Klamath Water Users Association 

NWRA Interviews PLF Attorney on Recent Coho Ruling  

March 1, 2004


NWRA graciously allowed us to distribute this recent interview with Russ Brooks (Pacific Legal Foundation) regarding the recent Ninth Circuit Court of Appeals ruling on coho salmon. In the following interview, Brooks specifically addresses implications of this ruling for Klamath River coho. - Dan Keppen
Common Sense Victory for the ESA

Pacific Legal Foundation (PLF) attorney Russ Brooks discussed with National Water Resources Association (NWRA) the major victory with the Ninth Circuit Court of Appeals ruling on February 24 that invalidated, once again, the listing of the Oregon Coast coho salmon as a "threatened species" under the Endangered Species Act (ESA). At issue in the case was how the National Marine Fisheries Service (NMFS) counted Oregon Coast coho salmon for protected status under the ESA. According to PLF, NMFS' counting of only naturally spawned salmon while totally disregarding hatchery spawned salmon kept the fish count artificially low, justifying otherwise needless ESA protections and locking up land use. Below is a transcript of the February 25 interview:

NWRA: Mr. Brooks, I understand that the Pacific Legal Foundation had a tremendous victory yesterday; can you tell us about that?

Russell Brooks: I can. We received a ninth circuit decision in the Alsea Valley case. It was a tremendous victory for PLF, but truly was a victory for common sense and people along the Oregon coast.

NWRA: Would you, beyond salmon, this is also a victory for endangered species propagation efforts?

Russell Brooks: I certainly believe it is, this decision could have wide ranging affects for many different species listed under the ESA. And the fact of the matter is, when the fisheries service considers a species for listing they are going to have to consider all members of all that species and not just simply the species they prefer or members of species they prefer. That decision is probably not only going to affect the salmon but other species which are situated in the same matter.

NWRA: What does this decision mean for species that are currently on the list, similar to the coho salmon, will they be reviewed at this point?

Russell Brooks: When the judge released his decision initially in September of 2001, that decision had wide and far ranging implications for salmon and steelhead listing up and down the west coast in all of the Western States. Basically, his decision said that when the fishery services considers hatchery and so called wild salmon as the same species, and when it finds that hatcheries and wild salmon are swimming side by side out in the same streams and swimming side by side out in the ocean, and when the fisheries finds that hatcheries and wild salmon spawn together then they must be treated in the same matter, together. What this means now, is that the fishery services must consider hatchery salmon in the same way it considers wild salmon, when it decides whether or not a the listing is justified. That has far ranging implicates for salmon and steelhead listing up and down the west coast, simply, because the fishery service has created the same illegal and unlawful listings, as they have in the Oregon coast Coho listing

NWRA: What would your response be to those who say the NMFS could simply reformulate its criteria to say a particular distinct population system only includes wild salmon and not salmon from hatcheries?

Russell Brooks: Judge Hogan actually addressed that issue in his Sept. 2001 opinion. He noted that "theoretically" NOAA could just simply make two separate populations. However, importantly, after that observation he concluded that two separate populations did not appear possible based on NOAA's findings that hatchery and wild coho are the same species, that they swim side-by-side in the same streams, and that in many cases they interbreed. The 9th Cir. took note of the argument and of Judge Hogan's finding in its opinion. The court noted, again "theoretically" that NOAA could simply create two separate populations for hatchery and wild fish. However, most importantly, the court then noted, "the district court legitimately doubts this is possible." That little phrase is a key to the case because it sends a big message to NOAA, a shot across their bow, if you will -- "don't get silly with the salmon listings." The court did not have to put that statement in the opinion. Yet, even though it did, it could have just said "the district court doubts this is possible." But, it didn't stop there. Instead, it used the qualifier "legitimately doubts." That's a strong indication the Ninth Circuit tends to agree with Judge Hogan's findings.

NWRA: What could this mean for our members in the Klamath Project?

Russell Brooks: Well, in the Klamath project it could have huge implications. Certainly the Klamath Coho listing, it provides a large basis for the water being taken away from the Klamath farmers providing the basis for a lot of the problems and struggles that they have been facing for the last four or five years. If that listing is taken away, as it should be, we expect it will be, then there is not going to be a basis for the federal government to continue shutting off water to those good people down there. As a matter of fact, we have a case before Judge Hogan right now, asking him to invalidate that Klamath Coho listing, just as he did the Oregon Coast Coho listings, simply, for the fact that it contains the same illegal flaw.

NWRA: So the Klamath coho listing has the same counting irregularities as the Coho Salmon counting?

Russell Brooke: It does, the same illegal fatal flaw

NWRA: Well that is good news for our Klamath members. Can you tell us how long you have been working on this case, from first filing it until the ruling yesterday?

Russell Brooks: We filed the complaint back in November 1999, we received Judge Hoganís thoughtful and well reasoned opinion in September 2001. Shortly there after, just after a couple months after the decision came out, a group of environmentalists intervened and appealed the decision and the Ninth Circuit decision was released yesterday, dismissing the appeal as improper for lack of jurisdiction.

NWRA: Can you give us an idea the status for your case on the Klamath coho listing?

Russell Brooks: Sure, we filed the case challenging the Klamath Coho listing, shortly after Judge Hoganís Alsea decision came out. We filed that case right back in front of Judge Hogan because we had an indication of what he thought of these illegal listings. Shortly there after, the federal governmentís fishery service moved to stay the litigation on that case until the Ninth Circuit released its Alsea opinion. That opinion was released yesterday and we will be marching back to court asking Judge Hogan to list a stay and invalidate the Klamath coho listing for the same reason that he invalidated the Oregon Coast Coho listing.

NWRA: Well when do you think a decision on that case can be expected?

Russell Brooks: It is really hard to say, these things are really up to the judges and the work load they have on their dock it. I would certainly be hopeful have a decision on that case within the next few months.

NWRA: Well that is all good news. We certainly appreciate all your efforts and the efforts of the Pacific Legal Foundation working on this case. It is truly a sea change toward a more common sense and effective implementation of the ESA.

Russell Brooks: Exactly, I believe it is and we thank you for your support, your memberís support and the support of all other the concerned citizens and property owners, out there.

NWRA: Should our members or others have questions for you or would like to discuss the case in more detail, are you available for contact?

Russell Brooks: I am. Please feel free to contact me at 427-576-0484 or by email at rb@signpacificlegal.org


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