Suit against Steller sea lion closures goes to court Dec. 21


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Alaska U.S. District Court Judge Timothy Burgess will take arguments for summary judgment Dec. 21 in a lawsuit filed by the State of Alaska and a coalition of fishing interests challenging wide-ranging closures in the western Aleutian Islands to protect food sources for endangered Steller sea lions.

In August 2010, National Marine Fisheries Service released its long-delayed biological opinion, or BiOp, on Steller sea lions and published its interim final rule establishing the closures for Pacific cod and Atka mackerel Dec. 13, 2010.

The state filed its lawsuit challenging the action the following day.

Burgess could rule from the bench after taking the scheduled two hours from each side — considered an unlikely scenario — with other options being to affirm the NMFS action, remand it back to the agency for technical fixes with or without enjoining the current closures in 2012, or throw out the BiOp all together as requested by the state and fishing groups.

Economic analysis prepared by NMFS in 2010 estimated forgone gross revenue to the fishing fleet as a result of the closures ranging from $40 million to $60 million annually with the potential for hundreds of jobs lost.

Adak is particularly at risk with its dependence on fuel sales to the fishing fleet and last year its first mayor Agafon Krukoff said the former Naval base “will die” with the fishing closures put in place by NMFS.

The state and industry coalition argue the federal action violates the Magnuson-Stevens Fisheries Conservation Act (MSA), the National Environmental Policy Act (NEPA), the Administrative Procedures Act (APA) and the Endangered Species Act (ESA).

In its brief opposing the state and fishing industry motion, NMFS argues that it met all administrative requirements when establishing the fishing closures and that, “Plaintiffs dispute a series of scientific determinations made by NMFS about the threats to Steller sea lions. However, these arguments set up only a ‘battle of experts’ with NMFS, in which the Court is obliged to defer to NMFS’s scientific expertise.”

While the state and fishing coalitions have made numerous administrative challenges to how NMFS reached its decisions, the part of the case that could have national ramifications is whether the government can apply ESA standards for delisting a species to units smaller than a distinct population segment when making a determination of jeopardy or adverse modification.

In its BiOp, NMFS concluded that two of seven subregions within the western distinct population segment, or DPS, of Steller sea lions were not meeting recovery goals and posited a nutritional stress theory as the cause. The NMFS decision was based on a 40 percent observed decline in population in the farthest west Aleutians and an 11 percent decline in the central Aleutians.

Although the BiOp states just one of 14 measured indicators backs the nutritional stress theory and that the western DPS is increasing overall, NMFS chose to completely shut down fishing for cod and mackerel in Area 543 in the farthest west Aleutians — an area about half the size of Texas — to provide more food for the Stellers.

NMFS conducted further fine-grain analysis of the western DPS, dividing the subregions into 10 smaller rookery cluster areas.

Taken as a whole, the BiOp reports that population growth in four of the seven subregions is “statistically significant” and that were it not for the decline in the western Aleutians, “it could be argued that the western DPS of Steller sea lions were moving toward recovery.”

Attorney Ryan Steen of Stoel Rives LLP in Seattle, who is representing the Freezer Longline Coalition and was one of the authors of the motion for summary judgment, said applying delisting requirements to a population unit smaller than a DPS goes beyond what’s allowed by the ESA.

“Under the rationale offered by NMFS in this case,” Steen wrote by email, “the agency could deem any individual action to ‘jeopardize’ a listed species so long as that species occurs within the range of the action and the species does not already meet downlisting or delisting criteria.”

NMFS addressed that argument in its response, stating that, “Linking how impacts on portions of a DPS affect the overall DPS is consistent with the ESA … Plaintiffs’ approach is unacceptable under the ESA because it would also tend to mask and fail to consider specific adverse effects of the fisheries borne out by NMFS’ more detailed and fine-grained analysis.”

The NMFS response to the lawsuit also states that had it not taken steps to insure fishing activity would not create jeopardy or adverse modification of Steller sea lion habitat, a court challenge to the entire fishery management plan could have shut down all fishing in 2011.

Email correspondence obtained during discovery and cited in the joint state/fishing coalition brief showed the agency’s worries about litigation from groups such as Oceana or Greenpeace.

NMFS documents reflect concern about “a high likelihood of successful litigation if the fisheries were conducted without being mitigated” and that “the NGO (non-government organization) side of things would run out of patience with us at some point particularly if they thought we were trying to wait out the ‘increase,’” in sea lion counts. 

The overarching theme of the state’s motion is that the rule meets the standard of “arbitrary and capricious” and should therefore be vacated.

The state goes on to call the NMFS action a “classic” Administrative Procedures Act case that demands the rule be voided: “NMFS issued a final rule and associated decisions that were unlawful because the agency bypassed required statutory processes, failed to apply the correct statutory standards, and reached decisions that were arbitrary and contrary to the record.”

Andrew Jensen can be reached at andrew.jensen@alaskajournal.com.

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