Federal attorneys this
week argued that a U.S. magistrate wrongfully took on the role
of "scientific arbiter" last month in declaring illegal the
NOAA Fisheries Service's withdrawal of its proposal to list
the Oregon coast coho salmon stock under Endangered Species
Monday's legal filing by the Justice Department quotes
U.S. District Court Magistrate Janice M. Stewart's July 13
conclusions, which said, "Since the evidence supporting
listing was even stronger in January 2006 when NMFS withdrew
the listing than when the proposed listing was issued in June
2004, NMFS had no legitimate reason to abandon its proposed
listing of this ESU as threatened."
Making such an assessment veered from her proper legal role
and attempts to override NOAA's scientific experts, according
to federal attorneys, and those representing the state of
Oregon and the Alsea Valley Alliance.
"Courts, however, are not charged to weigh evidence when
reviewing administrative decisions," the federal brief said of
the challenge to NOAA's decision. The federal "objections" to
Stewart's findings likened the magistrate's role to that of
appellate processes, where the sole duty is to determine via
the litigation's administrative record whether a rational
basis is provided for the agency's decision.
"Weighing a body of scientific evidence or data is left to
the agency that has the actual expertise in these matters.
Otherwise, the court becomes the decision maker.
"This was not a trial; it was review of an agency action
under record review principles. As such, the Magistrate Judge
applied the wrong standard of review," according to the
Justice Department, which asks the District Court to reject
Stewart's findings and dismiss the complaint brought by Trout
Unlimited and other fishing and conservation groups.
Objections to the findings filed by the Pacific Legal
Foundation said the magistrate chose the 2002 majority view of
a NMFS biological review team as the best available science,
thus dismissing numerous other sources of information. A
slight majority of the BRT's scientists said the stock
warranted listing as threatened.
"NMFS's shift to a decision consistent with the 'BRT
minority view' does not show a change in its view of the
scientific abilities of individual members of the BRT; it
merely finds one of the BRT's rationales more convincing than
the other after reviewing all the currently available
information, in a reversal of its tentative position expressed
in the 2004 listing proposal," according to the brief filed by
the PLF for Alsea
"… the court misconstrued the relevant statutory standard
for listing decisions under the ESA that say listing decisions
must be made 'solely on the basis of the best scientific and
commercial data available…,'" the federal brief says. Stewart
judged as flawed some of the science -- the state of Oregon's
Oregon Coastal Coho Assessment --- used in NOAA's coho
salmon's status review and thus ruled the determination was
The statute, however, "requires that the agency to consider
all of the relevant data in a particular field thereby
prohibiting the agency from ignoring compelling and relevant
"The standard does not require the agency to declare one
point of view the 'best science,' disregard everything else,
and make a decision solely on that point of view," the federal
brief says. "That is where the Magistrate Judge's decision
veered from the appropriate analysis."
"Notably, the court's opinion did not find that an
important piece of data or information was ignored, it found
only that there was uncertainty and that the conclusions in
the State of Oregon's Final Assessment were wrong.
"In the face of that uncertainty and its own scientific
conclusion, the Court invalidated NMFS' decision. In doing so,
the Magistrate Judge no longer acted in an appellate role, but
instead became a scientific arbiter," the federal brief says.
"This is a case in which a federal agency was presented
with a scientific disagreement between experts whether to list
the Oregon Coast Coho under the Endangered Species Act (ESA),"
according to objections filed by Oregon. "The question is
whether, in the face of that scientific disagreement, it was
permissible for the agency to weigh that scientific evidence
and come to a conclusion that no listing was warranted at this
"The Magistrate Judge (Magistrate) has issued Findings and
Recommendations (F&Rs) preferring one body of scientific
evidence to another and concluding that the agency was
required to ignore all the science supporting a 'no list'
decision and credit only that science supporting a decision to
list," the Oregon filing says.
The magistrate dismisses much of the large body of
scientific work on which the NMFS withdrawal decision was
based, according to the state.
"The Magistrate erred in substituting her scientific
judgments for those of NMFS. The error was not just in doing
so, but also in getting the science wrong. Those two errors
"Federal courts are ill-equipped to undertake their own
independent evaluation of the complex scientific data and
information that reflect the multitude of factors affecting
anadromous fisheries. That is why they defer to the agencies
tasked by Congress with that role," according to the state.
The Justice Department filing said NOAA did not rely solely
on the Oregon assessment in making the determination as the
magistrate's findings attest.
"Instead, NMFS undertook a comprehensive process that
reviewed many sources of data, analyses, critiques, and
collectively determined that, although there was uncertainty
when making predictions, the Oregon Coast coho was not likely
to become endangered in the foreseeable future."
The federal objections say Stewart's findings "misapply the
relevant legal standard, utilize the incorrect standard of
review, and factually misconstrue the basis for NMFS' decision
to withdraw the proposed listing for the Oregon Coast coho."
Stewart's "findings and recommendations" said that NMFS
should be ordered to issue a new final listing rule consistent
with the ESA within 60 days of the court's decision. The judge
said that NOAA decision's was arbitrary and capricious under
the ESA because it fails to consider the best available
In a "non-consent" lawsuit, parties to the lawsuit can file
objections to a magistrate's findings and recommendations. A
district court judge will be chosen to review Stewart's
findings as well as the objections filed Monday and responses
to those objections that must be filed within 10 days. The
district judge then can accept Stewart's findings, modify them
or reject them.
NOAA Fisheries is defendant in the lawsuit filed last year.
The state of Oregon and Alsea Valley Alliance later joined the
lawsuit as defendant intervenors. Trout Unlimited is
represented by Earthjustice.