District of Columbia-based U.S. District Court
judge in a Tuesday order dismissed most of the
legal arguments underpinning a challenge to
four West Coast salmon listings but delayed,
at the federal government's request,
consideration of whether the listings violate
the Endangered Species Act.
consideration awaits the outcome of a process
-- spawned by a separate lawsuit -- that is
bringing changes in the way listing decisions
are made. A September 2001 order by
Oregon-based U.S. District Court Judge Michael
Hogan declared that the National Marine
Fisheries Service (now NOAA Fisheries) erred
when it included both naturally and hatchery
produced Oregon coast coho salmon in its
species definition -- an evolutionarily
significant unit -- but included only the wild
fish in the actual listing.
decision prompted a review of the status of
all 26 West Coast salmon and steelhead stocks.
It also prompted the creation of a new
"hatchery policy" to guide consideration of
hatchery stocks in NMFS' (now NOAA Fisheries)
listing decisions. Both processes are ongoing
with a June 14, 2005, anticipated completion
District Court Judge James Robertson this week
said that a stay of a decision on the four
listings would be allowed. He denied a request
by the National Wildlife Federation that the
listings be affirmed as legal.
"Plaintiffs have not asserted that they will
suffer immediate harm if the listing of the
three chinook salmon is allowed to stand
pending the issuance of the revised Hatchery
Policy and the listing determinations,"
Robertson's Aug. 10 order said.
the four salmon stocks alleged to be illegally
listed have parallels to the Oregon coast coho
listing in that hatchery portions of the
designated ESUs were omitted from the actual
listings. The fourth, endangered Upper
Columbia spring-run chinook, includes both
hatchery and wild fish in the listing. The
listing is, however, being reviewed so
Robertson said he would likewise withhold
judgment on the validity of the Upper Columbia
chinook until after the reviews are complete.
lawsuit was initiated in May 1999, following
the March 1998 listing of the Puget Sound
chinook in Washington, Lower Columbia River
chinook in Washington and Oregon, the
Willamette spring-run chinook in Oregon and
the Upper Columbia chinook. The lawsuit filed
by Common Sense Salmon Recovery claimed the
four NOAA listings violated the ESA, the
federal Administrative Procedures Act and
other federal laws.
Sense Salmon Recovery is a coalition of groups
and individuals representing the Building
Industry Association of Washington, the
Washington Association of Realtors, the
Washington Cattlemen's Association, and the
Washington Farm Bureau and is supported by
numerous other business and agricultural
interests and local governments.
Robertson's order noted that the Justice
Department's "first response" to the
allegations of an ESA violation was an
acknowledgment that three of the listings were
flawed, based on Hogan's 2001 decision, and
that the best course of action would be stay
of the proceedings until its rulemaking
processes were complete.
however, dismiss four other "causes of action"
outlined by the coalition. He called
"untimely" a claim that the prevailing "ESU
Policy" had been adopted without the proper
public noticed and comment required by the APA.
The policy was adopted in 1991 and not
challenged by the lawsuit until 1999. There is
a 6-year statute of limitations. Regardless,
the judge said the rule "was promulgated after
a formal notice-and-comment opportunity."
obviously going to appeal," said Erin Shannon
of the Building Industry Association of
Washington. "We're not happy with how this all
the lawsuit was filed in 1999 and essentially
languished until a new judge, Robertson, was
appointed to the case this year. He had
scheduled oral arguments in the case Aug. 3
but they were cancelled due to vacation
conflicts of federal attorneys and attorneys
for the National Wildlife Federation.
coalition presumed the arguments would be
suddenly we received a 20-page order," Shannon
Department attorney Ruth Ann Lowery said
Robertson's ruling canceling the planned
arguments did not promise a rescheduling. The
original judge in the case did hear oral
arguments in November 2002.