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August 24, 2007  Columbia Basin Bulletin
Federal attorneys this week argued that a U.S. magistrate wrongfully took on the role of "scientific arbiter" last month in declaring illegal the NOAA Fisheries Service's withdrawal of its proposal to list the Oregon coast coho salmon stock under Endangered Species Act.

Monday's legal filing by the Justice Department quotes U.S. District Court Magistrate Janice M. Stewart's July 13 conclusions, which said, "Since the evidence supporting listing was even stronger in January 2006 when NMFS withdrew the listing than when the proposed listing was issued in June 2004, NMFS had no legitimate reason to abandon its proposed listing of this ESU as threatened."

Making such an assessment veered from her proper legal role and attempts to override NOAA's scientific experts, according to federal attorneys, and those representing the state of Oregon and the Alsea Valley Alliance.

"Courts, however, are not charged to weigh evidence when reviewing administrative decisions," the federal brief said of the challenge to NOAA's decision. The federal "objections" to Stewart's findings likened the magistrate's role to that of appellate processes, where the sole duty is to determine via the litigation's administrative record whether a rational basis is provided for the agency's decision.

"Weighing a body of scientific evidence or data is left to the agency that has the actual expertise in these matters. Otherwise, the court becomes the decision maker.

"This was not a trial; it was review of an agency action under record review principles. As such, the Magistrate Judge applied the wrong standard of review," according to the Justice Department, which asks the District Court to reject Stewart's findings and dismiss the complaint brought by Trout Unlimited and other fishing and conservation groups.

Objections to the findings filed by the Pacific Legal Foundation said the magistrate chose the 2002 majority view of a NMFS biological review team as the best available science, thus dismissing numerous other sources of information. A slight majority of the BRT's scientists said the stock warranted listing as threatened.

"NMFS's shift to a decision consistent with the 'BRT minority view' does not show a change in its view of the scientific abilities of individual members of the BRT; it merely finds one of the BRT's rationales more convincing than the other after reviewing all the currently available information, in a reversal of its tentative position expressed in the 2004 listing proposal," according to the brief filed by the PLF for Alsea

"… the court misconstrued the relevant statutory standard for listing decisions under the ESA that say listing decisions must be made 'solely on the basis of the best scientific and commercial data available…,'" the federal brief says. Stewart judged as flawed some of the science -- the state of Oregon's Oregon Coastal Coho Assessment --- used in NOAA's coho salmon's status review and thus ruled the determination was flawed.

The statute, however, "requires that the agency to consider all of the relevant data in a particular field thereby prohibiting the agency from ignoring compelling and relevant information.

"The standard does not require the agency to declare one point of view the 'best science,' disregard everything else, and make a decision solely on that point of view," the federal brief says. "That is where the Magistrate Judge's decision veered from the appropriate analysis."

"Notably, the court's opinion did not find that an important piece of data or information was ignored, it found only that there was uncertainty and that the conclusions in the State of Oregon's Final Assessment were wrong.

"In the face of that uncertainty and its own scientific conclusion, the Court invalidated NMFS' decision. In doing so, the Magistrate Judge no longer acted in an appellate role, but instead became a scientific arbiter," the federal brief says.

"This is a case in which a federal agency was presented with a scientific disagreement between experts whether to list the Oregon Coast Coho under the Endangered Species Act (ESA)," according to objections filed by Oregon. "The question is whether, in the face of that scientific disagreement, it was permissible for the agency to weigh that scientific evidence and come to a conclusion that no listing was warranted at this time.

"The Magistrate Judge (Magistrate) has issued Findings and Recommendations (F&Rs) preferring one body of scientific evidence to another and concluding that the agency was required to ignore all the science supporting a 'no list' decision and credit only that science supporting a decision to list," the Oregon filing says.

The magistrate dismisses much of the large body of scientific work on which the NMFS withdrawal decision was based, according to the state.

"The Magistrate erred in substituting her scientific judgments for those of NMFS. The error was not just in doing so, but also in getting the science wrong. Those two errors are related.

"Federal courts are ill-equipped to undertake their own independent evaluation of the complex scientific data and information that reflect the multitude of factors affecting anadromous fisheries. That is why they defer to the agencies tasked by Congress with that role," according to the state.

The Justice Department filing said NOAA did not rely solely on the Oregon assessment in making the determination as the magistrate's findings attest.

"Instead, NMFS undertook a comprehensive process that reviewed many sources of data, analyses, critiques, and collectively determined that, although there was uncertainty when making predictions, the Oregon Coast coho was not likely to become endangered in the foreseeable future."

The federal objections say Stewart's findings "misapply the relevant legal standard, utilize the incorrect standard of review, and factually misconstrue the basis for NMFS' decision to withdraw the proposed listing for the Oregon Coast coho."

Stewart's "findings and recommendations" said that NMFS should be ordered to issue a new final listing rule consistent with the ESA within 60 days of the court's decision. The judge said that NOAA decision's was arbitrary and capricious under the ESA because it fails to consider the best available science.

In a "non-consent" lawsuit, parties to the lawsuit can file objections to a magistrate's findings and recommendations. A district court judge will be chosen to review Stewart's findings as well as the objections filed Monday and responses to those objections that must be filed within 10 days. The district judge then can accept Stewart's findings, modify them or reject them.

NOAA Fisheries is defendant in the lawsuit filed last year. The state of Oregon and Alsea Valley Alliance later joined the lawsuit as defendant intervenors. Trout Unlimited is represented by Earthjustice.

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