Ninth Circuit Gets Appeal of Oregon Coho ESA-Listing Case 

Columbia Basin Bulletin

December 14, 2007 

An appeal filed Thursday seeks to overturn a U.S. District Court ruling that rejected the federal government's decision to leave Oregon coast coho salmon off the Endangered Species Act list.

The appeal was filed by the Pacific Legal Foundation in the U.S. Circuit Court of Appeals for the Ninth Circuit. PLF attorneys represent the Alsea Valley Alliance and others in the lawsuit, Trout Unlimited v. Lohn. Bob Lohn is regional administrator for the NOAA Fisheries Service, which made the listing determination.

Judge Garr King on Oct. 26 ruled that the federal agency in making its listing determination wrongly relied on an Oregon state conservation plan assessment of the coho stock's viability. The federal agency was given until Feb. 4 to produce a listing decision "consistent with the Endangered Species Act."

U.S. District Court Magistrate Janice M. Stewart in July found that NMFS' decision was arbitrary and capricious under the ESA because it fails to consider the best available science. King adopted Stewart's finding and recommendations.

Stewart said that an Oregon assessment of the coho stock's ability to persevere was "based on assumptions plagued by uncertainty, lack of data and potential bias…."

"It is evident that according to the peer review critiques and NMFS's findings, as well as its own admission, Oregon 's viability conclusion does not represent the best available science, but, as cautioned by the NWFSC, depends 'on assumptions about behavior at levels for which there are few or no data," Stewart concluded. The NWFSC is NOAA's Northwest Fishery Science Center .

The federal government and defendant-intervenor Oregon have until Dec. 26 to file appeals of the King decision. NOAA's Brian Gorman said Thursday he was unaware of whether a decision to appeal had been made.

Judge King effectively "ordered NMFS to ignore information in the (legal) record from the state of Oregon ," according to PLF attorney Sonya D. Jones, "essentially telling NMFS not to do something that the ESA tells it to do.

"In deciding that a federal ESA listing was not necessary, the National Marine Fisheries Service (NMFS) concluded that the State of Oregon 's own salmon conservation plan provided adequate protection," said Jones.

The federal court overruled the decision, and instructed NMFS not to take the state's conservation efforts and plan, which subsumes the coho assessment, into account, Jones said.

"We're appealing the court ruling, because the plain language of the ESA requires federal regulators to consider state conservation efforts -- and defer to them, when they provide sufficient protection for species," Jones said. The assessment report is a part of that overall plan, a 10-year, multi-agency project that cost $375 million to develop, according to the PLF.

"For federal officials to ignore state conservation efforts wouldn't just go against the letter of the law, it would also raise practical concerns," Jones said. "Treating state programs as irrelevant would undermine the confidence of private property owners in local officials' regulatory efforts -- and deter people from working cooperatively with state conservation officials. It would also weaken incentives for the states themselves to be creative and resourceful in protecting species within their borders."

A federal ESA listing of Oregon coast coho salmon would inevitably lead to increased regulation of land use, according to Jones.

"A substantial portion of Tillamook Forest -- both state-owned and private lands -- would be affected by such a federal listing. This could hurt local communities that depend, in part, on responsible timber harvesting for jobs and economic well-being," she said. "It could also affect fishing families and communities that rely on the fishing industry."

The Oregon coast coho were first proposed for ESA listing in 1995 when a NOAA Biological Review Team concluded that the coho are "likely to become endangered in the future if present trends continue." That proposal was withdrawn in 1997, based on the predicted effects of future and voluntary conservation measures envisioned under the Oregon 's Plan for Salmon and Watersheds.

That decision was found legally faulty and in 1998 NOAA listed the Oregon coast coho as threatened.

In 2001, Eugene-based District Court judge Michael Hogan found the listing decision illegal because NOAA had included both natural and hatchery populations in its "evolutionarily significant unit" designation of the stock, but listed only the naturally produced fish.

Hogan said it was illegal to list only the wild fish because the ESA did not allow such a splitting of the designation population segment. The Hogan decision prompted NOAA Fisheries' reconsideration of all 27 West Coast salmon and steelhead listings. In decisions made in 2005 and 2006, all but one of the stocks -- the Oregon coast coho -- retained ESA protections.

One stock, the Upper Columbia steelhead, was downlisted from endangered to threatened. That decision was also challenged and NOAA this year was ordered to restore the endangered status. The "hatchery listing" policy used to inform the decision was also declared illegal. That district court decision has also been appealed to the Ninth Circuit.

A decision earlier this year by Judge Hogan has also been appealed. On Aug. 14 upheld 16 West Coast salmon listing determinations that emerged from NOAA's re-evaluation. The 2006 steelhead determinations have been challenged in a northern California U.S. District Court.

NOAA in 2004 proposed to relist the Oregon coho, but prolonged its evaluation in part to await a comprehensive assessment of the viability of the Oregon Coast coho ESU and of the adequacy of actions under the Oregon Plan for conserving Oregon Coast coho (and other salmonids in Oregon) being prepared by the state of Oregon.

NOAA eventually concluded that "the best available information on the biological status of Oregon Coast coho indicates that the ESU is not in danger of extinction throughout all or a significant portion of its range (i.e., the ESU does not satisfy the definition of an endangered species under the ESA)," according to a Jan. 19, 2006, Federal Register notice withdrawing the proposed listing.

The Alsea Valley Alliance is a coalition of fishing families and defenders of property rights. The PLF is the oldest public interest legal organization dedicated to property rights, limited government, and a balanced approach to environmental protection.

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