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Supreme Court won't review coho decision

Elizabeth Larson, Capital Press 2/14/08

The California Supreme Court on Wednesday turned down a petition to review an appellate court decision upholding protections for two coho salmon populations.

The decision means that the California Fish and Game Commission's 2005 decision to grant full protection status under the California Endangered Species Act to two Northern California coho subgroups will stand.

In December, plaintiffs including the California Forestry Association and California Cattlemen's Association, asked the state Supreme Court to review the Third Appellate Court's Nov. 20 decision, which upheld the commission's listing for the coho, as Capital Press has reported.

Dave Bischel, president of the California Forestry Association, could not be reached for comment on the case Wednesday. However, in an interview with Capital Press last fall after the Nov. 20, Bischel said the groups opposing the listing decision were concerned about duplication of regulatory impact, which could hurt forestry and agricultural interests.

He said the plaintiffs believed the fish already had adequate protections under both state and federal law.

Damien Schiff of the Pacific Legal Foundation, lead counsel for the plaintiffs, said the main legal question was whether California's Endangered Species Act allows listing of wildlife populations that are subspecies. The plaintiffs argued the state law didn't include that specific provision which is allowed in federal endangered species law.

Schiff said Wednesday that the Supreme Court's decision not to review the case means that the challenge to the listings to these two coho groups - which ranged between the Oregon border and San Francisco - was over.

He added, however, that he doesn't believe the legal issue about subspecies listings has been decided definitively.

With the California Fish and Game Commission considering listing the longfin smelt also on the basis of it being an "evolutionarily significant unit," Schiff said, "I would not be surprised if there is another legal challenge to the listing on that same ground."

Such a challenge might be taken to a different court of appeal seeking a different outcome in order to convince the Supreme Court to look at the issue, Schiff said.

California Trout, who was an intervenor in the case, was pleased with the Wednesday decision.

"We didn't think the appeal had any real grounding in fact," said California Trout chief executive officer Brian Stranko.

Stranko said now they can join with Fish and Game and other stakeholders to begin the process of rebuilding the coho populations' numbers.

"It certainly can be saved," said Stranko, pointing to a Fish and Game recovery plan that is ready and waiting to go into action, and which lays out how to bring back the coho populations.

"I'm actually very encouraged about the opportunity," Stranko said.

Elizabeth Larson is a staff writer based in Lucerne. E-mail: elarson@capitalpress.com.

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