Humane Soc. of U.S. v. Locke

• Decision Date: 23 November 2010
• Docket Number: No. 08-36038,08-36038
• Citation: 71 ERC 2025,626 F.3d 1040
• Parties: HUMANE SOCIETY OF the UNITED STATES; Wild Fish Conservancy; Bethanie O'Driscoll; Andrea Kozil, Plaintiffs-Appellants, v. Gary LOCKE, Secretary of Commerce; James W. Balsiger; James Lecky, Defendants-Appellees, Washington State Department of Fish and Wildlife; State of Oregon Department of Fish and Wildlife, Defendant-intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

626 F.3d 1040
71 ERC 2025

HUMANE SOCIETY OF the UNITED STATES; Wild Fish Conservancy; Bethanie O'Driscoll; Andrea Kozil, Plaintiffs-Appellants,
v.
Gary LOCKE, Secretary of Commerce; James W. Balsiger; James Lecky, Defendants-Appellees,
Washington State Department of Fish and Wildlife; State of Oregon Department of Fish and Wildlife, Defendant-intervenors-Appellees.

No. 08-36038.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Nov. 6, 2009.
Filed Nov. 23, 2010.

626 F.3d 1043

Rebecca G. Judd, Sarah Uhlemann (argued) and Jonathan R. Lovvorn, The Humane Society of the United States, Washington, D.C.; Gary K. Kahn and Peggy Hennessy, Reeves, Kahn & Hennessy, Portland, OR, for the plaintiffs-appellants.

John C. Cruden, James A. Maysonett and Mark R. Haag (argued), United States Department of Justice, Washington, D.C.; Mark A. Hodor, National Oceanic & Atmospheric Administration, Silver Spring, MD; Lori L. Caramanian, United States Department of Justice, Denver, CO; Coby Howell, Office of the U.S. Attorney, Portland, OR, for appellees Gary Locke, James W. Balsiger and James Lecky.

Robert M. McKenna, Attorney General, Neil L. Wise, Assistant Attorney General, and Michael B. Ferguson, Assistant Attorney General, Olympia, WA, for defendant-intervenor-appellee Washington State Department of Fish and Wildlife.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Cecil A. Reniche-Smith (argued), Assistant Attorney General, Salem, OR, for defendant-intervenor-appellee State of Oregon Department of Fish and Wildlife.

Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. No. 3:08-cv-00357-MO.

Before: RAYMOND C. FISHER and RICHARD A. PAEZ, Circuit Judges, and JEREMY D. FOGEL, District Judge.^*

626 F.3d 1044

OPINION

FISHER, Circuit Judge:

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). We must decide whether the agency's action was "arbitrary" or "capricious" within the meaning of the Administrative Procedure Act (APA), as well as whether the agency violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement.

Background

I. Factual Background

Like seals and walruses, California sea lions are pinnipeds—marine mammals having fin-like flippers for locomotion. The Bonneville Dam is on the Columbia River, which serves as a migration path for a number of ESA-listed salmonid populations, including five salmon and steelhead populations at issue here: the Upper Columbia River Spring run of Chinook salmon, the Snake River Spring/Summer run of Chinook salmon, the Snake River Basin population group of steelhead, the Middle Columbia River population group of steelhead and the Lower Columbia River population group of steelhead. Each of these populations is listed as threatened or endangered under the ESA. See Final Listing Determinations for 10 Distinct Population Segments of West Coast Steelhead, 71 Fed.Reg. 834, 859-60 (Jan. 5, 2006); Final Listing Determinations for 16 ESUs of West Coast Salmon, and Final 4(d) Protective Regulations for Threatened Salmonid ESUs, 70 Fed.Reg. 37,160, 37,193 (June 28, 2005).

Before 2001, few California sea lions were observed feeding in the area of the dam. In recent years, however, sea lion predation has become more prevalent. Since 2002, the U.S. Army Corps of Engineers has observed sea lion predation of salmonids in the area below the dam each year from January to May, when sea lions are present. The Corps has observed, among other things, the number of pinnipeds present, the number of salmonids consumed and the proportion of all salmonids passing the dam that are taken by pinnipeds foraging in the area:

2002	2003	2004	2005	2006	2007
Number of California sea lions observed during the year	30	106	101	80	72	69
Estimated salmonid predation (fish taken) by pinnipeds based on the Corps' observations	1,010	2,329	3,533	2,920+	3,023	3,859
Estimated pinniped predation of salmonids as a percentage of salmonid run size (%) 1	0.4	1.1	1.9	3.4+	2.8	4.2

626 F.3d 1045

U.S. Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Nat'l Marine Fisheries Serv., Decision Memorandum Authorizing the States of Oregon, Washington and Idaho to Lethally Remove California Sea Lions at Bonneville Dam under Section 120 of the Marine Mammal Protection Act (Mar. 12, 2008). Under the Corps' estimates, California sea lions kill between 0.4 and 4.2 percent of migrating salmonid each year, although the Corps considers these to be minimum estimates because not all predation events are observed.²

NMFS has concluded that the actual number of salmonids consumed by California sea lions "is certainly larger than the numbers actually observed, since not all sea lions are observed nor are all predation events." Pinniped Removal Authority, 73 Fed Reg. 15,483, 15,485 (Mar. 24, 2008). Accordingly, NMFS calculated the potential consumption of salmonids based on the average number of California sea lions actually observed (86) and their bioenergetic needs. See id. Applying this formula, NMFS estimated that 86 California sea lions at the dam can consume up to 17,458 salmonids annually, of which up to 6,003 salmonids would be listed spring Chinook and up to 611 would be listed steelhead. See id. "Using the observed minimum rate of predation averaged over 2005-2007, and the estimated maximum potential predation rate, yields predation rates ranging from 3.6 percent to 12.6 percent for listed spring Chinook and 3.6 percent to 22.1 percent for listed steelhead." Id.

Sea lions are only one source of salmonid mortality on the Columbia River. Fisheries and federal power system dams are also major contributors to mortality among listed salmonids. Consistent with the ESA, NMFS manages these other sources of mortality through a variety of recovery plans. Under these plans, commercial, recreational and tribal fisheries are authorized to take between 5.5 and 17 percent of listed salmonids, depending on the size of the run in any particular year. The dam system takes a comparable number of salmonids. Over the past several years, NMFS, the Corps and other federal agencies have issued a series of environmental and biological assessments concluding that those fishery- and dam-related takes have minimal adverse impacts on the viability of listed salmonid populations in the Columbia River. Plaintiffs contend that those assessments are incompatible with NMFS's conclusion here, that California sea lion predation causing lesser mortality among the listed salmonid populations is having a significant negative impact on the populations' decline or recovery.

In November 2006, the states of Washington, Oregon and Idaho applied to NMFS for authorization to lethally remove California sea lions from the Bonneville Dam area under section 120 of the MMPA, which "authorize[s] the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks which ... have been listed as threatened ... or endangered species under the [ESA]." 16 U.S.C. § 1389(b)(1). In accordance with the MMPA, NMFS appointed an 18-member task force to evaluate the application. See id. § 1389(c)(1). In November 2007, the task force delivered its formal recommendations

626 F.3d 1046

to NMFS. Seventeen members concluded that California sea lions at Bonneville Dam were having a "significant negative impact on the decline or recovery of salmonid fishery stocks" within the meaning of the MMPA and recommended approving the states' application. The Humane Society, a plaintiff in this action, was the sole member of the task force to dissent from that recommendation.

Once the task force completed its work, NMFS addressed the merits of the application. First, to comply with NEPA, NMFS prepared an environmental assessment. See Nat'l Marine Fisheries Serv., Nw. Region, Final Environmental Assessment (Mar. 12, 2008). The final environmental assessment resulted in a finding of no significant impact under NEPA, concluding that approval of the states' application would not significantly affect the quality of the human environment. See 42 U.S.C. § 4332(2)(C). Accordingly, the agency determined that preparation of an environmental impact statement was not required.

Second, NMFS issued a decision partially approving the states' MMPA application. See Pinniped Removal Authority, 73 Fed.Reg. 15,483. NMFS adopted a two-part test for determining whether "individually identifiable pinnipeds" were having a "significant negative impact on the decline or recovery" of at-risk salmonids. Id. at 15,484. NMFS would first determine "whether pinnipeds collectively are having a significant negative impact on listed salmonids" and then determine "which pinnipeds are significant contributors to that impact and therefore may be authorized for removal." Id.

NMFS found that both parts of the test were satisfied. First, NMFS found that California sea lions collectively were having a significant negative impact on the decline or recovery of the listed salmonid populations, based on three factors: (1) "[t]he predation is measurable, growing, and could continue to increase if not addressed"; (2) "[t]he level of adult salmonid mortality is sufficiently large to have a measurable effect on the numbers of listed adult salmonids contributing to the productivity of the affected [populations]"; and (3) "[t]he mortality rate for listed...