Judge: Flawed science used in coho no-list decision

Mitch Lies, Capital Press, posted to KBC 7/18/07

SALEM - What seemed like a major victory for the natural resources community 19 months ago, today looks more like a minor reprieve after a federal magistrate last week ruled a fisheries agency violated federal law when it decided not to list the Oregon coast coho.

U.S. Magistrate Janice Stewart on July 13 wrote the National Marine Fisheries Service's decision not to list the fish was "arbitrary, capricious, contrary to the best available evidence and a violation of the ESA."

Stewart recommended the courts order the agency issue a ruling consistent with the Endangered Species Act.

The opinion marks the second time in recent weeks the natural resources industries have been stung by a ruling on endangered fish. It comes one month after U.S. District Judge John Coughenour ruled that federal agencies can't count hatchery salmon alongside wild stocks when determining if populations of the upper Columbia River steelhead warrant protection under the ESA.

That ruling raised the listing of the steelhead from threatened to endangered and could impact future listings for other fish.

Natural resource groups this week were calling the recommendation by Stewart a setback to what many viewed as a success story stemming from NMFS's no-list decision for the coho in January of 2006 - a decision many believed could be traced to efforts of individual landowners to voluntarily improve salmon habitat in the coast coho's range.

The voluntary efforts extended from the governor's office to local watershed councils and private landowners who worked under incentive-based programs. The state, which has spent millions of dollars on recovery efforts, also worked with federal fisheries to reduce harvest levels as fish populations dropped and reduced hatchery releases to minimize a dilution of the coho's gene pool.

Courts, however, don't place much stock in salmon recovery programs based on voluntary actions, NMFS spokesman Brian Gorman said.

"Voluntary agreements don't carry weight as far as the ESA is concerned," he said, "even if they are doing good."

The state's efforts also included extensive monitoring of coho populations and studies into the impacts of habitat and other conditions on coho survival.

Scientists, in conducting what a state official said is the most extensive study into coho survival ever conducted, found the fish is more resilient than previously thought and under current habitat conditions, able to survive during poor ocean conditions and flourish in good ocean conditions.

"We found coastal coho are extremely dependent on ocean conditions and ocean productivity," said Ed Bowles, fish division administrator for the Oregon Department of Fish and Wildlife.

As part of unprecedented emphasis on monitoring, the state documented that populations rebounded from lows of around 40,000 in the 1990s to a high of 252,000 in 2002. Populations have fluctuated since - based primarily on ocean conditions - from the high in 2002 to 106,000 in 2006. ODFW scientists project more than 200,000 coast coho will return to their spawning grounds this year.

State scientists believe population increases can be traced to improvements in habitat - improvements largely accomplished by private landowners working under the state's incentive-based programs. Bowles said this week he fears a listing decision could harm efforts to improve habitat by stripping land owners of their ownership in the projects.

"Listing (coast coho) is not going to do anything to improve habitat on private land and could have negative impacts," he said.

"It's understandable to have them question what their investment is getting them (if the fish is listed)," he said.

The Portland-based Magistrate Stewart last week backed the contentions of Trout Unlimited, the Pacific Rivers Council and other environmental and fishing groups who filed suit against the Bush administration shortly after the 2006 no-list decision that the no-list decision was not based on the best available science.

Parties in the case, including NMFS and the state of Oregon, have until July 30 to object to the recommendation. The recommendation must be endorsed by a federal district court judge before NMFS would be compelled to react.

NMFS was reviewing the recommendation earlier this week and had not decided whether to object, Gorman said.

Michael Carrier, natural resources advisor to Gov. Ted Kulongoski, said the state also was weighing its options.

Generally speaking, Gorman said, federal judges follow recommendations provided by magistrates, but they are not required to do so.

The farm and forest trade group Oregonians for Food and Shelter released a statement July 17 saying it was "very disappointed" in Stewart's decision.

"Our membership, along with other natural resource folks, in concert with the governor's office worked long and hard on this issue," the statement said.

Carrier also characterized the decision as disappointing.

"We disagree with the conclusion that the work that Oregon scientists put into this didn't represent sound science," he said. "We felt it was sound science ... and provided a reasonable basis for concluding that the salmon stock was viable."

Carrier said the state will continue to try and rebuild coho stocks "to a level of abundance until it becomes no question that these fish are recovered."

"We believe the fish are currently viable," Bowles said, "but there is more work to be done and the most effective way of getting work done on the ground on private land is through this incentive based partnership with the land-based industries."

Controversy surrounding the Oregon coast coho has loomed since 1993 when the Pacific Rivers Council petitioned NMFS to list the fish for protection under the ESA.

NMFS chose not to list the fish in 1994, but its decision was overturned by a federal judge after environmental groups challenged the no-list decision.

The Pacific Legal Foundation entered the legal battle in 2001 when it challenged the listing saying NMFS was not counting hatchery fish as part of the coho's population - an oversight, the foundation said, that distorted population levels to unreasonably low numbers.

U.S. District Judge Michael Hogan ruled in favor of the foundation based in part on the consensus hatchery fish shared the same water, were closely related to wild stocks and as such could not easily be distinguished from their wild cousins.

The Oregon coast coho currently is listed by NMFS as a "candidate" species, the second of four categories under the ESA, with the fourth being "endangered." The category is used to describe a species not in great shape, Gorman said, but not warranting listing.

The coast coho is one of only two Northwest salmon species not listed as either threatened or endangered, the other being the lower Columbia coho.

"(The coast coho) has always been kind of on the line and open to honest interpretation as to whether they should be listed or not," Gorman said. "They've always been in a gray, middle area."

Staff writer Mitch Lies is based in Salem. E-mail: mlies@capitalpress.com.