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News - theworldlink.com - Serving the Great South Coast of Oregon

Trollers lose lawsuit but plan to appeal


A judge ruled Thursday that salmon trollers in Oregon and California are stuck with the season they have.

The Pacific Legal Foundation filed the lawsuit against the federal government in June in U.S. District Court on behalf of the Oregon Trollers Association, Siuslaw Fishermen's Association, and various other organizations, businesses and individuals. The lawsuit claimed the National Marine Fisheries Service violated federal law when managers gutted the salmon season, leaving trollers no opportunity to fish in June, July and August.

Their argument centered around three issues: that record numbers of salmon are returning to West Coast rivers and managers ignored that fact; that managers didn't consider hatchery salmon along with wild populations; and that they disregarded the economic and safety impacts of the regulations.

U.S. Magistrate Judge Thomas M. Coffin disagreed on all counts, completely denying the trollers any relief.

He readily dismissed three claims about the escapement floor - the bottom line number of Chinook that must swim past the natural predators and recreational and commercial fishermen and make it back up the Klamath River to spawn. Since 1989, according to the fishery management plan, that number has been set at 35,000 fish.

Plaintiffs argued that managers separate naturally spawning Chinook from hatchery fish when incorporating the escapement floor in the regulations, but Coffin said too much time had passed to challenge that assumption. By challenging the "naturally spawning" part of the management plan, Coffin said, the plaintiffs were targeting something that happened years ago.

Coffin said that year after year, the same escapement floor had been used, sometimes resulting in seasons worse than this year's. He cited 1992 as an example, when several fishing zones were closed but those remained open this year.

"It is clear that the implementation of the 2005 regulations is not the first opportunity plaintiffs have had to realize that the 1989 escapement goal would impact their ability to commercially catch Chinook," he wrote.

The plaintiffs were dealt another blow when the judge also said federal managers did indeed count hatchery fish in the 35,000 escapement goal. There is no distinction between whether hatchery or wild salmon return to spawn; only that 35,000 fish must be allowed to return to the Klamath.

Pacific Legal Foundation attorneys successfully argued the opposite in another case in 2001. In that case, the judge agreed that hatchery and wild fish must both be considered when listing coho under the Endangered Species Act. It forced the federal government to develop a new policy for listing salmon throughout the West.

"The problem is we still have a distinction that we're not counting all the returning fish," PLF attorney Russ Brooks said this morning. "What about those fish that are collected but not allowed to spawn? They collect most of the hatchery fish."

The judge also ruled that the government did its best to minimize the economic impacts to salmon fishermen, even though it may not appear that way. Some areas had seasons cut by as much as 77 percent - but fishing wasn't eliminated completely.

"The bottom line is that it was known by all sides to the debate that the 2005 regulations would have a negative impact on all who derive resources - economic, spiritual or other - from the fishery," Coffin wrote.

Brooks said the Oregon Trollers Association plans to appeal the case in the 9th Circuit Court of Appeals, courts in which the PLF has a winning record, he said.

"We're trying to establish something for next year," Oregon Trollers president Rayburn "Punch" Guerin, of Charleston, said.

The average time for an appeal is between 15 and 18 months. Brooks said he'll likely seek an expedited review of the case.




Page Updated: Thursday May 07, 2009 09:15 AM  Pacific

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