FEDERAL JUDGE ORDERS REASSESSMENT OF COASTAL COHO ESA STATUS
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
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
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
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
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
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
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
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