One sea lion's worth - evaluating the role of values in section 120.

Author:Cheng, Jessica

In 1994, the Marine Mammal Protection Act (MMPA) was amended to include a provision that would allow the lethal take of pinnipeds that were causing 'significant negative impact' to salmonid species listed by the Endangered Species Act. Implicit in Section 120 and its placement in the MMPA implementation are competing values in the desire to protect entire salmonid populations at the cost of individual pinnipeds. This article uses the most recent application of Section 120 at Bonneville Dam on the Columbia River to explore the role of interest group values on the interpretation of Section 120, which in turn affected the application of the statute. By analyzing the underlying values of interest groups, this article explores how values affect the various proposed 'solutions' to the Bonneville Dam situation, and suggests reform that will limit the value judgments of the Section 120 process.

  1. INTRODUCTION II. A SEA LION NAMED HERSCHEL--THE ORIGIN OF SECTION 120 A. Setting the Stage--The Battle at the Ballard Locks B. The Passage of Section 120 C. Section 120's First Application--The Ballard Locks Revisited III. HISTORY REPEATS--THE BONNEVILLE DAM CASE STUDY A. The States' Application for Lethal Removal B. Competing Definitions--The Pinniped-Fishery Interaction Task Force vs. the Marine Mammal Commission 1. The Pinniped-Fishery Interaction Task Force's Findings and Recommendations a. Determining Significant Negative Impact--Applying Section 120's Four Requirements to Bonneville Dam b. The Task Force's Lethal Take Recommendations 2. The Marine Mammal Commission's Comments on the Task Force's Report C. Synthesizing the Competing Definitions 1. NMFS's Findings and Permit Terms 2. The Courts Weigh in--Humane Society v. Gutierrez IV. ANALYSIS: SECTION 120'S PLACE IN THE MARINE MAMMAL PROTECTION ACT A. Statutory Ambiguity and the Competing Values of the MMPA B. The Effect of Different Goals on Statutory Interpretation C. The Role of Interest Groups in the Application of Section 120 V. CONCLUSION I. INTRODUCTION

    When it comes to the preservation of America's wildlife, there may be no greater protections than those afforded by the Endangered Species Act of 1973 (ESA) and the Marine Mammal Protection Act of 1972 (MMPA). Both acts seek to protect biodiversity by reducing lethal take, habitat destruction, and other direct human impacts on wildlife populations. But humans also have indirect impacts on wildlife, including the creation of peculiar situations where one protected species threatens the survival of another protected species.

    A prominent illustration of such a situation occurred in the 1980s, when MMPA-protected California sea lions began to prey on the small steelhead run at Seattle's Ballard Locks. Unable to deter the sea lions from decimating the fish population, wildlife managers simultaneously found their hands tied by the no-take provisions of the MMPA. (1) Faced with the startling prospect of "predation by a protected species ... threatening the existence of another species," (2) Congress added Section 120 to the MMPA in order to allow lethal removal of "individually identifiable pinnipeds (3) which are having a significant negative impact on the decline or recovery of salmonid fishery stocks." (4)

    The amendment was not without its critics; environmental groups such as the Humane Society of the United States viewed the amendment as the first step towards a government-authorized cull of marine mammals, (5) an ironic addition to a statute whose goal was to protect the nation's marine mammal populations. Despite these concerns, Section 120's authorization of lethal take of pinnipeds to protect at-risk salmonid populations has not resulted in a 'cull' of marine mammals. Since its 1994 enactment, Section 120 lethal take authority has only been petitioned for and authorized twice, most recently at the Bonneville Dam on the Columbia River where California sea lions prey on ESA-listed salmonid populations. (6) The first use of Section 120 did not even involve any lethal take, as intervention by then-Vice President Al Gore (7) resulted in mercy for the three targeted sea lions, which were shipped via Fed-Ex to Florida's Sea World. (8)

    Although the fears of mass mammal kills have not materialized, Section 120 still demands close scrutiny over whether its goal of protecting salmonid populations at the expense of individual pinnipeds is a legitimate aim of the MMPA. Most significant is the issue of how conflicting values have affected the interpretation and implementation of Section 120, which is all the more problematic given the statute's mandate for interest group participation. (9) These parties each have their own values, which in turn affect what they view the statute to require. In some cases, parties seeking to protect salmonid populations have advocated for the taking of as many pinnipeds as possible to reduce predation. Such drastic measures are not viewed as a solution in of itself for protecting at-risk salmonid species, but as only one necessary step out of many in a comprehensive management strategy to recover salmonids. (10)

    Competing with those who wish to protect salmonids are groups seeking to protect the interests of the sea lions. These groups have viewed Section 120 as scapegoating pinnipeds for human actions. (11) For example, in challenging the lethal take authority at Bonneville Dam, environmental groups argued that the negative effects of pinniped predation on salmonid populations are negligible when compared to direct human impacts, such as fishing and damming of the river. (12) If pinniped predation is pushing salmonid populations to the brink of extinction, it is only because human actions have so reduced the available fish that predation effects are greater than they otherwise would be. (13) Furthermore, pinnipeds are likely at the dams precisely because of the dams' existence--the bottleneck that results from the fish trying to get up the ladders creates a unique opportunity for sea lions to prey on the salmonids, further reducing their population. (14) In short, pinniped predation would not need to be reduced--or might not exist at all--if not for humans, resulting in Section 120 unfairly punishing pinnipeds for what humans have done.

    This article thus analyzes the process of Section 120 and the role of interest group values on its implementation. Part I examines the development and statutory requirements of Section 120 in the context of the section's first use at the Ballard Locks. Part II takes an in-depth look at the recent application of Section 120 at Bonneville Dam, the first time pinnipeds were lethally taken under the section. This look will focus in part on the different decisions made by the involved interest groups and government regulatory bodies. Finally, Part III analyzes how the underlying values of interest groups affected the implementation of Section 120 as discussed in Part II, particularly when the goals of Section 120 itself conflicts. It then suggests reform that will limit the value judgments that may be at odds with the overall goals and purpose of the MMPA.


    1. Setting the Stage--The Battle at the Ballard Locks

      The battle against the sea lions started innocently enough when in the early 1980s, a California sea lion named Herschel settled himself at Washington's Ballard Locks and began feeding on steelhead trout migrating through the dam. (15) His arrival was viewed with amusement, but amusement quickly turned to alarm when in a few years, sea lion numbers expanded to over forty individuals consuming more than half of the steelhead run. (16) Recognizing the problem, wildlife managers attempted to deter the sea lions from consuming the remaining steelhead, (17) but often ended up on the losing side. Deterrence methods were varied and for the most part, equally ineffectual. Aversive conditioning with tainted steelhead resulted in little more than the sea lions "quickly learn[ing] to reject the proffer of dead fish from people in yellow suits," (18) while ten-inch mesh 'sea lion barriers' not only trapped sea lions but the steelhead as well, giving the sea lions another human-made opportunity to exploit the trapped fish (19) at a cost of $250,000. (20) Altogether, conservative estimates of these deterrence efforts show their cost surpassed one million dollars, (21) with little to show for it.

      When deterrence failed as sea lions quickly learned to adapt, managers turned to capture and relocation. This also failed, as "due to [their] pronounced homing ability and site fidelity," (22) the sea lions would return and avoid recapture. One of these sea lions, in fact, earned the nickname 'Rapid Rudy' because of his quick returns. (23) Even distant releases were insufficient--three of six sea lions transported to California returned in a matter of months, while a fourth "compromised by taking up residence in the Columbia River." (24)

    2. The Passage of Section 120

      In frustration, the National Marine Fisheries Service (NMFS) looked to lethal procedures, only to conclude "that the MMPA's provisions [did] not authorize the use of lethal measures ... to resolve the Ballard Locks predation situation." (25) While the MMPA did allow lethal takings to protect public health and welfare, (26) such takings were limited to removing sick or diseased animals from public beaches. (27) Thus, NMFS concluded that interpreting the public health and welfare provision to permit lethal removal of the sea lions at Ballard Locks would fall outside Congressional intent. (28) NMFS also looked into another MMPA provision that would allow lethal taking of nuisance animals, (29) but such provisions would not take effect until the species reached its optimum sustainable population, (30) a magical number that the California sea lion population had not yet reached at the time. In addition, NMFS found that even if the sea lion population "had...

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