Ruling: Coho science flawed

Magistrate tells judge to order fisheries service

Mitch Lies
Capital Press

July 20, 2007

What seemed like a major victory for the natural resources community 19 months ago today looks more like a minor reprieve after a federal magistrate ruled a fisheries agency violated the Endangered Species Act when it decided not to list the Oregon coast coho as threatened or endangered.

U.S. Magistrate Janice M. Stewart on July 13 wrote in a 50-plus page opinion that the National Marine Fisheries Service's 2006 no-list decision was "arbitrary, capricious, contrary to the best available evidence and a violation of the ESA."

The suit was brought by Pacific Rivers Council, Trout Unlimited and other environmental and fishing groups.

Stewart recommended the courts order the fisheries service issue a ruling consistent with the Endangered Species Act.

The action marks the second time in recent weeks the natural resources industries have been stung by a ruling on endangered fish. It comes one month after U.S. District Judge John Coughenour ruled that federal agencies can't count hatchery salmon alongside wild stocks when determining if populations of the upper Columbia River steelhead warrant protection under the ESA.

That ruling raised the listing of the steelhead from threatened to endangered and could impact listing decisions for other fish.

Natural resource groups this week were calling the recommendation by Stewart a setback to a success story that culminated in NMFS's no-list decision in January of 2006. That decision many believed was highly influenced by landowners who, working under state incentives, voluntarily improved salmon habitat in the coast coho's fresh-water range.

The salmon recovery efforts extended down from the governor's office and included help from local watershed councils. The state, which has spent millions of dollars on the recovery efforts, also worked with federal fisheries to reduce harvest levels as fish populations dropped in the 1990s. And the state reduced hatchery releases to minimize a dilution of the coho's gene pool.

The state also, as part of its recovery efforts, closely monitors coho populations and studies how habitat and other conditions affect coho survival.

"We found coastal coho are extremely dependent on ocean conditions and ocean productivity," said Ed Bowles, fish division administrator for the Oregon Department of Fish and Wildlife.

Coho populations averaged about 50,000 in the 1990s, Bowles said, and hit a high of 252,000 in 2002. Populations have fluctuated since - based primarily on ocean conditions - from the high in 2002 to 106,000 in 2006. ODFW scientists project more than 200,000 coast coho will return to their spawning grounds this year.

Bowles believes coho populations have increased primarily because of improvements in fresh-water habitat, and he fears an ESA listing could derail future efforts to improve habitat by stripping land owners of their ownership in the projects.

"Listing (coast coho) is not going to do anything to improve habitat on private land and could have negative impacts," he said. "It's understandable to have (landowners) question what their investment is getting them (if the fish is listed)."

Stewart in her recommendation backed the contention of the plaintiffs, which claimed NMFS's no-list decision was not based on the best available science.

"This is a victory for good science and for Oregon 's future," said Earthjustice attorney Patti Goldman, who argued the case for the groups. "Restoring protections for these salmon today means a greener and economically vibrant Oregon tomorrow."

"This decision restores vital habitat protection so that the coho can begin moving toward recovery," said Chris Frissell, staff scientist with Pacific Rivers Council.

Parties in the case, including NMFS and the state of Oregon , have until July 30 to object to the recommendation. The recommendation must be endorsed by a federal district court judge before NMFS would be compelled to act on it.

NMFS was reviewing the recommendation earlier this week and had not decided whether to object, NMFS spokesman Brian Gorman said.

Michael Carrier, natural resources adviser to Gov. Ted Kulongoski, said the state also was weighing its options.

Generally speaking, Gorman said, federal judges follow recommendations provided by magistrates, but they are not required to do so.

The farm and forest trade group Oregonians for Food and Shelter released a statement July 17 saying it was "very disappointed" in Stewart's decision.

"Our membership, along with other natural resource folks, in concert with the governor's office worked long and hard on this issue," the statement said.

Carrier also characterized the decision as disappointing.

"We disagree with the conclusion that the work that Oregon scientists put into this didn't represent sound science," he said. "We felt it was sound science ... and provided a reasonable basis for concluding that the salmon stock was viable."

Carrier said the state will continue to try and rebuild coho stocks "to a level of abundance until it becomes no question that these fish are recovered."

"We believe the fish are currently viable," Bowles said, "but there is more work to be done; and the most effective way of getting work done on the ground on private land is through this incentive-based partnership with the land-based industries."

Controversy surrounding the Oregon coast coho has loomed since 1993 when the Pacific Rivers Council petitioned NMFS to list the fish for protection under the ESA.

NMFS in 1994 chose not to list the fish, but its decision was overturned by a federal judge after environmental groups challenged the no-list decision.

The Pacific Legal Foundation entered the legal battle in 2001 when it challenged the listing saying NMFS was not counting hatchery fish as part of the coho's population - an oversight, the foundation said, that distorted population levels to unreasonably low numbers.

U.S. District Judge Michael Hogan ruled in favor of the foundation based in part on the consensus hatchery fish shared the same water, were closely related to wild stocks and as such could not easily be distinguished from their wild cousins.

The Oregon coast coho currently is listed by NMFS as a "candidate" species, the second of four categories under the ESA, with the fourth being "endangered." The category is used to describe a species not in great shape, Gorman said, but not warranting listing.

The coast coho is one of only two Northwest salmon species not listed as either threatened or endangered, the other being the lower Columbia coho.

"(The coast coho) has always been kind of on the line and open to honest interpretation as to whether they should be listed or not," Gorman said. "They've always been in a gray, middle area."

Staff writer Mitch Lies is based in Salem . E-mail: mlies@capitalpress.com.

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