There's much to do, and
too little time to do it, the NOAA Fisheries Service this week
told the federal judge who on Oct. 9 gave the agency 60 days
to reconsider the status of the Oregon Coast coho salmon.
The federal agency, through Justice Department attorneys, has
asked U.S. District Court Judge Garr M. King that the agency
be given an additional 60 days to evaluate whether the coho
stock merits listing under the Endangered Species Act.
"This schedule would allow NMFS to make final
determinations based on the record before the Court,"
according to a declaration by NOAA Fisheries regional
administrator, Bob Lohn, filed Monday in support of the
request for "reconsideration" of the 60-day edict.
"While this schedule would likely not allow time for major
new analyses or information-gathering, nor the opening of a
new public comment period, it would allow NMFS to confirm
whether data collected since our review and other new
information and analyses might affirm or alter any of those
determinations," Lohn said. He said that, in the event a
listing determination is made, other ESA requirements must be
The extra time allows "for the possibility of
simultaneously designating critical habitat for this
Evolutionary Significant Unit ('ESU') and provide protective
regulations under 16 U.S.C. § 1533(d) (commonly referred to as
a section '4(d) rule')," according to a memorandum filed by
the Justice Department in support of the request.
"An additional 60 days will allow NMFS to consider some of
the new information that has been developed since this
litigation ensued and thus will make any decision more likely
to withstand future legal challenge," the memorandum says.
The federal agency in January 2006 decided the coho stock
did not warrant ESA protections and withdrew its proposed
listing. That decision was challenged successfully by Trout
Unlimited and other fishing and conservation groups
represented by Earthjustice.
The plaintiffs in the lawsuit on Wednesday asked the judge
to require that critical habitat designation and 4(d)
protection processes be completed in the same time frame.
"Plaintiffs Trout Unlimited et al. informed NMFS's counsel
that they would not oppose this motion if NMFS committed to
make these associated decisions by the extended Court
deadline," according to a "conditional nonopposition" to the
federal request. "In discussions among counsel, NMFS refused
to make such a commitment.
"Moreover, in its memorandum in support of its motion to
amend judgment, NMFS refers to 'the possibility' that it will
designate critical habitat and promulgate a protective section
4(d) rule for Oregon Coast coho," according to the brief filed
Wednesday by Earthjustice for the fishing and conservation
"Trout Unlimited believes that if NMFS obtains additional
time on this basis, it should be obligated to make final
critical habitat and 4(d) decisions, if its decision is to
list Oregon coast coho, as is likely given the agency's
previous findings and this Court's ruling," the Earthjustice
The state of Oregon and Alsea Valley Alliance, which
aligned with the federal government as defendant intervenors
in the lawsuit, have indicated they will not oppose the
request, according to the federal memo.
On July 13 U.S. District Court Magistrate Janice M. Stewart
found that NMFS' decision was arbitrary and capricious under
the ESA. She said it failed to consider the best available
science and recommended that the federal agency be given 60
days to issue a new listing.
King adopted those finding and recommendations and issued a
judgment that says NOAA must "make a new final listing rule
consistent with the Endangered Species Act within 60 days."
The Oregon Coast coho ESU has been off and on the list.
NOAA first proposed the stock for listing in 1995 but withdrew
its decision in 1997. That decision was found legally faulty
and NOAA listed the stock the following year. Litigation again
ensued, with federal Judge Michael Hogan declaring the listing
illegal in 2001.
The coho's status was considered again during a review of
all listed West Coast salmon and steelhead, which culminated
with the withdrawal of the listing proposal.
Lohn said that, since Oct. 9, his staff has "compiled and
analyzed some ESU-level abundance, productivity, and marine
survival information for 2003-2006. They are in the process of
analyzing additional years of population-level abundance and
productivity data for that period since the Biological Review
Team's last review,"
"Regional staff are also reviewing draft reports y the
Oregon and Northern California Coast Technical Recovery Team,
which present the most recent analyses of the ESU's population
structure and viability," he wrote. "Further, my staff is
reviewing Oregon's draft Coho Conservation Plan for Oregon
Coast coho and supporting documentation for new information
concerning freshwater habitat trends and limiting factors."
"Finally, to prepare for possible ESA listing of the ESU
and thus a possible decision regarding the designation of
critical habitat and promulgation of a 4(d) rule, my staff
will update or supplement a draft Environmental Assessment
evaluating the proposed 4(d) rule under the National
Environmental Policy Act, and for possible critical habitat, a
bio-geographical report, as well as report(s) addressing
consideration of economic, national security and other
relevant impacts," Lohn said.
Once the work is completed, it will take "at bare minimum"
30 days for the agency's national headquarters to review the
work, Lohn said.