Federal appeals court okays effort to kill sea lions to save salmon

A federal appeals court has rejected an effort to prevent the National Marine Fisheries Service from killing California sea lions near Bonneville Dam as part of a program to conserve imperiled Pacific salmon species.

The decision likely brings to an end a dispute that has been ongoing since 2008. The administration of former President George W. Bush had authorized the states of Idaho, Oregon, and Washington to annually kill a maximum of either 85 sea lions or "the number required to reduce the observed predation rate to 1 percent of the salmonid run at Bonneville Dam."

The National Marine Fisheries Service granted the necessary permission based on a clause of the Marine Mammal Protection Act that allows killing of pinnipeds that interfere with the recovery of species included on the federal list of threatened and endangered species.

The Humane Society of the United States challenged the approval, arguing that NMFS had not adequately explained the basis of its decision that sea lions should be killed as an impediment to salmon conservation and that the agency had also failed to justify the maximum number of kills allowed.

In 2010 the U.S. Court of Appeals for the Ninth Circuit held that NMFS had not provided a sufficient explanation for its belief that a salmon predation rate of one percent should trigger section 120(a) of the MMPA. The opinion pointed to earlier federal government decisions that would allow fishers to take more of the population of protected Columbia River salmon each year than would sea lions.
 
The court also ruled in its 2010 decision that NMFS had not adequately explained why killing of sea lions would be permissible as an interference with salmon recovery when the agency was simultaneously willing to tolerate the killing of a greater percentage of the runs by hydroelectric dams and fishing.

The agency, upon reconsideration, limited the annual take of sea lions to 92 individuals per year and committed to a review of the decision to authorize the program after five years. NMFS also adopted a qualitative, as opposed to a quantitative, standard as justification for the kill authorization.

HSUS and the Wild Fish Conservancy filed another lawsuit against the program in March 2012. U.S. District Judge Michael Simon decided in May 2012 not to issue a preliminary injunction that would block NMFS from carrying it out. 

The Ninth Circuit, in an unpublished opinion announced Sept. 27, affirmed Simon's ruling, holding that NMFS had complied with both MMPA and the National Environmental Policy Act.

Hatcheries and birds also kill more protected salmon on the Columbia River each year than do sea lions.

A 2012 report by the U.S. Army Corps of Engineers estimated that the annual toll of salmon lost to California sea lions at Bonneville Dam is about 0.6 percent of the run.

Photo courtesy Wikimedia.

Note: This article also appears at Examiner.com.

Supreme Court dismisses only environmental law case on 2013-2014 docket

The U.S. Supreme Court might not have to decide soon questions relating to environmental law.

The justices dismissed on Monday the only case raising such questions that had been on its docket for next year.

In an unsigned, one-line order the Court vacated the judgment of the U.S. Court of Appeals for the Ninth Circuit in U.S. Forest Service v. Pacific Rivers Council and ordered the district court to dismiss the case on mootness grounds.

The Court's action has alarmed some commentators.

Richard M. Frank, a University of California at Davis law professor, wrote on the respected Legal Planet blog that the order might reflect a belief by environmental advocacy organizations that they cannot get a fair hearing at the Supreme Court.

Frank explained that the plaintiffs in the case, including Portland-based Pacific Rivers Council, entered into an agreement with the United States government not to further challenge USDA Forest Service's compliance with the National Environmental Policy Act in a dispute over planning of management actions on national forests in the Sierra Nevada mountains.

The Ninth Circuit rejected the 2004 planning effort on grounds that the Forest Service's efforts did not properly account for the impacts of planned extraction and other activities on fish populations within the national forests in that region.


Historically, NEPA has not faired well in the Court. One analysis demonstrated that environmental groups have never convinced the Court to rule in their favor in a case arising under the law in its entire 44-year history.

Other environmental laws have also not fared well before the Court lately. During this year's term the justices overturned two Ninth Circuit decisions that enforced the Clean Water Act.

Federal lawsuit challenges plan to expand Highway 101 through California redwoods region

Environmentalists have asked a federal court to block a controversial plan to straighten and widen a highway through a remote California state park so that large commercial trucks can have a direct route from southern California to Oregon.

The lawsuit alleges that the California Department of Transportation violated the National Environmental Policy Act and the Wild and Scenic Rivers Act when it approved the project, which will cause the destruction of some old-growth redwood trees in Richardson Grove State Park.

“We are determined not to let this protected grove of old-growth redwoods and the endangered species that depend on them be cut into for the sake of letting a few more over-sized trucks speed through the grove,” Peter Galvin, a spokesperson for the Center for Biological Diversity, one of the plaintiffs, said. “Caltrans should scrap this misguided project, which has been opposed by dozens of groups, local business owners, scientists, elected representatives and tens of thousands of concerned citizens.”

Up to 72 old growth trees could be killed as a result of construction activities that cut their roots. CalTrans acknowledged, in an environmental assessment, that "adverse effects to old-growth trees may be a significant impact to this unique natural community.” Nevertheless, the agency determined that the widening and re-alignment of U.S. Highway 101 would have "no significant environmental impact."

Advocates for the road expansion say that increased access for trucks is necessary to improve economic conditions in remote Humboldt County.

The project was proposed in 2007. Smaller commercial trucks can already travel through the state park.

Large commercial trucks, on the other hand, are not permitted within the boundaries of the preserve. They must travel an extra 448 miles to make the trip between the San Francisco Bay area and the northern California town of Eureka. The additional mileage is caused by a detour into Oregon and then a return south.

Richardson Grove State Park provides habitat for a variety of endangered and threatened species, including the northern spotted owl, marbled murrelet, and several runs of salmon and steelhead.

The park is popular with tourists. The old-growth redwoods within its boundaries are among the few protected in the country.

The lawsuit is the second one against the project. A state court challenge was filed in June, alleging that the transportation agency violated California law.

U.S. Supreme Court denies review in three closely-watched environmental law cases

The New York Times and Greenwire are reporting that the U.S. Supreme Court has declined the chance to consider several lower court environmental law decisions that have been closely watched by both industry and environmentalists.

The biggest of the three cases involves the question whether farmers must obtain a permit under the federal Clean Water Act to use a pesticide even if they have already gained separate clearance under the Federal Insecticide, Fungicide and Rodenticide Act.

A federal appeals court in Cincinnati ruled last year that the U.S. government is obliged to require farmers to obtain both authorizations.

Forty members of Congress had urged the Supreme Court to hear the dispute.

In another case, the Supreme Court denied a request that it consider a case challenging the a decision by the U.S. Fish and Wildlife Service to designate a wildlife refuge in an area of Texas sought by the city of Dallas for water development.

The U.S. Court of Appeals for the Fifth Circuit ruled in March 2008 that the agency did not violate the National Environmental Policy Act.

Finally, the Court refused to hear a case in which an agricultural corporation sought compensation under the Fifth Amendment of the U.S. Constitution for revenue lost when federal officials forced it to destroy, or sell at low prices, eggs suspected of being contaminated with salmonella.

A lower court rejected the farming company's claim that a "regulatory taking" occurred.

A decision by the Supreme Court to decline to review a case, an action technically known as a "denial of certiorari," is not a statement by the Court about its view of the merits of the lower court's opinion.