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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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