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Humane Society of the United States v. Locke

ELR Citation: 40 ELR 20025
Nos. No. 08-36038, (9th Circ., 11/23/2010)

The Ninth Circuit held that the National Marine Fisheries Service (NMFS) violated the Marine Mammal Protection Act (MMPA), but not NEPA, when it authorized Idaho, Oregon, and Washington to kill up to 85 California sea lions annually at the Bonneville Dam in order to protect salmon in the Columbia River. Just because the NMFS concluded that sea lions were having a significant negative impact on listed salmonid populations did not mean that the agency had also determined that the authorized removal action would have a significant positive impact on these same populations. Similarly, even if the NMFS concluded that its action would have a "significant" positive impact on the fish populations involved, that would not necessarily translate into a finding of a significant effect on the quality of the human environment, as required by NEPA. The NMFS' application of the MMPA, however, was arbitrary and capricious in violation of the APA. The NMFS failed to adequately explain its finding that sea lions were having a "significant negative impact" on the decline or recovery of listed salmonid populations given the agency's earlier factual findings that fisheries that caused similar or greater mortality among these populations were not having significant negative impacts. Likewise, the agency did not adequately explain why a California sea lion predation rate of 1 percent would have a significant negative impact on the decline or recovery of those salmonid populations.