District Court Vacates Steller Sea Lion Research Permits

Humane Society v. Department of Commerce, 2006 U.S. Dist. LEXIS 34006 (D. D.C. May 26, 2006).

Stephanie Showalter

In May, the D.C. District Court vacated a number of permits issued by the National Marine Fisheries Service (NMFS) authorizing research on Steller sea lions. The court found that NMFS failed to comply with the National Environmental Policy Act (NEPA) when it issued the permits without preparing an Environmental Impact Statement (EIS).

Background
Steller sea lions are distributed across the North Pacific Ocean Rim from northern Japan to central California. There are two distinct stocks divided at 144° West longitude (Cape Suckling, Alaska). NMFS listed the Steller sea lions as threatened in 1990. Due to continuing declines, the western stock (from Cape Suckling to Hokkaido, Japan) was reclassified as endangered in 1997.1

Over $80 million was appropriated by Congress in 2001 and 2002 to fund research into the decline of the western stock of Steller sea lions. This was the largest appropriation ever dedicated to a single species and NMFS was subsequently flooded with permit requests and applications for surveys, biopsies, capture, branding, tagging, and other research activities. In 2002, NMFS prepared an Environmental Assessment (EA), concluded that the research proposed through 2004 would not have a significant impact on the sea lions, and issued the requested permits.

In April 2005, NMFS announced that eight institutions had submitted applications for multiple-year permit extensions authorizing further research of similar character. In May, NMFS issued the requested permits after concluding in its final EA that the research program would not have a significant impact on the environment and was not likely to jeopardize the continued existence of the western population of Steller sea lions. In total, NMFS authorized the repeated taking of more than 200,000 sea lions through annual vessel and aerial surveys and more than 140,000 through ground-based research; an annual incidental mortality of up to sixty animals, including up to twenty from the western stock; the annual capture or restraint of more than 3,000; the branding of more than 2,900; and the attachment of scientific instruments to 700.

The Humane Society of the United States (Society) objected to both the scale and invasiveness of the approved research. The organization was particularly concerned about the issuance of permits for hot branding, tissue sampling, and tooth extraction, procedures which are sometimes conducted without anesthesia. The Society filed suit on July 12, 2005, seeking a moratorium on further testing until the agency completes an in-depth review of the potential adverse effects. On December 28, 2005, in what appears to have been an attempt to sidetrack the Society’s lawsuit, NMFS announced that it would prepare an EIS “to evaluate the cumulative impacts of continuing to fund and permit research activities” as “some of the proposed research may result in adverse effects on threatened and endangered Steller sea lions.”2 Despite this apparent concession as to the need for an EIS, NMFS argued in court that its EA constituted a thorough analysis of the environmental factors.

NEPA
NEPA requires that federal agencies prepare an EIS for all “major Federal actions significantly affecting the quality of the human environment.” To determine whether an EIS is required, agencies may first prepare an EA. If during the preparation of its EA, the agency concludes that the action will not have a significant impact on the environment, it may issue a “finding of no significant impact” (FONSI) and proceed without preparing an EIS. When it issued its EA in May 2005, NMFS also issued a FONSI and then proceeded to issue the permits. The Society claimed that the issuance of the research permits was an “action significantly affecting the quality of the human environment” and NMFS therefore should have prepared an EIS. The district court agreed.

“Significant Impact”
The court found that “NMFS neglected to take a ‘hard look’ at the relevant environmental issues and thereby failed to make a ‘convincing case’ that the authorized research will not have a significant impact on the environment.”3 First, NMFS failed to address the important issue raised by the Society during the public comment period - whether the authorized research will result in incidental mortalities exceeding the western stock’s PBR level. The PBR (potential biological removal) level is “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.”4 NMFS’s most recent assessment established a PBR for the western stock of 208. An estimated 171 Steller sea lions are killed each year through native subsistence hunts and approximately another thirty perish in commercial fishing operations. Because the potential annual incidental mortality due to the research is twenty, the Society argues that there is clearly a potential for the research program to violate the PBR. The court concluded that, by failing to address this issue in its EA, NMFS failed to make a convincing case that the expanded research program will not have a significant effect.

Second, during the NEPA analysis federal agencies must consider the degree to which the environmental effects are likely to be highly controversial, highly uncertain, and cumulatively significant. The court found that “the highly controversial nature of the permits’ effects is, in short, readily apparent from the record.”5 For example, in preliminary comments to the agency, the Marine Mammal Commission indicated that it “remained concerned” that the cumulative impacts could have a significant adverse impact. NMFS’s decision in December to prepare an EIS is further evidence of the degree of controversy surrounding the impact of the research. In addition, the court stated that “there can be no doubt that NMFS authorized research where the effects were both uncertain and unknown.”6

Conclusion
The court vacated the permits and remanded the case to the agency for preparation of an EIS. The court indicated, in a footnote, that the agency’s discussion of alternatives in the EA was also not satisfactory. The court found that the agency had not seriously considered alternatives, but merely deferred to the views of permit holders regarding less invasive research techniques. The EIS must therefore contain more detailed analysis regarding alternatives.

In June, the Society and NMFS reached a settlement which allows non-invasive research, such as aerial surveys, to continue.7 Only research involving invasive techniques, such as branding and tooth extraction, remain on hold.

Endnotes
1. The Eastern stock (ranging from central California to Cape Suckling) remains classified as threatened, although the population has been increasing by approximately three percent a year since the 1980s.
2. 70 Fed. Reg. 76780, 76781 (Dec. 28, 2005).
3. Humane Society v. Department of Commerce, 2006 U.S. Dist. LEXIS 34006 at *48 (D. D.C. May 26, 2006).
4. 16 U.S.C. § 1362(20).
5. Humane Society, 2006 U.S. Dist. LEXIS 34006 at *38-39.
6. Id. at *40-41.
7. For more information on the settlement, see http://www.fakr.noaa.gov/protectedresources/stellers/litigation/rsrchsettlement063006.htm .