United States of America
Injunctive Relief, Wildlife, Biodiversity, Land Use, Permits, Remedies, Damages, Forests, Evidence, Administrative
This case centers on challenges to the National Marine Fisheries Service’s (NMFS) authorization for Oregon, Washington, and Idaho to kill California sea lions feeding on threatened or endangered salmon species at Bonneville Dam on the Columbia River. Plaintiffs filed action for declaratory and injunctive relief against Defendants, alleging violations of section 120 of the MMPA and NEPA. The Court held that NMFS’ decision was “arbitrary and capricious” under the Administrative Procedure Act (APA), vacated the agency’s decision, and remanded it to the agency for further explanation. Two critical factors underpinned the court’s finding of arbitrary and capricious agency action. First, earlier environmental assessments (EA) performed by the agency had found that takes of 5.5% – 17% by tribal fisheries, and comparable takes by hydroelectric dams on the river, would have limited adverse impacts on the listed species. The court pointed out that “an agency must offer a reasoned explanation when its current course rests upon factual findings that contradict those which underlay a previous course.” Second, NMFS failed to explain why a 1% predation rate would no longer constitute a “significant negative impact” under the MMPA. Based on these inconsistencies, the court remanded the plan to the agency for fuller explanation of its findings; while pointing out that the decision should not be an undue burden to the agency, as the APA only requires a cogent explanation. Plaintiffs also argued that NMFS’ action required an EIS rather than the less burdensome requirement for an EA. Under the National Environmental Protection Act (NEPA), a federal agency must prepare an EIS for any major Federal actions significantly affecting the quality of the human environment. However, the court held that NMFS did not need to perform an environmental impact statement (EIS) for the action. The court rejected arguments as lacking merit that, 1) an EIS was required based on the “controversial and uncertain nature of the action”; 2) that there were potentially lethal consequences for Stellar sea lions (unlike California sea lions, a listed species) who could be shot by accident, and 3) that local wildlife viewing opportunities would be affected at the dam.