Ninth Circuit Grants Partial Reprieve to California Sea Lions

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SandBar 7:3, October, 2008 Ninth Circuit Grants Partial Reprieve to California Sea Lions Humane Society of the United States v. Gutierrez, 523 F.3d 990 (9th Cir. 2008). *Alicia Schaffner, 3L, Roger Williams University School of Law* *Stephanie Showalter, J.D., M.S.E.L.* The Ninth Circuit Court of Appeals recently granted the Humane Society’s request for an emergency stay to stop the National Marine Fisheries Service (NMFS) and the states of Washington, Oregon and Idaho from killing a group of California sea lions in an effort to prevent their predation of salmon. While the emergency order saved the lives of these sea lions, it does not prohibit all government action, as NMFS and the states may still capture and relocate the sea lions. Background The California sea lion, as a marine mammal, is protected under the Marine Mammal Protection Act (MMPA). With the U.S. stock estimated at 244,000, however, NOAA Fisheries considers the California sea lion to be at its optimum sustainable population.1 As the most common pinniped species in California, conflicts naturally arise along the West Coast between the sea lions who eat fish, fishermen who catch the fish, and the government agencies who manage all of the above. In recent years, sea lions have been congregating 145 miles up the Columbia River where the Bonneville Dam creates an artificial bottleneck for migrating salmon. NMFS estimated that, if left unchecked, sea lions could consume between 212 and 2,094 spring Chinook salmon at Bonneville Dam or .3 to 4.4 percent of the population.2 Commercial salmon fishermen and some of their supporters claim that sea lions are pushing the fish to extinction. While predation certainly has an impact, salmon populations are primarily threatened by habitat modification and overfishing. The difficult question facing NMFS is what species has priority – the sea lions protected by the MMPA or the salmon and steelhead protected by the Endangered Species Act (ESA)? Congress has tilted the balance towards the salmon. The MMPA permits NMFS to “authorize the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks” listed as threatened or endangered under the ESA.3 After non-lethal measures, such as acoustic harassment and aversive conditioning, failed to deter sea lions from Bonneville Dam earlier this year, the states sought permission to kill the offending animals. NMFS stirred up a storm when it granted approval, valid until June 20, 2012, for the taking of up to “85 California sea lions annually.”4 The Humane Society filed suit to prevent the states from killing the sea lions. The district court denied the Humane Society’s request for a preliminary injunction concluding that while the plaintiffs had a “slight edge on the merits of the case,” the balance of harm tipped in favor of NMFS and the states.5 The Humane Society subsequently petitioned the Ninth Circuit Court of Appeals for an emergency order to stay the execution of NMFS’ approval pending appeal. Emergency Stay Courts consider four factors when deciding whether to issue a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”6 The Ninth Circuit focused on three facts. First, the lethal taking of the California sea lions, as well as the consumption of salmon by the sea lions, is irreparable. There is no means of repairing that damage. Second, the granting of a stay should only affect the 2008 salmon run at Bonneville Dam, because the merits of the case should be resolved before next year’s run. Finally, the 2008 salmon run was estimated to be very large compared to previous years. Given these facts, the Ninth Circuit concluded that the balance of harm tipped in favor of the Humane Society. NMFS had argued that the consumption of as many as 2,094 salmon by the sea lions would cause irreparable harm. The Ninth Circuit did not agree, primarily because the total salmon run was estimated to be 269,000 fish and the sea lions would eat, at most, 4.4 percent of the run. Since the district court had found that the Humane Society was likely to succeed on the merits, the plaintiffs met their burden for a stay pending appeal. The Ninth Circuit stayed the state’s authorized action to manage predation at the Bonneville Dam only “to the extent their proposed actions involve the lethal taking of any sea lions.”7 NOAA Fisheries’ approval, however, also authorized the states to relocate up to nineteen California sea lions to zoos and aquariums.8 The Ninth Circuit allowed that portion of the approval to stand. Temporary Reprieve? The battle lines are clearly drawn and there are casualties on both sides. In late April, biologists began trapping sea lions. One sea lion died during the health exam, but the other six were successfully transported to Sea World. Things went downhill after that. On May 4, two Steller sea lions and four California sea lions were found dead in a trap near the dam. The cause of the deaths is unclear, although heat and stress are the two most likely culprits. Trapping has been suspended until March 1, 2009.9 During the 2008 Columbia River salmon run, spring Chinook salmon returned in lower numbers than expected10 and the Army Corps of Engineers watched nearly 100 sea lions feast on 4,230 salmon and steelhead.11 After a hearing on the merits of the case on September 3, U.S. District Court Judge Michael Mosman stated that he is “inclined to side with the government on the issue of whether it can kill up to 85 sea lions a year at Bonneville Dam beginning next spring to reduce salmon predation.”12 An appeal of Judge Mosman’s ruling, whatever his decision, is almost a foregone conclusion. Endnotes 1. NOAA Fisheries: Office of Protected Resources, http://www.nmfs.noaa.gov/pr/species/mammals/pinnipeds/ 2. Humane Society of the United States v. Gutierrez, 523 F.3d 990, 991 (9th Cir. 2008). 3. 16 U.S.C. A7 1389(b). 4. Humane Society, 523 F.3d at 991. 5. Id. 6. Id. 7. Id. at 992. 8. Id. 9. Craig Welch, Northwest Sea Lions Teach Humans the Folly of Fighting Mother Nature, The Seattle Times (Sept. 7, 2008). 10. Roger Phillips, Salmon Increase Tenfold in Columbia River Run, The Sacramento Bee, at A9 (June 29, 2008). 11. Erik Robinson, Sea Lions’ Share of Salmon Fell, The Columbian (June 28, 2008). 12. Joseph B. Frazier, Associated Press Writer, Judge Leans Toward Government in Sea Lion Dispute, KATU.com, http://www.katu.com/news/local/ 27841919.html (last visited Sept. 17, 2008).
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SandBar 7:3, October, 2008

Humane Society of the United States v. Gutierrez, 523 F.3d 990 (9th Cir. 2008).

Alicia Schaffner, 3L, Roger Williams University School of Law
Stephanie Showalter, J.D., M.S.E.L.

The Ninth Circuit Court of Appeals recently granted the Humane Society’s request for an emergency stay to stop the National Marine Fisheries Service (NMFS) and the states of Washington, Oregon and Idaho from killing a group of California sea lions in an effort to prevent their predation of salmon. While the emergency order saved the lives of these sea lions, it does not prohibit all government action, as NMFS and the states may still capture and relocate the sea lions.

Background
The California sea lion, as a marine mammal, is protected under the Marine Mammal Protection Act (MMPA). With the U.S. stock estimated at 244,000, however, NOAA Fisheries considers the California sea lion to be at its optimum sustainable population.1 As the most common pinniped species in California, conflicts naturally arise along the West Coast between the sea lions who eat fish, fishermen who catch the fish, and the government agencies who manage all of the above.

In recent years, sea lions have been congregating 145 miles up the Columbia River where the Bonneville Dam creates an artificial bottleneck for migrating salmon. NMFS estimated that, if left unchecked, sea lions could consume between 212 and 2,094 spring Chinook salmon at Bonneville Dam or .3 to 4.4 percent of the population.2 Commercial salmon fishermen and some of their supporters claim that sea lions are pushing the fish to extinction. While predation certainly has an impact, salmon populations are primarily threatened by habitat modification and overfishing. The difficult question facing NMFS is what species has priority – the sea lions protected by the MMPA or the salmon and steelhead protected by the Endangered Species Act (ESA)?
Congress has tilted the balance towards the salmon. The MMPA permits NMFS to “authorize the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks” listed as threatened or endangered under the ESA.3 After non-lethal measures, such as acoustic harassment and aversive conditioning, failed to deter sea lions from Bonneville Dam earlier this year, the states sought permission to kill the offending animals. NMFS stirred up a storm when it granted approval, valid until June 20, 2012, for the taking of up to “85 California sea lions annually.”4

The Humane Society filed suit to prevent the states from killing the sea lions. The district court denied the Humane Society’s request for a preliminary injunction concluding that while the plaintiffs had a “slight edge on the merits of the case,” the balance of harm tipped in favor of NMFS and the states.5 The Humane Society subsequently petitioned the Ninth Circuit Court of Appeals for an emergency order to stay the execution of NMFS’ approval pending appeal.

Emergency Stay
Courts consider four factors when deciding whether to issue a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”6 The Ninth Circuit focused on three facts. First, the lethal taking of the California sea lions, as well as the consumption of salmon by the sea lions, is irreparable. There is no means of repairing that damage. Second, the granting of a stay should only affect the 2008 salmon run at Bonneville Dam, because the merits of the case should be resolved before next year’s run. Finally, the 2008 salmon run was estimated to be very large compared to previous years.

Given these facts, the Ninth Circuit concluded that the balance of harm tipped in favor of the Humane Society. NMFS had argued that the consumption of as many as 2,094 salmon by the sea lions would cause irreparable harm. The Ninth Circuit did not agree, primarily because the total salmon run was estimated to be 269,000 fish and the sea lions would eat, at most, 4.4 percent of the run. Since the district court had found that the Humane Society was likely to succeed on the merits, the plaintiffs met their burden for a stay pending appeal.

The Ninth Circuit stayed the state’s authorized action to manage predation at the Bonneville Dam only “to the extent their proposed actions involve the lethal taking of any sea lions.”7 NOAA Fisheries’ approval, however, also authorized the states to relocate up to nineteen California sea lions to zoos and aquariums.8 The Ninth Circuit allowed that portion of the approval to stand.

Temporary Reprieve?
The battle lines are clearly drawn and there are casualties on both sides. In late April, biologists began trapping sea lions. One sea lion died during the health exam, but the other six were successfully transported to Sea World. Things went downhill after that. On May 4, two Steller sea lions and four California sea lions were found dead in a trap near the dam. The cause of the deaths is unclear, although heat and stress are the two most likely culprits. Trapping has been suspended until March 1, 2009.9

During the 2008 Columbia River salmon run, spring Chinook salmon returned in lower numbers than expected10 and the Army Corps of Engineers watched nearly 100 sea lions feast on 4,230 salmon and steelhead.11 After a hearing on the merits of the case on September 3, U.S. District Court Judge Michael Mosman stated that he is “inclined to side with the government on the issue of whether it can kill up to 85 sea lions a year at Bonneville Dam beginning next spring to reduce salmon predation.”12 An appeal of Judge Mosman’s ruling, whatever his decision, is almost a foregone conclusion.

Endnotes
1.   NOAA Fisheries: Office of Protected Resources,
http://www.nmfs.noaa.gov/pr/species/mammals/pinnipeds/
2.   Humane Society of the United States v. Gutierrez, 523 F.3d 990, 991 (9th Cir. 2008).
3.   16 U.S.C. A7 1389(b).
4.   Humane Society, 523 F.3d at 991.
5.   Id.
6.   Id.
7.   Id. at 992.
8.   Id.
9.   Craig Welch, Northwest Sea Lions Teach Humans the Folly of Fighting Mother Nature, The Seattle Times (Sept. 7, 2008).
10. Roger Phillips, Salmon Increase Tenfold in Columbia River Run, The Sacramento Bee, at A9 (June 29, 2008).
11. Erik Robinson, Sea Lions’ Share of Salmon Fell, The Columbian (June 28, 2008).
12. Joseph B. Frazier, Associated Press Writer, Judge Leans Toward Government in Sea Lion Dispute, KATU.com, http://www.katu.com/news/local/ 27841919.html (last visited Sept. 17, 2008).