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Oral
Arguments Set Monday on Oregon Coho ESA Listing Case
Columbia
Basin Bulletin
April
13, 2007
The status of the
The fish will again be
the focus next week in a Eugene, Ore., courtroom when fishing and
conservation groups try to convince a federal judge that the coho stock
needs ESA protections.
The federal government,
aided by the state of Oregon and the Pacific Legal Foundation, will
argue that the January 2006 determination that listing is not warranted
is correct.
Oral argument are
scheduled before U.S. District Court Judge Janice M. Stewart on Monday.
Another Eugene-based
federal district court judge, Michael Hogan, started NOAA Fisheries'
massive listing reconsideration with a September 2001 decision declaring
the 1998 coho listing illegal.
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 distinct population segment.
Since such hatchery-wild
designations were common to most of the existing listings, NOAA decided
to rewrite its policy regarding treatment of hatchery produced fish in
making listing determinations, and reviewed the status of all 27 stocks.
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.
At the end of its
deliberations, NOAA 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 fishing and
conservation groups, represented by Earthjustice, say that the proposed
listing was withdrawn "principally on a single piece of evidence,
Oregon's viability assessment, which caused NMFS to embrace the BRT
(Biological Review Team) minority position."
NOAA's biological review
team in a 2003 report, by a slight majority according to NOAA, had
concluded that the naturally spawning populations in the Oregon Coast
coho ESU were likely to become endangered, i.e were worthy of a
threatened ESA designation.
"Apart from Oregon's
viability conclusion, NMFS had no basis for shifting its reliance from
the BRT majority's threatened finding to the minority's contrary
conclusion,"
according to an
Earthjustice brief filed March 27.
"Indeed, the BRT
minority embraced the logic of the low abundance paradigm – that
Oregon coho are inherently resilient and can bounce back from low
numbers regardless how degraded their freshwater habitat may be. The
lack of scientific support for that paradigm calls the BRT minority
conclusion into question."
A federal brief filed
March 2 says that argument fails.
"First, the test of
NMFS's withdrawal decision and documents in the administrative record
reveal that NMFS carefully assessed the status of the species and
considered all relevant factors. In evaluating Oregon's low abundance
paradigm… NMFS did not just accept Oregon's conclusions. Rather, NMFS
undertook its own analysis and reached its own conclusions."
The PLF, representing the
Alsea Valley Alliance, said the scientific arguments are superfluous.
"Plaintiffs
obfuscate the legal issues in this case by focusing almost entirely on
scientific disagreement when the bottom line is that NMFS's
not-warranted determination was the result of a lengthy acquiescence to
the proper administrative process and mere disagreements in the
scientific reports reviewed did not preclude their ultimate
determination," according to a brief filed April 6.
"Nine years after
the ONRC decision, this court is once again charged with the task of
determining if NMFS's not warranted determination for the Oregon Coast
coho is lawful and, further, if it is arbitrary and capricious. This
Court should not rely on Plaintiffs' dissatisfaction to overturn the
withdrawal of the proposed rule, or remand to NMFS for further
consideration, but, instead, should defer to the NMFS's finding, which
it arrived at through the procedures Congress set forth" in the
ESA.
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