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Posted on Friday, April 30, 2004 (PST)

By Barry Espenson


A Spokane-based U.S. District Court judge this week ordered the federal government to deliver its judgment within 30 days on whether eight stocks of West Coast salmon and steelhead still merit listing under the Endangered Species Act.


The Wednesday order also says the government must pay the legal fees of the Building Industry Association of Washington, the Kitsap Alliance of Property Owners, the Columbia-Snake Irrigators Association and the Skagit County Cattlemen's Association. Those are the groups that filed two petitions in October 2001 asking that nine salmon and steelhead stocks be delisted. They argued that if NOAA counted the hatchery fish, numerous stocks would have to be delisted.


They based arguments on an opinion issued the previous month by Oregon-based U.S. District Court Judge Michael Hogan. He declared the Oregon coast coho listing illegal because NOAA impermissibly excluded from the federal protections hatchery fish that it had earlier included in the coho stock's "evolutionarily significant unit" and included only naturally spawned fish in the listing.


NOAA Fisheries has drafted a revised hatchery policy that will in many cases take into account related hatchery stocks when it makes listing decisions.


The April 28 order from Judge Robert H. Whaley says NOAA must issue long-overdue "findings" regarding eight of the petitioned stocks within 30 days. He said the court had no authority to extend the time allotted under the ESA for NOAA to make a determination whether the suggestion action -- delisting -- is "warranted, warranted but precluded, or not warranted."


The ESA says the finding must be produced within 12 months of receipt of a petition.


"It was a win across the board," attorney Tim Harris said of the judge's order. Harris represented the BIAW in the lawsuit. He said the legal pressure applied as a result of the lawsuit may also have helped spur NOAA to a decision on the revised hatchery policy. NOAA Fisheries, in March filings in the BIAW case, had asked for a 90-day extension of a March 31 deadline for completion of its findings. It promised in that filing to have the hatchery policy out in draft form before April 1.


"We finally got them to get of their butts and do something," Harris said.


NOAA Fisheries spokesman Brian Gorman said Thursday that "we're working very hard on finishing this effort and fully expect to meet the court's deadline."


The groups filed the lawsuit in August 2003 after NOAA Fisheries failed to produce findings within the 12-months period. The parties involved in the lawsuit reached a settlement


The March 11 motion filed by U.S. Justice Department attorneys asked that the court amend a settlement agreement filed in that lawsuit in October 2003 that set the March 31, 2004 deadline for completion of the eight status reviews. The agency said in March that it was unable to complete the tasks and suggested that it has the "good cause" necessary to extend the deadline.


Whaley's order said the good cause standard is irrelevant since the court did not have authority to alter the ESA, or the settlement.


"Put another way, even if good cause could be demonstrated, that is not enough to get around the mandatory, non-discretionary requirements…. The Court cannot do something that it is not authorized to do under the law," Whaley wrote. The judge granted the plaintiffs' request to have a 30-day deadline established.


The eight stocks undergoing review are the Snake River sockeye salmon, fall chinook salmon, spring/summer chinook salmon and steelhead, the Upper Columbia River spring-run chinook and steelhead, the Middle Columbia River steelhead, the Puget Sound chinook and Hood River Canal summer-run chum salmon. They are actually a subset of a more extensive review. NOAA opted in February of 2002 to undertake status reviews 26 listed salmon and steelhead ESUs with related hatchery components, as well as of one candidate species. They include 12 Columbia River Basin stocks.

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