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NW Fishletter #257, February 9, 2009

[7] Judge Rules Against Stay To Halt Lethal Action Against Sea Lions

A federal judge has again OK'd a plan to shoot salmon-munching sea lions at Bonneville Dam, after plaintiffs filed for a stay while their appeal wends its way through the 9th Circuit Court.

Attorneys for the Humane Society argued that they had a strong likelihood of winning the case on appeal, but Oregon District Court Judge Michael Mosman felt otherwise. The judge didn't buy a last-minute declaration filed by marine mammal expert Andrew Trites that argued the 3 or 4 percent impact of the sea lions on the spring chinook run "will not have any measurable impact on the decline or recovery of salmonids above the Bonneville Dam."

The wild component of the spring run is listed for protection under the ESA.

Plaintiffs also argued that fishermen will be allowed to take many more fish than marine mammals. This year's run is estimated at nearly 300,000 fish. Harvest managers have planned commercial, sport and tribal impacts of about 13 percent.

But federal attorneys argued that predation by sea lions is getting worse every year, and that a recent decision (Winter v. NRDC) in the US Supreme Court makes it even tougher for plaintiffs to argue for injunctive relief. The Supremes ruled that the standard for injunctive relief was too lenient and that "a preliminary injunction is an extraordinary remedy never awarded as of right."

The feds also argued that if the judge allowed the stay, the continued predation by the sea lions would cause "irreparable harm" to the listed spring chinook.

Last April, the 9th Circuit stayed the lethal removal of some sea lions at Bonneville Dam. But the feds argued that the Supreme Court has now rejected the argument used by the Niners in that decision, which was to affect the 2008 season only, because the Niners' panel expected the case to be resolved on its merits before this year's run showed up. Judge Mosman ruled in favor of lethal removal last November 25.

Humane Society attorneys have appealed Mosman's latest decision to the 9th Circuit.-B. R.

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