Chapter II — Species of Special Concern 



On 11 July 1991, plaintiffs filed a motion for a 

 preliminary injunction seeking to close the pollock 

 fishery because of the alleged violations and the 

 potential harm to Steller sea lions. A hearing on the 

 motion was held on 26 July 1991. Two days before 

 the hearing, however, the fishery was closed by the 

 Service until 29 September 1991 because the quarterly 

 pollock quota had been reached. In light of that 

 closure, the Court determined that expedited review 

 was not necessary and directed the parties to file 

 briefs on the merits during August. 



Following briefing and a hearing on cross-motions 

 for summary judgment, the Court ruled in favor of 

 the Federal defendants. In its 10 October 1991 order, 

 the Court found that the Service had used the best 

 available information in determining that the 1991 

 pollock catch level would not jeopardize the continued 

 existence of the Steller sea lion. In this regard, the 

 Court noted that the defendants provided "plausible, 

 factually based arguments" that conservation measures 

 adopted by the Service would "adequately mitigate 

 any potential (and unproven) harm to the Steller sea 

 lion from pollock fishing." The Court also noted that, 

 while plaintiffs may reasonably debate the efficacy of 

 the mitigation measures, "[r]easonable differences of 

 opinion... do not indicate that the Secretary's no- 

 jeopardy determination was irrational or conclusory." 



The Court also found the plaintiffs' National Envi- 

 ronmental Policy Act claims to be unpersuasive. It 

 ruled that, "[wjhile the Secretary [of Commerce] has 

 acknowledged that past pollock fishing may have 

 adversely impacted Steller sea lions and harbor seals," 

 the action at issue in this case, the 1991 pollock catch 

 level, "avoids those risks because of mitigation 

 measures" (emphasis in original). The Court also 

 ruled that the controversy as to the possible effects of 

 the pollock catch level were insufficient to warrant 

 preparation of an environmental impact statement. 



Greenpeace appealed the District Court ruling to 

 the Ninth Circuit Court of Appeals on 11 October 

 1991. Federal appellees, in their 16 December 1991 

 reply brief, reiterated the substantive arguments made 

 in the lower court, but also argued that, inasmuch as 

 the challenged fishery closed on 25 October 1991, the 

 case should be dismissed as being moot. Consider- 



ation of the matter by the Court of Appeals is expect- 

 ed in 1992. 



As a related matter, on 18 November 1991, the 

 National Marine Fisheries Service published in the 

 Federal Register a proposed rule to revise several 

 measures designed to reduce the impact of groundfish 

 fisheries on Steller sea lions in Alaska. The Service 

 proposes to adopt: (1) year-round trawl fishery clo- 

 sures in the Gulf of Alaska and Bering Sea/ Aleutian 

 Islands area within 10 nautical miles of key Steller sea 

 lion rookeries, and (2) new Gulf of Alaska walleye 

 pollock management districts and a limit on seasonal 

 harvest allocations for each district. 



Sea Lion Rock 



Sea Lion Rock is a small exposed reef in the 

 Copal is National Wildlife Refuge on the outer coast of 

 Washington. It is used as a seasonal haulout site by 

 Steller sea lions, California sea lions (Zalophus 

 calif omianus), and harbor seals (Phoca vitulina); it is 

 also used by many species of seabirds and waterfowl. 



In May 1944, the Secretary of the Interior granted 

 permission to the U.S. Navy to conduct practice 

 bombing activities on Sea Lion Rock as part of the 

 Naval Air Training Program, with the stipulation that 

 the program's use of the island would cease six 

 months after the end of World War 11. In July 1949, 

 the Navy again requested permission to use Sea Lion 

 Rock as a practice bombing site. The Secretary of the 

 Interior granted the request and gave the Navy per- 

 mission to use the island for an indefinite period of 

 time. In 1970, Sea Lion Rock and a number of 

 surrounding islands in the refuge were included in the 

 Washington Islands Wilderness Area under the Wil- 

 derness Act of 1964. The Navy has continued to use 

 Sea Lion Rock as a practice bombing site since that 

 time. 



In 1984, the Washington Department of Game 

 began a two-year study to determine the effect of 

 Navy activities on wildlife in the Copalis National 

 Wildlife Refuge. In its 1986 report, the Department 

 noted that bombing activities may cause the abandon- 

 ment of Sea Lion Rock by all wildlife, and, as the 

 Navy sometimes bombs other islands in the Refuge 



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