federal govt defends decision not to list coho 041807

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http://www.oregonlive.com:80/newsflash/regional/index.ssf?/base/news-19/117677034873080.xml&storylist=orlocal
Federal government defends decision not to list Oregon coho
4/16/2007, by TIM FOUGHT , The Oregonian

PORTLAND, Ore. (AP) — The federal government on Monday defended its decision to leave Oregon coastal coho salmon off the threatened species list and let the state of Oregon oversee voluntary efforts to restore its numbers.

U.S. Justice Department lawyer Paul Lall argued in U.S. District Court that judges must defer to NOAA Fisheries, the federal agency in charge of salmon restoration, which had weighed competing scientific evidence and made a "close call."

But Trout Unlimited and other conservation groups countered that NOAA Fisheries failed to use the best available science, and in the face of uncertainty should have decided to protect the fish.

"If there are uncertainties, the agency cannot throw up its hands," said Patti Goldman, an attorney from Earthjustice representing the conservation groups. "It cannot refuse to act."

Once a fish is listed as threatened, the government has to come down on the side of protecting the fish when there's a question about whether a given action might harm its populations, Lall said.

But until a species is listed, he said, the Endangered Species Act doesn't require such a strict standard for decision-making, he said. So long as the decision not to list a species has a rational basis, it ought to be respected, he said.

"At the end of the day, (the agency) had to make a decision, but it did not throw up its hands," Lall said.

NOAA Fisheries announced in January 2006 that, due to the state of Oregon's efforts to limit fishing, reform hatchery production and improve freshwater habitat, it was shelving a proposal to put Oregon coastal coho back on the threatened species list.

With no federal protection, there are fewer regulations on logging, agriculture, land development and restoration work from Astoria to Port Orford.

The fish was listed in 1998, primarily due to overfishing, loss of habitat to logging, agriculture and urban development and misguided hatchery practices.

A federal judge ruled in 2001 that NOAA Fisheries had erred in lumping hatchery and wild fish in the same population group, but only granting ESA protections to wild fish.

In 2003, Oregon reached an agreement with NOAA Fisheries to revive an earlier Oregon Plan for Salmon, which emphasized voluntary efforts to restore the fish, and the Oregon Department of Fish and Wildlife came out with a report finding that Oregon coastal coho remained viable as a species, even when ocean conditions were poor.

Judge Janice Stewart told the two sides it might take "some time to work through" the issues and gave no estimate of when she might rule.