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PLF Continues To Press Oregon Coastal Coho ESA Listing Case

Columbia Basin Bulletin, Fish and Wildlife News 6/20/08

The Alsea Valley Alliance continues to press its case in federals appeals court that the Oregon coastal coho salmon don't warrant listing under the Endangered Species Act.

The coho stock was listed once again in February following a court-ordered re-examination of its status.

U.S. District Court Garr King last year ruled that a 2006 NOAA Fisheries decision to leave the fish off the list was not based on the best available science, an ESA requirement. He ordered the federal agency to rethink the decision.

Meanwhile, the Pacific Legal Foundation, and later the state of Oregon and federal government, challenged King's order in the U.S. Court of Appeals for the Ninth Circuit Court. The PLF represents the Alsea Valley Alliance.

Given the renewed listing, U.S. Justice Department and state of Oregon dropped their appeals last month.

But PLF is persevering, trying to fend off attempts by the federal government and Trout Unlimited to have the Alsea appeal dismissed.

"As TU and the federal defendants have explained, this case is moot because the underlying decision to not list the Oregon coast coho salmon has now been superseded by a new final agency listing decision," according to an Earthjustice brief filed Monday pressing for dismissal of the Alsea appeal. Earthjustice represents Trout Unlimited.

"Even Alsea acknowledges this Circuit's precedent that appeals are moot when the underlying agency action ceases to exist." TU says Alsea must channel any challenge of the new listing through the district court.

PLF arguments filed June 10 say that mootness could prevail if a post-remand action (the new listing decision) provides the appealing party the relief it sought or "causes the subject matter of the appeal to cease to exist."

"Neither of these predicates is present here: the Service's post-remand decision to list the coho has created not ameliorated injury, for now coho is protected under the ESA, whereas the status quo before the remand was not protection," according to the Alsea brief. The alliance says listings bring costly land-use regulations.

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