Tuesday, November 30, 2010
Nov 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-36038, appealed from the District of Oregon. The Appeals Court explains that in March 2008, the National Marine Fisheries Service
(NMFS) authorized the states of Oregon, Washington and Idaho to kill up to 85 California sea lions annually at Bonneville Dam. NMFS made the decision under section 120 of the Marine Mammal Protection Act (MMPA), which allows "the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks" that have been listed as threatened or endangered under the Endangered Species Act (ESA). 16 U.S.C. § 1389(b)(1).The Appeals Court said, "We must decide whether the agency's action was 'arbitrary' or 'capricious' within the meaning of the Administrative Procedure Act (APA), as well as whether the agency violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement.
Following its analysis, the Appeals Court ruled, "We affirm summary judgment in favor of defendants on plaintiffs' NEPA claim. We reverse summary judgment on plaintiffs' MMPA claim and remand to the district court with instructions to vacate the decision of NMFS and remand to NMFS. We vacate the district court's order granting defendants' motion to strike. Each party shall bear its own costs on appeal."
Access the complete opinion (click here).
Posted by JPMcJ at 4:23 PM