Mikeetnier/National Marine Mammal Laboratory

For years and years, a legal battle has been raging over the endangered western stock of Steller sea lions. That battle finally made its way to the Ninth Circuit Court of Appeals this week. The State of Alaska and the Freezer Longline Coalition petitioned to overturn a lower court ruling that said the National Marine Fisheries Service was justified in restricting fishing in order to protect the sea lions.

During oral arguments, both sides rehashed old points, mostly focusing on the fact that there isn’t much data available about the endangered marine mammals. Representing the plaintiffs, attorney Linda Larson told the panel of three judges that since NFMS couldn’t show a causal relationship between fishing and sea lion population decline, the agency should have simply continued monitoring the situation.

“So what they do is say that, ‘we’re going to ratchet down on the fisheries based on the potential for further harm’. And you’ve said repeatedly that’s not enough, that’s not good enough. You cannot make a jeopardy finding based on the potential for harm.”

Arguing for the federal government, attorney David Gunter drew exactly the opposite conclusion. He told the judges that under the Endangered Species Act, NFMS had no choice but to err on the side of caution.

“The ESA is precautionary, and we’ve heard the plaintiffs argue this morning that this BiOp should be overturned because Fisheries Service could not find that there is harm, but in fact the ESA establishes the opposite standard. Unless the agency can find that there is not likely to be harm, it has to go forward with the reasonable and prudent alternative, and that’s just what it did here.”

NFMS closed the fisheries in January 2011, and they remain closed today, at an estimated annual cost to the industry of $80 million. The Appeals Court is expected to rule on the case later this winter, although its unclear whether that ruling will end the legal disputes once and for all.

NFMS is currently preparing an environmental impact statement mandated by the lower court. That document will need to assess the social, environmental and economic impacts of various courses of action, and then the agency will make a decision about whether to keep the fisheries closures in effect.