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Feds
Get More Time For New Listing Decision For
Oregon
Coho
U.S. District Court Judge
Garr M. King on Friday (Oct. 26) granted a doubling of the time allotted
for the federal government to produce a new final listing rule for
King's order vacated his
Oct. 5 judgment that gave the National Marine Fisheries Service 60 days
to make a new listing decision, and reset the deadline at 120 days. The
federal agency how has until Feb. 4 to produce a listing decision
"consistent with the Endangered Species Act."
The federal agency in
January 2006 decided the coho stock did not warrant ESA protections and
withdrew an earlier proposal to list the coastal stock as threatened.
That decision was challenged by Trout Unlimited and other fishing and
conservation groups represented by Earthjustice.
On July 13 U.S. District
Court Magistrate Janice M. Stewart found that NMFS' decision was
arbitrary and capricious under the ESA, saying it failed to consider the
best available science, and recommended that the federal agency be given
60 days to issue a new listing.
King adopted Stewart's
findings and recommendations and issued a judgment.
According to federal
attorneys King's new judgment resets the time clock for filing an appeal
of King's Oct. 5 order and judgment. The government now has 60 days from
issuance of the revised Oct. 26 final judgment -- until Dec. 26 -- to
decide whether to file an appeal.
That deadline also
applies to the state of
In making the request for
an extension, NMFS' regional administrator Bob Lohn testified that more
time was needed produce an assessment of the coho stock's status and to
satisfy other ESA requirements.
"While this schedule
would likely not allow time for major new analyses or
information-gathering, nor the opening of a new public comment period,
it would allow NMFS to confirm whether data collected since our review
and other new information and analyses might affirm or alter any of
those determinations," Lohn said.
The extension would allow
"for the possibility of simultaneously designating critical habitat
for this Evolutionary Significant Unit ('ESU') and provide protective
regulations under 16 U.S.C. § 1533(d) (commonly referred to as a
section '4(d) rule')," according to a memorandum filed by the
Justice Department in support of the request. If it is decided that the
coho stock requires listing under the ESA, critical habitat and 4(d)
protections are required.
"An additional 60
days will allow NMFS to consider some of the new information that has
been developed since this litigation ensued and thus will make any
decision more likely to withstand future legal challenge," the
memorandum says.
Plaintiffs in the case
asked that judge require completion of the critical habitat
determination and protective regulations in the same 120-day time frame,
rather than allow for that "possibility." But King's revised
judgment did not address that request.
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Source:
http://www.cbbulletin.com/Free/244810.aspx