http://www.cbbulletin.com/Free/14177.aspx
Posted on Friday, March 26, 2004 (PST)
Organizations
that have asked NOAA Fisheries to drop eight salmon and steelhead stocks from
the Endangered Species Act have asked a federal court to order the agency to
produce those decisions within 30 days.
"It's
bad government," attorney Timothy Harris said of NOAA's failure thus far to
make determinations on delisting petitions filed in October 2001 Building
Industry Association of Washington, the Kitsap Alliance of Property Owners, the
Columbia-Snake Irrigators Association and the Skagit County Cattlemen's
Association.
The
petitions came within a month of U.S. District Court Judge Michael Hogan's
decision that the Oregon coast coho listing illegal because NOAA improperly
excluded from federal protections hatchery fish that it had earlier included in
the coho stock's ESA "evolutionarily significant unit." The petitions
said the listings of Snake River sockeye salmon, fall chinook salmon,
spring/summer chinook salmon and steelhead, the Upper Columbia River spring-run
chinook and steelhead, the Middle Columbia River steelhead, the Puget Sound
chinook and Hood River Canal summer-run chum salmon were similarly tainted.
NOAA
in February 2002 said the delisting petitions "present substantial
scientific and commercial information indicating that the petitioned action may
be warranted." That started a one-year clock within which NOAA is required
to make a determination of whether the stocks should or should not be ESA
protected.
That
year passed and the petitioning groups tried to force the action via a lawsuit
filed in August 2003. They and NOAA agreed in October of last year to settle the
lawsuit provided the federal agency produced its determinations and listing
proposals by March 31, 2004. NOAA, however, on March 11 asked Spokane's U.S.
District Court for a 90-day extension, citing the "unexpected
complexity" of the biological and policy issues involved in the task.
Harris,
the BIAW's attorney, on Monday filed a motion asking the court to deny the
deadline extension request and require NOAA to complete the process within 30
days.
"They
have no justification" for the delay, Harris said. "They're already 17
months behind their own deadlines."
"The
applicable law for making a determination on a de-listing petition is
straightforward and clear," according to the brief filed with the district
court this week. "A species must be de-listed if: '[T]he species has
recovered and is no longer endangered or threatened; or investigations show that
the best scientific or commercial data available when the species was listed, or
the interpretation of such data, were in error.' "
That
makes NOAA's primary arguments for an extension "irrelevant," Harris
said. In February of 2002 NOAA announced that it was undertaking a status review
of 27 West Coast salmon stocks, not just the eight named in the BIAW lawsuit.
The agency also said at the time that it would develop a new policy that it
would use as guidance in determining what role hatchery fish would have in
listing determinations.
A
declaration from NOAA regional administrator Bob Lohn in support of his agency's
March 11 extension request noted that a "recent" U.S. Fish and
Wildlife Service request to develop a national hatchery listing policy jointly
had caused a set back in the hatchery policy development process. He also noted
the enormity of the undertaking -- 27 listing determinations.
"…
this lawsuit only concerns eight populations of northwest salmon -- not 27. The
19 salmon populations that are not a part of Agreement's March 31, 2004 deadline
are irrelevant," according to the BIAW motion. Harris' opposition to the
deadline extension also calls the hatchery policy development argument a lame
excuse.
"Defendants
also cite the U.S. Fish and Wildlife Service's (FWS) 'recent' request to develop
a joint national hatchery policy. Lohn Declaration 9. Mr. Lohn's declaration is
conspicuously vague with respect to the timing of FWS's request. In fact, Mr.
Lohn's declaration admits that FWS have developed joint policies for many years.
Obviously, FWS's role in developing joint policies is hardly a new development,
and does not justify modification of the Agreement," according to the BIAW
filing.
The
groups say that the NOAA request is not backed with the proper legal rationale.
"In
stark contrast, the facts of the case at hand do not warrant a modification of
the Agreement. There has not been a change of either case law or statutory law.
Nor have there been changed factual conditions or unforeseen obstacles that
would make compliance with the stipulated agreement more onerous,"
according to the BIAW.
The
Justice Department has five days to respond to the BIAW's motion to deny the
extension and 11 days to respond to the request that the court order NOAA to
comply with the settlement agreement within 30 days.
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