- Associated Press - Tuesday, September 13, 2011

ANCHORAGE, ALASKA (AP) - A science consortium has agreed to a civil penalty of $9,000 for intruding into Alaska waters that were declared off-limits to protect endangered Steller sea lions.

But an attorney for the group, which included participants from Vanderbilt, Rutgers and Pittsburgh universities, took strong exception to a federal agency linking the scientists to the killing of a sea lion by Alaska native hunters who were with the researchers.

The Office of Law Enforcement for the National Oceanic and Atmospheric Administration said Tuesday in a news release that it had reached a settlement with the researchers for the “unpermitted take of a Steller sea lion.”

Rutgers attorney Robert P. Roesener said that could be called “defamatory.”

“This case was a frivolous abuse of NOAA’s discretionary enforcement power from the beginning,” Roesener said in an email to The Associated Press. “It is yet another example of the agency’s much publicized enforcement abuses, this time against eminent scientists who had been enlisted in a scientific investigation by the state and federal government and Native Alaskans to help determine whether atomic bomb testing in the 1960s had caused radioactive contamination of the Natives’ subsistence foods supply.”

NOAA said the settlement with the Nashville, Tenn.-based Institute for Responsible Management/Consortium for Risk Evaluation with Stakeholder Participation II waived its right to a hearing on three separate counts, including the unlawful killing of a Steller sea lion by Aleut hunters hired as biological technicians for the study.

Attorneys for NOAA’s enforcement arm said the killing could not be considered a subsistence take because the hunters were being paid as part of the consortium research.

“If they’re paid and they’re conducting scientific research, absolutely, it needs a permit,” said Susan Auer, a senior NOAA enforcement attorney based in Juneau.

NOAA’s Office of Law Enforcement said the incursion occurred in 2004 by researchers looking for contamination from underground nuclear tests conducted at Amchitka Island. The island near the end of the Aleutian Island chain, about 1,400 miles southwest of Anchorage, was the site of three underground atomic tests from 1965 to 1971.

The consortium included faculty and staff from Rutgers University, University of Pittsburgh, Vanderbilt University, The Maryland School of Dentistry, University of Alaska Fairbanks and the Aleutian Pribilof Islands Association, a nonprofit tribal organization representing Aleut people.

Charles Powers, a professor of environmental engineering at Vanderbilt and co-principal investigator for CRESP, according to its website, directed the study. Joanna Burger of Rutgers, a behavioral ecologist, was lead scientist.

NOAA enforcement in July 2009 issued notices of violation to the consortium, Powers, Burger and Aleutian Pribilof Island Association. One count, for an incursion into a three-mile Steller sea lion no-transit zone, said the scientists had allowed a skiff to pass within 100 yards of the island’s East Cape Rookery.

The Aleutian Pribilof Islands Association admitted all charges and paid a civil penalty of $7,200 in November 2009, NOAA said.

According to NOAA, the consortium admitted the no-transit zone incursion but denied other charges and waived a right to a hearing. The settlement agreement, a copy of which was provided by Roesener to the AP, also notes NOAA agreed to “forgo its opportunity to pursue the charges.”

Roesener said the harvesting of the sea lion was a fully legal subsistence hunt under the federal Endangered Species Act. The scientists, he said, spoke with NOAA officials before the hunt to determine what were the appropriate steps for them to take when Aleuts on the expedition asserted their subsistence rights. Emails demonstrating that were ignored by the investigating agent, Roesener said.

The sea lion meat was shared with the hunters’ own family members and the Aleut community in Adak in compliance with federal law, he said. Aleuts under the Endangered Species Act do not need a permit for subsistence hunting, and NOAA as part of the settlement agreement explicitly agreed to abandon that point, he said.

“NOAA’s claim in its release that the take was unpermitted is a wild mischaracterization of the settlement and could be considered defamatory,” Roesener said.

Auer and Ben Friedman, an assistant general counsel for enforcement and litigation in Maryland, said it was not a true subsistence hunt. Their employer, the tribal association, acknowledged that and paid the civil penalty, Auer said.

“If it were true subsistence, where they were out to take a Steller sea lion for subsistence purposes, they would not need a permit. It was our position that that was not the purpose of the take,” Auer said.

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