[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]





         H.R. 946, ENDANGERED SALMON PREDATION PREVENTION ACT

=======================================================================

                          LEGISLATIVE HEARING

                               before the

                  SUBCOMMITTEE ON FISHERIES, WILDLIFE,
                       OCEANS AND INSULAR AFFAIRS

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                         Tuesday, June 14, 2011

                               __________

                           Serial No. 112-41

                               __________

       Printed for the use of the Committee on Natural Resources





         Available via the World Wide Web: http://www.fdsys.gov
                                   or
          Committee address: http://naturalresources.house.gov


                                _____

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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
             EDWARD J. MARKEY, MA, Ranking Democrat Member

Don Young, AK                        Dale E. Kildee, MI
John J. Duncan, Jr., TN              Peter A. DeFazio, OR
Louie Gohmert, TX                    Eni F.H. Faleomavaega, AS
Rob Bishop, UT                       Frank Pallone, Jr., NJ
Doug Lamborn, CO                     Grace F. Napolitano, CA
Robert J. Wittman, VA                Rush D. Holt, NJ
Paul C. Broun, GA                    Raul M. Grijalva, AZ
John Fleming, LA                     Madeleine Z. Bordallo, GU
Mike Coffman, CO                     Jim Costa, CA
Tom McClintock, CA                   Dan Boren, OK
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Jeff Denham, CA                          CNMI
Dan Benishek, MI                     Martin Heinrich, NM
David Rivera, FL                     Ben Ray Lujan, NM
Jeff Duncan, SC                      John P. Sarbanes, MD
Scott R. Tipton, CO                  Betty Sutton, OH
Paul A. Gosar, AZ                    Niki Tsongas, MA
Raul R. Labrador, ID                 Pedro R. Pierluisi, PR
Kristi L. Noem, SD                   John Garamendi, CA
Steve Southerland II, FL             Colleen W. Hanabusa, HI
Bill Flores, TX                      Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Charles J. ``Chuck'' Fleischmann, 
    TN
Jon Runyan, NJ
Bill Johnson, OH

                       Todd Young, Chief of Staff
                      Lisa Pittman, Chief Counsel
                Jeffrey Duncan, Democrat Staff Director
                 David Watkins, Democrat Chief Counsel
                                 ------                                

              SUBCOMMITTEE ON FISHERIES, WILDLIFE, OCEANS
                          AND INSULAR AFFAIRS

                       JOHN FLEMING, LA, Chairman
     GREGORIO KILILI CAMACHO SABLAN, CNMI, Ranking Democrat Member

Don Young, AK                        Eni F.H. Faleomavaega, AS
Robert J. Wittman, VA                Frank Pallone, Jr., NJ
Jeff Duncan, SC                      Madeleine Z. Bordallo, GU
Steve Southerland, II, FL            Pedro R. Pierluisi, PR
Bill Flores, TX                      Colleen W. Hanabusa, HI
Andy Harris, MD                      Vacancy
Jeffrey M. Landry, LA                Edward J. Markey, MA, ex officio
Jon Runyan, NJ
Doc Hastings, WA, ex officio











                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, June 14, 2011...........................     1

Statement of Members:
    Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam     2
        Prepared statement of....................................     3
    Fleming, Hon. John, a Representative in Congress from the 
      State of Louisiana.........................................     1
        Prepared statement of....................................     2
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     3
        Prepared statement of....................................     5
    Walden, Hon. Greg, a Representative in Congress from the 
      State of Oregon, Statement submitted for the record........     3

Statement of Witnesses:
    Brown, Robin F., Program Leader, Marine Mammal Research and 
      Management, Oregon Department of Fish and Wildlife.........    13
        Prepared statement of....................................    14
    Lecky, James, Director, Office of Protected Resources, 
      National Marine Fisheries Service, National Oceanic and 
      Atmospheric Administration, U.S. Department of Commerce....     6
        Prepared statement of....................................     8
    Lewis, Hon. Virgil, Sr., Confederated Tribes and Bands of the 
      Yakama Nation, and Commissioner, Columbia River Inter-
      Tribal Fish Commission.....................................    23
        Prepared statement of....................................    24
    Norman, Guy R., Regional Director, Washington Department of 
      Fish and Wildlife..........................................    17
        Prepared statement of....................................    19
    Young, Sharon B., Marine Issues Field Director, The Humane 
      Society of the United States...............................    29
        Prepared statement of....................................    31

Additional materials supplied:
    Frank, Billy, Chairman, Northwest Indian Fishing Commission, 
      Statement submitted for the record by The Honorable Doc 
      Hastings...................................................    44
    International Fund for Animals, Letter submitted for the 
      record.....................................................    38
                                     


 
LEGISLATIVE HEARING ON H.R. 946, TO AMEND THE MARINE MAMMAL PROTECTION 
 ACT OF 1972 TO REDUCE PREDATION ON ENDANGERED COLUMBIA RIVER SALMON, 
 AND FOR OTHER PURPOSES. "ENDANGERED SALMON PREDATION PREVENTION ACT.''

                              ----------                              


                         Tuesday, June 14, 2011

                     U.S. House of Representatives

    Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:01 a.m. in 
Room 1324, Longworth House Office Building, Hon. John Fleming 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Fleming, Southerland, Hastings, 
[ex officio] and Bordallo.

 STATEMENT OF HON. JOHN FLEMING, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF LOUISIANA

    Dr. Fleming. The Subcommittee will come to order. The 
Chairman notes the presence of a quorum. Good morning. Today, 
the Subcommittee on Fisheries, Wildlife, Oceans and Insular 
Affairs, will conduct a legislative hearing on H.R. 946, the 
``Endangered Salmon Predation Prevention Act''.
    Under Committee Rule 4[f], opening statements are limited 
to the Chairman and Ranking Member of the Subcommittee so that 
we can hear from our witnesses more quickly. However, I ask 
unanimous consent to include any other Members' opening 
statements in the hearing record if submitted to the Clerk by 
the close of business today. Hearing no objection, so ordered.
    Marine mammals were given Federal protection in 1972 with 
the enactment of the Marine Mammal Protection Act. Congress 
enacted the law in part to address the decline of many marine 
mammal populations from various human activities.
    The Act has been very successful in protecting and 
restoring marine mammal species to abundant levels. The 
California sea lion population is an example of the Act's 
success.
    However, the high number of sea lions is having an adverse 
impact on salmon and steelhead species listed under the 
Endangered Species Act. In 1994, the Marine Mammal Protection 
Act was amended to authorize the use of deterrence methods to 
reduce sea lion predation on the listed fish species.
    However, the nonlethal removal measures have not been 
successful. H.R. 946 would require the Secretary of Commerce to 
make a determination that nonlethal deterrence measures are not 
working to protect listed salmon species.
    The Secretary would then be authorized to use a temporary 
expedited permit process to allow the States to lethally remove 
a limited number of sea lions to protect threatened and 
endangered salmon migrating up the Columbia River to spawn.
    I look forward to hearing from our distinguished witnesses, 
and now recognize our Acting Ranking Member, Ms. Bordallo, for 
any statement that she would like to make.
    [The prepared statement of Dr. Fleming follows:]

          Statement of The Honorable John Fleming, Chairman, 
    Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs

    Good morning, we are here today to discuss H.R. 946, the Salmon 
Predation Prevention Act, a bill sponsored by our Full Committee 
Chairman, Doc Hastings.
    Marine Mammals were given federal protection in 1972, with the 
enactment of the Marine Mammal Protection Act. Congress enacted the law 
in part to address the decline of many marine mammal populations from 
various human activities. The Act has been very successful in 
protecting and restoring marine mammal populations to abundant levels--
the California sea lion population is an example of the Act's success. 
However, the high sea lion population is having an adverse impact on 
salmon and steelhead stocks which are listed under the Endangered 
Species Act.
                                 ______
                                 

STATEMENT OF HON. MADELEINE Z. BORDALLO, A DELEGATE IN CONGRESS 
                   FROM THE TERRITORY OF GUAM

    Ms. Bordallo. Thank you very much, Mr. Chairman, and good 
morning to all the witnesses. This morning's hearing on H.R. 
946, The Endangered Salmon Predation Prevention Act, focuses on 
an issue important to Members in the Pacific Northwest.
    H.R. 946 would authorize the Secretary of Commerce to issue 
permits enabling the States of Washington and Oregon, and 
tribes that are members of the Columbia River Intertribal Fish 
Commission, to take lethal measures against sea lions preying 
on endangered salmon throughout the Columbia River.
    The bill would also waive the application of the National 
Environmental Policy Act to the permit process. This would 
eliminate the requirement that the Secretary consider the 
environmental impacts and alternatives, as well as the public 
input, to take lethal action against the sea lions.
    There already is a provision in the Marine Mammal 
Protection Act that was included in 1994 to address salmon 
predation by sea lions. Section 120 authorizes the Secretary to 
permit the intentional lethal taking of sea lions and, to date, 
37 California sea lions have been removed from the Bonneville 
Dam area.
    H.R. 946 focuses on the impact of predation by California 
sea lions on endangered salmon. According to the Army Corps of 
Engineers, California sea lions have only consumed 1.4 percent 
of this year's salmon run, which is the lowest percentage since 
2003.
    Meanwhile, salmon populations battle a variety of other 
threats, including hydropower development, habitat loss, 
fishing pressure, interactions with hatchery fish, pesticide 
exposure, and climate change.
    So it is critical that we support efforts to restore and 
maintain healthy salmon populations in the Pacific Northwest by 
addressing all of these significant threats to salmon. And with 
that, I look forward to hearing from our witnesses today and 
learning more about this issue. I thank you.
    [The prepared statement of Ms. Bordallo follows:]

   Statement of The Honorable Madeleine Z. Bordallo, Ranking Member, 
    Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs

    Thank you, Mr. Chairman. This morning's hearing on H.R. 946, the 
Endangered Salmon Predation Prevention Act, focuses on an issue 
important to Members in the Pacific Northwest. H.R. 946 would authorize 
the Secretary of Commerce to issue permits enabling the states of 
Washington and Oregon, and tribes that are members of the Columbia 
River Inter-Tribal Fish Commission, to take lethal measures against sea 
lions preying on endangered salmon throughout the Columbia River. The 
bill would also waive the application of the National Environmental 
Policy Act to the permit process. This would eliminate the requirement 
that the Secretary consider the environmental impacts and alternatives, 
as well as public input, to lethal action against the sea lions.
    There already is a provision in the Marine Mammal Protection Act 
that was included in 1994 to address salmon predation by sea lions. 
Section 120 authorizes the Secretary to permit the intentional lethal 
taking of sea lions and to date, 37 California sea lions have been 
removed from the Bonneville Dam area.
    H.R. 946 focuses on the impact of predation by California sea lions 
on endangered salmon. According to the Army Corps of Engineers, 
California sea lions have only consumed 1.4 percent of this year's 
salmon run, which is the lowest percentage since 2003.
    Meanwhile salmon populations battle a variety of other threats, 
including hydropower development, habitat loss, fishing pressure, 
interactions with hatchery fish, pesticide exposure, and climate 
change.
    It is critical that we support efforts to restore and maintain 
healthy salmon populations in the Pacific Northwest, by addressing all 
of these significant threats to salmon.
    With that, I look forward to hearing from our witnesses today and 
learning more about this issue, and I thank you.
                                 ______
                                 
    Dr. Fleming. I thank the gentlelady, the Ranking Member. I 
now recognize Chairman Doc Hastings for any opening statement 
that he may have on this bill.

 STATEMENT OF HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF WASHINGTON

    Mr. Hastings. Thank you, Mr. Chairman, for holding this 
hearing on this bill that is important to my area in the 
Northwest, and before I begin, I would ask unanimous consent 
that the statement of my colleague from Oregon, Mr. Walden, 
appear in the record. He is a cosponsor of the bill.
    Dr. Fleming. If there is no objection, it is so ordered.
    [The prepared statement of Mr. Walden follows:]

  Statement submitted for the record by The Honorable Greg Walden, a 
          Representative in Congress from the State of Oregon

    Dear Chairman Fleming and Ranking Member Sablan:
    I write in support of H.R. 946, the Endangered Salmon Predation 
Prevention Act, and in appreciation of your commitment to moving this 
bill through the Committee on Natural Resources. This is an important 
step in ongoing efforts to reduce the predation of salmon listed on the 
Endangered Species Act (ESA) in the Columbia River system.
    As you know, the Endangered Salmon Predation Prevention Act would 
authorize the states of Oregon and Washington and four Columbia River 
treaty tribes, including the Confederated Tribes of Warm Springs 
Reservation and the Confederated Tribes of the Umatilla Indian 
Reservation in Oregon, to obtain permits for the lethal removal of 
California sea lions caught eating salmon and steelhead in the Columbia 
River near Bonneville Dam. The bill would accomplish this by amending 
the Marine Mammal Protection Act of 1972 (MMPA) to allow the Secretary 
of Commerce--more specifically, the National Marine Fisheries Service 
(NMFS)--to issue permits to the eligible entities. Before utilizing a 
lethal take permit, the permit holder must first determine that the sea 
lions have preyed upon ESA-listed salmon and then exhaust all nonlethal 
alternatives to deter predation. According to the Oregon Department of 
Fish and Wildlife, the MMPA has helped the population of California sea 
lions increase from 10,000 in the 1950s to 300,000, a level that is 
near the highest sustainable level.
    In 2005 and 2006, I joined Congressmen Brian Baird (D-WA) and Norm 
Dicks (D-WA) in holding bipartisan regional forums, including one in 
Pendleton, Ore., to explore ways to improve the survival of adult 
salmon and steelhead in the Columbia River system. At the Pendleton 
forum, the U.S. Army Corps of Engineers testified that the consumption 
of fish by sea lions in the vicinity of Bonneville Dam had been on a 
steady increase and that the sea lions had even figured out how to 
enter the fish ladders at Bonneville Dam to gorge themselves on 
endangered salmon and steelhead.
    Since then, efforts to enact legislation to allow the lethal take 
of sea lions found to be eating endangered salmon at the mouth of these 
fish ladders have not been successful. As an original cosponsor of H.R. 
946 and having a keen interest in improving the survival of this 
important fish species, I welcome today's legislative hearing and look 
forward to working with you to ensure that this bill is signed into 
law. With Pacific Northwest ratepayers contributing nearly $1 billion 
each year to protect salmon, this common-sense solution cannot wait.
                                 ______
                                 
    Mr. Hastings. Since 1992, NOAA has listed 28 populations of 
salmon, including 12 in the Columbia and Snake Rivers, as 
either threatened or endangered under the Endangered Species 
Act.
    Northwest citizens have invested billions of dollars to 
fund significant Federal, State, tribal, and local salmon 
activities. These efforts include a plan now before a Federal 
Judge, supported by the Administration, States, and several 
upper and lower Columbia River tribes, that would ensure the 
continued operation of several major Federal hydropower dams on 
the Snake and Columbia Rivers.
    Great progress has been made to recover salmon, as 
witnessed by several consecutive years of near-record runs. 
Yet, growing numbers of aggressive sea lions are consuming 
endangered salmon.
    The Army Corps of Engineers reported late last year that 
the average number of sea lions observed at Bonneville Dam over 
the past three years has increased by nearly 50 percent, from 
83 to 123 per year.
    Despite extensive efforts by Federal, State, and tribal 
officials to discourage predation through aggressive nonlethal 
hazing, the Corps recently estimated that sea lions consume 
over 6,000 salmon alone.
    In 1994, Congress added Section 120 to the Marine Mammal 
Protection Act to allow lethal removal of sea lions that were 
eating salmon at the Ballard Locks in Seattle. However, 
extensive studies and attempts by States have demonstrated that 
this authority as written has proven inadequate and cumbersome.
    Last year, a NOAA 18-member task force, comprised of 
Federal, State, and tribal scientists, concluded that current 
efforts authorized under Section 120 had been ineffective at 
controlling sea lions from preying on salmon.
    Earlier this year, I applauded NOAA for defending its 
approval to States to use lethal removal to control sea lions 
that are eating alarming numbers of salmon on the Columbia 
River.
    Unfortunately, last month, yet another lawsuit blocked this 
approval at a time when tens of thousands of salmon are 
returning through Bonneville Dam. H.R. 946 and this hearing 
today are designed to find a common-sense path forward to 
protect our substantial investment in salmon recovery and 
provide Federal, State, and tribal fish managers the tools 
necessary to control sea lions.
    This bipartisan legislation, similar to that which has been 
introduced in prior Congresses, would provide temporary 
expedited authorities for States and tribes to manage sea lion 
problems while States obtain longer-term authority through the 
Marine Mammal Protection Act.
    The bill recognizes the four lower Columbia River tribes, 
as well as the States of Oregon and Washington, that should be 
eligible to obtain permits to control these predatory sea 
lions.
    In addition, the proposal would require the Commerce 
Secretary to report to Congress on possible amendments to the 
Marine Mammal Protection Act to address conflicts between 
marine mammals and fish species listed under ESA.
    So again I want to thank the Subcommittee for this hearing, 
and I look forward to hearing the testimony from our witnesses, 
and with that, Mr. Chairman, thank you again for the courtesy, 
and I yield back my time.
    [The prepared statement of Mr. Hastings follows:]

          Statement of The Honorable Doc Hastings, Chairman, 
                     Committee on Natural Resources

    Thank you, Chairman Fleming for holding this hearing on H.R. 946, 
the Endangered Salmon Predation Prevention Act.
    Since 1992, the National Oceanic and Atmospheric Administration 
(NOAA) has listed 28 populations of salmon-including 12 in the Columbia 
and Snake Rivers--as either threatened or endangered under the 
Endangered Species Act.
    Northwest citizens have invested billions of dollars to fund 
significant federal, state, tribal and local salmon activities.
    These efforts include a plan now before a federal judge, supported 
by the Administration, states and several upper and lower Columbia 
River tribes--that would ensure the continued operation of several 
major federal hydropower darns on the Columbia and Snake Rivers.
    Great progress has been made to recover salmon, as witnessed by 
several consecutive years of record or near-record runs. Yet, growing 
numbers of aggressive sea lions are consuming endangered salmon.
    The Army Corps of Engineers reported late last year that the 
average number of sea lions observed at Bonneville Dam over the past 
three years increased by nearly 50%--from 83 to 124 per year.
    Despite extensive efforts by federal, state, and tribal officials 
to discourage predation through aggressive nonlethal hazing, the Corps' 
recently estimated that sea lions consumed over 6,000 salmon last year. 
alone.
    In 1994, Congress added Section 120 to the MMPA to allow lethal 
removal of sea lions that were eating salmon at the Ballard Locks of 
Seattle. However, extensive studies and attempts by states have 
demonstrated that this authority as written has proven inadequate and 
cumbersome.
    Last December, a NOAA 18-member task force, comprised of federal, 
state and tribal scientists, concluded that current efforts authorized 
under Section 120 have been ineffective at controlling sea lions from 
preying on salmon.
    Earlier this year, I applauded NOAA for defending its approval to 
states to use lethal removal to control sea lions that are eating 
alarming numbers of salmon on the Columbia River.
    Unfortunately, last month, yet another lawsuit blocked this 
approval at a time when tens of thousands of salmon were returning to 
Bonneville Dam.
    H.R. 946 and this hearing today are designed to find a common-sense 
path forward to protect our substantial investment in salmon recovery 
and provide federal, state, and tribal fish managers the tools 
necessary to control sea lions.
    This bipartisan legislation, similar to that introduced in prior 
Congresses, would provide temporary expedited authority for states and 
tribes to manage the sea lion problem while the states obtain longer-
term authority through the Marine Mammal Protection Act.
    The bill recognizes that four lower Columbia River tribes, as well 
as the states of Oregon and Washington, should be eligible to obtain 
permits to control predatory sea lions.
    In addition, the proposal would require the Commerce Secretary to 
report to Congress on possible amendments to the Marine Mammal 
Protection Act to address conflicts between marine mammals and fish 
species listed under the ESA.
    I again thank the Subcommittee for holding this hearing, and I look 
forward to hearing from the states and tribes represented here today on 
how this bipartisan bill might be further improved as it moves through 
the legislative process.
                                 ______
                                 
    Dr. Fleming. I thank the Chairman. The Chairman yields his 
time back. We will now hear from our witnesses. Like all 
witnesses, your written testimony will appear in full in the 
hearing record.
    So I ask that you keep your oral statements to five minutes 
as outlined in our invitation letter to you, and under 
Committee Rule 4[a]. Our microphones are not automatic, and so 
please press the button when you are ready to begin.
    I also want to explain how the timing lights work. When you 
begin to speak, our Clerk will start the timer and the green 
light will appear. After four minutes a yellow light will 
appear, and at that time, you should begin to conclude your 
statement, and at five minutes the red light will come on.
    So obviously you get four minutes with a green light, and 
one minute with a yellow, and then red, which means that you 
need to write it up in a hurry.
    So I will begin to welcome our witnesses today. First, we 
have Mr. Eric Schwaab, Assistant Administrator for the National 
Marine Fisheries Service, National Oceanic and Atmospheric 
Administration.
    [Pause.]
    Dr. Fleming. OK. I am sorry. I had to get updated 
information. Mr. James Lecky. Am I saying that right, sir?
    Mr. Lecky. Yes.
    Dr. Fleming. And I am not sure exactly what your position 
is, but I assume that you are with the same organization, the 
National Marine Fisheries Services, National Oceanic and 
Atmospheric Administration.
    Then Mr. Guy Norman, Southwest Regional Director, 
Washington Department of Fish and Wildlife; Mr. Robin Brown, 
Program Leader, Marine Mammal Research, Oregon Department of 
Fish and Wildlife; Mr. Virgil Lewis, Tribal Council Member, 
Yakama Nation. Am I saying that right, Yakama?
    Mr. Lewis. Yakama.
    Dr. Fleming. Yakama. OK. I knew that it didn't sound quite 
right. Ms. Sharon B. Young, Marine Issues Field Director, The 
Humane Society of the United States. OK. Mr. Lecky, you are now 
recognized for five minutes, sir.

    STATEMENT OF JAMES LECKY, DIRECTOR, OFFICE OF PROTECTED 
          RESOURCES, NATIONAL MARINE FISHERIES SERVICE

    Mr. Lecky. Thank you. Good morning, Chairman Hastings, and 
Chairman Fleming, and Members of the Subcommittee. I am Jim 
Lecky, and I am the Director of the Office of Protected 
Resources for NOAA's National Marine Fisheries Service. Thank 
you for the opportunity to testify today on H.R. 946, and the 
issues of increasing pinniped predation on threatened and 
endangered salmon in the Columbia River.
    NOAA protects seals and sea lions along the West Coast 
under the Marine Mammal Protection Act, and promotes recovery 
of threatened and endangered salmon and steelhead under the 
Endangered Species Act.
    NMFS has experienced challenges in reconciling these duties 
and welcomes guidance on how to address the effects of 
predation by a robust population of sea lions on the 
conservation of threatened and endangered populations of salmon 
and steelhead.
    This morning I will described these challenges, and our 
experience in addressing the conflict, using existing 
authorities, and provide NMFS's view on H.R. 946. Under the 
Marine Mammal Protection Act, most seal and seal lion 
populations on the West Coast have recovered to healthy levels.
    Currently, California sea lion numbers exceed 238,000 
individuals, and the population is believed to be at or near 
carrying capacity. At the same time many West Coast salmon 
populations have undergone substantial declines as a result of 
habitat loss and degradation from the development of land and 
water resources, overfishing, and unsustainable hatchery 
practices.
    Out of 52 population groups of salmon spawning in 
California, Idaho, and Washington, 28 are listed as threatened 
under the Endangered Species Act, threatened or endangered 
under the Endangered Species Act.
    NOAA has worked with its partners for nearly 20 years at 
considerable cost to address the factors that have contributed 
to the decline of these important resources. We have also 
worked with States and others to explore not only nonlethal 
methods of deterring pinnipeds from stealing catch, damaging 
fishing gear, damaging private and public property, and preying 
on listed salmon, and for the most part these efforts have 
yielded limited success.
    In November of 2006, Oregon, Washington, and Idaho applied 
for authority pursuant to Section 120 of the Marine Mammal 
Protection Act to lethally remove California sea lions at 
Bonneville Dam to protect the Columbia River's salmonids.
    In response, NMFS convened a pinniped fishing interaction 
task force, which recommended approval of the application and 
NMFS completed the authorization process in time for the 2008 
Spring Chinook salmon run under that authority.
    Under that authority, 37 individually identified California 
sea lions have been removed to permanent captivity or humanely 
killed. In 2008, the Humane Society filed a complaint 
contending that in issuing the authorization that NMFS violated 
the Marine Mammal Protection Act, the National Environmental 
Policy Act, and the Administrative Procedures Act, and the 
decision authorizing lethal removal was vacated and remanded to 
NMFS for further explanation of its finding that sea lion 
predation was having a significant negative impact on the 
recovery of salmonids in the Columbia River.
    On May 12 of this year, NMFS reissued its lethal removal 
authorizations to the States, and on May 19, the Humane Society 
again filed a complaint. In addition to the litigation 
challenges, some of the provisions of Section 120 make NMFS and 
its ability to use that authority difficult.
    For example, the requirements to identify individual sea 
lions foraging on salmon prior to taking action is extremely 
difficult given the enormity of the Columbia River. We 
understand the behavior or sea lions well enough to know that 
when they are in the vicinity of Bonneville Dam, they are there 
to take advantage of the salmon resource.
    With respect to H.R. 946, we are pleased that it recognizes 
the limitation of nonlethal methods to protect salmonids from 
sea lion predation, and that it acknowledges the enormous 
investment that many agencies, organizations, and the public 
have made to the recovery of Columbia River salmonids, and it 
recognizes the role for the Columbia River Intertribal Fish 
Commission and its tribes.
    However, NMFS is troubled by some of the provisions in the 
bill. For example, the bill requiring NMFS to make 
determinations that nonlethal measures are ineffective, and 
then require each permit holder to duplicate that determination 
for each sea lion prior to removal. It is not clear why such 
duplication is necessary.
    And we think that NEPA can add value to the process and 
suggest that time be added to the process for NEPA analysis. 
Also, coordinating the activity of permit holders would be 
challenging, in that multiple permits may be issued to six 
different eligible entities, but each entity may use only one 
permit during any particular two week period. Tracking such a 
system would be difficult to implement.
    In conclusion, NMFS believes that specifically and narrowly 
tailored changes to the Marine Mammal Protection Act that 
reflects sound principles of wildlife management, and allow for 
both marine mammal conservation and salmonid recovery.
    NMFS recommends that the Subcommittee consider a 
comprehensive approach to the use of lethal measures to manage 
pinnipeds, just as they are allowed for many high profile 
species of terrestrial animals.
    Thank you again for the opportunity to testify, and we 
would be pleased to work with the Committee and staff to refine 
a bill for further consideration, and I would be happy to 
answer any of your questions.
    [The prepared statement of Mr. Lecky follows:]

  Statement of James Lecky, Director, Office of Protected Resources, 
  National Marine Fisheries Service, National Oceanic and Atmospheric 
              Administration, U.S. Department of Commerce

Introduction
    Good morning, Chairmen Hastings and Fleming and members of the 
Subcommittee. I am Jim Lecky, Director of the Office of Protected 
Resources in the National Oceanic and Atmospheric Administration's 
(NOAA) National Marine Fisheries Service (NMFS). Thank you for the 
opportunity to present NOAA's views on California sea lion predation on 
at-risk, threatened, or endangered salmon and steelhead and H.R. 946, 
which would establish a temporary permitting procedure for allowing the 
removal of California sea lions to protect salmonids in the Columbia 
River. While I have been in my present position since 2004, I spent 
nearly 30 years working for NOAA on marine mammal and endangered 
species issues in our Southwest Region and am very familiar with 
problems associated with increasing seal and sea lion populations, 
including the ongoing predation of threatened and endangered salmonids 
in the Columbia River and its tributaries.
    NOAA is responsible for protecting most marine mammal populations 
along the west coast under the Marine Mammal Protection Act (MMPA) and 
for promoting the recovery of threatened and endangered species under 
the Endangered Species Act (ESA), including listed salmon and steelhead 
trout, collectively called salmonids. The MMPA and ESA are strong 
conservation laws, but the MMPA does not provide flexible tools for 
dealing with species whose populations have reached healthy levels and 
that are creating conflicts with, among other things, conservation 
efforts for ESA protected species. Therefore, NOAA appreciates the 
Chairs' acknowledgment of the seriousness of this issue and the 
opportunity to explore development of additional tools for efficient 
and effective resolution of such conflicts.
    In my remarks today, I will describe the ecological and management 
context that currently exists, NOAA's previous experience in addressing 
the conflict with increasing populations of pinnipeds under existing 
authorities, and NOAA's comments on H.R. 946.
Ecological and Management Context
    I am pleased to report that the MMPA has been successful at 
recovering most stocks of seals and sea lions along the west coast to 
optimum sustainable levels. California sea lion numbers have increased 
from the few thousands in the 1920s to more than 238,000 today. An 
analysis of pup counts in California through 2005 suggests the 
population likely achieved its maximum net productivity level in 1997 
and may currently be at or near its carrying capacity. Populations of 
harbor seals and elephant seals are healthy and, in the Pacific 
Northwest, while the Eastern stock of Steller sea lions is listed as 
threatened under the Endangered Species Act, we have seen steady 
improvements in it.
    After breeding in southern California rookeries, male California 
sea lions migrate north in search of food. Some of these animals feed 
along the California coast while others disperse as far north as 
Alaska. During winter and spring, more than 1,000 California sea lions 
may be found near the mouth of the Columbia River. Some of these 
animals make their way up the Columbia River to Bonneville Dam (nearly 
150 miles upriver) feeding on spring smelt and salmonid runs. Some feed 
on listed salmonids at Willamette Falls where there have been 
aggressive interactions with recreational fishers targeting hatchery 
fish.
    In contrast to robust west coast seal and sea lion populations, 
many west coast salmonid populations have declined from historic 
levels. Of 52 recognized population groups of salmonids spawning in 
California, Oregon, Idaho, and Washington, 28 are listed as threatened 
or endangered under the Endangered Species Act, 13 of which spawn in 
the Columbia River or its tributaries. These salmonid populations are 
at risk because of multiple threats: habitat loss and degradation, 
harmful hatchery practices, predation and competition, and harvest. All 
threats must be addressed to recover listed salmonids in the Columbia 
Basin. Our recovery approach has been to seek reductions in mortality 
from all sources, with the goal of reducing overall mortality to the 
point that each species can survive and recover.
    Over the years, NOAA has worked diligently with states and others 
to explore nonlethal methods for deterring pinnipeds from preying on 
listed salmonids. Unfortunately, these efforts have yielded limited 
success. Congress recognized the limits of nonlethal deterrence in 
passing the MMPA amendments of 1994. These amendments included MMPA 
section 120, which allows states to apply for authority to lethally 
remove California sea lions or Pacific harbor seals to protect at-risk 
salmonid populations. These amendments also required NMFS to prepare a 
report to Congress describing the impacts of pinniped predation on the 
recovery of threatened and endangered salmonids and more broadly on 
coastal ecosystems of Washington, Oregon, and California. NMFS 
completed the scientific investigation and submitted its report to 
Congress in February 1999.
    The report to Congress described the potential for pinniped impacts 
on the decline or recovery of at-risk fish stocks in Washington, 
Oregon, Idaho, and California and the expanding pinniped conflict with 
human economic and recreational activity in the affected areas. As a 
result of these findings, NMFS recommended that Congress amend the MMPA 
to include a site-specific management regime including the use of 
lethal and nonlethal removal of California sea lions and harbor seals. 
It also suggested further investigation of nonlethal deterrence methods 
and the collection of information needed to allow more informed 
decision-making for appropriate conservation of pinnipeds and other 
living marine resources.
    NMFS has testified before this Subcommittee three times in support 
of the recommendations of the 1999 report. Joe Scordino (retired, 
Deputy Regional Administrator, NMFS/NWR) represented NMFS at a hearing 
in Washington, D.C., in October 2001, and I represented NMFS at a field 
hearing in San Diego, CA, in August 2003. In addition D. Robert Lohn 
testified to this Subcommittee in 2007 on H.R. 1769, a bill similar to 
H.R. 946 being discussed today.
Reducing Sea Lion Predation on Salmonids: History to Present
    In addition to the 1994 Amendments allowing lethal removal of 
pinnipeds (Section 120), the MMPA includes two potential alternatives 
for authorizing lethal taking of marine mammals in response to marine 
resource management challenges such as those I have described. Section 
101 provides authority for the Secretary to waive the take moratorium 
and adopt suitable regulations to permit taking by lethal methods, 
through a formal rule-making process. Section 109 provides Secretarial 
authority to transfer management authority to a state on its request. A 
state receiving management authority for marine mammals from the 
Secretary must have adopted a management plan that could include lethal 
taking, approved by the Secretary prior to the transfer of management. 
Congress adopted Section 120 as a more streamlined approach to dealing 
with circumstances such as the one at Bonneville Dam.
    Under section 120, NMFS has received two applications from states 
to lethally remove California sea lions to protect at-risk salmonids. 
In 1994, the State of Washington requested authority to remove selected 
sea lions to protect a small winter-run steelhead population that 
migrated into the Lake Washington drainage at the Ballard Locks in 
Seattle, WA. NMFS and the States attempted to protect the steelhead run 
using nonlethal deterrence and conducted predation monitoring 
activities for nearly a decade prior to the 1994 amendments. The States 
submitted an application under the new section and NMFS convened a 
Pinniped-Fishery Interaction Task Force to consider the application. 
Following Task Force recommendations, NMFS and the States continued a 
number of nonlethal deterrence actions such as acoustic barriers, flow 
modification, trap and hold, and trap and haul before March of 1996 
when NMFS approved the States' request for lethal removal of five 
specific animals. None of those animals was lethally removed but three 
were relocated to Sea World of Orlando, FL, for permanent captivity and 
public display. California sea lion predation events on steelhead 
returning to Lake Washington subsided following the 1996 steelhead 
return due to the removal of the worst offending animals, continued 
implementation of a nonlethal deterrence strategy, and the collapse of 
the steelhead run, which has not yet recovered. Over the past several 
years, NMFS has received anecdotal reports of sea lion predation on 
Chinook salmon at the Ballard Locks but there have been insufficient 
resources available to implement systematic monitoring to quantify the 
extent of the impacts to this ESA listed run.
    In November 2006, the states of Oregon, Washington, and Idaho 
applied to NMFS for authority to lethally remove California sea lions 
at Bonneville Dam to protect threatened or endangered salmonids in the 
Columbia River. The states' application noted that sea lion predation 
on salmonids at the dam is a relatively recent phenomenon with only 
occasional sightings of sea lions at or near the dam prior to 2000. In 
2000, predation events began to increase and have been documented since 
2002 when 30 California sea lions were identified feeding at the dam. 
Between 2002 and 2006 the estimated California sea lion predation on 
salmonids at the dam increased annually from just over 1000 to about 
3000 fish.
    In addition to reviewing the pinniped salmon conflict, the states' 
application also described many other efforts, for which hundreds of 
millions of dollars have been spent, to provide a comprehensive 
recovery strategy for salmonids in the Columbia River basin. These 
efforts include harvest reduction, hydroelectric system modification 
and mitigation, habitat improvement, predator controls, and hatchery 
reform.
    After receiving the states' 2006 application, NMFS, as required by 
section 120, provided notice of the states' application, convened a 
Pinniped-Fishery Interaction Task Force, and complied with other 
applicable laws (e.g., National Environmental Policy Act (NEPA) and 
Endangered Species Act (ESA)). Due to the seasonal commitments of 
potential Task Force members, various procedural requirements and 
requisite environmental analyses, NMFS was not able to complete the 
section 120 process in time for the 2007 spring Chinook salmon run. In 
the fall of 2007, the Task Force recommended approval of the lethal 
removal application, with a minority dissenting vote, and NMFS 
completed the authorization process prior to the start of the 2008 
spring Chinook salmon run.
    Since then, the number of California sea lions at the dam has 
averaged about 75 animals per year and they have been observed eating 
an ever-increasing number of salmon below the dam, with an estimated 
high of 5,000 salmon taken by California sea lions in 2010 (total 
estimated predation by all pinnipeds at Bonneville Dam in 2010 was over 
6,000 salmon). Although the percentage of the runs consumed annually 
varies with run size, the estimated number of individual fish taken has 
generally increased each year since 2005. I note that this estimate of 
predation is based on documented predation events observed from the dam 
structure. Thus, the 2010 mortality estimate attributable to California 
sea lions at the dam is not an estimate of the total predation, but 
observed predation, on salmonids by California sea lions in the 
Columbia River. California sea lions have been reported feeding on 
salmonids along the entire main stem of the Columbia River and in 
several tributaries from its mouth to the Dalles Dam, 191 miles from 
the ocean. However, predation rates have not been quantified except in 
the area visible from Bonneville Dam and the estimate only represents 
the observed area. Systematic observations of predation elsewhere in 
lower Columbia River to identify the animals involved or to quantify 
the impacts of predation have not been done. The lower Columbia River 
up to the Dalles Dam is a huge area and systematic observation of the 
entire area would be an extremely difficult and costly venture.
    NMFS, the U.S. Army Corps of Engineers (which operates Bonneville 
Dam), the states, and the Columbia River Intertribal Fish Commission 
and their member Tribes have aggressively employed nonlethal deterrence 
methods to protect salmonids near the dam since 2006. From March 2008 
when the section 120 removal authorization was issued to the states 
through 2010, 37 individually identified California sea lions were 
removed to permanent captivity or humanely killed. Nevertheless, 
predation continued to increase.
    After the close of the 2010 season, NMFS reconvened the Task Force 
to evaluate the effectiveness of the removal program and consider 
information accumulated since the program's initiation. Following its 
review, the Task Force concluded that the program had not been 
sufficiently successful at reducing pinniped predation on salmonids and 
made several recommendations to improve the effectiveness of the 
removal program.
    The section 120 process has proven litigious. After the issuance of 
the removal authorization in 2008, the Humane Society of the United 
States filed a complaint in the U.S. District Court in Oregon. 
Plaintiffs contended that NMFS violated the MMPA, NEPA, and the 
Administrative Procedure Act (APA) when it authorized the lethal 
removal of individually identifiable California sea lions. In 
particular, plaintiffs argued NMFS' decision was factually indefensible 
and inconsistent with other agency decisions under NEPA and the ESA 
involving salmon (specifically fishery harvest and hydropower 
operations), and that NMFS failed to provide an adequate explanation 
under the APA as to why sea lion predation was significant as defined 
under the MMPA, whereas take by fisheries and hydropower operations was 
insignificant as defined under other applicable laws (e.g., NEPA).
    In November 2008, the district court upheld NMFS' lethal removal 
authorization and NEPA analysis. Plaintiffs appealed and on November 
23, 2010, the Ninth Circuit issued a partially favorable decision to 
plaintiffs. The Ninth Circuit held, for purposes of the MMPA 
authorization, that NMFS failed to provide a satisfactory explanation 
concerning two main points: (1) the seemingly inconsistent findings 
that sea lion predation is significant for purposes of the MMPA, but 
similar or greater levels of take of the same salmonid populations by 
other activities--such as fishery harvests in the Columbia River--are 
not significant under NEPA; and (2) the agency's failure to explain 
adequately what the court viewed as the agency's implicit finding that 
a California sea lion predation rate of greater than 1% results in a 
significant negative impact on the decline or recovery of salmonid 
populations. Despite the adverse MMPA decision, the Ninth Circuit 
upheld the NEPA analysis. The Ninth Circuit directed the district court 
to vacate the decision authorizing lethal removal and remanded it to 
NMFS ``...to afford the agency the opportunity either to articulate a 
reasoned explanation for its action or to adopt a different action with 
a reasoned explanation.'' HSUS v. Locke, 626 F.3d 1040, 1053 (9th Cir. 
2010).
    On May 12, 2011, NMFS, having considered the available information 
accumulated since 2008 and its previous effects analysis under NEPA and 
the ESA, and following the appellate court's instruction, reissued its 
lethal removal authorization. The terms and conditions of the current 
authorization are virtually the same as those in the 2008 
authorization.
    The spring Chinook salmon run past Bonneville Dam began several 
weeks late in 2011, but increased rapidly beginning April 25. 
California sea lions also arrived at the dam later and in smaller 
numbers than in recent years. Non-lethal deterrence measures were 
implemented through most of the 2011 season. Predation numbers were 
lower than the previous year for the first time since 2005. On May 18, 
2011, following receipt of the re-issued authorization the States 
successfully captured one of the individually identifiable California 
sea lions that was authorized for removal and it was humanely killed. 
NMFS' and the States' efforts to control California sea lion predation 
at Bonneville Dam has once again been challenged by the Humane Society 
of the United States. A lawsuit was filed on May 19, 2011, in the U.S. 
District Court for the District of Columbia. Similar to the previous 
litigation, the Humane Society asserts that NMFS, in issuing the 
section 120 authorization, violated the MMPA, NEPA, and APA.
H.R. 946
    Representative Hastings and his colleagues introduced H.R. 946 in 
March 2011. This bill is a modified version of Representative Baird's 
H.R. 1769 introduced in the 110th Congress and to H.R. 6241, introduced 
in the 109th Congress. Several aspects of H.R. 946 are consistent with 
our 1999 Report to Congress. The bill identifies and aims to address 
the complicated and controversial wildlife management conflict we face 
on the Columbia River today. It correctly recognizes: the limitations 
of nonlethal methods to protect salmonids from sea lion predation; the 
enormous investment that many agencies, organizations, and the public 
have made to conserve and recover at-risk salmon and steelhead 
populations in the Columbia River basin; and that the Columbia River 
Intertribal Fish Commission and their member Tribes should be included 
in addressing this conflict.
    We appreciate the bill's attempts to streamline procedures 
necessary to take action. Our goal is a delicate balance between 
protecting marine mammals under the MMPA and recovering ESA-listed 
salmonids. With that in mind, we are careful in how and when we take 
action to lethally remove California sea lions to protect listed 
salmonids. From experience, however, we note that we have faced 
numerous challenges with the requirement regarding individual 
identification of sea lions foraging on salmon. This requirement is 
extremely difficult given the enormity of the Columbia River basin and 
encumbers the ability to remove the animals and provide efficient and 
effective protection for salmon. This requirement would also be 
extremely difficult to meet if it is determined that broader action is 
needed elsewhere in the Columbia River basin. We also do not support 
the exemption from NEPA. We found the environmental review process 
valuable when reaching our determination at Bonneville Dam and would 
support legislative solutions that allow adequate time to complete an 
environmental review. We would be happy to further discuss this and 
potential solutions with the Committee at your convenience.
    The bill would also require NMFS to make a determination that 
nonlethal measures are ineffective--following a public review and 
comment period--and then require each permit holder to duplicate that 
determination for each sea lion prior to removal. It is not clear why 
the permit holder determination is necessary when NMFS would have 
already made such a determination. Indeed, NMFS has already made such a 
determination in its 2008 section 120 decision documents regarding 
California sea lions at Bonneville Dam.
    The bill also requires NMFS to prepare a report to Congress on the 
need for additional legislation. This requirement should be made 
precatory, to respect the President's prerogatives under the 
Recommendations Clause. As previously described, NMFS prepared such a 
report in 1999. California sea lion predation on salmonids at 
Bonneville Dam has become a significant problem since the report was 
completed.
    Besides the streamlining concerns noted above, there are a few 
operational challenges in the bill and some provisions are confusing. 
Coordinating the activity of permit holders also seems difficult in 
that multiple permits may be issued to six different ``eligible 
entities'' but each entity may use only one permit during any 2-week 
period. Tracking such a system would be difficult.
Conclusion
    The MMPA has provided strong protections for all marine mammals, 
regardless of their population status, for more than 30 years. The 
Administration believes that in some cases lethal removal may be 
necessary to manage pinniped-fishery conflicts, and that such 
management is not inconsistent with the purposes and policies of the 
Act. We appreciate this bill's recognition of that need and stand ready 
to work with the Committee to address our concerns with the bill.
                                 ______
                                 
    Dr. Fleming. Thank you, Mr. Lecky, and that was perfect 
timing. Next is Mr. Brown, Program Leader for Marine Mammal 
Research, Oregon Department of Fish and Wildlife. You have five 
minutes, sir.

    STATEMENT OF ROBIN BROWN, PROGRAM LEADER, MARINE MAMMAL 
        RESEARCH, OREGON DEPARTMENT OF FISH AND WILDLIFE

    Mr. Brown. Thank you, Mr. Chairman, and Members of the 
Subcommittee. My name is Robin Brown. I am the Program Leader 
for Marine Mammal Research and Management with the State of 
Oregon Department of Fish and Wildlife. I have been working in 
the area of seal and sea lion population biology, food habits, 
and interaction with fisheries and fish resources for 35 years.
    We thank you for your interest in this issue, and we also 
thank the NOAA Fisheries Service for working closely with the 
States to evaluate and address the resource conflicts that 
arise between at-risk salmon and steelhead populations, and 
abundant seal and sea lion populations.
    Over the past four years, we have encountered a number of 
problems and roadblocks with implementation of our Section 120 
authority, the tool that was created by Congress in 1994, and 
we recognize the efforts of Representative Hastings and this 
Subcommittee in drafting H.R. 946 in response to the current 
limitations of Section 120.
    Hopefully the comments that I can provide for you here and 
in my written testimony will help you understand the problems 
that we have experienced. First, a little background on 
California sea lions. As has been stated the population is 
extremely healthy and is at or near historic population levels.
    There is absolutely no risk that the removal of small 
numbers of sea lions from the population will have any negative 
effect on the robust status of the population as a whole.
    Archeological and anthropological evidence demonstrates 
that the California sea lions were not historically found in 
the Columbia River. Therefore, the argument that the California 
sea lions have always occurred in this area, and are only 
exhibiting historical use of traditional foraging areas is not 
true.
    Only over the past 10 years have more than just two or 
three California sea lions been observing feeding below the 
Bonneville Dam, 145 miles from the Pacific Ocean. We believe 
that the intent of Congress in adding Section 120 to the MMPA, 
Marine Mammal Protection Act, was to favor at-risk salmon and 
steelhead stocks over abundant pinniped populations.
    This point was made in the original preamble, title, and 
findings of Section 120. We have made important initial 
progress at reducing the abundance of habitual predatory 
California sea lions, taking salmon and steelhead at Bonneville 
Dam.
    However, during this past 2011 field season, we lost the 
opportunity to continue that downward trend of predatory sea 
lion numbers in the Columbia River. A major constraint with 
Section 120 involves the vague definition of what is 
significant in terms of losses of ESA listed salmonids to 
predatory pinnipeds.
    At present, resource managers are not permitted to take 
proactive measures to prevent smaller manageable problems from 
growing into major ones. This is a classic Catch 22 situation.
    The problem cannot be addressed until it is very large, and 
once it has reached that level, it is very difficult to 
resolve. Had we been able to act in 2002 by removing just a few 
predatory California sea lions each year as they began feeding 
below Bonneville Dam, far more ESA listed salmon would have 
been saved, and far fewer sea lions would have had to have been 
removed, and something that all of us would prefer to see.
    The costs involved with the protracted management process 
currently required under Section 120, including responding to 
legal challenges at the State and Federal level, are immense, 
and could be greatly reduced with the appropriate modifications 
to the current law.
    Our esteemed colleague here, Sharon Young, will argue that 
Section 120 was meant to be used only in situations involving 
small numbers of predatory sea lions, but there is the Catch-22 
dilemma again.
    Section 120 as currently written cannot be used when small 
numbers of predators are involved because in nearly all cases 
demonstrating a significant negative impact to the salmon and 
steelhead would not be possible.
    Currently, we are seeing similar problems develop in other 
areas in the Columbia River Basin, including the Willamette 
River, a major tributary to the Columbia. If we were able to 
remove small numbers of animals there ahead of time, we could 
avoid a very large problem in the future.
    Another overly restrictive and unnecessary measure in 
Section 120 is the requirement to know predatory pinnipeds as 
individuals. We know from decades of research that these 
animals repeat individual feeding behaviors year after year.
    Of the quarter-million in the United States population, our 
research demonstrates that only about 200 to 300 individual 
California sea lions, no more than one percent of the entire 
population, have ever been seen up-river foraging for salmon 
and steelhead.
    Clearly, this is a group of individual animals that are 
exhibiting a unique feeding behavior. Currently, the option of 
Section 120 is not geographically limited to the Columbia 
Basin. This would be an important measure to retain since we 
have seen problems arising in other areas.
    However, Section 120 currently addresses only ESA listed 
salmon, and we are seeing significant problems with other fish 
resources and sea lion predation. We feel that the opportunity 
to use Section 120 should be expanded to other fishery 
resources that are at risk due to pinniped predation. Thank you 
very much for the time, and we are grateful for the work of the 
Subcommittee on this important issue to us.
    [The prepared statement of Mr. Brown follows:]

Statement of Mr. Robin F. Brown, Program Leader, Marine Mammal Research 
and Management, Oregon Department of Fish and Wildlife, State of Oregon

Introduction
    I am Robin Brown, Program Leader for Marine Mammal Research and 
Management with the Oregon Department of Fish and Wildlife. I have been 
working as a professional biologist in the area of seal and sea lion 
population biology for 35 years and have extensive experience in the 
area of seal and sea lion (pinnipeds) food habits and the interactions 
of these animals with fish resources, and with sport and commercial 
fisheries.
    I thank the chair and the members of this committee for their 
interest in addressing the conflicts that often arise between healthy 
and robust pinniped populations and important, at-risk fish resources 
currently at low abundance levels. We appreciate the opportunity to 
provide these written comments on H.R. 946 and to present oral comments 
at the hearing on June 14, 2011.
    I also thank the NOAA Fisheries Service for working closely with 
the state fish and wildlife management agencies to evaluate and address 
these resource conflicts. We have all come to recognize the 
contradictions that sometimes arise between efforts to protect and 
recover salmonid species listed under the Endangered Species Act (ESA), 
and the management of robust and healthy pinniped populations protected 
under the Marine Mammal Protection Act (MMPA). Resolving these issues 
is a critical effort that will contribute to the recovery of ESA-listed 
salmonids and other valuable fish resources in the Pacific Northwest. 
All contributions to fish population recovery are important, no matter 
how small, in order to achieve success.
    In 2008, under Section 120 of the MMPA, NOAA Fisheries granted 
authority to the States of Oregon and Washington to lethally remove 
predatory California sea lions that are having significant negative 
impacts on threatened and endangered salmonid populations in the 
Columbia River Basin. Over the past four years, during the application 
of the Section 120 authority, we have encountered a number of problems 
and roadblocks that have seriously limited our ability to successfully 
implement this management tool. I will focus the comments in my 
testimony before this committee on those problems.
Background: California Sea Lions in the Columbia River
    Contrary to the statements of many, California sea lions are not 
endemic to the Columbia River. Archeological and anthropological 
evidence demonstrates that California sea lions were not historically 
found in the lower Columbia River. Observations of this species 
foraging in the Columbia River have been common only over the past 40 
years as a result of population growth following implementation of the 
MMPA in 1972. Therefore, the argument that California sea lions have 
always occurred in the Columbia River and are only exhibiting the 
historic use of traditional foraging areas is a false statement. These 
animals are quick to learn and highly adaptable. As such they have 
found new areas to feed in recent years and the Columbia River below 
Bonneville Dam is one of those relatively new feeding areas. Only over 
the past ten years have more than just two or three California sea 
lions been observed feeding below Bonneville Dam, 145 miles up the 
Columbia River from the Pacific Ocean.
MMPA Section 120 Authority for Lethal Removal of Predatory Pinnipeds
    We believe that the addition of Sec 120 to the MMPA in 1994 was the 
first attempt by Congress to provide the States with a new management 
option for reducing pinniped predation on ESA-listed salmonid 
populations, and that the intent of Congress was to favor at-risk 
salmonid stocks over abundant pinniped populations. This point was made 
clear in the Preamble and in the Title and Findings stated by Congress 
when developing the Section 120 language in 1994.
    However, in attempting to implement the congressional intent of 
managing in favor of the species at greatest risk, the States and NOAA 
Fisheries Service have encountered significant roadblocks to the 
successful use of Section 120. We need the help of Congress to amend 
the MMPA to resolve the problems encountered by state and federal 
resource management agencies while attempting to use Section 120 to 
successfully manage the problems of abundant, non-listed pinnipeds 
preying on populations of threatened and endangered salmonid 
populations.
    We recognize that the effort of Representative Hastings and this 
committee in drafting HR 946 is in response to the limitations of Sec 
120 as currently written, and that HR 946 is intended to provide a more 
functional and effective option for management agencies that are 
attempting to deal with these resource conflicts. We certainly 
appreciate your work in this area.
    While, under the current Section 120 authority, we have made 
important initial progress at reducing the abundance of habitual 
predatory California sea lions taking salmon and steelhead at 
Bonneville Dam, a number of problems have arisen that have limited our 
success. The major issues we have encountered are described below.
    The repeated legal challenges of the Section 120 authority issued 
by NOAA Fisheries to the States has restricted our ability to remove 
predatory California sea lions in a timely manner. During this past 
2011 spring field season, we missed the opportunity to remove an 
additional 15-20 sea lions. This was particularly troublesome since the 
number of habitual predators had been noticeably reduced by removals 
made during the previous three years, and California sea lion numbers 
at Bonneville Dam this year were consistently below recent averages. We 
lost the ability to continue that downward trend in predators by not 
having the ability to remove predators this year.
The Term ``Significant'' in the Current Section 120 Language
    A major problem with Section 120, as currently written, involves 
the vague definition of what is ``significant'' in terms of loses of 
ESA-listed salmonids to predatory pinnipeds. At present, resources 
managers are not permitted to take proactive measures to prevent 
smaller, manageable problems from growing into major ones. Section 120 
requires managers to wait until the problem of predation is very large 
and nearly unmanageable before a Section 120 removal authority can be 
issued. This is a classic ``Catch-22'' situation. The problem can not 
be addressed until it is ``significant'', and once it has reached that 
level, it is very difficult to resolve. Had the States been able to act 
in 2002 by removing just a few predatory California sea lions each year 
as they began feeding below Bonneville Dam, far more ESA-listed 
salmonids would have been saved and far fewer sea lions would have had 
to be removed, something all of us would prefer. The costs involved 
with the protracted management process currently required under Section 
120, including responding to legal challenges, are immense and could be 
greatly reduced with appropriate modifications to the current law.
    Some will argue that Section 120 was meant to be used only in 
situations involving small numbers of predatory sea lions. But there is 
the ``Catch-22'' dilemma. Section 120 as currently written can not be 
used when small numbers of predators are involved because in nearly all 
cases, demonstrating a ``significant'' negative impact to the salmonids 
would not be possible.
    The States feel that Congress added Section 120 to the MMPA to deal 
with just the type of problem we have at Bonneville Dam, and that is to 
protect at-risk, ESA-listed salmonids from abundant predatory 
pinnipeds. Currently, we are seeing similar problems developing in 
other locations in the Columbia River Basin, including on the 
Willamette River, a major tributary to the Columbia. At this location 
we have a small, but growing number of predatory sea lions consuming 
salmonids, including ESA-listed stocks. If we were able to remove a 
small number of predators now, we could avoid a very large problem in 
the future. But again, Section 120 will not let us be proactive, but 
instead we must wait until the problem is very large and becomes 
difficult and very costly to manage, resulting in the death of more 
salmonids and more sea lions than is desired or necessary to resolve 
the problem.
    We feel that waiting to document ``a significant negative impact'' 
as required in the current Section 120 language is an inappropriate 
approach to determining that predatory pinnipeds will negatively impact 
ESA-listed salmonid stocks. By now we know from experience that when a 
small number of California sea lions find a new foraging area and begin 
consuming salmonids, resource managers should have the option to take 
proactive measures to avoid the development of a large and unmanageable 
situation. By doing so we can minimize both the number of salmonids 
lost to predation and the number of pinnipeds that must be removed to 
save those fish. In addition, the total cost of such a program would be 
far less than that required under the current Section 120 process.
The Identification of ``Individual'' Predatory Sea Lions
    Another unnecessary restriction in Section 120 at this time is the 
requirement to know predatory pinnipeds as individual animals. We know 
from decades of research that individual sea lions learn and repeat 
specific feeding behaviors at specific locations at specific times of 
the year. We have documented this through capture and marking programs, 
through use of satellite-linked telemetry to track foraging 
individuals, and by many thousands of hours of direct observations of 
foraging sea lions at many locations. The U.S. California sea lion 
population is estimated at nearly 250,000 animals. The species is very 
healthy, in robust condition, and is likely at or above historical 
population levels. Yet of those 250,000 animals, our marking studies 
document that only about 3,000 California sea lions have ever occurred 
in the lower Columbia River estuary within just 10 miles of the ocean. 
These same studies demonstrate that, of the more than 1300 California 
sea lions that have been branded in the estuary, less than 10% have 
ever been observed at upriver areas foraging for salmonids. As a 
result, there are probably no more than 200-300 individual California 
sea lions, or no more than 1% of the entire population, that ever 
travel up the Columbia River in search of salmon and steelhead.
    Ten years of direct observations at Bonneville Dam have shown that 
some 100-200 individual California sea lions have been observed at this 
location 145 miles from the ocean, and the vast majority of those 
animals have been seen there consuming salmonids over many years. 
Clearly this is a group of individual animals that has learned this 
feeding behavior and repeats it year after year. The remaining 99% of 
the population, in all likelihood, has never entered the Columbia River 
and prefers to forage in the near-shore ocean. The sea lions that 
forage in the Columbia River over 100 miles from the ocean are 
individual animals exhibiting a specific and repeated foraging 
behavior. They are individual animals, exhibiting feeding behaviors 
completely unlike the overwhelming majority of the population.
Section 120 and Other Important Fish Resources
    Currently the option to apply for Section 120 removal authority for 
predatory pinnipeds is not geographically limited to the Columbia River 
Basin. This is an important option to retain in the current law since 
we have seen the potential for similar predation problems to develop at 
other locations in the Pacific Northwest. However, Section 120 
currently addresses only pinniped predation on ESA-listed salmonids. 
Recently we have documented significant problems of pinniped predation 
on important fish resources other than salmonids that have the 
potential to severely impact fish stocks currently at low levels of 
abundance. A primary example of this concern is the predation by 
California sea lions and, more importantly, Steller sea lions on White 
Sturgeon in the Columbia River. Over the past ten years many thousands 
of these fish have been killed by pinnipeds in the lower Columbia River 
and more are being taken each year. We feel the Section 120 option for 
lethal removal of predatory pinnipeds should be broadened to include 
not only ESA-listed fish, but also those fish determined by federal and 
state resource management agencies to be a great risk due to increasing 
pinniped predation.
Closing Comments
    We are grateful for the work NOAA Fisheries has done to issue the 
current Section 120 authority to the States for removal of predatory 
California sea lions taking ESA-listed salmonids in the Columbia River. 
We believe it is important to retain this authority and will work 
closely with NOAA Fisheries to insure that it remains available as a 
management tool.
    Finally, we greatly appreciate the work of the House Natural 
Resource Committee and that of our Northwest Congressional 
representatives aimed at addressing the problems of abundant pinnipeds 
negatively impacting ESA-listed salmonids and other important cultural 
and commercial fish resources.
                                 ______
                                 
    Dr. Fleming. Thank you, Mr. Brown. Next, we have Mr. 
Norman. You have five minutes, sir.

   STATEMENT OF GUY R. NORMAN, SOUTHWEST REGIONAL DIRECTOR, 
           WASHINGTON DEPARTMENT OF FISH AND WILDLIFE

    Mr. Norman. Thank you, Mr. Chairman, and Members of the 
Committee, I am Guy Norman, and I am the Regional Director for 
the Washington State Department of Fish and Wildlife. I 
appreciate the opportunity to speak with you today regarding 
the importance of salmon to the people of the Northwest, and 
the expected consequences to salmon recovery efforts if we are 
unable to manage increasing sea lion predation of Columbia 
River salmon.
    Now, the decline in wild salmon is not due to any one 
factor, but a cumulative effect of increased mortality 
throughout the salmon life cycle. In response, there has been 
an extraordinary and collaborative effort in the Northwest by 
the public, local governments, State and Federal agencies, and 
the tribes to recover salmon by addressing all manageable 
sources of mortality.
    For example, habitat is being improved for salmon through 
changes in land use, local dam operations, water access, and 
millions of dollars are being invested in habitat restoration 
projects.
    The Federal dam operators are now investing hundreds of 
millions of dollars annually through dam operation changes, and 
other recovery actions to support salmon. Fisheries have been 
reduced to meet the needs of endangered salmon with significant 
costs to Northwest communities and cultural consequences to 
Columbia River tribes.
    Hatchery operators are investing changes to ensure hatchery 
support recovery while they continue to provide salmon for 
fisheries. Now, predation by some natural predators has 
increased dramatically in the Columbia Basin in recent years.
    This is partly due to changing habitat, but also due to the 
success of protection measures, including the Marine Mammal 
Protection Act with regard to sea lions. In circumstances where 
the predation is now out of balance and growing, it cannot be 
ignored in a comprehensive recovery strategy.
    Recovery plans list increasing sea lion predation as one of 
the highest limiting factors in the estuary portion of the 
salmon's migration route. There are 32 separate wild chinook 
populations at various levels of extinction risk that are 
intercepted by these sea lions in the spring in the Columbia 
River.
    In contrast, both sport and commercial fisheries in these 
same waters are required to keep marked hatchery fish, and 
release wild salmon unharmed. Tribal fisheries are also limited 
by their status of wildlife fish, and often reduced to levels 
below their minimal cultural and subsistence needs.
    The region cannot afford to allow sea lion predation to 
continue to increase, or it would effectively cancel out other 
costly recovery actions. The idea is to reduce predation, and 
not eliminate it, which is consistent with the approach in 
managing other sources of human impact to the salmon.
    Now, since we began addressing California sea lion 
predation a few years ago, a new sea lion problem has emerged 
even more recently with increasing numbers of stellar sea lions 
in the Columbia River.
    The stellar sea lions are targeting sturgeon before the 
spring salmon arrive, and biologists are now projecting over 
10,000 sturgeon will be consumed by sea lions this year alone 
in an increasing trend.
    There is currently no provision in Section 120 to manage 
sea lion predation on a fishery resource other than listed 
salmon and steelhead. Now, the Section 120 requirement that an 
individual sea lion be identified as causing a significant 
effect on listed salmon or steelhead creates additional work 
and expense, limits the area that can be managed, and has been 
the focus of legal challenges.
    However, we do appreciate the current authority under 
Section 120, and we will assist the National Marine and Fishery 
Service in defending it. It is important to maintain this 
authority to provide some level of relief and hopefully prevent 
the problem from getting worse while legislation is being 
considered.
    We appreciate the work of Natural Resources Committee 
Chairman Doc Hastings, and Representative Walden, in drafting 
H.R. 946. I want to thank Chairman Fleming for the opportunity 
to speak to this Subcommittee today. I look forward to the 
development of this legislation. Thank you very much.
    [The prepared statement of Mr. Norman follows:]

          Statement of Mr. Guy R. Norman, Regional Director, 
    Washington Department of Fish and Wildlife, State of Washington

Introduction
    I am Guy Norman, Southwest Washington Regional Director for the 
Washington State Department of Fish and Wildlife (WDFW). I oversee 
agency policy in Southwest Washington, including management of natural 
resources in the lower Columbia basin. I I have been involved in 
Columbia River salmon management for over 30 years, including 
participation in collaborative inter-governmental and public processes 
focused on recovering Columbia basin fishery resources.
    The WDFW appreciates the opportunity to present the following 
written testimony on H.R. 946 to the Chair and members of this 
Subcommittee regarding sea lion predation on threatened and endangered 
salmon and steelhead of the Columbia River. The sea lion predation is a 
serious and growing concern and the magnitude of the impact to salmon 
has the potential to void other major investments the region is making 
to restore these fishery resources.
    WDFW serves Washington citizens by protecting, restoring and 
enhancing fish and wildlife and their habitats, while providing 
sustainable and wildlife-related recreational and commercial 
opportunity. We hold this public trust in high esteem and strive to 
meet these challenges that put our focus on fish and wildlife 
sustainability to the test. We understand that without abundant 
populations of fish and wildlife, the quality of life in the Northwest 
and economies that depend on these natural resources will continue to 
be seriously compromised.
Columbia Basin Salmon Decline and Recovery Efforts
    Northwest states, federal agencies, and tribes have been involved 
in efforts to restore wild salmon and steelhead populations in the 
Columbia basin for several decades. Washington has worked cooperatively 
with Oregon, Idaho, and the Columbia River Treaty Indian tribes for 
over 40 years to manage fisheries and to rebuild salmon populations 
through a series of management agreements. However, due to a 
combination of factors, most Columbia River basin wild salmon and 
steelhead populations have declined to a level where they are listed 
under the Endangered Species Act (ESA) as threatened or endangered. 
This decline is not associated with just one factor, but a cumulative 
effect of increased mortality throughout the salmon life cycle. From 
their beginning as juveniles in a stream, to their migration through 
the Columbia River, to their ocean residence, and return to the stream 
of origin as adults to spawn, the Columbia River salmon are subjected 
to various sources of mortality.
    In response to the endangered or threatened status of many wild 
salmon populations, there has been an extraordinary and unprecedented 
cooperative effort in the Columbia River region to protect and recover 
salmon and steelhead. ESA-guided recovery plans have been developed and 
implementation is underway in every watershed; to restore important 
habitat, improve dam passage survival, re-tool hatchery programs to 
assist wild populations, and closing or reshaping fisheries to focus on 
selectively harvesting healthy hatchery fish. These are comprehensive 
recovery plans that identify and provide an implementation strategy to 
reduce all sources of mortality throughout the salmon's life cycle.
    Examples of salmon recovery commitments include:
        1.  Habitat--Local area watershed recovery boards have been 
        established and funded for every region (or domain) in which 
        ESA-listed salmon and steelhead populations originate. These 
        recovery boards have been charged with developing action plans 
        aimed at recovery of local salmon populations. These board 
        members include representatives of local county and city 
        governments, tribes, state and federal agencies, and local 
        citizens. The recovery boards take inventory of the primary 
        limiting factors and develop a corresponding suite of actions 
        needed to remedy those factors. The action plans cover changes 
        in land use, water access, and restoration of local habitat, 
        local utility dam operations, as well as changes in salmon 
        hatchery practices and restricted or closed fisheries. There is 
        also an established Columbia River Estuary Partnership that 
        consists of state, federal and tribal representatives and 
        includes active involvement of local habitat restoration-
        focused environmental organizations. Estuary recovery actions 
        address habitat restoration, water flow, and predation in the 
        lower 145 miles of the Columbia River in which all listed 
        populations pass through on the way to and from the ocean. The 
        recovery plans include reduction of excessive bird, fish, and 
        marine mammal predation as a key component of a comprehensive 
        recovery strategy.
        2.  Hydropower--The Federal Columbia River Power System (FCRPS) 
        is operated to benefit the citizens of the Northwest through 
        flood control and generated clean energy. Operation of the 
        system also includes a legal obligation to operate in a manner 
        that mitigates the effects of the Columbia River federal hydro-
        system so as to not jeopardize the continued existence of 
        endangered and threatened salmon and steelhead populations. A 
        collaborative process led to the most recent plan for salmon 
        protection and recovery in 2008 that commits the federal power 
        system operators to invest hundreds of millions of dollars to 
        support both operational changes to improve fish passage 
        through the hydro-system as well as funding support for other 
        important actions involving habitat restoration, hatchery 
        reform, fishery management, and reducing predation by fish, 
        birds, and marine mammals. This mitigation commitment provides 
        much of the funding for the actions developed in the local ESA 
        recovery plans.
        3.  Harvest--Fisheries that effect Columbia River salmon 
        populations have been progressively reduced over the past 
        several decades in response to the declining salmon 
        populations. The states and tribes have implemented actions 
        through management agreements to ensure fisheries are operated 
        in a manner that protects the weaker salmon populations while 
        ensuring federal court orders that require salmon harvest to be 
        shared equitably between treaty Indian and non-Indian citizens 
        are upheld. Formal actions include International Agreements 
        through the Pacific Salmon Treaty with Canada as well as U.S. 
        v. Oregon court ordered agreements for Columbia River fisheries 
        that include ESA provisions to ensure that Columbia River 
        harvest does not jeopardize wild salmon populations. These 
        harvest actions have greatly reduced fisheries from past levels 
        with significant economic consequences to Northwest communities 
        that rely on fisheries as well as economic and cultural effects 
        on the Columbia River tribes. State managers, with federal 
        assistance, are further developing selective fishery practices 
        to enable better fishery access to hatchery-produced fish while 
        avoiding or minimizing impacts to wild fish.
        4.  Hatcheries--The federal, state, and tribal managers in the 
        Columbia basin have been and continue to develop and implement 
        operational plans for Columbia River salmon hatcheries to 
        ensure that they are operated in a way that supports wild 
        salmon recovery while continuing to provide hatchery fish to 
        support Pacific Ocean and Columbia River fisheries and the 
        economies that depend on these fisheries. A federally supported 
        process included a recent basin-wide inventory by a panel of 
        scientists called the Hatchery Scientific Review Group (HSRG). 
        The HSRG has provided a set of recommendations for operation of 
        each Columbia Basin hatchery consistent with wild fish 
        recovery. The agencies and tribes are cooperatively addressing 
        hatchery management measures in the basin and the federal power 
        system agencies have committed to investing in hatchery reform 
        and monitoring as part of their support of basin-wide salmon 
        recovery efforts.
        5.  Predation--The effects of certain natural predators of 
        salmon in the basin has increased dramatically from historical 
        levels. This is partly due to changing habitat more appealing 
        to certain fish and birds and partly due to increased numbers 
        of predators due to various protection measures, including the 
        Marine Mammal Protection Act (MMPA). Although the predation of 
        salmon by birds, fish, and marine mammals may be natural, there 
        are specific circumstances in the Columbia basin where the 
        predation has grown to a level where it is significantly out of 
        balance with historic levels and cannot be ignored in a 
        comprehensive recovery strategy. Because of this reality, the 
        hydropower operators fund large programs to reduce northern 
        pike minnow fish predation on juvenile salmon by reducing their 
        numbers through a bounty reward program and to re-locate record 
        numbers of Caspian terns to alternative bird colony locations 
        to reduce the impact on migrating salmon juveniles. The states 
        were authorized and funded to remove certain identifiable 
        predatory California sea lions at Bonneville Dam beginning in 
        2008 and have made some progress to date. However, the 
        conditions associated with the current requirements of Section 
        120 of the MMPA are difficult to implement and legal challenges 
        have slowed the progress towards reducing impacts to salmon.
    The habitat, hydro, harvest, hatchery, and predation recovery 
actions represent a major monetary and social investment in the region, 
underscoring the importance of maintaining salmon populations to the 
citizens and governments of the four states and tribes that reside in 
the Columbia basin. The people of the Northwest have supported 
restoration efforts, and are willing to bear the costs, because of the 
importance of salmon to our heritage, the cultural value to Native 
Americans, and the economic value of salmon to our communities. State 
and federal agencies, tribal and local governments, and the public, 
have developed these salmon recovery plans through an extraordinary 
collaborative effort and are committed to rebuild these depleted salmon 
populations.
Sea Lion Predation and the Future of ESA Listed Salmon Populations
    There are thirteen separate Columbia River salmon and steelhead 
population segments that were listed under the ESA during 1991-2005. 
There are multiple individual populations within each population 
segment that are at various levels of extinction risk. The 
aforementioned recovery plans and associated actions are designed to 
reduce extinction risk for each individual population and provide the 
conditions for recovery of each of the thirteen population segments.
    In order to ensure the survival and recovery of the listed salmon 
it is important to have protection and recovery actions that are 
tailored to the needs of each individual population. To accomplish 
this, actions are planned and implemented in each watershed where these 
unique populations reside. Additional survival improvement actions are 
implemented in places the various populations share as they all migrate 
downstream through the Columbia River to the ocean as juveniles and 
back upstream through the Columbia River and into various tributaries 
to spawn as adults. The efforts to improve survival in the local 
watersheds can include significant land use changes effecting urban and 
rural development, logging, agriculture, dam operations, reductions in 
hatchery fish produced, and closure of local fisheries. These local 
efforts, and associated costs, cannot alone adequately protect and 
restore salmon. The local actions must be combined with additional 
actions outside of the watershed, including predation reduction, to 
achieve a cumulative increased survival effect. Each incremental 
survival improvement during the salmon's life experience becomes an 
essential component of recovery.
    The National Marine Fisheries Service (NMFS) has endorsed recovery 
plans that list predation (including sea lion predation) as one of the 
highest limiting factors in the estuary portion of the salmon migration 
route.
    There has been a significant change in behavior of an increasing 
number of male California sea lions during the past nine years. Instead 
of concentrating forage activity in the ocean or in the lower estuary 
area of the Columbia River, they began swimming 145 miles up the 
Columbia River in the winter and spring to prey on threatened and 
endangered adult salmon while the fish attempt to locate and pass 
through fish ladders at Bonneville Dam. Having survived various sources 
of mortality as downstream migrating juveniles and again as returning 
adults, many of these adult wild salmon still have over 500 miles to 
travel before completing their journey from the river mouth to their 
spawning grounds, if they make it past the foraging sea lions. There 
are 32 separate ESA-listed wild spring Chinook salmon populations, at 
various levels of extinction risk, that are exposed to this 
concentrated sea lion predation during the late winter and spring 
period.
    In contrast, both sport and commercial fishing regulations for 
spring salmon in these same waters require that only marked hatchery 
fish can be retained, while unmarked wild salmon must be released 
unharmed. Harvest opportunity on the healthy hatchery salmon is 
controlled by limits on incidental impacts to wild salmon that are 
released while fishing for hatchery fish. Tribal fisheries are 
prosecuted consistent with federal treaty trust responsibility, but are 
also limited by status of wild fish and often reduced to levels below 
their minimum cultural and subsistence needs. The harvest impact limits 
are established in Federal Court agreements that comply with ESA, are 
reduced significantly from past levels, and represent an increase in 
survival of wild salmon through this particular source of mortality. 
The NMFS endorsed comprehensive recovery plans recognize and count on 
this increase in survival of salmon through the fisheries. Fisheries 
are closely monitored to ensure the expected salmon recovery 
contribution is met.
Management Objective
    The fundamental objective shared by states, federal agencies, and 
tribes is to reduce the sea lion predation of salmon so there is an 
increase in the overall survival of the wild salmon. Additionally, the 
region cannot afford to allow sea lion predation of wild salmon to 
continue to increase, or it would effectively cancel out a portion of 
other more costly recovery actions. The idea is to reduce predation, 
not eliminate it, which is consistent with the approach taken to manage 
other sources of impact to the salmon. Sea Lions, birds, and fish 
should be able to continue to predate on salmon, just as people that 
benefit from the Columbia River water, power, and fishery resources 
should not be completely extracted from a manageable level of those 
benefits. However, if salmon are to continue to exist and rebuild, all 
sources of mortality must be managed within a balance that makes it 
possible to achieve recovery. It is the combined effect of these 
reductions that will make it possible to meet the goal.
Sea Lion Predation on Columbia River Sturgeon
    While managers have focused on California sea lion predation of 
salmon, a new management problem has arisen with Steller sea lion 
predation of Columbia River sturgeon. Since 2008, the number of Steller 
sea lions present in the Columbia River as far as 145 miles inland to 
Bonneville Dam has increased significantly. The Steller sea lions are 
arriving in the Columbia River in the fall and concentrating on 
sturgeon as a primary food source before the salmon begin to return to 
the Columbia River in the spring. The Steller sea lion consumption of 
listed salmon is also increasing, but the most dramatic increase has 
occurred with sturgeon. Washington and Oregon biologists have projected 
that sea lion consumption of sturgeon will increase to over 10,000 fish 
in 2011. The Columbia River sturgeon population below Bonneville Dam 
rebounded from depressed levels 60 years ago. However, recent years 
have seen a decline in sturgeon numbers and managers have repeatedly 
reduced harvest and added protections in an attempt to maintain a 
healthy sturgeon population. State managers are concerned about the 
increasing and unregulated impact of Steller sea lions on the future 
health of the sturgeon population. There is particular concern with 
increasing predation of large female sturgeon (above five feet in 
length) that are of mature reproduction size. There is currently no 
provision in Section 120 to manage sea lion predation of a fishery 
resource other then ESA-listed salmon and steelhead.
Need for a Reasonable Resource Management Tool
    It is important that state and tribal natural resource managers 
have the necessary tools to restore a balance between abundant and 
healthy sea lion populations and the endangered and threatened salmon 
and steelhead populations in the Columbia River, and in other areas 
where sea lion predation develops into an additional new threat to ESA-
listed salmon recovery efforts. It is also important that managers have 
the tools to address other developing resource management challenges 
such as increasing threats to sturgeon in the Columbia River.
    The benefit of a law that enables efficient and timely permanent 
removal of California sea lions that travel far inland to feed on wild 
salmon is to reduce a recent and significant source of mortality and 
avoid compromising the ongoing federal, state and tribal efforts to 
recover ESA-listed salmon and steelhead populations in the Columbia 
River basin. It is not our contention that California sea lion 
predation is more significant than other sources of mortality to 
Columbia River ESA-listed salmon, but simply that it is significant and 
that resource managers must have the ability to deal with sea lions 
predation in a timely and reasonable manner as we do with other 
resource management issues.
    The current Section 120 provisions require that an individual and 
identifiable sea lion is causing a significant impact to the decline or 
recovery of ESA-listed salmon or steelhead stocks before it is eligible 
for removal by the states. These provisions require a significant 
amount of added work by state and federal biologists to meet the 
requirements of removal authority under section 120. These requirements 
have increased costs, reduced the numbers of sea lions removed, limited 
the geographic area in which the problem can be managed, and slowed 
progress towards reducing the impact to salmon.
    We appreciate the current authority that has been granted by NMFS 
through Section 120 and will work directly with NMFS to defend that 
authority as we address the most recent legal challenge. We believe it 
is important to maintain this authority to provide some level of relief 
and hopefully prevent the California sea lion predation level from 
increasing further while we await additional legislation.
    We appreciate the work of the Natural Resource Committee Chairman, 
Representative Doc Hastings, and representatives Norm Dicks, Jaime 
Herrera-Beutler, and Greg Walden in drafting H.R. 946 in an effort to 
provide the states and tribes a more effective and efficient means to 
protect Northwest salmon and steelhead resources. We are thankful that 
our Northwest Congressional representatives understand the enormous 
investment that the region is making to recover salmon and are prepared 
to assist us in effectively managing for those recovery goals.
    NMFS convened a Pinniped Task Force in 2010 to review the progress 
of the states Section 120 authority in the Columbia River. The majority 
of the Task Force members recommended increasing the level of removal 
of California sea lions that occurred in the first three years. A more 
efficient and effective legal tool through H.R. 946 would provide the 
opportunity for state and tribes to more adequately manage the sea lion 
predation.
    I want to thank the Subcommittee Chairman, Representative John 
Fleming, M.D., for the opportunity to provide this written testimony 
and to speak to the members of this Subcommittee regarding our concerns 
for recovery of salmon in the Northwest. We look forward to development 
of this legislation to enable appropriate management of predatory sea 
lions that threaten Northwest salmon and other fishery resources.
                                 ______
                                 
    Dr. Fleming. Thank you, Mr. Norman. Next is Mr. Virgil 
Lewis.

                STATEMENT OF VIRGIL LEWIS, SR., 
              TRIBAL COUNCIL MEMBER, YAKAMA NATION

    Mr. Lewis. Chairman Fleming and Committee Members, thank 
you for the opportunity to testify today. I have submitted a 
detailed statement, including video footage, photographs, and 
written testimony from the Confederated Tribes of the Umatilla 
Reservation.
    I am Saluscum, and my English name is Virgil Lewis, Senior. 
I am an elected Member of the Tribal Council for the Umatilla 
Nation, where I also serve on the tribe's Fish and Wildlife 
Committee. I am also a Commissioner of the Columbia River 
Intertribal Fish Commission.
    In addition to the Yakama Nation, the three members of the 
CRITFC are the Confederated Tribes of the Warm Springs 
Reservation, the Nez Perce Tribe, and the Confederated Tribes 
of the Umatilla Reservation.
    I am accompanied today by Charles Hudson of our commission 
staff, along with George Waters, who works for my tribe. They 
are here to help answer questions that you might have. We 
strongly support H.R. 946, the Endangered Salmon Predation 
Prevention Act sponsored by Chairman Hastings, and cosponsored 
by Representatives Dicks, Walden, Simpson, and Herrera Beutler, 
and we appreciate it that these elected officials have the 
foresight to understand that this problem must be dealt with.
    We are fully supporting of H.R. 946 for the following 
reasons. Recently litigation makes it clear that the Marine 
Mammal Protection Act, Section 120, needs clarification from 
Congress.
    H.R. 946 provides management access to our tribes and 
CRITFC, a weakness of the original Act. H.R. 946 requires a 
comprehensive review of the Marine Mammal Protection Act, and 
recommendations for amendment.
    Columbia Basin salmon recovery cannot afford a setback as 
we witnessed in the Puget Sound's Ballard Locks, where winter 
steel had become functionally extinct due to sea lion 
predation, exacerbated by prolonged litigation. Tribal 
ceremonial subsistence and commercial fisheries experienced 
unique and unmitigated damage from growing sea lion predation.
    We believe that H.R. 946 can be improved with tribal 
treaty-saving language. Our written testimony offers such 
recommended language. In 1905 in the case of the United States 
v. Winans, the Supreme Court stated to the Yakima Indian people 
the right of taking salmon in the Columbia River Basin was not 
much less necessary to the existence of the Indians than the 
atmosphere that they breathe.
    We have come before the Congress and the highest courts in 
the land to protect the sacred salmon, and we will never back 
down from this duty. We are pleased that the highest courts in 
the land have repeatedly affirmed our treaty fishing rights, 
and obligation of the respective governments to protect that 
resource.
    Sea lions are damaging salmon runs, particularly the prior 
spring chinook salmon. There is also no question that sea lions 
are at historically high abundance since Congress enacted the 
Marine Mammal Protection Act.
    I was amazed to learn that the sea lion population is now 
over 300,000. This is a six-fold increase since the enactment 
of the Marine Mammal Protection Act. They are growing at a rate 
of 5 to 6 percent a year.
    I wish the same thing could be said for runs of salmon in 
the Columbia River Basin. There are now 13 salmon and steelhead 
populations in the Columbia Basin listed under the Endangered 
Species Act.
    We are concerned that they will soon be joined by the 
Pacific Lamprey, White Sturgeon, and Smelt. Tribal people 
acknowledge that a place for sea lions in the Columbia in fact 
made traditional use of their skins and oils. Another aspect of 
that relationship included lethal removal by tribal people when 
they harmed fish runs.
    Two things have changed the historical balance. As the 
legislation points out, there have been a seven-fold increase 
in the number of salmon killed by sea lions since 2002. There 
are approximately 100 sea lions in the area below Bonneville 
Dam.
    If they ate only two salmon a day, which is a conservative 
estimate, over the 88 days that they have been staying in this 
area, they would destroy over 17,000 salmon, a significant 
percentage, between 15 to 17 percent of the entire run.
    The lower percentage figures that you will hear are simply 
the number of salmon seen by humans above the surface of the 
water with the salmon in their mouths as the percentage of the 
salmon run. That is hardly a scientific way of determining the 
extent of the sea lion take.
    This is no longer just nature taking its course. Man's 
involvement has tilted the scales away from the salmon, and we 
must intervene to help counter-balance the impact. The Marine 
Mammal Protection Act has taken away cultural and managerial 
tools.
    This 35 year old rigid statute, while benefiting sea lions, 
is too inflexible to take into account the damage being done to 
salmon, and therefore to the Indian people who are dependent on 
the salmon for so many aspects of our lives.
    Mr. Chairman, tribal crews have been involved in a 
comprehensive effort with the State and Federal agencies to 
nonlethally remove sea lions, and we have increased hazing to 
seven days a week when the sea lions are in the vicinity of the 
Bonneville Dam.
    H.R. 946 contains a very responsible approach that will 
allow for animal lethal takes of the most problematic sea 
lions, and it contains numerous safeguards. We greatly 
appreciate the inclusion of our tribes in this legislation. 
Thank you, Mr. Chairman.
    [The prepared statement of Mr. Lewis follows:]

 Statement of The Honorable Virgil Lewis, Sr., Confederated Tribes and 
  Bands of the Yakama Nation, and Commissioner, Columbia River Inter-
                         Tribal Fish Commission

    Chairman Fleming, Ranking Member Sablan and distinguished Members 
of the Fisheries, Wildlife, Oceans and Insular Affairs Subcommittee, on 
behalf of the Yakama Nation and the Columbia River Inter-Tribal Fish 
Commission (CRITFC), thank you for inviting me to testify in favor of 
the Endangered Salmon Predation Prevention Act. I also want to extend 
our great appreciation to Representatives Hastings, Dicks, Herrera, 
Schrader, Simpson, and Walden for having introducing and co-sponsoring 
this needed legislation.
    We strongly support H.R. 946:
          The Marine Mammal Protection Act's (MMPA) Section 120 
        needs clarification from Congress.
          H.R. 946 provides management access to our tribes and 
        CRITFC, an unfortunate oversight of the original Act.
          H.R. 946 requires a comprehensive review of MMPA and 
        recommendations for amendment. The MMPA is overdue for a 
        comprehensive review.
          Columbia Basin salmon recovery can't afford a setback 
        as we witnessed in Puget Sound's Ballard Locks where winter 
        Steelhead became functionally extinct due to sea lion 
        predation.
          Tribal ceremonial, subsistence and commercial 
        fisheries experience unique and unmitigated damage from growing 
        sea lion predation.
    We believe H.R. 946 can be improved with tribal treaty savings 
language and offer such later in this testimony.
Commission History and Legal Authorities
    The Columbia River Inter-Tribal Fish Commission was formed in 1977 
by resolutions from the four Columbia River treaty tribes: Confederated 
Tribes of the Umatilla Indian Reservation, Confederated Tribes of the 
Warm Springs Reservation of Oregon, Confederated Tribes and Bands of 
the Yakama Nation, and Nez Perce Tribe. CRITFC's mission is to ensure a 
unified voice in the overall management of the fishery resource and to 
assist in protecting reserved treaty rights through the exercise of the 
inherent sovereign powers of the tribes. CRITFC provides coordination 
and technical assistance to the tribes in regional, national and 
international efforts to ensure that outstanding treaty fishing rights 
issues are resolved in a way that guarantees the continuation and 
restoration of our tribal fisheries into perpetuity.
    The combined ancestral homelands of our four tribes cover roughly 
one-third of the entire Columbia River Basin in Washington, Oregon and 
Idaho. Our existence on the Columbia River stretches beyond 10,000 
years to time immemorial. Salmon has always been a unifying figure and 
we rely on its abundance for physical and cultural sustenance. 
Collectively, we gathered at places like Celilo Falls to share in the 
harvest, forging alliances that exist today. Our fishing practices were 
disciplined and designed to ensure that the salmon resource was 
protected, and even worshipped, so it would always flourish.
    Salmon was so fundamental to our society that in 1855 when our four 
sovereign tribes \1\ and the United States collaborated and negotiated 
treaties, our tribal leaders explicitly reserved--and the U.S. agreed 
to assure--our right to fish in perpetuity within our ancestral 
homelands as well as to ``take fish at all usual and accustomed 
places''. We kept our word by ceding about 40 million acres of our 
homelands to the U.S. and the U.S. pledged to honor our ancestral 
rights. It was the expectation of our treaty negotiators then that we 
would always have access to abundant runs of salmon; it is our 
expectation now that the U.S. government will honor that commitment and 
take the steps necessary to protect our treaty resources. The treaties 
of 1855 were all ratified by the Senate of the United States. The 
Supremacy Clause of the Constitution applies to all such treaties.
---------------------------------------------------------------------------
    \1\ Treaty with the Yakama Tribe, June 9, 1855, 12 Stat. 951; 
Treaty with the Tribes of Middle Oregon, June 25, 1855, 12 Stat. 963; 
Treaty with the Umatilla Tribe, June 9, 1855, 12 Stat. 945; Treaty with 
the Nez Perce Tribe, June 11, 1855, 12 Stat. 957.
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    The importance of fish, especially salmon, to our tribes cannot be 
overstated. In U.S. v. Winans, the U.S. Supreme Court stated that 
fishing was ``not much less necessary to the existence of the Indians 
than the atmosphere they breathed.'' The salmon are an integral part of 
our cultural, economic and spiritual well-being. They are a major food 
source and our consumption is nearly ten times higher than the national 
average. Salmon is fundamental to a healthy tribal diet and it plays a 
significant role in combating the risks of heart disease and diabetes 
in our communities.
    Our livelihood evolved over thousands of years and our physical and 
cultural survival was intimately tied to the salmon. Ceremony became 
essential to insure the continued survival of the salmon, our 
traditions, and thus ourselves. Without salmon and without ceremony, we 
would cease being Indian people. We are longhouse people and these 
ceremonies have gone on without interruption for thousands of years. It 
is essential for all parties involved to understand how important these 
fish are to our people. This is why we are alarmed over the increasing 
impact by sea lions during low salmon returns.
A Brief History of Salmon Decline
    The Columbia Basin and its tributaries began seeing major changes 
in the 1800's as agricultural lands were developed and dams harnessed 
the natural flows to build a western economy with low cost electrical 
power, navigation, and irrigation. Commercial fishing lacked restraint 
decimating salmon runs without regard for future generations. Logging, 
mining and agriculture bit into the earth, fouling clean waters, and 
degrading riparian habitat crucial to salmon survival. Nature's 
bounties were exploited to build bigger cities with bigger economies, 
and the energy and infrastructure to support them was siphoned from the 
river. As more lands were flooded more promises flowed. Tribal leaders 
were told the dams would actually make life easier on salmon as the 
roaring pace of the river was reduced. We were also told that if any 
impacts occurred they would be mitigated.
    The mitigation and recovery of our treaty fishing resources has 
been rather slow. Thirteen salmon and steelhead populations in the 
Columbia Basin are listed under the Endangered Species Act (ESA). 
Pacific lamprey and white sturgeon populations are also depressed and 
resources to rebuild them are slim, making us worry if they too will be 
listed under ESA. On the other hand, California sea lions, protected by 
the Marine Mammal Protection Act (MMPA) are at historically robust 
population levels. Unfortunately, the success of the MMPA is exacting a 
toll on the recovery of ESA listed species and other natural stocks in 
the Columbia Basin.
Regional Recovery Efforts
    We have been doing our best to bring the salmon back. In 
cooperation with States, Federal Agencies, and our neighbors in the 
Columbia Basin we are making huge financial and social investments in 
recovery efforts. The Tribes have long shouldered a heavy conservation 
burden through voluntary harvest reductions on our fishery. Our treaty 
rights extend below Bonneville Dam; however harvest agreements allow 
non-tribal sport and commercial fisheries to enjoy harvests.
    In 2008 CRITFC and its member tribes successfully concluded lengthy 
negotiations resulting in three landmark agreements: 1) the Columbia 
Basin Fish Accords \2\ with federal action agencies overseeing the 
federal hydro system in the Columbia Basin, 2) a Ten-Year Fisheries 
Management Plan with federal, tribal and state parties under U.S. v OR, 
and 3) a new Chinook Chapter of the Pacific Salmon Treaty.\3\ These 
agreements establish regional and international commitments on harvest 
and fish production efforts, commitments to critical investments in 
habitat restoration, and resolving contentious issues by seeking 
balance of the many demands within the Columbia River basin.
---------------------------------------------------------------------------
    \2\ The Nez Perce Tribe is not a Columbia Basin Fish Accord 
signatory
    \3\ See ``Salmon Win A Triple Crown'' at http://www.critfc.org/
text/wana_w09.pdf
---------------------------------------------------------------------------
Impacts of California Sea Lions on Tribal families
    Salmon fishing has long been a traditional way of providing the 
necessary means to safeguard our families economically. Even the 
settlers who descended upon our ancestral homelands capitalized on the 
abundant salmon runs to secure an economic foothold in the region. In 
the middle the 1900's, spring salmon runs dwindled and we had to forgo 
a tribal commercial harvest. However, when runs rebounded slightly from 
2000 to the present we were able to open limited commercial tribal 
harvests. Unfortunately, the strong runs also brought the sea lions 
upstream in larger numbers.
    A commercial tribal fishery diversifies economic opportunities in 
what are traditionally hard hit rural economies. We have made 
considerable investments to rebuild our salmon economy and increase the 
commercial value of tribally caught salmon. Not long ago, the tribal 
commercial fishermen were receiving 30 to 40% less than market value. 
Today we have overcome this disparity. It has taken several years to 
build a brand identity for tribally caught salmon. Soon we hope to open 
a fish processing facility near White Salmon, WA to provide an even 
better product and return on value. The public is embracing the 
benefits of buying the products of our tribal fishery and demand is 
outstripping supply.
    While the sea lion problem occurs year round in the lower Columbia 
River, the mainstay of our salmon economy is the spring Chinook where 
the sea lion predation is greatest. Some fish buyers won't purchase 
damaged fish and the value can drop as much as 50%. The growing level 
of sea lion predation can devastate the hard earned value of the tribal 
commercial fishery. Also submitted accompanying this testimony are 
photographs of Columbia River Spring Chinook showing damage from sea 
lions.
Marine Mammals--a growing management problem
    California sea lions and other marine mammals have always existed 
in the river as has a respectful relationship between them and tribal 
people. Tribal members harvested them for their skins and oils. Tribal 
members also killed marine mammals that were disruptive to fishing 
activities. Though well intentioned, the MMPA has made the river more 
hospitable to opportunistic sea lions and less hospitable to salmon, 
lamprey and sturgeon survival by limiting traditional and modern 
management methods. The sea lions have learned to profit from the 
abnormal situation by preying on salmon and other treaty protected 
resources particularly at vulnerable areas like Bonneville Dam. They 
are cunning as proven by their ability to outmaneuver the exclusion 
devices placed in the fish ladders and their ability to ride the 
shipping barges through the dam's locks. While we admit that the 
Creator intended a place for them, it doesn't lessen the problem they 
are causing by exploiting an unnatural environment.
    There was a time when a portion of a state fishing license fee was 
used to manage the sea lion population to reduce their predation. 
Historically, when sea lions made it up to those parts of the river 
where the dams now sit, they would be shot and they would be bled out 
in the river. Sea lions are shrewd enough to then understand that this 
was an area they needed to avoid. Things have changed for the worse now 
because man has changed the nature of the river. Now returning salmon 
must pass artificial dams and must go up man made cement fish ladders 
to get upstream. They are trapped by sea lions who understand the 
salmon must go right by them if they hang out close to the ladders. We 
ask our friends in the animal rights community to understand that we 
are dealing with basic nature when the ability of endangered salmon to 
defend themselves has been so compromised.
    Some people claim that placing blame on the sea lions is a ruse to 
divert attention away from the dams' impact on salmon survival. If they 
understood our dilemma they would clearly recognize that attention is 
actually being drawn to Bonneville Dam where a growing number of sea 
lions have learned to exploit an artificial situation to 
disproportionately impact depressed salmon runs. Increasing numbers of 
sea lions have been documented returning year after year. In the last 
five years, over a hundred animals have learned to prey on threatened 
and endangered spring Chinook as they converge on the entrances to the 
dam's fish ladder.
    Significant predation at the dam is rising, evidenced by the number 
of salmonids eaten by sea lions. As the size of the natural salmon runs 
dwindle in numbers the impact of predation on wild fish is greater. The 
states and NOAA estimate 18,000 to 25,000 adult salmonids are lost to 
sea lions annually between Bonneville Dam and the mouth of the river. 
In addition, impacts by sea lions are disproportionally distributed 
during the early portion of the run. For the period of March and April 
there are many days when the take by sea lions exceeds the fish count 
in the ladders. We are concerned that these early returning fish may be 
from stocks that are most at risk of extinction.
    Every year a few sea lions pass through the Bonneville Dam lock. 
These animals damage fishing gear and steal salmon from our fishers. In 
2009, a California sea lion spent the entire summer upstream of the dam 
impacting fishers and feeding on fish as the exited the fish ladders. 
Studies show that the farther upstream the sea lions travel, the higher 
percentage of salmon and steelhead in their diet. Additional studies 
indicate that salmon comprise 10-30% of their diet. The latest 
available sampling data beginning in 2001 shows that each year slightly 
over 30% of the spring salmon passing though Bonneville's fish ladder 
have suffered some form of injury caused by marine mammals. Those 
salmon that escape with harsh wounds are less likely to survive their 
upstream journey and unlikely to successfully spawn. Tribal and non-
tribal fishermen who harvest these injured fish cannot fully utilize 
them for their subsistence, sport and commercial value.
Hazing--Necessary but Insufficient
    Since 2005, CRITFC along with Washington and Oregon, have tried 
dispersing sea lions from the dam through daytime hazing from boats. 
Our actions have been limited to the area just downstream from the dam 
and not the entire 150 river miles from the dam to the Pacific Ocean. 
Nonlethal hazing appears to have been slightly more successful this 
year based upon evidence from the USACE observers, however after the 
crew is done for the day the sea lions move back into the prime feeding 
positions. Hazing is difficult and risky due to daylight-only 
limitations and frequent hazardous water conditions. Even under ideal 
conditions hazing alone is inadequate to remedy the predation problem.
    We do recognize that some animals respond to hazing better than 
others and that it will remain a component of any future robust 
management package. CRITFC and tribal crews wish to continue 
implementing hazing functions as well as telemetry tracking and 
monitoring of pinnipeds. Initially CRITFC diverted a portion of our 
Bureau of Indian Affairs funding to pay for our hazing efforts, however 
the Bonneville Power Administration has funded our hazing efforts since 
2007.
Justification of Support for H.R. 946
    The California sea lion problem exists in multiple waters along the 
Pacific coast but it is perhaps nowhere more alarming than what is 
occurring in the Columbia River. That is why we support The Endangered 
Salmon Predation Prevention Act and we applaud its introduction. This 
legislation will help us employ new alternatives to provide us with a 
means to help us deal with only those select animals responsible for 
the greatest impact. This legislation can ease the depredation 
occurring on our treaty protected resources as well as help curb 
predation on ESA listed species over the next five critical years. We 
should not be forced to stand back as sea lions cause other species, 
such as sturgeon and lamprey, to become listed under ESA.
    We do not take the National Environmental Protection Act exemption 
lightly. However, this is a short term, three year exemption focused 
exclusively on managing the most aggressive individual California sea 
lions whose predation severely impacts an entire wild salmon 
population. The legislation is also limited solely to the Columbia 
River and its tributaries. It relies on the taking of California sea 
lions within biological limits spread over the total California sea 
lion population. The exemption is necessary to give the fishery 
managers the ability to respond swiftly to avoid extraordinary delay 
that puts the species, our investments, and our livelihood at risk.
    We support the legislation's provision which provides the public an 
opportunity to submit comments. The language calls for consultation in 
order to issue a permit and establishes accountability through an 
annual reporting requirement concerning the implementation of any 
taking of California sea lions.
    We are grateful that the authors of this legislation are including 
each of our four member tribes as eligible entities for applying for a 
permit, and identifying the Columbia River Inter-Tribal Fish Commission 
as an eligible entity to delegate permit authority. We are very 
capable, professional fishery managers with the necessary skills to 
administer and implement the provisions of a permit.
    There are provisions for de-listing species under the ESA--
something we all aspire to achieve with salmon. The same consideration 
should be given to marine mammals who have achieved their optimum 
sustainable populations as provided under the MMPA. We agree with the 
legislative language calling for the Secretary of Commerce to issue 
Congress a report on the issue of marine mammal predation on ESA listed 
species. MMPA is overdue for reauthorization and we urge Congress and 
the administration to take this matter up and reconcile the disparity 
over one species being caught in the middle when two environmental 
protection laws clash.
    The states of Washington, Idaho and Oregon have applied for 
management tools under Section 120 of the MMPA. Each of our four tribes 
and CRITFC committed representatives to each of the two convenings of 
the Pinniped Interaction Task Force. In each case the Task Force 
developed sound and effective recommendations to NOAA for proceeding 
with the real challenge which is NOAA's ability to shepherd any 
decision through the NEPA process. If the consideration of new sea lion 
management alternatives is bogged down, as shown in Seattle's Ballard 
Locks experience, considerable predation will continue during future 
spring runs.
    Healthy spring Chinook returns in recent years lead to more sea 
lion and human conflict. If we return to using the same failed tactics 
we use today, then it will be difficult to answer to the region, the 
region's fishermen, and the taxpayers who have invested in salmon 
restoration across the Columbia Basin.
A recommendation for amendment--Treaty Savings language
    H.R. 946 would successfully amend the Marine Mammal Protection Act 
allowing it to stand alongside as a visionary and effective law in the 
Columbia Basin like the Northwest Power Act. To clarify that this 
amendment does not affect or impact tribal treaties we recommend Treaty 
Savings language such as that included in the Northwest Power Act, 16 
U.S.C. 839g (e).
        ``Nothing in this chapter shall be construed to affect or 
        modify any treaty or other right of an Indian tribe.''
    In conclusion, the United States made many promises beginning in 
1855 with our treaties and subsequently when the dams were constructed. 
The treaty rights are meant to preserve our physical, cultural and 
economic livelihood--the U.S. committed to protecting these rights. We 
were further promised that any harm done to our fisheries attributed to 
the dams would be taken care of--Bonneville Dam has created an 
artificial situation the sea lions have learned to exploit. We have run 
out of options and any new technology will not be available in the near 
future to deal with the current dilemma.
    We need more options to deal with the growing sea lion depredation 
and we need timely solutions to protect our ceremonial, subsistence and 
commercial harvests for salmon, lamprey and sturgeon.
    Again, thank you for this opportunity to share our concerns and to 
express our support for this legislation.
CRITFC Contact:
Charles Hudson
[email protected]
Phone: 503-238-0667
Fax: 503-235-4228

Columbia River Inter-Tribal Fish Commission
729 NE Oregon, Suite 200
Portland, OR 97232
www.critfc.org
                                 ______
                                 
    Dr. Fleming. Thank you, Mr. Lewis. Last, Ms. Young, you 
have five minutes, Ma'am.

STATEMENT OF SHARON B. YOUNG, MARINE ISSUES FIELD DIRECTOR, THE 
              HUMANE SOCIETY OF THE UNITED STATES

    Ms. Young. Mr. Chairman and Members of the Subcommittee, my 
name is Sharon Young, and I am the Marine Issues Field Director 
for The Humane Society of the United States.
    I am a member of the Bonneville Dam Pinniped Task Force 
that has met pursuant to Section 120 of the MMPA. As such, I am 
familiar with the data on the interactions between salmon and 
sea lions in the Columbia River.
    I am grateful for the opportunity to present our views on 
H.R. 946, the Endangered Salmon Predation Prevention Act. We 
are concerned that not only will this bill not prevent 
predation, but that it may seriously undermine other key 
legislation.
    The issue of predation in the Columbia is not as it has 
been portrayed. This is not an issue of charismatic sea lions 
versus endangered salmon. It is an issue of whether killing sea 
lions is necessary, or even effective, in promoting salmon 
recovery.
    Sea lions do eat salmon in the Columbia, but the predation 
is not an imminent threat as suggested. The National Marine 
Fishery Service has stated that the spring salmon runs are 
stable or increasing, and they have been at near-record levels 
in recent years.
    They are not in imminent danger of collapse. Monitoring by 
the Army Corps of Engineers at the Bonneville Dam provide some 
facts about what is happening. Since the States first applied 
to kill sea lions at the dam in 2007, the Army Corps reports 
tell us that observed predation as a percentage of runs has 
declined every year for the last four, even when killing was 
not authorized.
    Predation is estimated at 1.4 percent of the 2011 run. At 
the same time, fisheries take these same ESA listed fish at a 
rate that regularly exceeds annual quotas, and the take was 17 
percent of the total run of spring chinook in 2010 when sea 
lion predation was observed at three percent.
    Most importantly the number of sea lions at the dam this 
year was lower than any year since 2002, even though no sea 
lions were killed. Their residency time at the dam is shorter.
    Sea lions continually go in and out of the river. In any 
given year, 30 to 70 percent of the sea lions at the dam have 
not been previously identified. As the findings section of the 
bill acknowledges, there are up to a thousand sea lions in and 
around the Columbia River.
    Telemetry data and I.D. at the dam confirm that sea lions 
regularly come and go. This is not a situation, such as Ballard 
Locks, where a handful of resident animals might be removed and 
thus end predation.
    Even NMFS projected in their 2007 environmental assessment 
that because of this replacement, no reliable estimate of 
reduction in sea lion predation could be made as a result of 
lethal take.
    As sea lions are killed or otherwise removed others simply 
take their place. Killing sea lions distracts attention from 
the number of key problems that are going on unaddressed, and 
that could make a significant difference in the trajectory of 
salmon recovery.
    A 2009 Congressionally established science panel strongly 
criticized the operation of harvest and hatchery programs, 
stating that they posed a barrier to recovery. Yet, its 
recommendations remain largely unaddressed.
    Deliberate stocking of non-native sport fish, such as bass 
and walleye, has resulted in an estimated three million 
juvenile salmon being eaten each year, and poses a threat that 
NMFS scientists have deemed greater than habitat impacts.
    Although increased survival of juvenile salmon is one of 
the primary recommendations in the salmon recovery plans, this, 
too, remains largely unaddressed. But we are also concerned 
that this bill has less apparent dangers inherent in its 
language.
    By broadening the field of those who can kill sea lions to 
include non-uniform, non-government personnel, and by loosening 
the conditions under which killing takes place, members of the 
public may mistake shooters along the river as providing tacit 
permission for them to kill sea lions as well.
    More dangerously, in exempting killing sea lions from both 
the narrow scriptures of the MMPA, and the public review of 
impacts under the National Environmental Policy Act, the bill 
would sacrifice transparency and deliberation in the name of 
expediency.
    Contrary to the stated intent of the 1994 predecessor of 
this Committee, H.R. 946 would casually lift protections for 
marine mammals, while dramatically limiting public involvement 
and obviating a deliberative approach.
    It sets the dangerous precedent of exempting a 
controversial wildlife management program from NEPA analysis. 
Expediting the approval of killing sea lions will not speed 
salmon recovery. We believe that it will simply waste time that 
salmon can ill afford, and waste the lives of sea lions, while 
major threats to recovering salmon remain unaddressed.
    Some of my fellow panelists wish that this bill would 
include killing sea lions for eating non-listed fish, such as 
sturgeon, and to broaden the bill's application to other 
situations even beyond the Columbia, or to selectively admit 
coverage under the MMPA for certain species deemed troublesome. 
This is something that we would adamantly oppose.
    The result of this bill we fear may be a form of vigilante 
response to sea lions not seen since the passage of the Marine 
Mammal Protection Act in 1972. Thank you.
    [The prepared statement of Ms. Young follows:]

      Statement of Sharon B. Young, Marine Issues Field Director, 
                The Humane Society of the United States

    Mr. Chairman and members of the Subcommittee, my name is Sharon 
Young and I am the Marine Issues Field Director for the Humane Society 
of the United States (HSUS). On behalf of the HSUS and its more than 11 
million members and constituents, I am grateful for the opportunity to 
present our views on H.R. 946, the Endangered Salmon Predation 
Prevention Act.
    I am an appointed member of the Bonneville Dam Pinniped Task Force 
that has met pursuant to Section 120 of the Marine Mammal Protection 
Act (MMPA). As such, I am very familiar with the interactions between 
salmon and sea lions in the Columbia River and with the data and 
science surrounding salmon management and recovery.
    Salmon stocks along the west coast struggle to recover from habitat 
loss and degradation and decades of poor management. Although sea lions 
and other marine mammals eat salmon, their impact pales in comparison 
to that of other unaddressed and ongoing impacts. These ongoing threats 
include competition with hatchery fish and with non-native introduced 
fish. Not only is predation a lesser impact than that of fisheries that 
incidentally kill the very same salmon stocks, but killing sea lions 
will not prevent their predation, as this bill's title contends. 
Expediting the approval of killing sea lions will not speed recovery. 
We fear, instead, that it will simply undermine important environmental 
legislation and lead to a form of vigilante response not seen since the 
passage of the Marine Mammal Protection Act in 1972.
Background on Predation in the Columbia River
    No one disputes that sea lions eat salmon. For millennia sea lions 
have eaten salmon. Lewis and Clark documented their presence in their 
exploration of the Columbia River valley. Sea lions journeyed from the 
sea up to Celilo Falls, which was the first great hurdle for salmon 
prior to construction of any dams. It was at Celilo Falls that they, 
and the tribes, gathered to take advantage of the seasonal salmon runs. 
Celilo Falls was subsumed with the construction of Bonneville Dam, 
which is now the place where salmon queue as they move further inland 
to spawning grounds. Far from being an invasive species that is out of 
habitat, sea lions are merely returning to an area that was part of 
their original hunting ground.
    Populations of a number of seals and sea lions were decimated in 
the wake of heavy hunting and overharvest. Only with the passage of the 
Marine Mammal Protection Act in 1972 did they begin to recover and 
gradually return to historic foraging areas. It may be that there are 
more sea lions off the coasts of Washington and Oregon now as their 
southern distribution shrinks in response to changes in oceanic 
temperatures and habitat suitability wrought by human-caused climate 
change; but they are not strangers to the Pacific Northwest.
    The National Marine Fisheries Service (NMFS), the states of Oregon 
and Washington, and the Army Corps of Engineers (Army Corps) started 
documenting sea lion predation at Bonneville Dam almost 10 years ago. 
Since that time, the picture of predation is more varied than is 
implied in the findings of H.R. 946.
    In a 2011 supplemental report that accompanied a renewed lethal 
taking authorization, the NMFS stated that the ``overall abundance of 
Chinook and steelhead potentially impacted by pinniped predation [has] 
increased or stayed the same since the last status review was conducted 
prior to 2005.'' The spring run is not declining, as some have alleged. 
In fact, in each of the past three years, the run sizes have been near 
record. As of its final report for the season on May 27th 2011, the 
Army Corps concluded that this year's run was on track to be the third 
largest since 2002. Approximately 30 percent of that run is comprised 
of salmon listed as threatened or endangered under the Endangered 
Species Act (ESA); the remaining 70 percent of fish in the run is not 
ESA-listed.
    In 2007, when the states first requested authorization to kill sea 
lions at the Dam, predation ranged from 0.4 to 4.2 percent of the 
spring salmon run. The Army Corps' observed predation rate at the Dam 
(which is an expanded estimate that attempts to account for some unseen 
predation) has steadily declined from 4.2 percent in 2007 when the 
states first applied to kill sea lions. This decline has occurred 
independently of lethal removal of sea lions. According to the Army 
Corps reports from Bonneville Dam, in 2008, the predation rate was 2.9 
percent of the run; in 2009 it was 2.4 percent of the run; and in 2010 
it was only 2.2 percent of the run. The Army Corps' May 27th 
preliminary wrap-up report for 2011 that summarized predation, states 
that an estimated 1.4 percent of the run was consumed. We point out 
that the government initially stated that the goal was to reduce 
predation to 1 percent of the run and that is indeed what it was this 
year--and this was a year in which no killing of sea lions took place.
    Although the ``findings'' section of the bill avers that the 
percentage of salmon eaten has increased seven fold since 2000, in 
fact, although raw numbers consumed have increased, the percentage of 
the run consumed is the lowest since 2002.
The Real Problem Still Facing Salmon Recovery
    Although sea lions eat them, predation by sea lions is among the 
least of the problems facing the fish in the Columbia and thus should 
be among the lowest priorities when taking action to assist recovery.
    The causes of the decline of salmon are directly attributable to 
impacts resulting from what are often called the ``Four H's'': habitat, 
hatcheries, harvest and hydroelectric. As the findings in the bill 
point out, the government has likely spent a billion dollars or more to 
address some of these issues including habitat restoration and the 
deaths of countless salmon smolt and adults as they were attempting 
passage through the Dams.
    But it would be incorrect to assume that the impacts of the ``Four 
H's'' that are the major factors retarding recovery are being 
adequately addressed. I will focus on impacts from hatcheries and 
harvest as two examples of significant threats to recovery that remain 
inadequately addressed.
    Competition between wild run salmon and hatchery raised fish is 
well known. Research has documented competition for spawning habitat 
and food. It has also shown that hatchery-raised fish do not spawn as 
effectively as their native relatives. Nonetheless, most of these 
adverse impacts from the hatchery programs remain unaddressed. Since 
2000, the U.S. Congress appropriated funds through the U.S. Fish and 
Wildlife Service to address hatchery reform. In doing so, Congress 
recognized that the system was in need of comprehensive reform because 
fish were being produced for harvest rather than for conservation of 
at-risk populations. Further, hatchery programs were not taking into 
account the effects of hatchery-spawned fish on naturally spawning 
populations. In fact, hatchery programs as currently operated 
constitute a barrier to recovery of the wild runs. In 2009 The 
Congressionally-established Hatchery Scientific Review Group, issued 
its Report to Congress on Columbia River Basin Hatchery Reform. It 
determined that both hatchery and harvest reforms were needed. They 
found that traditional hatchery practices are ``not consistent with 
today's conservation principles and scientific knowledge.'' The 
Scientific Group recommended changes in current practices that would:
          Manage hatchery broodstocks to achieve proper genetic 
        integration with, or segregation from, natural populations;
          Promote local adaptation of natural and hatchery 
        populations
          Minimize adverse ecological interactions between 
        hatchery- and natural-origin fish;
          Minimize effects of hatchery facilities on the 
        ecosystem in which they operate; and
          Maximize the survival of hatchery fish.
    Yet the vast majority of these recommendations remain unaddressed. 
Current hatchery practices continue to hamper optimal recovery of the 
salmon.
    The Scientific Review Group also criticized the management of 
harvest. The Group pointed to problems with non-selective harvest of 
listed Columbia River Chinook both in the in-river fisheries and in 
ocean harvests from Alaska through Oregon. While harvest management has 
been touted by the NMFS and the states as a controllable impact on the 
ESA-listed fish, the Science Group criticized harvest practices. The 
NMFS' own reports acknowledge that in-river fisheries regularly exceed 
their quota for incidental killing of ESA-listed fish.
    The Court-approved Joint Columbia River Management Report for 
Oregon and Washington stipulates flexible incidental harvest quotas for 
the listed fish in the spring run. Depending on the size of the run, 
this percentage of incidental harvest ranges from 5 percent of the run 
to 17 percent of the run. In its Supplemental Information report 
accompanying the 2011 authorization for lethal removal of sea lions, 
the NMFS acknowledged that in 2008, the in-river fisheries incidentally 
killed 16 percent of the listed fish in the spring run despite an 
allowance of incidental kill of 11 percent. In 2009, the in-river 
fisheries stayed within the allocation (taking 10.2 percent of the ESA 
listed run. In 2010, the fisheries were allocated 13% of the run in a 
mid-season adjustment, yet they killed 17 percent--substantially over 
the quota. At the same time in 2008, 2009 and 2010, the NMFS' estimate 
of the sea lion predation rates was less than 3 percent each year. 
Fisheries not only exceeded their allocations, but they took up to 
eight times as many ESA-listed fish as sea lions ate and yet this level 
of fishery impact was deemed by the states to be a ``negligible'' 
impact.
    In addition to the unaddressed issues of harvest and hatchery 
reform, other unaddressed issues plague the recovery of salmon.
    A 2010 report by NMFS scientists documented the threat posed by the 
continued stocking of non-native sport fish in the Columbia. These fish 
would be deemed a harmful, invasive species but for the fact that they 
are being deliberately introduced into the Columbia for the benefit of 
sport fishermen. The 2010 report by NMFS scientists found that non-
native walleye alone eat up to three million juvenile salmon each year. 
The NMFS itself has recognized that this predation poses a serious 
threat to the salmon, likely exceeding the habitat impacts, and yet 
NMFS acknowledges that nothing is being done about it at this time.
    The impact of sea lion predation on the spring run salmon pales in 
comparison to the significant impacts of these unaddressed human-
related impacts that need to be remedied. Since they were first granted 
authorization to kill sea lions at Bonneville Dam, the states have 
increased the amount of salmon that fishermen are allowed to take each 
year as run sizes have increased, and the fishery quotas are far larger 
than the impact of observed predation. Prior to the authorization to 
kill sea lions, the incidental harvest quota for in-river fisheries was 
9 percent and had risen to 13 percent by 2010. Moreover, fishermen in 
the river regularly exceed these incidental harvest quotas, with 17 
percent of the run incidentally killed in fisheries in 2010, despite a 
quota of 13 percent. Poorly conceived, and repeatedly criticized, 
hatchery programs are interfering with recovery of wild run fish. The 
introduction of non-native fish such as bass and walleye continues to 
pose a serious threat to the survival of juvenile salmon even though 
increasing juvenile salmon survival rates is one of the top goals in 
the salmon recovery plan. Killing sea lions merely distracts from the 
fact that these more significant problems remain unaddressed.
Consequences of this Bill on the Marine Mammal Protection Act and the 
        National Environmental Policy Act
    Prior to 1972, it was open season on sea lions. The state of Oregon 
even paid a shooter to kill seals and sea lions in the Columbia. With 
the passage of the MMPA, intentional killing stopped. The moratorium on 
killing remained in place until 1994 when a narrow exception to its 
strictures was put in place. I was part of a Congressionally-sanctioned 
multi-stakeholder negotiating group that met from 1992-1994 to advise 
on amendments to the MMPA to address fishery interactions. Our group 
devised the framework for what became Section 120 of the MMPA that 
permitted pinnipeds to be killed in narrow circumstances.
    Far from sanctioning a ``cull'' of sea lions, Section 120 required 
that a limited number of identifiable individuals be having a 
``significant negative impact'' on the decline or recovery of listed 
salmonids. The issue of predation at the Ballard Locks in Washington 
was also incorporated because, even though not ESA-listed, the 
steelhead run had declined to only one hundred or so fish and a small 
handful of sea lions had developed a unique strategy to eat the fish. 
These steelhead were not harvested by fishermen and the proximal threat 
to the fish appeared to be the sea lion predation. In stark contrast to 
the situation at Ballard locks, the majority of fish that run in the 
Columbia River are not ESA-listed and even the listed runs number in 
the tens of thousands of fish and are generally increasing in size. 
Fishing that results in the death of the listed fish is still permitted 
and the proximal threat is not predation.
    When Congress put Section 120 in place, the predecessor of this 
sub-committee stated that it ``recognize[d] that a variety of factors 
may be contributing to the declines of these stocks'' and made it clear 
that ``the current levels of protection afforded to seals and sea lions 
under the Act should not be lifted without first giving careful 
consideration to the other reasons for the decline.'' H.R. Rep. No. 
103-439 (1994).
    Section 120 was crafted to assure that any killing that might 
result would have a meaningful impact on the recovery of fish. It 
requires that pinniped predation be having a ``significant negative 
impact'' on recovery and that there be measurable criteria for judging 
success. Consistent with this narrow limitation on the take of marine 
mammals, Section 120 sets a forth specific procedure and a series of 
determinations the Secretary must make, before permitting the lethal 
take of pinnipeds to ensure the limited exception is adequately 
justified. In establishing these procedures, Congress made it clear 
that public input was an important and required part of the decision 
making process. The legislative history affirmed that ``there are 
numerous opportunities for public comment and safeguards in this 
provision to ensure a careful and thoughtful deliberation of the 
request to remove a nuisance animal.'' 140 Cong. Rec.S.3288, S3300.
    In contrast to the transparent and deliberative process that was 
put in place in 1994, HR 946 seeks to prevent public comment in all but 
a narrow window of time when the Secretary is considering whether or 
not nonlethal measures have been successful. Further, it would exempt 
killing sea lions from review under the National Environmental Policy 
Act (NEPA).
    NEPA is America's ``basic national charter for protection of the 
environment.'' 40 C.F.R. Sec. 1500.1(a). NEPA has a critical purpose in 
``insur[ing] that environmental information is available to public 
officials and citizens before decisions are made and actions are 
taken,'' and ``help[ing] public officials make decisions that are based 
on understanding of environmental consequences. Id. Sec. 1500.1(b)-(c). 
``Public scrutiny [is] essential to implementing NEPA.'' Id. 
Sec. 1500.1(b). NEPA not only requires that there be alternatives 
presented for consideration and that environmental consequences be 
considered, 42 U.S.C. Sec. 4332(2)(C); 40 C.F.R Sec. 1502.14, but that 
``[a]gencies shall ensure professional integrity, including scientific 
integrity, of the discussion and analyses in environmental 
statements.'' 40 C.F.R. Sec. 1502.24.
    In place of a process designed to be transparent and to encourage 
public involvement, this bill would allow decisions made with little or 
no public scrutiny and no consideration of either alternatives or 
consequences. However, it is just this type of action--a controversial 
wildlife management program with controversial environmental impacts--
for which NEPA's implementing regulations mandate comprehensive 
environmental analysis. Id. Sec. 1508.27(b)(4). The bill's simple 
assertion that Section 120 is ``protracted and will not work'' in a 
timely manner is hardly a sufficient reason to exempt the killing of 
otherwise federally protected marine mammals from the careful, 
deliberative procedures of NEPA and the MMPA. The deliberative process 
that should accompany such a dramatic change in how we manage and 
conserve marine mammals would be swept aside in the interest of speed. 
Are we to exempt projects, one after the other, from NEPA simply 
because a sponsor considers environmental protection cumbersome? Are we 
to deny the public a right to involve itself in the management of a 
public trust resource comprised of some of the more beloved creatures 
in the marine world simply because involving them would slow the 
juggernaut?
    The Section 120 process that Congress put in place in 1994 was 
transparent and deliberative for a reason that is no less relevant 
today. The public has a right to be involved. The issues at stake 
should see the light of day. As the House sub-Committee found in 1994, 
``the current levels of protection afforded to seals and sea lions 
under the Act should not be lifted without first giving careful 
consideration to the other reasons for the decline.'' H. Rep. No. 103-
439. Indeed, the reasons for the decline or slow recovery of salmon in 
the Columbia are many and manifold but sea lion predation is one of the 
least of them.
The Evidence That This Bill Cannot Accomplish Its Objectives
    Although HR 946 promises through its title to prevent predation, it 
cannot succeed. Only if the predation is confined to a few animals will 
eliminating them provide relief. In this case, as the bill acknowledges 
in its findings, there are approximately 1,000 sea lions in and around 
the Columbia River. It is not the case that only a few of them trouble 
themselves to swim 140 miles up to the Dam to eat fish, rather there is 
a constant flux of sea lions. The reports from the Army Corps that were 
provided to the Bonneville Dam task force document that between 30 
percent and 70 percent of sea lions seen in any year have not been 
identified from a previous year. The Army Corps reports that there are 
50-80 sea lions seen at the Dam in any given season yet, on average, 20 
or fewer are there on any given day. They come and go.
    The apparent futility of killing sea lions to halt predation was 
acknowledged by the National Marine Fisheries Service in their 2008 
Environmental Assessment that stated that ``it is likely that other sea 
lions would eventually replace the sea lions that were lethally 
removed'' and went on to acknowledge that this made it difficult to 
``support a reliable estimate of any decrease in pinniped predation 
(and corresponding increase in salmonid survival).'' [EA at 4-11]. The 
lethal program that was authorized has substantiated this prediction. 
As mentioned above, there are new sea lions coming and going constantly 
whether or not killing is taking place. As recently as 2010, the Army 
Corps reported up to 70 percent of sea lions seen at the Dam had not 
been previously identified, even as they were removing some sea lions, 
others arrived. In 2011, when no removals were taking place, the Army 
Corps reports that 28 of the 50 sea lions at the Dam (only around half 
of them) had been identified in previous years. Killing 85 sea lions 
will not prevent predation. It will not increase salmonid survival. It 
will simply kill sea lions to no purpose other than to satisfy the 
frustration of fishermen who would like to see the sea lion killed that 
stole what they see as ``their'' fish.
    There are a number of unclarities in the bill. It does not specify 
a season in which killing would be confined. It does not confine 
killing to a previously identified individual. As written, any sea lion 
seen with a fish in its mouth could be shot by an individual with 
permission to kill. If killing begins early in the spring, it is highly 
likely that the entire authorization (85 sea lions) could be killed 
within a month or so, with no ability to address predation later in the 
season.
    There may be another troubling side effect to this proposed 
legislation as well. Under the authority that NMFS granted in 2008, sea 
lions could be shot only from land or dam structures and only by state 
or Army Corps personnel. As proposed in this bill, shooting is not 
limited to the vicinity of the Dam. Further, not only could government 
employees dispatch sea lions, but tribal members from several tribes 
may be authorized to kill them as can other individuals who are 
contracted by one of the entities eligible to obtain permits. There is 
also no stipulation as to the distance from which sea lions can be shot 
or the platforms from which shooting can take place. It appears they 
could be shot from boats, a practice that the NMFS declined to 
authorize as providing too unstable a shooting platform to result in a 
predictable and humane death.
    Further, given the difficulty of differentiating California from 
Steller sea lions that plagues most members of the public, what 
assurance is there that ESA-listed Steller sea lions are not also 
killed? This is particularly difficult to ascertain if carcass recovery 
is not mandated and personnel are shooting from a distance and not 
highly experienced in speciation.
    This broadening of who may kill sea lions is likely to result in 
members of the public seeing what appear to be other members of the 
public in plain clothes shooting sea lions along the river from a river 
bank or from boats. They may be unaware that these shooters are not 
just other fishermen or hunters taking revenge on a sea lion that ate a 
fish, but have a special authorization that is unavailable to members 
of the general public. At one meeting of the Bonneville Dam task force 
an employee of an authorized Oregon marine mammal stranding response 
group stated that incidents of sea lion shootings had spiked since the 
NMFS authorized the states to kill sea lions. Media reports of dead 
shot sea lions in Washington and Oregon were more frequent as well in 
2009 and 2010. If frustrated fishermen see others shooting sea lions in 
and along the river, it is highly likely that this will simply 
encourage more illegal killing. This presents an enforcement nightmare. 
It also harks back to vigilante days prior to 1972 when sea lions were 
shot at will and their bodies washed up along shorelines or floated to 
the sea even as salmon continued to decline from the real threats that 
remained unaddressed.
In Conclusion
    In closing, we believe that this proposed legislation is not only 
unnecessary but potentially dangerous. It is unnecessary because the 
number of sea lions at the Dam is down. Their residency time at the Dam 
is reduced. The percentage of fish in the run that are eaten has 
declined each year for the past four years even as the percentage of 
the same fish killed by fishermen has risen. Moreover, other sources of 
salmon mortality, such as hydropower operations, ocean fisheries and 
the management of hatchery programs, have not been adequately 
addressed. In some cases, such as the stocking of non-indigenous fish 
for recreational purposes, the severe negative impacts to salmon have 
not been addressed at all. Sea lions come and go throughout the river 
throughout the season--it is not a situation in which there is only a 
handful of predators that can easily be eliminated and thus eliminate 
predation. As the lethal program of the past 3 years has shown, the 
percentage of predation-related salmon mortality and the size of salmon 
runs remain independent of sea lions were killed in a given year. 
Killing sea lions wastes time and money and lives and does little to 
benefit the salmon. But we are also concerned that this bill has less 
apparent dangers inherent in its language. It would sacrifice public 
involvement and transparency in the name of speed. It sets a dangerous 
precedent of exempting a controversial wildlife management program from 
NEPA analysis. It also sets the stage for a return to the vigilante 
action against sea lions that existed prior to the 1972 passage of the 
MMPA when the states employed professional shooters in the river and 
members of the public killed seals and sea lions out of frustration or 
for sport. We oppose H.R. 946 and urge you to vote against it.
                                 ______
                                 
    Dr. Fleming. Well, I thank, Ms. Young, for your testimony, 
and I thank all of our witnesses today for your testimony. I 
now recognize myself for five minutes for questions. We will 
begin questions from the panel, and ask for your responses.
    Mr. Lecky, are California sea lions at their optimum 
sustainable population levels as defined in the Marine Mammal 
Protection Act?
    Mr. Lecky. Yes, they are.
    Dr. Fleming. Does reaching this level allow the Agency to 
take management actions that it couldn't take if the population 
was below this level?
    Mr. Lecky. Yes, it does.
    Dr. Fleming. Would you elaborate on that any?
    Mr. Lecky. Well, if a population is below OSP, there are 
limitations on the amount of take that can be authorized. The 
provisions for authorizing take incidental to other activities 
are diminished as a result of a depleted status.
    The mechanisms for a directed take are likewise more 
complicated to get through if they are depleted. The measures 
of Section 120 also are not available to animals that are in a 
depleted state.
    Dr. Fleming. OK. Again, back to Mr. Lecky, should Congress 
amend the Marine Mammal Protection Act to change the safeguards 
under the law based on the size of the species population?
    Mr. Lecky. Well, yes. We believe that there should be some 
consideration of measures to deal with robust pinniped 
populations, particularly in situations like this where they 
are affecting and impeding the recovery of threatened and 
endangered species.
    Dr. Fleming. OK. Thank you. In the Humane Society's written 
testimony, Ms. Young raised the concern that any allowances for 
a lethal take will lead to a, quote, form of vigilante 
response, to removing sea lions.
    Mr. Brown, Mr. Lewis, and Mr. Norman, do State or Tribal 
management practices allow for such a vigilante removal of the 
animals?
    Mr. Brown. Mr. Chairman and Members of the Committee, no, 
both the States of Oregon and Washington have statutes that 
prohibit harassment, hunting, and killing of animals that is 
not provided for under State statutes for hunting or harvest, 
and that is the case with marine mammals. They are protected by 
State law.
    And animals are shot by individuals on occasion and have 
been for as long as I have been working in this area, and it is 
not anything particularly new. It is illegal and cases are 
brought by State and Federal law enforcement officers whenever 
possible.
    Dr. Fleming. Mr. Norman.
    Mr. Norman. Mr. Chairman and Members of the Committee, the 
Washington State statute requires the Department of Fish and 
Wildlife to protect and sustain healthy fish and wildlife 
populations. Marine mammals are part of that mandate, and so 
any activity associated with trying to preserve salmon through 
managing predation would require that we continue to honor that 
particular statute.
    Dr. Fleming. Mr. Lewis.
    Mr. Lewis. Thank you, Mr. Chairman. Under the Yakama 
Nation's law, we do not have a law that prohibits the taking of 
California sea lions, although we abide by the Marine Mammal 
Protection Act.
    We remind our fishermen that you are not to harm the 
animals in any way. We have our law enforcement, which is also 
out on the water patrolling, and we make sure and monitor that 
our fishermen do not harm the sea lions in any way. Thank you, 
Mr. Chairman.
    Dr. Fleming. OK. Well, then I will turn to Ms. Young given 
that testimony. Specifically, how would H.R. 946 lead to a 
vigilante styled removal of marine mammals?
    Ms. Young. I think when the task force was meeting, we had 
a member of the Oregon Stranding Network address us, and one of 
the things that she talked about was that once lethal taking 
authority had been given to the States, even though it was 
being done by trapping, the number of the incidents of shot sea 
lions jumped dramatically, because the public saw this as 
somehow a warrant if you will on sea lions eating fish.
    And certainly there were a number of highly publicized 
incidents of multiple animals washing in shot and dead, and I 
think that right now the States have not exercised the ability 
to shoot animals, though they were granted that ability.
    However, my concern is that if shooting is to begin, and it 
is being done by more than uniformed State personnel, and it is 
being done by tribal personnel, and a variety of other folks 
who may not be readily identifiable by the public as officials, 
people may see this somehow as, well, gee, that guy saw him 
take a fish, and shot him, and so here is one coming after my 
fish, and maybe I have the right to do that, too.
    And I think that is a lot more difficult to determine who 
is and who is not allowed to shoot sea lions when you have a 
wide variety of people out there who----
    Dr. Fleming. My time is limited, and I hate to interrupt 
you, but you would say someone who is uniformed, you would have 
confidence then, and you would feel that it would be OK to use 
lethal force?
    Ms. Young. I am not saying that it is necessarily OK, 
because I don't believe that you need to kill sea lions to 
protect salmon, but it is certainly true that it is easier for 
the public to determine who is or is not allowed to do it.
    Dr. Fleming. OK. Thank you. All right. My time has ended, 
and I will yield to the Acting Ranking Member for five minutes 
for questions.
    Ms. Bordallo. Thank you very much, Mr. Chairman. I would 
like to ask for unanimous consent to enter into the record a 
statement in opposition to H.R. 946 submitted by the 
International Fund for Animal Welfare.
    Dr. Fleming. Without objection so ordered.
    [The letter from the International Fund for Animals 
submitted for the record follows:]





    Ms. Bordallo. My first question is to Mr. Lecky, and in 
the interest of time, if you could please answer yes or no to 
the following questions. Is the number of California sea lions 
this year at Bonneville Dam the lowest since 2002?
    Mr. Lecky. I believe that is true.
    Ms. Bordallo. So it is a yes?
    Mr. Lecky. Yes.
    Ms. Bordallo. Is the present percentage of endangered 
salmon consumed by California sea lions at Bonneville Dam this 
year the lowest since 2003?
    Mr. Lecky. No, it is not.
    Ms. Bordallo. Well, according to the May 27 status report 
from the Army Corps of Engineers, California sea lions consumed 
only 1.4 percent of the run this year, which is the lowest 
percentage since 2003.
    The next question is are there other threats to endangered 
salmon aside from predation by sea lions?
    Mr. Lecky. Yes.
    Ms. Bordallo. Do pesticides such as the ones that were 
evaluated in NMFS's for 2008, 2009, and 2010, biological 
opinions jeopardize juvenile salmon?
    Mr. Lecky. Yes.
    Ms. Bordallo. Are buffers and limitations on aerial 
applications during windy conditions reasonable methods to 
protect salmon and prevent pesticides from getting into our 
streams?
    Mr. Lecky. I will give you a conditional yes. In certain 
circumstances that is true.
    Ms. Bordallo. And the last one is has the EPA incorporated 
these methods to protect salmon in their registration of these 
pesticides?
    Mr. Lecky. Not so far.
    Ms. Bordallo. So the answer is no.
    Mr. Lecky. Ms. Bordallo, may I qualify that?
    Ms. Bordallo. Yes.
    Mr. Lecky. So the EPA does have restrictions on 
applications of pesticides according to their labels. We have 
asked them to implement additional restrictions in our 
biological opinions. Those additional restrictions have yet to 
be implemented.
    Ms. Bordallo. Thank you. Ms. Young, in 2008, the NMFS 
authorized the States to kill the lesser of either 85 sea lions 
per year or the number required to reduce predation to one 
percent of the salmon run at Bonneville Dam.
    This year the Army Corps of Engineers reported that 
California sea lions only consumed 1.4 percent of the salmon 
run this year. Has this 2008 goal essentially been obtained?
    Ms. Young. If you round 1.4 percent to the lowest or 
closest whole number that would be one percent, and so it would 
appear so.
    Ms. Bordallo. Has H.R. 946 exempted the killing of sea 
lions from review under the National Environmental Policy Act, 
and can you elaborate on your concerns with this exemption?
    Ms. Young. Well, as I said, my concern is that that Act is 
a very important part of sharing public involvement, and the 
consideration of a variety of alternatives, and exempting it 
from that really leads to an expedited process that excludes 
the public.
    Ms. Bordallo. And last year 14 sea lions were euthanized, 
and about 70 percent of sea lions seen at the Bonneville Dam 
had not been previously identified. So does killing some sea 
lions deter other sea lions from consuming salmon at the 
Bonneville Dam?
    Ms. Young. I don't believe so. I think that the Corps 
reports around 80 sea lions a year at the dam and, on any given 
day, there are only about 20-something of them. So they come 
and go, and replace one another.
    Ms. Bordallo. And then my final question is are the 
provisions in this bill specific enough to reasonably confine 
sea lion killings to individuals most impacting endangered 
salmon near the Bonneville Dam?
    Ms. Young. I don't believe so.
    Ms. Bordallo. All right. Thank you, Mr. Chairman. I yield 
back my time.
    Dr. Fleming. I thank the gentle lady. Next, I would call 
upon the Chairman of The Committee, Mr. Hastings, from 
Washington.
    Mr. Hastings. Thank you very much, Mr. Chairman. Mr. Lecky, 
let me ask you first. I mentioned in my opening statement and 
acknowledged that NOAA had formed a task force of scientists in 
December, and in their report they said, and I quote directly, 
under the current Section 120 as authorized under the Marine 
Mammal Protection Act, the task force finds that the current 
program has not been effective in allowing the authorization to 
be fully implemented, nor reducing predation on listed salmon 
to less than one percent.
    I am assuming that this led to your decision to come to 
support this bill. Is that a correct assumption?
    Mr. Lecky. Yes, sir, that is a contributing factor.
    Mr. Hastings. As a contributing factor. OK. And other 
factors would be what?
    Mr. Lecky. Well, it has been our experience in implementing 
Section 120 more broadly.
    Mr. Hastings. OK. Mr. Norman, I am to understand that you 
were on that task force; is that correct?
    Mr. Norman. Yes, I was.
    Mr. Hastings. And on that task force, my understanding is 
that the vote was 17-to-1 to endorse what I just read. Is that 
correct?
    Mr. Norman. That is correct.
    Dr. Fleming. That is correct? OK. Mr. Lecky, I want to ask 
you a question. I know that the States of Washington, and 
Oregon, and Alaska, as well as some Columbia River tribes, have 
written and petitioned NOAA to delist the Eastern population of 
the stellar sea lions. Has is that coming?
    Mr. Lecky. Well, we did receive those petitions. We 
formally accepted then in December, and initiated status 
reviews. Those will be completed in August of this year.
    Mr. Hastings. In August of this year?
    Mr. Lecky. Yes.
    Mr. Hastings. OK. There has been a reference by several of 
you to the California sea lions, and as to their activity in 
the Bonneville Dam. So the focus then is probably on the 
California sea lion.
    Mr. Brown, I think in your testimony, and if others can 
confirm this, either confirm or correct me, but my 
understanding is that the California sea lion is not indigenous 
to the Columbia River. Is that correct?
    Mr. Brown. That is correct. Professor Lee Lyman has done 
extensive work looking at the archeological and anthropological 
record in kitchen mittens and remains of tribal usage areas, 
and there are no bones of California sea lions.
    There is clear evidence that harbor seals were in the area 
and taken, and an occasional stellar sea lion, but not 
California sea lions. If I might take on extra minute to 
suggest that this discussion of the percentage of the run taken 
by sea lions is not a good measure of what the problem is.
    Mr. Hastings. I will get to that later. I am aware of that.
    Mr. Brown. Thank you.
    Mr. Hastings. Mr. Norman, would you confirm what Mr. Brown 
just said as far as the indigenous factor of California sea 
lions?
    Mr. Norman. Yes, I would support that.
    Mr. Hastings. And Mr. Lecky?
    Mr. Lecky. Well, I actually am unclear on whether there are 
records of sea lions----
    Mr. Hastings. Well, we have testimony that it is, and so 
regardless of the number then, you are talking about a number 
of animals that are feasting on endangered salmon that are not 
indigenous to the area that we are talking about and the focus 
of what this bill is.
    I mean, that seems to me regardless of how you want to 
measure this. Mr. Brown, you mentioned of course the percentage 
has gone down because the runs have gone up, and in that 
regard, I do want to ask Ms. Young, because in your written 
statement, you made that observation, that in fact the 
percentage has gone down, and so therefore it shouldn't be an 
issue.
    Yet, the number that has been documented is 6,000 salmon. 
So my question to you is how many salmon being eaten in raw 
numbers, and no pun intended, but in raw numbers, would cause 
concern to the Humane Society as far as those being eaten by 
sea lions?
    Ms. Young. I don't know that I can answer with a whole 
number. I do know that----
    Mr. Hastings. Well, wait. I am asking you directly to 
answer with a whole number because you were suggesting that it 
is immaterial when you look at the percentage of runs. Yet, 
there are 6,000 that are documented.
    You must have a position on how many would endanger the 
whole threatened run, and if you don't, then I think that is 
pretty significant.
    Ms. Young. Since the run size fluctuates the percentage is 
going to fluctuate, and it is the percentage that is the most 
important.
    Mr. Hastings. The percentage is what is the most important?
    Ms. Young. Yes.
    Mr. Hastings. Going back then to, and I think it was Mr. 
Brown who said earlier, or maybe it was Mr. Norman, if we had 
handled this issue and addressed this earlier, we would have 
mitigated the problem in the long term. Who was that, Mr. 
Brown, or--well, Mr. Brown, would you elaborate on that then, 
please.
    Mr. Brown. Yes. Unfortunately, it is the Catch-22 form of 
Section 120 as currently written. You can't do anything until 
you have a huge problem, and once you have a huge problem, it 
is very expensive and difficult to deal with.
    Had we been able to move in 2002 and take out the first two 
or three sea lions that showed up, and then three or four the 
next year, and one or two the following year, and so on for any 
number of years, we probably would have removed far fewer sea 
lions and definitely saved many more thousands of salmon.
    And I would suggest respectfully that the percentage of the 
run taken is not important. We are very lucky to have great run 
sizes over the past few years, but not too long ago, we had a 
run of only 86,000 fish.
    And five or 6,000 out of that run is very significant. The 
number of salmon taken by these predators has gone up every 
year since the study began.
    Mr. Hastings. In raw numbers, thank you. My time is way 
over and thank you very much.
    Dr. Fleming. I thank The Chairman. Next up, we have Mr. 
Southerland from Florida. You have five minutes, sir.
    Mr. Southerland. Thank you, Mr. Chairman. I am from 
Florida, and so this is--I ask for a little understanding while 
I try to get my hands around something that we don't have to 
deal with.
    But my questions are to Mr. Norman, Mr. Brown, and Mr. 
Lewis. Are there any new nonlethal techniques currently being 
tested that could prove more successful in deterring sea lions 
predation than existing techniques?
    Mr. Brown. Chairman Fleming and Member Southerland, we have 
been working with nonlethal deterrence methods on seals and sea 
lions around fish pens, fishing nets, streams, and things, for 
the 35 years that I have been working on this issue.
    One of the most recent, and if you consider it that, 
development was the use of acoustic devices that produced a 
loud sound in the middle of the hearing range of pinnipeds that 
presumably was going to be irritating.
    That system has been around for 20 years or more, and while 
it disturbs animals initially, they very quickly learn to avoid 
it. There has been some talk about some other things--
electrical barriers--which have proven to have negative impacts 
on fish, and cannot be used in areas where ESA listed fish 
occur.
    So the short answer is, no, we are not aware of any new 
nonlethal measurements that have been identified or under 
development for use. One thing to remember is that these 
California sea lions are very--they are survivors. They learn 
very quickly. They are highly adaptable.
    And there is really nothing short of removing these animals 
that we know of today that would prevent them or eliminate the 
drive that they have to go to these places and consume these 
fish.
    Mr. Southerland. Mr. Norman, maybe this is a question for 
you. What are the numbers? I mean, I know that we are talking 
about percentages, but what are the numbers that need to be 
removed in a given year?
    And just a ballpark number. It does not have to specific. I 
am just trying to get an understanding of how many are we 
talking about here?
    Mr. Norman. In terms of removal of sea lions?
    Mr. Southerland. Yes.
    Mr. Norman. I think that actually it is not an exact 
number.
    Mr. Southerland. I am not asking for exact.
    Mr. Norman. But certainly enough to reduce or stop the 
increase, and reduce the problem.
    Mr. Southerland. Remember that there is not a bad answer 
here. So I am trying to get an idea of the number. I mean, are 
we talking 50, or are we talking 500? Are we talking 5,000? I 
am just trying to understand the issue.
    Mr. Norman. Well, right now the current authority limits it 
to 85 per year.
    Mr. Southerland. OK.
    Mr. Norman. And I think something less than that would be 
adequate.
    Mr. Southerland. OK. So we are not talking thousands or 
hundreds? I mean, I am just trying to understand.
    Mr. Norman. Right.
    Mr. Southerland. Also, and I understand, but give me an 
idea. These are all majority the male, and these are not 
female. Am I correct in that?
    Mr. Norman. Yes, that is correct.
    Mr. Southerland. OK. I mean, I understand. I am a hunter 
from the South, and we understand if you want to thin a herd, 
we have programs where we shoot does. That is understandable. 
So that is not obviously a thing that we can do here because 
you are obviously dealing with males that are coming.
    I will say this. It seems like you have done the science on 
this, OK? One of the things that I have clearly been frustrated 
with has been--and Mr. Lecky, this is something that you can 
maybe address, but I have been continually frustrated in the 
five or six months that I have been here at our ability to find 
the science that we need to solve the problems that we want to 
solve, but if there are problems that we don't want to solve, 
we can't find the science.
    And I just have to tell you that I am looking at what you 
are doing here, and what my people are fighting for regarding 
the red fish, which are absolutely hammering the crab 
population in the bays and estuaries where I live, and in 
little communities that have five, and six, and seven crab 
houses, are down to one, OK?
    And yet we are very interested in talking about the salmon, 
and yet we are not interested in talking about the crabs. So I 
would really like to see some consistency in other species, and 
not pick and choose one over the other.
    I am burdened sometimes when we are far more concerned 
about certain species than we are in these family owned 
businesses that are four, and five, and six year old 
generational businesses that are not living extravagantly by 
any means, OK?
    They are holding their boats together with duct tape and 
baling wire, and so I would really like some consistency. I 
mean, I can't disagree with your testimony today, but I can 
sometimes disagree with how we apply these principles to 
various species around the lands and waters that we oversee. I 
yield back.
    Dr. Fleming. The gentleman's time has ended, and he has 
yielded back. Well, I want to compliment our witnesses on some 
excellent testimony, and responses.
    Mr. Hastings. Mr. Chairman, I ask unanimous consent that 
the testimony of Mr. Billy Frank, who is the Chairman of the 
Northwest Indian Fishing Commission, be entered into the 
record. He is in support of this legislation, and I forgot to 
do that at the outset. So I ask unanimous consent that his 
testimony be part of the record.
    Dr. Fleming. Thank you, sir, and without objection, so 
ordered.
    [The statement of Mr. Frank submitted for the record 
follows:]

   Statement submitted for the record by Billy Frank, Jr., Chairman, 
                 Northwest Indian Fisheries Commission

    Mr. Chairman and other Honorable Members of the Subcommittee, thank 
you for the opportunity to provide written testimony regarding H.R. 
946. My name is Billy Frank, Jr., Chairman of the Northwest Indian 
Fisheries Commission (NWIFC). The NWIFC is comprised of the twenty 
treaty tribes party to the United States vs. Washington (U.S. vs. 
Washington).
    We are pleased that the House Natural Resources Subcommittee on 
Fisheries, Wildlife, Oceans and Insular Affairs is considering this 
bill that would amend the Marine Mammal Protection Act (MMPA) to reduce 
predation on endangered Columbia River salmon. Although this bill is 
focused on the California sea lions preying on Columbia River salmon, 
we want to ensure that any amendments to the MMPA won't have an adverse 
affect on the Washington coast and Puget Sound. We generally support 
H.R. 946. On behalf of our 20 member tribes, I would like to submit the 
following comments to the bill that are important in meeting the needs 
of our tribes.
                    SUMMARY OF COMMENTS TO H.R. 946
          Support the development of legislation to address the 
        problem of marine mammal predation on ESA-listed fish and other 
        listed species.
          Recommend inclusion of a treaty rights savings 
        clause.
          Support the testimony being provided by the Columbia 
        River Inter-Tribal Fish Commission.
              TRIBES, TREATY RIGHTS AND TRUST OBLIGATIONS 
                       OF THE FEDERAL GOVERNMENT
    Indian tribes have always inhabited the watersheds of western 
Washington, with cultures based on harvesting fish, wildlife, and other 
natural resources in the region. In the mid-1850s, a series of treaties 
were negotiated between the federal government and the tribes in the 
region. Through the treaties, the tribes ceded most of their land, but 
in doing so, reserved certain rights to fish, hunt and gather to 
protect their way of life.
    The promises of the treaties were quickly broken in the decades 
that followed as the tribes were systematically denied their treaty-
protected rights by the State of Washington. In 1974, the tribes won a 
major victory in U.S. vs. Washington (also commonly referred as the 
Boldt Decision), which reaffirmed their treaty-protected fishing 
rights. The ruling, which has been upheld by the U.S. Supreme Court, 
recognized the tribes as co-managers of the resource and determined 
they were entitled to 50 percent of the harvestable number of salmon 
returning to Washington State waters. More recent federal court rulings 
and solicitor opinions upholding treaty-reserved rights have further 
expanded the role and responsibilities of the tribes as natural 
resource managers. Those rulings, combined with the interconnectedness 
of all natural resources, mean that tribal participation is essential 
in nearly all aspects of natural resource management in the region.
    The tribes from the Pacific Northwest have stepped forward and have 
embraced co-management. They developed sophisticated natural resource 
programs designed to protect and enhance their treaty rights. Tribal 
programs, based on deep cultural and philosophical underpinnings, have 
served as the backbone of salmon recovery, providing the technical, 
policy and legal framework for this incredibly difficult task. Tribes 
perform complicated harvest, hatchery and habitat management tasks that 
neither the state nor the federal government can effectively carry out. 
It is because of the role the tribes play in protecting their rights 
that they continue to protect and preserve the species to which they 
have harvestable rights to for future generations.
                 JUSTIFICATION OF COMMENTS TO H.R. 946
          Support the development of legislation to address the 
        problem of marine mammal predation on ESA-listed fish and other 
        listed species.
    Western Washington tribes have always successfully and respectfully 
coexisted with California sea lions, harbor seals, and other marine 
mammals. Tribal members harvested them for their skins, oil, flesh, and 
bone. When necessary, tribal members also killed marine mammals that 
interfered with their fishing. Marine mammals were part of an ecosystem 
where humans (and orca) were the top predators. Unfortunately, this 
balance has been undone in a number of ways--most recently by the 
Marine Mammal Protection Act--with the current result being an 
ecosystem teeming with California sea lions and harbor seals that 
consume ESA-listed salmon as part of their diet and directly interfere 
with the tribes' abilities to exercise their treaty reserved fishing 
rights. The balance needs to be restored. Consequently, the NWIFC 
strongly supports the provision in H.R. 946 calling for development of 
a report on legislation addressing marine mammal predation on ESA-
listed fish species.
          Recommend inclusion of a treaty rights savings 
        clause.
    The tribes' treaties with the federal government were concluded at 
a time when salmon, tribal members and marine mammals successfully 
coexisted. These treaties form the foundation of the tribes' culture 
and incorporate a conservation obligation that supports laws governing 
the protection and use of resources. The NWIFC strongly recommends 
inclusion of treaty rights savings language such as that recommended by 
the Columbia River Inter-Tribal Fish Commission and already included in 
the Northwest Power Act, 16 U.S.C. 839g (e).
        ``Nothing in this chapter shall be construed to affect or 
        modify any treaty or other right of an Indian tribe.''
                               CONCLUSION
    In conclusion, the treaties reflect the United States' commitments 
to preserve our physical, cultural and economic livelihood and it is 
vitally important to the Commission's member tribes that these 
commitments remain steadfast. Mr. Chairman, and Members of the 
Subcommittee, we appreciate the time that you provided us to comment on 
this very important piece of legislation. We also want to acknowledge 
the Subcommittee in recognizing and providing a forum in our 
government-to-government relationship in addressing an issue that 
affects us all. We believe that the management work that we perform to 
protect our valuable resources benefits the entire region. It is 
because of this, we also support the recommended changes to the bill 
that are being proposed by the Columbia River Inter-Tribal Fish 
Commission.
    Thank you again, Mr. Chairman and members of the Subcommittee, for 
this opportunity to provide written testimony.
                                 ______
                                 
    Dr. Fleming. Once again, I thank all our witnesses for a 
great job today. I would like to thank our witnesses not only 
for their valuable testimony, but their time today. Other 
Members of the Subcommittee may have additional questions for 
the witnesses, and we ask you to respond to these in writing.
    The hearing record will be open for 10 days to receive 
these responses. Finally, I want to thank Members and staff for 
their contributions to this hearing. If there is no further 
business, without objection, this Subcommittee stands 
adjourned.
    [Whereupon, at 11:04 p.m., the Subcommittee was adjourned.]

                                 
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