[3] New Lawsuits Over Feds' ESA Listing Policy

The Pacific Legal Foundation announced earlier this month that it will contest the new federal policy for determining the listing status of West Coast salmon and steelhead. The policy was revised after the foundation sued the government over its original policy (Alsea Valley Alliance v. NMFS) and won, when Oregon federal judge Michael Hogan agreed with plaintiffs that the hatchery component of a listed fish population deserved the same protections that the wild component received if it was genetically similar.

"Four years ago, federal officials promised they would issue new findings on salmon listings that would comply with the court's decision in Alsea," said Russ Brooks, the managing attorney for PLF's Pacific Northwest office. "Instead, the agency continues to ignore the law and the scientific reality that thousands of hatchery and naturally spawned fish thriving in western rivers mean that salmon are not threatened with extinction."

Brooks says the feds have played a shell game with the new policy, including hatchery fish in the listing, but still only considering the numbers of the wild component to determine whether the stock warrants listing. He says the hatchery fish should be counted as part of the stock. If the feds counted this way, few if any populations would deserve the be listed for protection under the ESA.

"The ESA does not allow federal regulators to treat some members of a species differently when they exist in the same river, in the same natural ecosystems, and interbreed together," added Brooks.

PLF filed the lawsuit on behalf of a broad coalition of property owners, farmers, and business groups representing tens of thousands of citizens in Oregon, Washington, California, and Idaho, including Alsea Valley Alliance, Oregon State Grange, Jackson County Pomona Grange, Washington Farm Bureau, Washington Association of Realtors, Building Industry Association of Washington, California State Grange, Greenhorn Grange, Central Coast Forest Association, Coalition for Idaho Water, Idaho Farm Bureau, Idaho Water Users Association, Pioneer Irrigation District, and Idaho State Senator Skip Brandt.

Environmental groups are going after the new federal listing policy as well. A Seattle District Court judge agreed with the groups in a Dec. 1 ruling that will allow them to continue their litigation begun last summer, refusing a federal request to dismiss the lawsuit. The groups say the feds shouldn't look at hatchery fish at all when making a listing determination.

Another coalition of environmental groups, including American Rivers and Trout Unlimited have announced a lawsuit against new rules adopted by the Federal Energy Regulatory Commission, the agency grants operating licenses to non-federal dams. They say the rules will weaken protections for fish, wildlife and water.

"The new dam rules give utilities an unfair advantage," said Robbin Marks, director of hydropower reform at American Rivers. "Now companies, whose dams have caused so much environmental damage over decades, expect to do even less to safeguard our rivers." The groups argue that the new rules will allow utilities to back out of agreed-upon measures to mitigate adverse effects of dams. -B. R.

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