2008). 5. Locke, 626 F.3d at 1055-1056. 6. Id. 7. Id. at 1057. 8. Id. 9. Id. 10. Id. 11. Locke, 626 F.3d at 1048. 12. 5 U.S.C. §§ 701-706 (2010). 13. Locke, 626 F.3d at 1048. 14. Id. at 1050. 15. Id. at 1050-1052. 16. Id. 17. Id. at 1052. 18. Id. at 1053. 19. Id. 20. 5 U.S.C. §§ 701-706 (2010). 21. Tim Fought, Court Halts Sea lion Killing at Columbia River Dam, Seattle Times, Nov. 23, 2010, available at http://seattletimes.nwsource.com/html/ localnews/2013506979_sealions24.html.
Phone (662) 915-7775 • Fax (662) 915-5267 • 256 Kinard Hall, Wing E, University, MS 38677-1848

SandBar 10.2, April, 2011
Recommended citation: Barton Norfleet, Legal Killing of Sea Lions Halted 10:2 SandBar 8 (2011).

Barton Norfleet 2012 J.D. Candidate, University of Mississippi School of Law

In a lawsuit brought by the Humane Society of the United States, the Ninth Circuit Court of Appeals ruled that the National Marine Fisheries Service (NMFS) did not provide an adequate explanation for allowing three states to kill sea lions in order to prevent a “significant negative impact” on salmon populations.1 The court sent the case back to NMFS for further explanation, noting that earlier NMFS findings showed that fisheries paralleled if not surpassed sea lions in causing negative impacts on salmon populations. The court also found that NMFS failed to explain why the California sea lion’s predation rate would significantly damage the salmon population if it exceeded one percent.2

Background
In March 2008, NMFS allowed the states of Oregon, Washington, and Idaho to kill a maximum of 85 California sea lions per year around the Bonneville Dam on the Columbia River. The Marine Mammal Protection Act (MMPA) generally prohibits the taking of marine mammals; however, § 120 of the Act allows states to apply for “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 under the Endangered Species Act (ESA).3
The Humane Society brought suit against NMFS alleging that the agency’s application of the MMPA was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The suit also claimed that the agency failed to prepare an environmental impact statement (EIS) in violation of the National Environmental Protection Act (NEPA), which requires an EIS for “major Federal actions significantly affecting the quality of the human environment.”
The U.S. District Court of Oregon granted summary judgment in favor of NMFS declaring that its actions were not “arbitrary and capricious” under the APA and also stating that an EIS was not required by NEPA.4 The Humane Society ultimately, through a series of appeals, presented its case to the U.S. Court of Appeals for the Ninth Circuit.

Dismissal of the NEPA Claim
On appeal, the Humane Society again claimed that NMFS had violated NEPA by not conducting an EIS. First, the Humane Society claimed that the authorization of the killing of sea lions inferred that the killings would have a significant beneficial effect on the environment. The group argued that the beneficial environmental impact required an EIS.5 The court dismissed this claim due to the fact that there was no evidence that killing sea lions, whether beneficial to the salmon population or not, would significantly affect the “quality of the human environment.”6
The plaintiffs next advanced three theories in support of its argument that NMFS should have prepared an EIS due to the significant adverse impacts of killing sea lions. The plaintiffs first pointed to 40 C.F.R. § 1508.27(b)(4), which states that in deciding whether an EIS is required an agency should consider the degree to which the effects on the quality of the human environment are likely to be highly controversial.7 However, after reviewing cases interpreting the term “controversial”, the court decided that NMFS’s final conclusion of no significant controversy was valid. “The term ‘controversial’ refers ‘to cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use’... Here, the Commission criticized some aspects of NMFS’s draft EA, but it did not disagree with the EA’s primary conclusions that an EIS was not required, that sea lions are having a significant impact under § 120 and that some sort of lethal removal is reasonable.”8
Next, the plaintiffs claimed that an EIS was required under 40 C.F.R. § 1508.27(b)(9), which states that in considering an EIS the “welfare of threatened or endangered species” must be considered. This claim arose from the fact that the Steller sea lion, which is listed as threatened under the ESA, might be accidentally mistaken for a California sea lion and killed. The court dismissed this argument as well because NMFS has set measures in place to ensure that only the California sea lions would be taken.9 Finally, the plaintiffs argued that the killing of the sea lions would reduce sea lion viewing opportunities, but the court rejected this argument stating that “wildlife viewing opportunities” are not a major factor considered when contemplating an EIS.10

Affirmation of the MMPA Claim
Although the court concluded that an EIS was not required, the court ruled in the Humane Society’s favor on the claim that NMFS acted in an “arbitrary and capricious” manner in authorizing “the killing of sea lions without a substantial explanation of its reasoning.”11 According to the APA, “an agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”12
The court found NMFS’s claim that sea lions were having a significant negative impact on the salmon population contradicted an earlier finding which showed that fisheries were having the same or greater impact on the salmon and were not considered to be significant negative impacts.13 NMFS argued that the impact of the sea lion was assessed under the MMPA while the impact of the fisheries was assessed under NEPA, therefore they could not be compared.14 The court dismissed this argument and stated that although the two impacts were assessed under two different acts, the impact of the fisheries is “relevant” data that should have been considered in later findings, and that NMFS could not turn a blind eye to this connection without an explanation.15
Due to lack of adequate evidence, the court also found issue with NMFS’s claim that the California sea lion’s predation rate, if greater than one percent, would cause a significant negative impact.16 First, the court noted that NMFS failed to explain “why this level of predation amounts to a ‘significant negative impact,’ and, secondly, it observed that NMFS had also neglected to describe “how this level of removal is related to the decline or recovery of listed salmonids.”17 Timothy J. Hagen, Executive Director for the Marine Mammal Commission, summed up what an adequate explanation might entail in a letter to NMFS which states:

There are two issues about which the Service should be particularly clear in its rationale. The first is the basis for determining the extent to which predation must be reduced to promote conservation and recovery of the salmonid stocks. . . . The second is the manner and rationale by which the Service is, in effect, allocating allowable salmonid mortality among different sources of mortality.18

NMFS argued that the predation rate was set to try and balance protecting all the sea lions under the MMPA while also protecting salmon/endangered species under the ESA. The court said that although this might be a good public policy strategy it still does not meet the “satisfactory explanation” standard under the APA.19

Conclusion
In this case, the Humane Society prevailed in stopping an action which it found to be offensive. However, the Society did not prevail because the humane treatment of sea lions was required by the law; rather the Society won due to an error in the procedural process leading up to the agency’s decision. So although the Society may have halted the killing of sea lions for a while, NMFS could resume the killings if it shows a “cogent explanation” as to the reasoning behind its decisions.20 According to an article in the Seattle Times a spokesman for NMFS, Brian Gorman, is quoted stating that “the agency is disappointed with the decision but hadn’t decided on its next step.”21 But, at least for a while, the California sea lion can swim worry free.

Endnotes
1.   Humane Soc’y of the United States v. Locke, 626 F.3d 1040, 1048 (9th Cir. 2010).
2.   Id. at 1050.
3.   16 U.S.C. § 1389(b)(1) (2010).
4.   Humane Soc’y of the United States v. Gutierrez, 625 F. Supp. 2d 1052, 1072 (D. Or. 2008).
5.   Locke, 626 F.3d at 1055-1056.
6.   Id.
7.   Id. at 1057.
8.   Id.
9.   Id.
10. Id.
11. Locke, 626 F.3d at 1048.
12. 5 U.S.C. §§ 701-706 (2010).
13. Locke, 626 F.3d at 1048.
14. Id. at 1050.
15. Id. at 1050-1052.
16. Id.
17. Id. at 1052.
18. Id. at 1053.
19. Id.
20. 5 U.S.C. §§ 701-706 (2010).
21. Tim Fought, Court Halts Sea lion Killing at Columbia River Dam, Seattle Times, Nov. 23, 2010,   available at http://seattletimes.nwsource.com/html/ localnews/2013506979_sealions24.html.