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NW Fishletter #255, December 4, 2008

[3] Columbia River Sea Lions May Bite The Bullet

A federal judge in Oregon has ruled that some sea lions may be lethally removed to reduce salmon predation at Bonneville Dam. In a Nov. 25 decision, Oregon District Court Judge Michael Mosman agreed with federal attorneys, who argued that the potential action was necessary because the estimated 4-percent take of spring chinook by the marine mammals at the dam was "significant." The feds had argued the action was warranted because federal agencies had taken corrective action in other areas with similar levels of adverse effects on the listed fish.

Mosman said he deferred to NOAA Fisheries' "reasonable interpretation" of the terms in the Marine Mammal Protection Act that affected its decision. The feds had said productivity of the ESA-listed spring chinook would decline from sea lion predation. The judge thought that was important, too.

"Plaintiffs would likely be correct if NMFS' criteria included only whether adult salmonid mortality is sufficiently large to have a measurable effect on the numbers of adult salmonids," he wrote in his 30-page opinion.

He also deferred to the agency's data that pointed out specific individual sea lions as being major culprits, therefore its interpretation of the MMPA was "not irrational," nor "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."

Judge Mosman also agreed with the federal agency that the actual predation rate may be much higher than the observed 4-percent rate. NMFS estimated the actual predation rate at the dam could be as high as 13 percent on spring chinook and 22 percent on steelhead.

Plaintiffs had also argued that the feds' decision was arbitrary and capricious because the agency had already concluded under different statutes [ESA, NEPA] that harvest and hydro mortality was not significant.

But the judge said NMFS was under no obligation to "explain and discuss its (or another agency's) previous decisions under one statutory scheme when making decisions under another statutory scheme." Mosman said this would unduly burden agency decision-making by imposing requirements not mandated by statute or regulation.

The judge pointed out major differences between fishing by humans and fishing by sea lions--mainly that harvest levels by humans had declined from a 55-percent average (1938-1973) to about 8 percent (1979 to present), while sea lion predation is growing, and the states have not been able to control it.

Mosman also pointed out the take calculations of dam-induced salmon mortality included smolts, which had a much higher mortality rate than adults. Besides, the hydro system has been modified to improve survivals.

"More importantly," he wrote, "the interaction of the hydropower system with salmonids involved a radically different set of concerns and balancing than the interaction of pinnipeds and salmon under the MMPA."

After getting federal approval last spring, fish managers were prepared to use lethal means to keep some California sea lions from doing any more damage to the run. However, the 9th Circuit Court issued an emergency order that called for the animals to be trapped and hauled away.

Some had already been trapped and hauled away when six of them were found dead in cages below the dam. First reports indicated they had been shot, but NOAA Fisheries found no evidence of gunshot wounds when the animals were examined. The trap and haul program was suspended at that point. -B. R.

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