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Posted on Friday, August 13, 2004 (PST)

By Barry Espenson


A District of Columbia-based U.S. District Court judge in a Tuesday order dismissed most of the legal arguments underpinning a challenge to four West Coast salmon listings but delayed, at the federal government's request, consideration of whether the listings violate the Endangered Species Act.


That consideration awaits the outcome of a process -- spawned by a separate lawsuit -- that is bringing changes in the way listing decisions are made. A September 2001 order by Oregon-based U.S. District Court Judge Michael Hogan declared that the National Marine Fisheries Service (now NOAA Fisheries) erred when it included both naturally and hatchery produced Oregon coast coho salmon in its species definition -- an evolutionarily significant unit -- but included only the wild fish in the actual listing.


The decision prompted a review of the status of all 26 West Coast salmon and steelhead stocks. It also prompted the creation of a new "hatchery policy" to guide consideration of hatchery stocks in NMFS' (now NOAA Fisheries) listing decisions. Both processes are ongoing with a June 14, 2005, anticipated completion date.


U.S. District Court Judge James Robertson this week said that a stay of a decision on the four listings would be allowed. He denied a request by the National Wildlife Federation that the listings be affirmed as legal.


"Plaintiffs have not asserted that they will suffer immediate harm if the listing of the three chinook salmon is allowed to stand pending the issuance of the revised Hatchery Policy and the listing determinations," Robertson's Aug. 10 order said.


Three of the four salmon stocks alleged to be illegally listed have parallels to the Oregon coast coho listing in that hatchery portions of the designated ESUs were omitted from the actual listings. The fourth, endangered Upper Columbia spring-run chinook, includes both hatchery and wild fish in the listing. The listing is, however, being reviewed so Robertson said he would likewise withhold judgment on the validity of the Upper Columbia chinook until after the reviews are complete.


The lawsuit was initiated in May 1999, following the March 1998 listing of the Puget Sound chinook in Washington, Lower Columbia River chinook in Washington and Oregon, the Willamette spring-run chinook in Oregon and the Upper Columbia chinook. The lawsuit filed by Common Sense Salmon Recovery claimed the four NOAA listings violated the ESA, the federal Administrative Procedures Act and other federal laws.


Common Sense Salmon Recovery is a coalition of groups and individuals representing the Building Industry Association of Washington, the Washington Association of Realtors, the Washington Cattlemen's Association, and the Washington Farm Bureau and is supported by numerous other business and agricultural interests and local governments.


Robertson's order noted that the Justice Department's "first response" to the allegations of an ESA violation was an acknowledgment that three of the listings were flawed, based on Hogan's 2001 decision, and that the best course of action would be stay of the proceedings until its rulemaking processes were complete.


The judge agreed.


He did, however, dismiss four other "causes of action" outlined by the coalition. He called "untimely" a claim that the prevailing "ESU Policy" had been adopted without the proper public noticed and comment required by the APA. The policy was adopted in 1991 and not challenged by the lawsuit until 1999. There is a 6-year statute of limitations. Regardless, the judge said the rule "was promulgated after a formal notice-and-comment opportunity."


"We're obviously going to appeal," said Erin Shannon of the Building Industry Association of Washington. "We're not happy with how this all came down."


She said the lawsuit was filed in 1999 and essentially languished until a new judge, Robertson, was appointed to the case this year. He had scheduled oral arguments in the case Aug. 3 but they were cancelled due to vacation conflicts of federal attorneys and attorneys for the National Wildlife Federation.


The coalition presumed the arguments would be rescheduled.


"Then suddenly we received a 20-page order," Shannon said.


Justice Department attorney Ruth Ann Lowery said Robertson's ruling canceling the planned arguments did not promise a rescheduling. The original judge in the case did hear oral arguments in November 2002.

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