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October 12, 2007 Columbia Basin Bulletin

A feeral court judge on Friday (Oct. 5) ordered that the status of the Oregon coast coho salmon, which has bounced on and off the Endangered Species Act list, be assessed once again.

Portland-based U.S. District Court Judge Garr M. King ordered the National Marine Fisheries Service to issue a new final listing rule consistent with the ESA within 60 days.

The federal agency in January 2006 decided the coho stock did not warrant listing, but the 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 because it fails to consider the best available science. She recommended that the federal agency be given 60 days to issue a new listing. King last week adopted those finding and recommendations.

If all parties to a lawsuit consent, a magistrate has all the authority of a U.S. District Court judge, including the issuance of orders. The lawsuit pitting Trout Unlimited against the federal government, the state of Oregon and Alsea Valley Alliance, represented by the Pacific Legal Foundation, is a non-consent case so King was selected to make a final determination.

Parties now have 60 days to decide whether to file an appeal.

"There are two things we can do and we have to make a decision soon," said NMFS spokesman Brian Gorman. The federal government can file a notice of appeal and/or it can ask Judge King to reconsider his judgment setting a 60-day remand period. That latter must be filed by Oct. 23.

Parties also have 10 days from the date of the decision to file for a stay of King's order pending an appeal, according to the PLF's Sonya Jones.

"We are bound by what the feds do," she said. It would be a waste of time and resources to file an appeal if the federal government opts not to appeal and instead proceeds with consideration of the coho stock's status. A decision to list the salmon stock would render the Trout Unlimited vs. NMFS lawsuit moot, she said.

Trout Unlimited was cheered by King's judgment.

"We think that both judges have concluded that the best available science supports protecting Oregon coast coho," according to Earthjustice attorney Jan Hasselman.

The coho stock has long been the subject of controversy.

"The same fish has been in litigation for 10 years," Jones said. Her clients say that the stock has rebounded and, when wild and related hatchery produced fish are counted together, does not merit protections. ESA protections, which can serve to limit logging and other imposed other restrictions, hurt the region economically, they say.

The Oregon coast coho were first proposed for ESA listing in 1995 when a NOAA Biological Review Team concluded that the coho are "likely to become endangered in the future if present trends continue."

NMFS withdrew the proposed listing in 1997 based on the predicted effects of future and voluntary conservation measures envisioned under the Oregon's Plan for Salmon and Watersheds.

That decision was found legally faulty and in 1998 NOAA listed the Oregon coast coho as threatened.

In 2001, Eugene-based District Court judge Michael Hogan found the listing decision illegal because NOAA had included both natural and hatchery populations in its "evolutionarily significant unit" designation of the stock, but listed only the naturally produced fish.

Hogan said it was illegal to list only the wild fish because the ESA did not allow such a splitting of the designation population segment. The Hogan decision prompted NOAA Fisheries' reconsideration of all 27 West Coast salmon and steelhead listings.

In decisions made in 2005 and 2006, all but one of the stocks – the Oregon coast coho – retained ESA protections. One stock, the Upper Columbia steelhead, was downlisted from endangered to threatened.

NOAA in 2004 had proposed to relist the Oregon coho, but prolonged its evaluation in part to await a comprehensive assessment of the viability of the Oregon Coast coho ESU and of the adequacy of actions under the Oregon Plan for conserving Oregon Coast coho (and other salmonids in Oregon) being prepared by the state of Oregon.

At the end of its deliberations, NOAA concluded that "the best available information on the biological status of Oregon Coast coho indicates that the ESU is not in danger of extinction throughout all or a significant portion of its range (i.e., the ESU does not satisfy the definition of an endangered species under the ESA)," according to a Jan. 19, 2006, Federal Register notice withdrawing the proposed listing.

The draft Oregon viability assessment was completed in January 2005, followed by the final that May.

The final report concluded that: (1) the Oregon Coast coho populations exhibit strong density dependence conferring resilience in periods of low population abundance; (2) there are sufficient high quality habitats within the ESU to sustain productivity during periods of adverse environmental conditions; (3) current harvest regulations and hatchery reforms adequately address past harmful practices; (4) the ESU is resilient in long periods of poor ocean survival conditions; and (5) measures under the Oregon Plan make it unlikely that habitat conditions will be degraded further in the future.

Stewart said Oregon's assessment of the coho's ability to persevere was "based on assumptions plagued by uncertainty, lack of data and potential bias…."

"It is evident that according to the peer review critiques and NMFS's findings, as well as its own admission, Oregon's viability conclusion does not represent the best available science, but, as cautioned by the NWFSC, depends 'on assumptions about behavior at levels for which there are few or no data," Stewart concluded. The NWFSC is NOAA's Northwest Fishery Science Center.

"As such, it cannot form the basis for withdrawing the listing because an agency may not base its listings on speculation or surmise."

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