Feds, Oregon, Alsea Want Magistrate's Listing Findings Tossed 

Columbia Basin Bulletin

September 21, 2007 

The federal government, state of Oregon and Alsea Valley Alliance all say that a federal magistrates "findings and recommendations" regarding the state of the Oregon Coast coho salmon should be tossed out.

In contrast, a coalition of fishing and conservation groups say that U.S. Magistrate Janice M. Stewart was right on target in declaring arbitrary and capricious a NOAA Fisheries decision to drop its Endangered Species Act listing proposal for the coho stock. That decision failed to consider the best available science, the judge wrote in her July findings.

Stewart recommended that NOAA "be ordered to issue a new final listing rule consistent with the ESA within 60 days of the court's decision."

The pro and con arguments filed Sept. 14 in Oregon's U.S. District Court, as well as Stewart's findings and recommendations, will now be pondered by Judge Garr M. King. The district court referred the legal issue to King Tuesday.

King can accept Stewart's findings, modify them or reject them.

If all parties to a lawsuit consent, a magistrate has all the authority of a U.S. District Court judge, including the issuance of orders. The lawsuit challenging the coho listing determination brought last year by Trout Unlimited and other fishing and conservation groups against NOAA is not, however, a consent case. The Oregon and Alsea Valley Alliance, represented by the Pacific Legal Foundation, joined the lawsuit as defendant intervenors. Trout Unlimited is represented by Earthjustice.

In a non-consent case, parties to the lawsuit can file objections to a magistrate's findings and recommendations. And respond to objections that are filed. Last Friday's responses closed that loop and the parties now await a decision from King.

The lawsuit was filed shortly after NOAA's Jan. 19, 2006, decision not to list the coho. Stewart over the past year has guided legal briefing amongst the parties and in April heard oral arguments.

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.

Earthjustice's Sept. 14 response to the federal government's defense of the science said Stewart's findings "appropriately conclude that NMFS acted arbitrarily and capriciously and contrary to the best available scientific information by withdrawing the proposed listing based on Oregon's viability conclusion, which ran counter to the scientific evidence in the record and NMFS's own findings.

"The defects postulated in the objections fail to coincide with what NMFS did in the Withdrawal Decision or what the Magistrate Judge did in the F&Rs," the Earthjustice brief said, referring to earlier federal objections to Stewart's findings and recommendations.

Trout Unlimited had claimed that NOAA's decision was based on a new legal standard which improperly shifts the burden of proof to the species. Trout Unlimited's coalition says a precautionary approach is required, i.e. when in doubt, list the species.

Stewart's finding and recommendations supported NOAA's interpretation of ESA language that says a species should be listed as "threatened" if it is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."

"We interpret the term 'likely' to mean that the best available information must indicate that a species is more likely than not to become an endangered species within the foreseeable future throughout all or a significant portion of its range," the agency says. The determination judged the coho was not likely to become endangered.

"The opinion found a 'precautionary approach' did not extend to listing decisions, but it nevertheless gave the benefit of the doubt to the species merely because a significant body of newly developed data was uncertain. Put simply, under this formulation, uncertainty equals listing," the federal filing says of Stewart's stance.

Stewart deferred to NMFS regarding its ESA standard interpretation, but said the agency "erred in disregarding the best available science and the opinions of their own scientists or scientific advisors."

The Department of Justice's Sept. 14 filing says "… the court relied almost exclusively on the fact that other scientific entities, like the Science Center, acknowledged there was uncertainty with respect to Oregon's modeling. Thus, according to the Magistrate, the entire body of data needed to be disregarded rendering NMFS' decision invalid.

"Although the Magistrate upholds NMFS' interpretation of 'likely', the court does not apply that same standard. It invalidates NMFS' decision because there was uncertainty, in effect applying a 'precautionary approach.' Compare F&R at 30-31 ("Here, in contrast, the issue is whether inconclusive evidence may be used to initiate protections for a species."), with F&R at 62 ("By feigning an inability to make a listing finding in the face of Oregon's competing conclusions or uncertainties, the NMFS's determination not to list the Oregon Coast coho salmon is arbitrary . . . .").

The Oregon coast coho has long been in the spotlight. The stocks 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."

NMFS withdrew the proposed listing 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 federal 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 and other stock was added to the list.

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.

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