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From the Columbia Basin Bulletin

By Barry Espenson

The salmon stock that has literally been at the eye of biological and political storms over the past several years -- the Oregon coastal coho is officially off the Endangered Species Act list.

A Ninth Circuit Court of Appeals mandate issued Tuesday effectively ends litigation in the Alsea Valley Alliance v. NOAA Fisheries case. It follows by one week the court's denial of a request that an appeal of the so-called "Hogan decision" be reheard.

The appellate court in late February dismissed a request by conservation and fishing groups to have a September 2001 decision by U.S. District Court Judge Michael R. Hogan overturned. He declared invalid NOAA Fisheries' 1998 ESA listing of the Oregon coast coho "evolutionarily significant unit." The February opinion also dissolved the appeals court order that had stayed Hogan's order during the course of a reconsideration of the coho listing.

After the Ninth Circuit on June 7 rejected the request for a rehearing, the groups had the option of trying to convince the U.S. Supreme Court to take up the case but they did not.

"It's pretty much over," Earthjustice attorney Patti Goldman said of effort to keep the coho on the ESA list. She said it was decided not to petition the high court.

"They tend to get involved if there is a split" opinion by the appeals court or if the case has high national interest, said Goldman, who called both the request for a rehearing and petitioning the Supreme Court "long shots." Earthjustice represented the coalition, which intervened in the case after NOAA opted not to appeal Judge Hogan's decision.

In February, a three-judge panel of the Ninth Circuit Court of Appeals dismissed the appeal, holding that the appellate court did not have jurisdiction to hear the appeal. The court explained that the groups could participate like other concerned individuals in ongoing status reviews and through the public commenting process that follows.

"As of today, the Oregon coast coho listing doesn't exist," said Russell Brooks, the Pacific Legal Foundation that represented the Alsea Valley Alliance in the lawsuit. That doesn't mean that the coho stock, and their habitat, will suddenly be ravaged, he said. Numerous protections remain in place, such as the federal Northwest Forest Plan and the state's own Oregon Plan for Salmon and Watersheds.

The state plan was assembled by then-Gov. John Kitzhaber and the state Legislature in the mid-1990s as an attempt to ward off the threatened listing of the coastal coho. It was offered as a battle plan for restoring salmon and their habitat. NOAA initially agreed to leave the coho unlisted because of the Oregon Plan's promise. But a federal court decision forced the federal agency's hand and the Oregon coast coho was added to the ESA list.

The Hogan decision prompted NOAA Fisheries to launch reviews of the status of 26 listed West Coast salmon and steelhead stocks, and one candidate stock, and of the interim "hatchery policy" that it used as guidance in deciding whether to list the stocks. Hogan had ruled that the ESA doesn't allow NOAA to exclude hatchery stocks from a defined population of Oregon coast coho listed under the ESA. That decision was followed by a flood of petitions to have other stocks delisted, or to restructure listings so they only included wild, naturally spawning populations.

Brooks found the May 28 NOAA findings distressing -- two of the stocks were downgraded from endangered to threatened, none of the stocks were delisted and two -- the Oregon coast and Lower Columbia River coho stocks -- were recommended as additions to the list. And he says the proposed new hatchery policy is not inclusive enough in its treatment of hatchery fish as part of the listed stocks.

"The court's latest rejection of the environmentalists' position should make it loud and clear that the federal government must fully comply with Judge Hogan's ruling and that anything less will not pass legal muster," Brooks said.

"We're very concerned about the proposed policy, but we remain hopeful the Administration will take a hard look at these court decisions before they issue the final policy," said Brooks. "Otherwise, if they go forward with their new policy and relisting decisions, they'll have to explain to the court why they're going to such great lengths to avoid complying with the ESA."

Brooks said this week that, unless the policy is changed significantly before adoption, it would be challenged in court. A 90-day public comment period on policy began in early June and NOAA has said it would adopt a "final rule" shortly thereafter. Oregon coastal coho remain under consideration for relisting.

"We proceeded as if the listing had been voided," NOAA's Brian Gorman said of the status review of the Oregon coastal coho. That review concluded with the finding that the coho should move from "candidate" species status to an ESA listing of threatened.

That and other proposed listings would be come final one year from now unless public comment sways NOAA in the meantime. But the Oregon coastal coho is a special case.

In announcing its findings at the end of May, NOAA said it could possibly reopen the coho listing determination as early as this fall. The agency awaits the results of Oregon's scientific review of problems causing the decline of coho. If the analysis shows that Oregon Plan and other conservation efforts have substantially mitigated the ESU's extinction risk, NOAA would reconsider its recent finding. NOAA's May 28 report recognizes the "significant contributions" the Oregon Plan has made or encouraged toward conserving salmon and steelhead populations.

One year ago the White House Council on Environmental Quality's chairman, James L. Connaughton and NOAA's Northwest regional administrator Bob Lohn, joined Oregon Gov. Ted Kulongoski in Salem to pledge their support for the development of a cooperative agreement between NOAA Fisheries and the state for the recovery of the coastal coho

The gathering was to affirm the Bush Administration's commitment to work cooperatively with the state on a plan to reach and sustain recovery of Oregon coast coho based on the Oregon Plan for Salmon and Watersheds, an initiative developed in 1997 by the state. NOAA Fisheries committed $250,000 in targeted funding to meet the initial technical staff and scientific needs for the plan.

Brooks said the delisting could have far ranging legal effects. For example, a lawsuit brought initially by the Pacific Rivers Council against Oregon's state forester and then against the Oregon Board of Forestry says that state rules regulating logging on private land allow severe degradation of coho habitat in violation of the ESA.

The plaintiffs have yet to decide on a strategy in the lawsuit against the state. Given the delisting of the coho, asking for a dismissal or for the court to hold the case in abeyance are the likely courses, Goldman said.

"It will affect that lawsuit because that lawsuit is based on the coastal coho," she said. Four other lawsuits filed as challenges to federal timber sales will be affected to some degree or another, Goldman said. One had stopped timber sales in the coho's range, such as in the Umpqua National Forest. Those sales will no longer have to satisfy strict ESA tests before implementation.

In most of the lawsuits, coastal coho habitat makes up only portion of the targeted geographic range so the issues remain relevant for species that remain listed.





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

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