Feds followed rules with sea lion protections, judge rules

U.S. District Judge Timothy Burgess found the National Marine Fisheries Service followed acceptable procedures for concluding that fishing must be curtailed because sea lions are nutritionally stressed because they aren't getting enough to eat. "The Court must defer to the technical expertise of the agency as long as there is a rational connection between the evidence and its conclusions," Burgess wrote.

The judge concluded the fisheries service did not apply improper Endangered Species Act standards. He said the evidence, "while equivocal, was sufficient to support its conclusions that the fisheries were likely to jeopardize the continued existence" of the sea lions' western district population and adversely affect their critical habitat.

Burgess did, however, fault the agency for not preparing an environmental impact statement, and is considering making it do so. But he did not vacate the fishing restrictions.

"We are pleased that the court found NMFS violated the National Environmental Policy Act by failing to prepare an environmental impact statement. However, we are disappointed the decision today left in place the biological opinion and the fishing restrictions based on that opinion," said Brad Meyen, an assistant attorney general for the state of Alaska.

A spokeswoman for the fisheries agency said they had just learned of the decision and could not offer immediate comment.

The state and seafood organizations had argued restricting fishing is unnecessary when the western Steller sea lions' population is growing by 1 percent to 1.5 percent a year.

John Martin, lead attorney for the National Marine Fisheries Service, said in oral arguments in December that the agency used the best scientific evidence available at the time.

He said plaintiffs were painting an overly rosy picture of Stellar sea lions and that any improvements are not statistically significant. He noted that much more is known now than a decade ago, when fishing as an indirect cause of stress to the sea lions was seen as only possible. Today it is seen as a likely contributor, he said. That likelihood "couldn't be ruled invalid," he said.

The lawsuit was filed after the fisheries service announced late in 2010 that commercial mackerel and cod fisheries in the western Aleutians would be restricted. The closure rule was pushed into place Jan. 1, 2011, despite objections. The fisheries agency said it had to comply with the Endangered Species Act.

Environmental groups Oceana and Greenpeace, represented by Earthjustice, intervened on behalf of the fisheries service.

"We are pleased the court upheld measures required by the Endangered Species Act to protect Steller sea lions," Earthjustice attorney Colin O'Brien said in an email to The Associated Press. "Still, there is significant concern about whether the protection measures are enough. We are hopeful that authorities will move quickly to adopt additional protections if the endangered Steller sea lion population continues to falter."

"It's a good day for our oceans," Michael LeVine, a lawyer for Oceana, said in an email.

"This decision shows that the best science requires steps to protect healthy ocean ecosystems including sustainable fisheries and vibrant communities. We are moving away from managing money fish and toward ecosystem-based management," LeVine said.

The fisheries service has estimated that communities and companies involved in the affected fisheries could lose between $44 million and $60 million per year because of the fishery closure.

The agency says about 49,000 sea lions lived in the western Aleutian Islands, according to a 2008 survey. That's down from 250,000 in the early 1970s. The animals were listed as endangered in 1997.

It was not a complete victory for the fisheries service, however.

Burgess said the agency violated federal law by not preparing an environmental impact statement and providing the public the chance to comment on the decision-making process.

He said he was inclined to send that back to the fisheries service so they could prepare the statement and have public comment. However, he's allowing both sides until Feb. 8 to file briefs on his proposed remedy.