United States Ninth Circuit

In a challenge to the National Marine Fisheries Service's (NMFS) authorization of the states of Oregon, Washington and Idaho to kill up to 85 California sea lions annually at Bonneville Dam, summary judgment for defendants on plaintiffs' National Environmental Policy Act is affirmed where: 1) just because 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 removal action authorized here would have a significant positive impact on these same populations; and 2) even if 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. However, summary judgment for defendants on plaintiffs' Marine Mammal Protection Act claim is reversed where: 1) the agency 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 earlier factual findings by NMFS that fisheries that caused similar or greater mortality among these populations were not having significant negative impacts; and 2) 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.

Appellate Information

• Decided 11/23/2010
• Published 11/23/2010

Judges

• Raymond C. Fisher

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Rebecca G. Judd, John C. Cruden