California sea lions versus salmonids
An interesting problem in wildlife law is how to regulate populations of protected species where one population threatens the other. A case in point is the District of Oregon’s decision last Friday in Humane Society of the United States v. Bryson. In this case, environmentalists challenged the National Marine Fisheries Service’s decision to authorize the destruction of 92 California sea lions to protect various salmonid populations passing by Bonneville Dam in the Columbia River. Apparently, it’s easy pickins for the sea lions. But the feds and the states have become concerned that allowing uninhibited predation will have a very bad impact on the viability of these salmon and steelhead populations.
The legal conflict arises because, on the one hand, these salmonid populations are protected under the Endangered Species Act; yet these sea lions have their own protections under the Marine Mammal Protection Act. Section 120 of the latter Act permits the destruction of otherwise protected marine mammals if the latter have a “significant negative impact” on salmonid fisheries. Several years ago, the Service tried to invoke Section 120 to authorize sea lion destruction, but the environmentalists successfully challenged that authorization. In Humane Society of the United States v. Locke, the Ninth Circuit Court of Appeals ruled that the Service had inadequately explained its invocation of Section 120. The court found legal error on two points. First, the court wanted the Service to explain how it could approve various salmon fishery plans that apparently would have a greater negative impact on salmon than the anticipated impact from sea lions, and yet nevertheless conclude that such sea lion consumption would have an unacceptably significant negative impact on those same populations. Second, the court directed the Service to explain whether it was true (as the record intimated) that only sea lion salmon consumption exceeding 1% of the salmonid population would constitute a significant negative impact. The district court’s decision on Friday addresses whether the Service complied with the Ninth Circuit’s remand.
The district court held that, yes, the Service had adequately explained its decision to reissue the Section 120 authorization. On the former point, the court approved of the Service’s new explanation on two grounds.
First, the Service’s approval of other fishery plans used statutory standards quite different from that contained within Section 120. The agency approved those plans under the ESA and the National Environmental Policy Act. Under the ESA, the agency determined that the fishery plans would adversely affect salmonids but would not jeopardize their continued existence. Translated into Section 120 terms, the agency determined that managed human predation would have a significant negative impact on salmonids (although, again, not an impermissible “jeopardizing” impact). Thus, the agency’s ESA analysis is not inconsistent with its Section 120 analysis. The same result obtains for the Service’s conclusion, under NEPA, that approval of the fishery plans would not significantly affect the human environment. Although sea lion predation of salmonids undoubtedly has a significant impact on salmonids, it does not follow that such predation has a significant impact on the human environment writ large. Thus, again, the agency’s NEPA analysis is not inconsistent with its Section 120 analysis.
Second, NMFs explained that sea lion predation is qualitatively different from human predation. Human predation is heavily regulated and can be managed on a sub-population basis. Sea lion predation cannot be as effectively managed or tailored.
The district court also found adequate the Service’s decision to abandon its proposal to end Section 120 authorization once sea lion predation became lower than 1%, and instead replace it with a commitment to review the authorization after five years. The agency explaned that it could not determine the precise point at which predation would cease to be significant.
The court’s opinion also contains an interesting analysis of Chevron deference, i.e., the administrative law doctrine that requires courts to defer to certain classes of agency interpretations of ambiguous statutes. Here, the environmentalists objected to the Service’s interpretation of Section 120’s “significant” criterion, which the agency interpreted to mean (variously) “meaningful,” “not insignificant,” and “not meaningless,” as opposed to something akin to “having a great/large/unusually high impact.” The court determined that the Service’s interpretation (at the recondite Chevron step zero) was at least eligible for deference, notwithstanding that it was a “one-off” interpretation produced solely in the context of this Section 120 authorization (as opposed to governing all Section 120 authorizations). Next, the court determined (at Chevron step one) that Section 120 is ambiguous. Finally, the court held (at Chevron step two) that the Service’s interpretation was reasonable. Notably, the court rejected the environmentalists’ argument that Section 120 imposes an ESA-like standard of “jeopardy” to the continued existence of the species.
Having determined that the agency complied with the Ninth Circuit’s explanation dictate, and had appropriately identified the relevant legal standard, the court upheld the agency’s application of Section 120 to the Bonneville Dam sea lions. Essentially, the court was satisfied with the agency’s quantification and qualification of the threats of sea lion predation and their impacts on the salmonid populations. (The court also made short work of the environmentalists’ ESA and NEPA claims).
In some respects, this was a relatively easy case of reconciling conflicting wildlife protection mandates, in that the Marine Mammal Protection Act provides a clear mechanism for resolving such conflicts. Much more difficult to resolve would be the conflicts among ESA-protected species. Given that some pinnipeds are so protected, and undoubtedly enjoy a salmon repast as much as their California sea lion cousins, it would not be surprising to see soon a court forced to resolve that much more challenging statutory conflict.
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