Fisheries last week asked a Spokane, Wash.,
federal court to push back by 90 days the
deadline for completion of eight salmon and
steelhead Endangered Species Act listing
proposals, citing the "unexpected complexity"
of the biology and policy related to the task.
listing determination process has essentially
been under way since early in 2002. A
September 2001 U.S. District Court decision in
the Alsea Valley Alliance vs. NOAA lawsuit
prompted the filing with NOAA of numerous
petitions asking that West Coast salmon and
steelhead stocks be delisted. Most said that,
given the so-called Hogan decision, hatchery
stocks must be included along with co-habitating
wild stocks when determining if a stock is in
Petitions such as the two filed in October
2001 by the Building Industry Association of
Washington, the Kitsap Alliance of Property
Owners, the Columbia-Snake Irrigators
Association and the Skagit County Cattlemen's
Association said that if NOAA counted the
hatchery fish, numerous stocks would have to
declared the Oregon coast coho listing illegal
because NOAA impermissibly excluded from the
federal protections hatchery fish that it had
earlier included in the coho stock's
"evolutionarily significant unit."
opted in February of 2002 to undertake status
reviews 26 listed ESUs and one candidate of
salmon and steelhead, including 12 in the
Columbia River Basin. It also decided to
formulate a new policy for deciding what role
hatchery fish would play in listing
processes bogged down, prompting the Building
Industry Association of Washington, the Kitsap
Alliance of Property Owners, the
Columbia-Snake Irrigators Association and the
Skagit County Cattlemen's Association to file
a lawsuit in August 2003 in an attempt to
force the action. NOAA issued its initial
petition findings for the eight stocks in
February 2002, setting off the one-year clock
within which the ESA requires a final
determination and listing proposal.
petitions included eight stocks for review --
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.
March 11 motion filed by U.S. Justice
Department attorneys asked that the U.S.
District amend a settlement agreement filed in
that lawsuit in October 2003 that charges the
federal agency with completing the eight
status reviews by March 31.
agency says that it is unable to complete the
tasks and suggests that it has the "good
cause" necessary to extend the deadline. The
agreement is supported by a six-page
declaration by D. Robert Lohn, NOAA's
Northwest regional chief.
is great public interest throughout the
Pacific Northwest and elsewhere in the outcome
of NOAA Fisheries' ongoing review, given the
visibility and importance of salmonids as
central, emblematic natural resources in the
region," Lohn wrote. "Many segments of the
public hold very strong divergent views on the
has encountered unexpected difficulty and
complexity in developing a new hatchery policy
to be applied in making the new listing
determinations," Lohn said. Among those
complexities, according to the federal
filings, is a recent request from the U.S.
Fish and Wildlife Service that a national
hatchery listing policy be developed jointly
by the two the agencies that would be
applicable across the country. NOAA is charged
under the ESA with protecting ocean-going
stocks, such as salmon and steelhead. The
USFWS has responsibility for resident
freshwater fish and wildlife.
the "ESUs" targeted for delisting in the
lawsuit, and 10 of the 27 stocks now being
reviewed are "Oncorhynchus mykiss" -- called
steelhead if they are anadromous and rainbow
trout if they are freshwater resident life
forms. The NOAA has, according to Lohn's
declaration, previously determined that some
of the steelhead ESUs include rainbow trout,
so listing requires coordinated action with
said the agency has "fully expected that it
would be possible to meet that (March 31)
deadline. However, because of the unexpected
complexity of the hatchery issues and related
legal and administrative considerations, and
the need to interagency coordination," NOAA
had run out of time.
result, it filed the motion to modify the
agreement and "asked the court for expedited
consideration" of the issue, according to Ruth
Ann Lowery, Justice Department attorney. The
plaintiffs in the case have 11 days from the
filings to respond.
motion cites case law in arguing that federal
rules allow a court the flexibility to modify
such an agreement, such as when "significant
change either in factual conditions or in law"
and "when a decree proves to be unworkable
because of unforeseen obstacles."
demonstrated by the Lohn declaration, a
modification in the deadline is necessary to
further the public interest in producing a
thoroughly considered agency decision and
avoid an inequitable result stemming from the
complexity and unforeseen difficulties
presented," according to the motion.
Harris, one of the attorneys representing the
Building Industry Association of Washington,
said Tuesday that plaintiffs in the case plan
to file in opposition to the motion.
motion is full of excuses. None of that has
changed since Oct. 2 when the petitions were
filed," Harris said of the ESA's requirements
and case law driving the status reviews.
absolutely inexcusable," he said of the
requested deadline extension.
Harris said, "all of these justifications (for
an extension) are irrelevant."
interpretation of the data was in error
according to Alsea," Harris said. That means
if the wild and hatchery stocks were
aggregated, the listings would be unnecessary.
making its request to the court, NOAA said
that a high-level joint task force has been
appointed by the departments of Commerce and
Interior with direction to formulate a
preliminary joint hatchery listing policy by
Fishers will then complete its listing
proposals by applying the new policy to the 27
listed ESUs, a process that could be completed
within 60 days," Lohn wrote. "An additional 30
days is required for the preparation, review
and clearance of the listing proposals prior
to publication in the Federal Register."
said that there are many economies associated
with making all 27 determinations at once
rather than addressing just the eight listings
in the lawsuit.
comprehensive approach would make clear to the
public what NOAA Fisheries proposes to do
about all of the listings that may affect
them," Lohn wrote. "Furthermore, it would make
the opportunity for public comment both
comprehensive and more economical; interested
parties could submit comments once, rather
same token, it would make more efficient use
of NOAA Fisheries' limited resources to
protect endangered species, by avoiding
unnecessary multiple rulemakings," Lohn wrote.
the senior management of both federal
departments were "fully committed to
completing a preliminary hatchery policy and
issuing proposed listing determinations on all
27 ESUs within that period,…."