Judge: Flawed science used in coho no-list decision
Press, posted to KBC 7/18/07
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
That ruling raised the listing of the steelhead from
threatened to endangered and could impact future listings for
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
"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
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
"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
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
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
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
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
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
Staff writer Mitch Lies is based in Salem. E-mail: firstname.lastname@example.org.