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NOAA Fisheries asks judge for more time on coho listing case

October 26, 2007, Columbia Basin Fish and Wildlife Bulletin
There's much to do, and too little time to do it, the NOAA Fisheries Service this week told the federal judge who on Oct. 9 gave the agency 60 days to reconsider the status of the Oregon Coast coho salmon.

The federal agency, through Justice Department attorneys, has asked U.S. District Court Judge Garr M. King that the agency be given an additional 60 days to evaluate whether the coho stock merits listing under the Endangered Species Act.

"This schedule would allow NMFS to make final determinations based on the record before the Court," according to a declaration by NOAA Fisheries regional administrator, Bob Lohn, filed Monday in support of the request for "reconsideration" of the 60-day edict.

"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. He said that, in the event a listing determination is made, other ESA requirements must be met.

The extra time allows "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.

"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.

The federal agency in January 2006 decided the coho stock did not warrant ESA protections and withdrew its proposed listing. That decision was challenged successfully by Trout Unlimited and other fishing and conservation groups represented by Earthjustice.

The plaintiffs in the lawsuit on Wednesday asked the judge to require that critical habitat designation and 4(d) protection processes be completed in the same time frame.

"Plaintiffs Trout Unlimited et al. informed NMFS's counsel that they would not oppose this motion if NMFS committed to make these associated decisions by the extended Court deadline," according to a "conditional nonopposition" to the federal request. "In discussions among counsel, NMFS refused to make such a commitment.

"Moreover, in its memorandum in support of its motion to amend judgment, NMFS refers to 'the possibility' that it will designate critical habitat and promulgate a protective section 4(d) rule for Oregon Coast coho," according to the brief filed Wednesday by Earthjustice for the fishing and conservation groups.

"Trout Unlimited believes that if NMFS obtains additional time on this basis, it should be obligated to make final critical habitat and 4(d) decisions, if its decision is to list Oregon coast coho, as is likely given the agency's previous findings and this Court's ruling," the Earthjustice filing says.

The state of Oregon and Alsea Valley Alliance, which aligned with the federal government as defendant intervenors in the lawsuit, have indicated they will not oppose the request, according to the federal memo.

On July 13 U.S. District Court Magistrate Janice M. Stewart found that NMFS' decision was arbitrary and capricious under the ESA. She said 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 those finding and recommendations and issued a judgment that says NOAA must "make a new final listing rule consistent with the Endangered Species Act within 60 days."

The Oregon Coast coho ESU has been off and on the list. NOAA first proposed the stock for listing in 1995 but withdrew its decision in 1997. That decision was found legally faulty and NOAA listed the stock the following year. Litigation again ensued, with federal Judge Michael Hogan declaring the listing illegal in 2001.

The coho's status was considered again during a review of all listed West Coast salmon and steelhead, which culminated with the withdrawal of the listing proposal.

Lohn said that, since Oct. 9, his staff has "compiled and analyzed some ESU-level abundance, productivity, and marine survival information for 2003-2006. They are in the process of analyzing additional years of population-level abundance and productivity data for that period since the Biological Review Team's last review,"

"Regional staff are also reviewing draft reports y the Oregon and Northern California Coast Technical Recovery Team, which present the most recent analyses of the ESU's population structure and viability," he wrote. "Further, my staff is reviewing Oregon's draft Coho Conservation Plan for Oregon Coast coho and supporting documentation for new information concerning freshwater habitat trends and limiting factors."

"Finally, to prepare for possible ESA listing of the ESU and thus a possible decision regarding the designation of critical habitat and promulgation of a 4(d) rule, my staff will update or supplement a draft Environmental Assessment evaluating the proposed 4(d) rule under the National Environmental Policy Act, and for possible critical habitat, a bio-geographical report, as well as report(s) addressing consideration of economic, national security and other relevant impacts," Lohn said.

Once the work is completed, it will take "at bare minimum" 30 days for the agency's national headquarters to review the work, Lohn said.

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