Organizations that have asked NOAA Fisheries
to drop eight salmon and steelhead stocks from
the Endangered Species Act have asked a
federal court to order the agency to produce
those decisions within 30 days.
bad government," attorney Timothy Harris said
of NOAA's failure thus far to make
determinations on delisting petitions filed in
October 2001 Building Industry Association of
Washington, the Kitsap Alliance of Property
Owners, the Columbia-Snake Irrigators
Association and the Skagit County Cattlemen's
petitions came within a month of U.S. District
Court Judge Michael Hogan's decision that the
Oregon coast coho listing illegal because NOAA
improperly excluded from federal protections
hatchery fish that it had earlier included in
the coho stock's ESA "evolutionarily
significant unit." The petitions said the
listings of Snake River sockeye salmon, fall
chinook salmon, spring/summer chinook salmon
and steelhead, the Upper Columbia River
spring-run chinook and steelhead, the Middle
Columbia River steelhead, the Puget Sound
chinook and Hood River Canal summer-run chum
salmon were similarly tainted.
February 2002 said the delisting petitions
"present substantial scientific and commercial
information indicating that the petitioned
action may be warranted." That started a
one-year clock within which NOAA is required
to make a determination of whether the stocks
should or should not be ESA protected.
year passed and the petitioning groups tried
to force the action via a lawsuit filed in
August 2003. They and NOAA agreed in October
of last year to settle the lawsuit provided
the federal agency produced its determinations
and listing proposals by March 31, 2004. NOAA,
however, on March 11 asked Spokane's U.S.
District Court for a 90-day extension, citing
the "unexpected complexity" of the biological
and policy issues involved in the task.
the BIAW's attorney, on Monday filed a motion
asking the court to deny the deadline
extension request and require NOAA to complete
the process within 30 days.
have no justification" for the delay, Harris
said. "They're already 17 months behind their
applicable law for making a determination on a
de-listing petition is straightforward and
clear," according to the brief filed with the
district court this week. "A species must be
de-listed if: '[T]he species has recovered and
is no longer endangered or threatened; or
investigations show that the best scientific
or commercial data available when the species
was listed, or the interpretation of such
data, were in error.' "
makes NOAA's primary arguments for an
extension "irrelevant," Harris said. In
February of 2002 NOAA announced that it was
undertaking a status review of 27 West Coast
salmon stocks, not just the eight named in the
BIAW lawsuit. The agency also said at the time
that it would develop a new policy that it
would use as guidance in determining what role
hatchery fish would have in listing
declaration from NOAA regional administrator
Bob Lohn in support of his agency's March 11
extension request noted that a "recent" U.S.
Fish and Wildlife Service request to develop a
national hatchery listing policy jointly had
caused a set back in the hatchery policy
development process. He also noted the
enormity of the undertaking -- 27 listing
lawsuit only concerns eight populations of
northwest salmon -- not 27. The 19 salmon
populations that are not a part of Agreement's
March 31, 2004 deadline are irrelevant,"
according to the BIAW motion. Harris'
opposition to the deadline extension also
calls the hatchery policy development argument
a lame excuse.
"Defendants also cite the U.S. Fish and
Wildlife Service's (FWS) 'recent' request to
develop a joint national hatchery policy. Lohn
Declaration 9. Mr. Lohn's declaration is
conspicuously vague with respect to the timing
of FWS's request. In fact, Mr. Lohn's
declaration admits that FWS have developed
joint policies for many years. Obviously,
FWS's role in developing joint policies is
hardly a new development, and does not justify
modification of the Agreement," according to
the BIAW filing.
groups say that the NOAA request is not backed
with the proper legal rationale.
stark contrast, the facts of the case at hand
do not warrant a modification of the
Agreement. There has not been a change of
either case law or statutory law. Nor have
there been changed factual conditions or
unforeseen obstacles that would make
compliance with the stipulated agreement more
onerous," according to the BIAW.
Justice Department has five days to respond to
the BIAW's motion to deny the extension and 11
days to respond to the request that the court
order NOAA to comply with the settlement
agreement within 30 days.