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Humane Society v. Pritzker

ELR Citation: 43 ELR 20224
Nos. 13-35195, (9th Cir., 09/27/2013)

The Ninth Circuit, in an unpublished opinion, held that the National Marine Fisheries Service (NMFS) did not violate the Marine Mammal Protection Act (MMPA) or NEPA when it authorized Idaho,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. The court previously vacated NMFS' action and remanded for the agency 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. NMFS then issued a new decision memorandum explaining these seemingly disparate factual findings. The explanation discusses, among other things, the qualitative differences between regulated and managed fisheries and hydropower operations on the one hand and sea lion predation on the other. The memorandum also discusses the difficulty in estimating actual sea lion predation and the socioeconomic and cultural benefits that factored into the agency's fisheries' analyses. In reviewing the new record, the court concluded that the agency articulated "a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” In addition, NMFS did not act arbitrarily or capriciously by failing to adopt a more quantitative measure of significance. In the absence of a reliable basis for adopting a quantitative standard, the agency cannot be faulted for adopting a qualitative standard.