Humane Soc. of US v. Locke, No. 08-36038 - - U.S. Ninth Circuit
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Humane Soc. of US v. Locke, No. 08-36038

Environmental Action Regarding Killing of Sea Lions

In Humane Soc. of US v. Locke, No. 08-36038, a challenge to the National Marine Fisheries Service's (NMFS) authorization of the states of Oregon, Washington and Idaho to kill up to 85 California sea lions annually at Bonneville Dam, the court affirmed judgment for defendants on plaintiffs' National Environmental Policy Act claim where 1) just because NMFS concluded that sea lions were having a significant negative impact on listed salmonid populations did not mean that the agency had also determined that the removal action authorized here would have a significant positive impact on these same populations; and 2) even if NMFS concluded that its action would have a "significant" positive impact on the fish populations involved, that would not necessarily translate into a finding of a significant effect on the quality of the human environment, as required by NEPA.  However, the court reversed summary judgment for defendants on plaintiffs' Marine Mammal Protection Act claim, where 1) the agency failed to adequately explain its finding that sea lions were having a "significant negative impact" on the decline or recovery of listed salmonid populations given earlier factual findings by NMFS that fisheries that caused similar or greater mortality among these populations were not having significant negative impacts; and 2) the agency did not adequately explain why a California sea lion predation rate of 1 percent would have a significant negative impact on the decline or recovery of those salmonid populations.

 

As the court wrote:  "In March 2008, the National Marine Fisheries Service (NMFS) authorized the states of Oregon, Washington and Idaho to kill up to 85 California sea lions annually at Bonneville Dam. NMFS made the decision under section 120 of the Marine Mammal Protection Act (MMPA), which allows "the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks" that have been listed as threatened or endangered under the Endangered Species Act (ESA). 16 U.S.C. § 1389(b)(1)."

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