Today, the US 9th Circuit Court of Appeals heard arguments regarding whether or not to allow ODFW to continue to kill sea lions on the Columbia river. While it is too soon to tell how the judges might rule, lead counsel Sarah Uhlemann argued forcefully and eloquently on behalf of the sea lions. The judges seemed very interested in how the agencies involved with the killing could have determined, on multiple occasions, that the killing of salmon by the fishing industry and by dams does not pose a significant threat to salmon recovery, while the much lower rate of take by sea lions somehow does pose a significant threat. On at least two occasions, government attorneys actually made blatantly incorrect statements that were later corrected by Uhlemann. The first came when the judges questioned the agencies’ assertion that the killing by the fishing industry and the dams is different from the killing by sea lions because the killing by fishermen and dams is “controlled,” and “remediated,” while the killing by sea lions is not.

The judges pointed out that the fishing industry and the dams are allowed, according to the agencies’ own numbers, to kill between 5.5% and 17% of the runs, and the agencies claimed that this was not significant. Yet the sea lions are accused of taking 2% to 4% of the runs, and the agencies claim that is significant enough to require the killing of sea lions. The agencies’ attorney claimed that the higher numbers for human predation are mitigated, for example through closing down the fishing season, and therefore the impact is less. The judges asked, are the numbers of 5.5% to 17% referring to before, or after remediation? The attorney responded that these numbers are pre-remediation, implying that the human threat to salmon is actually smaller than that. However, as Uhlemann later pointed out, those numbers are POST remediation, meaning that even after all mitigating factors are taken into consideration, human predation is still much higher, having a much greater negative impact upon salmon, than sea lion predation.

Later, the agencies’ attorney incorrectly argued that the fact that the dams kill more salmon than the sea lions do is irrelevant because the dams “merely” kill juvenile salmon, whereas the sea lions kill adult salmon. He claimed that, since the adults are going upstream to spawn, the fact that sea lions are killing 2% to 4% of them is much more significant than the dams estimated kill rate of 9%. He explicitly stated that the 9% rate of killing by the dams applied only to juvenile salmon. However, Uhlemann was able to correct this misrepresentation later, when asked about those numbers by one of the judges. She pointed out that, indeed, the dams do kill more juvenile salmon than adult salmon. However, they kill 60% of the juvenile salmon! The 9% number refers solely to the number of ADULT salmon killed by the dams. Therefore, considering only adult fish, the dams are still killing many more than the sea lions are killing, and the agencies involved in the killing program have repeatedly called that high kill rate by the dams “insignificant.”

It was good to hear these arguments clarified in this way, because the last time I had the opportunity to sit through one of these hearings, the agencies’ attorneys went to great lengths to obfuscate the facts behind a barrage of statistics that neither the judge nor the former counsel for the plaintiffs seemed able to penetrate. This time, I had the impression that the statistics were not quite so dazzling to anyone, and that the truth of the matter was finally being chipped from from the granite of the agencies’ deliberate obfuscations.

We do not know, at this point, how the judges might rule. Only time will tell. But the case was argued very, very well on behalf of the sea lions.

This entry was posted on Friday, November 6th, 2009 at 3:45 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.