Litigation Stalls Sea Lion Kills; Non-lethal Removal Allowed

Columbia Basin Bulletin

April 4, 2008  

An agreement submitted this week in federal court would postpone planned actions to kill California sea lions feeding on migrating salmon below the lower Columbia River 's Bonneville Dam but allow the marine mammals' capture and transfer to zoos and aquariums across the country.

The agreement was struck by the federal government and Humane Society of the United States in an attempt to avoid the need for immediate court action and to allow other legal processes to play out. It stipulates that the states of Idaho , Oregon and Washington will not engage in the lethal removal of California sea lions on or before April 18.

The U.S. District Court judge assigned to the litigation, Dennis J. Hubel, had not responded to the submittal as of this morning (Friday).

"Nothing in this agreement prevents Defendants from engaging in non-lethal removal and relocation of sea lions (including the relocation to authorized permanent captive facilities)," according to the agreement.

Awaiting wild pinnipeds to refresh stagnant gene pools are Sea World, the Gladys Porter Zoo in Brownsville , Texas , and the St. Louis Zoo. Sea World, which has "adventure parks" in Orlando , San Diego and San Antonio , has agreed to take as many as 12 California sea lions. The other two zoos would each take one, according to NOAA Fisheries' Garth Griffin.

"That was our priority from the beginning, to try move out as many animals as possible" to captive display facilities, said Rick Hargrave of the Oregon Department of Fish and Wildlife. "Right now we feel we have 13 that are on their way out."

The plan is to begin trapping the marine mammals next week or the following week and move them to holding facilities at the Pt. Defiance Zoo and Aquarium near Tacoma , Wash. There their health will be evaluated.

"And then off they go" to captive lives, Hargrave said.

The states in December 2005 filed an application for authority under the Marine Mammal Protection Act to lethally remove California sea lions. Its Section 120 allows the removal of "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…."

In past decades, few California sea lions were noted making the 145-mile trip from the Pacific Ocean to the dam but their presence has swelled each spring in recent years. The predatory marine mammals last year were observed by researchers taking 4.2 percent of the overall salmonid run. The states stress that that total is a bare minimum, since it only includes daytime predation observed during the spring in the area immediately below the dam. Among the spawners passing the dam during that time frame are ESA-listed Snake River and Upper Columbia spring chinook salmon and winter steelhead.

The NOAA Fisheries Service announced March 18 that it was granting the authorization requested by the states to permanently remove up to 85 California sea lions each year. But the federal agency predicted only 30 or so would actually be removed each year because of restrictions tied to the approval. The authorization allows removal of the pinnipeds by shooting or lethal injection and offers as an alternative the animals' transfer to captive display facilities such as zoos and aquariums.

The approval includes a list of 61 California sea lions that qualified for immediate removal, having been identified (by brands and/or other physical marking) by researchers as having taken salmon and been undeterred by efforts to chase them away.

The NOAA decision was immediately challenged via a complaint filed March 24 by the HSUS, the Wild Fish Conservancy and two individuals. It says the federal agency has violated MMPA by authorizing lethal take "without adequately determining whether predation is having a 'significant negative impact on the decline or recovery'" of listed salmonids. It says the 4.2 percent estimate pales in comparison to NOAA-permitted take by fishers and by operation of the federal Columbia-Snake hydro system.

It also says NOAA violated the National Environmental Policy Act by failing to "prepare an Environmental Impact Statement, or in the alternative (2) preparing an adequate Environmental Assessment…." The complaint asks that the NOAA decision be vacated by the U.S. District Court of Oregon.

HSUS followed up the complaint March 28 with a preliminary injunction request, seeking "an order preserving the status quo until the Court can address the merits of Plaintiffs' claims in this action." But with time running short before planned implementation of the lethal removal strategy, HSUS said it might have to ask Judge Hubel to issue a temporary restraining order by April 4 to halt the action.

The Wild Fish Conservancy, a fish advocacy group formerly called Washington Trout, says the sea lion removal plan "does not represent a valid, scientifically-sound decision based on the data and analyses available."

"WFC believes that salmon recovery will not be achieved unless NOAA Fisheries adopts a more rigorous approach to circumstances such as those presented by this case that accounts transparently for all sources of mortality and all amounts of mortality that are permitted by NOAA Fisheries under the numerous permitting processes over which the agency has direct control," according to the complaint.

"WFC and its members are concerned that projects like NMFS's plan to kill sea lions at Bonneville Dam will delay and hamper efforts to address the significant threats facing wild fish in the Columbia and will hasten the decline of these species."

The agreement provides some time for legal interaction. It suggests that the judge give the federal government until April 9 to submit arguments opposing the preliminary injunction and that HSUS be given until April 14 to reply. It asks that the court hold a hearing on the motion for a preliminary injunction and resolve that motion before April 18.

"If the Court is not prepared to resolve the preliminary injunction motion by that date, Plaintiffs reserve the right to seek a temporary restraining order concerning lethal sea lion removal until the Court is prepared to issue a decision" on the complaint/PI request, according to the agreement.

The Oregon and Washington departments of fish and wildlife have requested and been granted the status of intervenors in the lawsuit.

Before launching the removal effort Washington must complete a State Environmental Protection Act process. Comment on the proposal is being accepted through Friday. The WDFW would then review the comments before deciding whether to move ahead. Hargrave said the ODFW agreed to await that decision before beginning sea lion trapping at the dam.

The law allows only pre-certified facilities to accept the animals. Sea World, Gladys Porter and the St. Louis Zoo have qualified with facilities to safely display and care for the sea lions, according to Griffin .

"And they've carried that interest forward by saying they are available to take animals," he said.

Several other facilities have expressed interest, "but maybe they are waiting and watching" to see how the process works before making commitments, Griffin said.

Wild animals have been hard to come by in recent decades to diversify genetics in captive facilities' broodstock. The MMPA, passed in 1972, prohibits, with certain exceptions, the take of marine mammals in U.S. waters and by U.S. citizens on the high seas, and the importation of marine mammals and marine mammal products into the United States .

For more information go to http://wdfw.wa.gov/wlm/sealions/index.htm

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