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Lawyer: Species act needs changes

ADAM PEARSON, apearson@newsreview.info October 28, 2005

Douglas Timber Operators got an updated look at the Endangered Species Act from Pacific Legal Foundation managing attorney Russell Brooks at their Thursday morning breakfast meeting.

Brooks of the Bellevue, Wash.-based group, discussed lawsuits his organization has defended and won over the past three years that were brought on by environmental groups that claimed certain parties were in violation of the ESA, enacted in 1973.

"If you stick things out and fight things out, you can win," Brooks told the gathering.

When the ESA was enacted it was designed to preserve species, but many private landowners contend that many of its regulations are outdated and in some circumstances, far too overreaching.

While many landowners have successfully defended themselves against species act violations, others currently seek to loosen restrictions that they say the law never intended. Brooks demonstrated these misunderstandings by discussing a handful of cases.

In the 2001 Alsea Valley Alliance v. Evans case, the Pacific Foundation, a 32-year-old nonprofit dedicated to property owners' rights in Sacramento, Calif., argued in the 9th Circuit Court of Appeals that regulators must count wild salmon and hatchery salmon together under the species act. The decision took Oregon Coast coho salmon off the ESA listing.

"It's a very simple matter: all the same species living in the same streams," Brooks said. "We believe a species is a species, a fish a fish."

Such contemporary decisions will help improve the economic value of natural resources -- such as fishing, both commercial and recreational -- Brooks said.

That same year, PLF also had all of Oregon's shorelines and streams listed as "critical habitat" scaled back by at least 80 percent.

Brooks said the decision may spur his organization to pursue the same legal battle in the Columbia River, where regulations for fish habitat interfere with the capacity of hydroelectric dams.

The species act, which Brooks describes as "broken," lists animals as threatened or endangered on a five-year status. But Brooks said that "they list the species and don't go back" to consider whether the species has recovered. In California the federal government is currently reviewing 200 species listed under ESA, "so that's good."

In late September the House of Representatives passed a major overhaul of the law. There are indications that the overhaul may be too drastic for the Senate to pass, and Brooks called a lot of the ESA reform "very controversial."

Tim Vredenburg asked at the meeting what environmental groups propose as recovery plans for a recovering species in the reforms.

Brooks said "they want to set it back to the way it was before Lewis and Clark rolled through," but that they should remember to consider human beings too.

Javier Goirigolzarri of Resource Management Services in Roseburg asked Brooks how current laws affect the spraying of fire retardant in forests.

Brooks said a court decision in Montana requires an "extremely expensive and exhaustive" permit process for private landowners to spray their lands with retardant because of potential harm to fish habitat.

The listing of the marbled murrelet on the ESA in Western Oregon has affected the timber industry in recent years. But a recent status review of the bird has determined that is not a subspecies in Oregon and it thrives as a whole from Northern California to Alaska.

Coos County recently filed a 60-day notice with the federal government to delist the bird from the Endangered Species Act.

"The marbled murrelet is going to be on the front burner pretty quick," Bob Ragon, executive director of the Douglas Timber Operators, said of its status in Douglas County.




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