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November 02, 2007
U.S. District Court Judge Garr M. King on Friday (Oct. 26) granted a doubling of the time allotted for the federal government to produce a new final listing rule for Oregon Coast coho salmon stocks.

King's order vacated his Oct. 5 judgment that gave the National Marine Fisheries Service 60 days to make a new listing decision, and reset the deadline at 120 days. The federal agency how has until Feb. 4 to produce a listing decision "consistent with the Endangered Species Act."

The federal agency in January 2006 decided the coho stock did not warrant ESA protections and withdrew an earlier proposal to list the coastal stock as threatened. That decision was challenged by Trout Unlimited and other fishing and conservation groups represented by Earthjustice.

On July 13 U.S. District Court Magistrate Janice M. Stewart found that NMFS' decision was arbitrary and capricious under the ESA, saying it failed to consider the best available science, and recommended that the federal agency be given 60 days to issue a new listing.

King adopted Stewart's findings and recommendations and issued a judgment.

According to federal attorneys King's new judgment resets the time clock for filing an appeal of King's Oct. 5 order and judgment. The government now has 60 days from issuance of the revised Oct. 26 final judgment -- until Dec. 26 -- to decide whether to file an appeal.

That deadline also applies to the state of Oregon and the Alsea Valley Alliance, defendant-interveners in the lawsuit.

In making the request for an extension, NMFS' regional administrator Bob Lohn testified that more time was needed produce an assessment of the coho stock's status and to satisfy other ESA requirements.

"While this schedule would likely not allow time for major new analyses or information-gathering, nor the opening of a new public comment period, it would allow NMFS to confirm whether data collected since our review and other new information and analyses might affirm or alter any of those determinations," Lohn said.

The extension would allow "for the possibility of simultaneously designating critical habitat for this Evolutionary Significant Unit ('ESU') and provide protective regulations under 16 U.S.C. 1533(d) (commonly referred to as a section '4(d) rule')," according to a memorandum filed by the Justice Department in support of the request. If it is decided that the coho stock requires listing under the ESA, critical habitat and 4(d) protections are required.

"An additional 60 days will allow NMFS to consider some of the new information that has been developed since this litigation ensued and thus will make any decision more likely to withstand future legal challenge," the memorandum says.

Plaintiffs in the case asked that judge require completion of the critical habitat determination and protective regulations in the same 120-day time frame, rather than allow for that "possibility." But King's revised judgment did not address that request.


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