An appeal filed Thursday
seeks to overturn a U.S. District Court ruling that rejected
the federal government's decision to leave Oregon coast coho
salmon off the Endangered Species Act list.
The appeal was filed by the Pacific Legal Foundation in the
U.S. Circuit Court of Appeals for the Ninth Circuit. PLF
attorneys represent the Alsea Valley Alliance and others in
the lawsuit, Trout Unlimited v. Lohn. Bob Lohn is regional
administrator for the NOAA Fisheries Service, which made the
Judge Garr King on Oct. 26 ruled that the federal agency in
making its listing determination wrongly relied on an Oregon
state conservation plan assessment of the coho stock's
viability. The federal agency was given until Feb. 4 to
produce a listing decision "consistent with the Endangered
U.S. District Court Magistrate Janice M. Stewart in July
found that NMFS' decision was arbitrary and capricious under
the ESA because it fails to consider the best available
science. King adopted Stewart's finding and recommendations.
Stewart said that an Oregon assessment of the coho stock'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.
The federal government and defendant-intervenor Oregon have
until Dec. 26 to file appeals of the King decision. NOAA's
Brian Gorman said Thursday he was unaware of whether a
decision to appeal had been made.
Judge King effectively "ordered NMFS to ignore information
in the (legal) record from the state of Oregon," according to
PLF attorney Sonya D. Jones, "essentially telling NMFS not to
do something that the ESA tells it to do.
"In deciding that a federal ESA listing was not necessary,
the National Marine Fisheries Service (NMFS) concluded that
the State of Oregon's own salmon conservation plan provided
adequate protection," said Jones.
The federal court overruled the decision, and instructed
NMFS not to take the state's conservation efforts and plan,
which subsumes the coho assessment, into account, Jones said.
"We're appealing the court ruling, because the plain
language of the ESA requires federal regulators to consider
state conservation efforts -- and defer to them, when they
provide sufficient protection for species," Jones said. The
assessment report is a part of that overall plan, a 10-year,
multi-agency project that cost $375 million to develop,
according to the PLF.
"For federal officials to ignore state conservation efforts
wouldn't just go against the letter of the law, it would also
raise practical concerns," Jones said. "Treating state
programs as irrelevant would undermine the confidence of
private property owners in local officials' regulatory efforts
-- and deter people from working cooperatively with state
conservation officials. It would also weaken incentives for
the states themselves to be creative and resourceful in
protecting species within their borders."
A federal ESA listing of Oregon coast coho salmon would
inevitably lead to increased regulation of land use, according
"A substantial portion of Tillamook Forest -- both
state-owned and private lands -- would be affected by such a
federal listing. This could hurt local communities that
depend, in part, on responsible timber harvesting for jobs and
economic well-being," she said. "It could also affect fishing
families and communities that rely on the fishing industry."
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." That proposal was withdrawn in 1997, based
on the predicted effects of future and voluntary conservation
measures envisioned under the Oregon's Plan for Salmon and
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
One stock, the Upper Columbia steelhead, was downlisted
from endangered to threatened. That decision was also
challenged and NOAA this year was ordered to restore the
endangered status. The "hatchery listing" policy used to
inform the decision was also declared illegal. That district
court decision has also been appealed to the Ninth Circuit.
A decision earlier this year by Judge Hogan has also been
appealed. On Aug. 14 upheld 16 West Coast salmon listing
determinations that emerged from NOAA's re-evaluation. The
2006 steelhead determinations have been challenged in a
northern California U.S. District Court.
NOAA in 2004 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.
NOAA eventually 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 Alsea Valley Alliance is a coalition of fishing
families and defenders of property rights. The PLF is the
oldest public interest legal organization dedicated to
property rights, limited government, and a balanced approach
to environmental protection.