Humane Soc'y of U.S. v. Bryson

• Decision Date: 15 February 2013
• Docket Number: Case No. 3:12–cv–642–SI.
• Citation: 924 F.Supp.2d 1228
• Parties: HUMANE SOCIETY OF the UNITED STATES, Wild Fish Conservancy, Bethanie O'Driscoll, and Andrea Kozil, Plaintiffs, v. John BRYSON, Secretary of Commerce, Samuel Rauch, Asst. Administrator, NOAA Fisheries, and James Lecky, Director, Office of Protected Resources, Defendants, v. State of Washington, State of Oregon, and State of Idaho, Intervenor–Defendants.
• Court: U.S. District Court — District of Oregon

924 F.Supp.2d 1228

HUMANE SOCIETY OF the UNITED STATES, Wild Fish Conservancy, Bethanie O'Driscoll, and Andrea Kozil, Plaintiffs,

v.John BRYSON, Secretary of Commerce, Samuel Rauch, Asst. Administrator, NOAA Fisheries, and James Lecky, Director, Office of Protected Resources, Defendants,

v.State of Washington, State of Oregon, and State of Idaho, Intervenor–Defendants.

Case No. 3:12–cv–642–SI.

United States District Court, D. Oregon.

Feb. 15, 2013.

Peggy Hennessy, Gary K. Kahn, Reeves, Kahn, Hennessy & Elkins, Portland, OR, Kristen A. Monsell, Ralph E. Henry, The Humane Society of the United States, Washington, DC, for Plaintiffs.

Coby Healy Howell, U.S. Department of Justice, Portland, OR, Kevin William McArdle, U.S. Department of Justice, Washington, DC, Michael R. Eitel, United States Department of Justice, Denver, CO, for Defendants.

Michael M. Young, Neil L. Wise, Washington State Attorney General's Office, Olympia, WA, Sarah K. Weston, Stephanie M. Parent, Oregon Department of Justice, Portland, OR, Kathleen E. Trever, State of Idaho, Boise, ID, for Intervenor-Defendants.

OPINION AND ORDER

SIMON, District Judge.

Like walruses and seals, sea lions are “pinnipeds,” or aquatic carnivorous mammals with fins for limbs. Sea lions eat salmonids, a family of anadromous fish that includes salmon and steelhead.¹ In recent years, a greater number of sea lions have travelled up the Columbia River, which runs between Oregon and Washington, to the Bonneville Dam. Because Bonneville Dam obstructs the progress of salmonids returning from the sea to spawn, the salmonids congregate in the area directly below the dam (the dam's “tailrace”) before working their way up the dam's fish ladders. This bottleneck makes the salmonids easy prey for sea lions at Bonneville Dam.

The National Marine Fisheries Service (“NMFS,” a federal agency) and the states of Oregon, Washington, and Idaho (collectively, the “States”) are concerned about sea lion predation at Bonneville Dam becausethe sea lions are eating salmonids that are protected as threatened or endangered under the Endangered Species Act (“ESA”). The sea lions are also protected, however, under the Marine Mammals Protection Act (“MMPA”), and one species of sea lions present at the dam (the Steller sea lion) is further protected as a threatened species under the ESA. This case is about how Congress, NMFS, and the States have tried to balance the protection of sea lions with the protection of threatened and endangered salmon and steelhead.

Plaintiffs in this case—the Humane Society of the United States, Wild Fish Conservancy, Bethanie O'Driscoll, and Andrea Kozil (collectively, “Plaintiffs” or “Humane Society”)—disagree with how NMFS has struck this balance. Plaintiffs have sued NMFS ² over its decision to authorize Oregon, Washington, and Idaho to lethally remove ( i.e., kill) particular California sea lions (which is a different species from Steller sea lions) when efforts to deter them from feeding on salmonids at Bonneville Dam have failed. Oregon, Washington, and Idaho have intervened as defendants, arguing that NMFS acted correctly in authorizing the lethal removals.³

All parties have moved for summary judgment. After considering all the parties' arguments and reviewing the administrative record, the Court concludes that NMFS did not act arbitrarily or capriciously when it issued the lethal removal authorizations to the States. The Court also concludes that the authorizations do not conflict with the MMPA's protection of Steller sea lions and that NMFS complied with the National Environmental Policy Act (“NEPA”) when it issued a supplemental information report in lieu of supplementing its environmental assessment. The Court therefore DENIES Plaintiffs' Motion for Summary Judgment (Doc. No. 75), GRANTS NMFS's Cross–Motion for Summary Judgment (Doc. No. 77), and GRANTS the States' Cross–Motion for Summary Judgment (Doc. No. 79). As a result, this case is dismissed.

BACKGROUND

I. Section 120 of the Marine Mammals Protection Act

Sea lions are protected under the MMPA from unauthorized “take.” To “take” a marine mammal means “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill.” 16 U.S.C. § 1362(13). “Harassment” is further defined as

any act of pursuit, torment, or annoyance which ... has the potential to injure a marine mammal or marine mammal stock in the wild; or ... has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.

Id. § 1362(18)(A).

Section 120 of the MMPA, however, creates an exception to the MMPA's take prohibition. Section 120 allows a state to apply to the Secretary of Commerce (“Secretary”) “to authorize the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of [certain] salmonid fishery stocks.” Id. § 1389(b)(1). The salmonids at issue must be listed as threatened or endangered underthe ESA, or the Secretary must find that they are approaching that status. Id. § 1389(b)(1).⁴ Section 120 cannot be invoked if the predatory pinnipeds are themselves listed as threatened or endangered under the ESA, or are “depleted” or constitute “strategic stock” as those terms are defined by the MMPA. Id. § 1389(e).

After a preliminary assessment of a state's Section 120 application, the Secretary convenes the Pinniped–Fishery Interaction Task Force (“Task Force”). Id. § 1389(c). The Task Force consists of Department of Commerce employees, scientists, representatives of affected conservation and fishing community organizations, treaty tribes, state officials, and potentially others. Following a public comment period, the Task Force issues a recommendation that includes “[1] a description of the specific pinniped individual or individuals, [2] the proposed location, time, and method of such taking, [3] criteria for evaluating the success of the action, and [4] the duration of the intentional lethal taking authority.” Id. The Secretary then decides, based on this recommendation, whether to authorize the lethal removal. See id.

In reaching their respective decisions, the Task Force and the Secretary are to consider the following four factors: (1) “population trends, feeding habits, the location of the pinniped interaction [with the salmonids], how and when the interaction occurs, and how many individual pinnipeds are involved”; (2) “past efforts to nonlethally deter such pinnipeds, and whether the applicant has demonstrated that no feasible and prudent alternatives exist and that the applicant has taken all reasonable nonlethal steps without success”; (3) “the extent to which such pinnipeds are causing undue injury or impact to, or imbalance with, other species in the ecosystem, including fish populations”; and (4) “the extent to which such pinnipeds are exhibiting behavior that presents an ongoing threat to public safety.” Id. § 1389(d).

II. Pinniped Predation at Bonneville Dam

In 2006, the states of Oregon, Washington, and Idaho applied for authorization under Section 120 to lethally remove California sea lions (“CSL”) that were preying on fish as they migrated past Bonneville Dam on the Columbia River. Those fish include five salmonid populations that are listed as threatened or endangered under the ESA: the Upper Columbia River spring-run Chinook salmon, the Snake River spring/summer-run Chinook salmon, the Snake River Basin steelhead, the Middle Columbia River steelhead, and the Lower Columbia River steelhead. Humane Soc'y of the U.S. v. Locke, 626 F.3d 1040, 1044 (9th Cir.2010). In March 2008, NMFS authorized the States under Section 120 to lethally remove specific CSL that were preying on protected salmonids at Bonneville Dam. Id. That authorization was vacated by the Ninth Circuit in November 2010. Id. at 1059. Of particular relevance to the present dispute, the Ninth Circuit required NMFS to explain more fully two components of its authorization decision.

First, the Ninth Circuit directed NMFS to explain the apparent inconsistencies between its Section 120 finding that sea lion predation was having a significant negative impact on protected fish, on the one hand, and its prior positive environmental assessments of fishery plans that seemed to have greater mortality impacts on the same fish, on the other hand. Id. at 1049. The Ninth Circuit explained that the prior factual findings in these environmental assessmentsdid not necessarily conflict with NMFS's Section 120 finding, but it required NMFS at least to explain how the findings were reconcilable. Id. at 1050–51 & n. 4.

Second, the Section 120 authorization was set to expire automatically if the CSL ate, on average over a period of three years, less than one percent of migrating salmonids. In this one-percent threshold, the Ninth Circuit saw an implicit finding that only CSL predation greater than one percent would have the requisite “significant negative impact on the decline or recovery” of protected fish. See id. at 1052 & n. 6. The Ninth Circuit directed NMFS “either to articulate a reasoned explanation for its action or to adopt a different action with a reasoned explanation that supports it.” Id. at 1053.

III. The 2012 Letters of Authorization

Following the Ninth Circuit's ruling, the States resubmitted their Section 120 applications in December 2010, and NMFS issued letters of authorization in 2011 without repeating the full Section 120 process. After Plaintiffs challenged those authorizations in the summer of 2011, NMFS withdrew them, and Plaintiffs voluntarily dismissed their lawsuit.⁵ The States then reapplied for authorization in August 2011. Following a full review by the Task Force, NMFS granted all three states new letters of authorization under Section 120 in March 2012.⁶

The letters authorize the States to...