One Sea Lion's Worth - Evaluating the Role of Values in Section 120

Abstract

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. I. 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. …