Oral arguments set Monday on
Oregon coho ESA listing case
April 13, 2007 Columbia Basin Fish and Wildlife
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
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withdrawn "principally on a single piece of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
"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
A federal brief filed March 2 says that argument
"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
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
"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.