Oral arguments set Monday on Oregon coho ESA listing case

April 13, 2007 Columbia Basin Fish and Wildlife Bulletin

The status of the Oregon coast coho salmon under the Endangered Species Act started a legal and political firestorm years ago that eventually forced the NOAA Fisheries Service to take another look at 27 West Coast salmon and steelhead listings.

The fish will again be the focus next week in a Eugene, Ore., courtroom when fishing and conservation groups try to convince a federal judge that the coho stock needs ESA protections.

The federal government, aided by the state of Oregon and the Pacific Legal Foundation, will argue that the January 2006 determination that listing is not warranted is correct.

Oral argument are scheduled before U.S. District Court Judge Janice M. Stewart on Monday.

Another Eugene-based federal district court judge, Michael Hogan, started NOAA Fisheries' massive listing reconsideration with a September 2001 decision declaring the 1998 coho listing illegal.

NOAA had included both natural and hatchery populations in its "evolutionarily significant unit" designation of the stock, but listed only the naturally produced fish.

Hogan said it was illegal to list only the wild fish because the ESA did not allow such a splitting of the distinct population segment.

Since such hatchery-wild designations were common to most of the existing listings, NOAA decided to rewrite its policy regarding treatment of hatchery produced fish in making listing determinations, and reviewed the status of all 27 stocks.

NOAA in 2004 proposed to relist the Oregon coho, but prolonged its evaluation in part to await a comprehensive assessment of the viability of the Oregon Coast coho ESU and of the adequacy of actions under the Oregon Plan for conserving Oregon Coast coho (and other salmonids in Oregon) being prepared by the state of Oregon.

At the end of its deliberations, NOAA concluded that "the best available information on the biological status of Oregon Coast coho indicates that the ESU is not in danger of extinction throughout all or a significant portion of its range (i.e., the ESU does not satisfy the definition of an endangered species under the ESA)," according to a Jan. 19, 2006, Federal Register notice withdrawing the proposed listing.

The fishing and conservation groups, represented by Earthjustice, say that the proposed listing was withdrawn "principally on a single piece of evidence, Oregon's viability assessment, which caused NMFS to embrace the BRT (Biological Review Team) minority position."

NOAA's biological review team in a 2003 report, by a slight majority according to NOAA, had concluded that the naturally spawning populations in the Oregon Coast coho ESU were likely to become endangered, i.e were worthy of a threatened ESA designation.

"Apart from Oregon's viability conclusion, NMFS had no basis for shifting its reliance from the BRT majority's threatened finding to the minority's contrary conclusion,"

according to an Earthjustice brief filed March 27.

"Indeed, the BRT minority embraced the logic of the low abundance paradigm – that Oregon coho are inherently resilient and can bounce back from low numbers regardless how degraded their freshwater habitat may be. The lack of scientific support for that paradigm calls the BRT minority conclusion into question."

A federal brief filed March 2 says that argument fails.

"First, the test of NMFS's withdrawal decision and documents in the administrative record reveal that NMFS carefully assessed the status of the species and considered all relevant factors. In evaluating Oregon's low abundance paradigm… NMFS did not just accept Oregon's conclusions. Rather, NMFS undertook its own analysis and reached its own conclusions."

The PLF, representing the Alsea Valley Alliance, said the scientific arguments are superfluous.

"Plaintiffs obfuscate the legal issues in this case by focusing almost entirely on scientific disagreement when the bottom line is that NMFS's not-warranted determination was the result of a lengthy acquiescence to the proper administrative process and mere disagreements in the scientific reports reviewed did not preclude their ultimate determination," according to a brief filed April 6.

"Nine years after the ONRC decision, this court is once again charged with the task of determining if NMFS's not warranted determination for the Oregon Coast coho is lawful and, further, if it is arbitrary and capricious. This Court should not rely on Plaintiffs' dissatisfaction to overturn the withdrawal of the proposed rule, or remand to NMFS for further consideration, but, instead, should defer to the NMFS's finding, which it arrived at through the procedures Congress set forth" in the ESA.