[2] Oregon Judge Says NMFS Dissed 'Best Available Science' In Coho Decision
A federal judge in Oregon has recommended that NMFS must take another look at its decision not to list Oregon coastal coho for ESA protection.
Judge Janice Stewart, a federal magistrate, said the agency didn't give enough credit to its own scientists, who found enough uncertainties in an assessment by Oregon Department of Fish and Wildlife biologists to question its conclusion that the fish population is fairly healthy.
In a July 13 ruling, Stewart said NMFS must issue a new final listing by July 30, and if any objections are filed by that date, her findings and recommendations will be referred to a district judge and go under advisement.
She had ruled in 1998 that the original state plan for protecting and restoring Oregon coho was illegal, and that the plan, approved by NMFS, relied too much on voluntary and speculative actions.
The latest action was originally filed by Trout Unlimited, and seven other fish conservation groups who lined up against the feds, and defendant-intervenors Alsea Valley Alliance and the state of Oregon.
At the center of the ruling was an analysis of the coastal coho populations by Oregon state fish biologists. Their analysis concluded that, even though fish numbers had decreased, the populations were still "viable" at the lower abundance levels because fewer juveniles in streams where they spent a year rearing meant less competition for food in the remaining habitat.
NMFS's own Science Center in Seattle found the Oregon analysis full of uncertainties, but federal policymakers said it was only one part of the big picture they examined before making a decision.
The state's "viability" analysis was cited by the federal agency to support the sizable minority of NOAA Fisheries' own scientists who thought the coho did not need ESA protection.
Fifty-six percent of votes by the NMFS biological review team in 2003 supported the view that the coho were likely to become endangered, principally because of the loss of freshwater habitat. But 44 percent supported the position that increasing spawner numbers since the turn of the century was enough evidence to show the runs were resilient enough "to bounce back from years of depressed runs."
By 2000, Oregon wild coastal coho spawners had climbed to more than 230,000, from only 30,000 in 1997, after the runs had been hammered by a combination of over-harvesting and poor ocean conditions. For the past six years, spawning numbers have been more than 100,000, higher than any year since 1971.
However, some scientists are still concerned about productivity of the stock. Back in 1971, the 50,000 coho that spawned represented only about 20 percent of the run--about 80 percent were caught. But harvest rates have remained low since runs plummeted after the devastating 1993 and 1997 El Niños, and the run numbers have improved by two or three times as ocean conditions improved.
"This is a victory for good science and Oregon's future," said Earthjustice attorney Patti Goldman. "Restoring protections for these salmon today means a greener and economically vibrant Oregon tomorrow."
But Sonya Jones, representing intervenor Pacific Legal Foundation, said Stewart's interpretation of the science is wrong, and objections will surely be filed. She said the attorneys involved have not yet decided whether to consolidate their objections or file separately.
The coastal coho stock has been in court for years as the focus of a lawsuit that forced NMFS to change its ESA hatchery policy. But the Hogan decision from the U.S. District Court ruled that the feds were breaking the law when they only listed the wild component of the coastal coho for protection under the ESA.
NMFS did not dispute the ruling and spent several years developing a new policy, which has been challenged in court by both fish conservation groups and the Pacific Legal Foundation.
A recent ruling by a federal judge in Seattle has contradicted the Hogan decision (see NW Fishletter 232), and the case is headed for the 9th U.S. Circuit Court of Appeals.
PLF attorney Jones said the latest case over coastal coho was originally filed in federal court in Seattle "to keep it away from Judge Hogan," but the feds got a change of venue that put it back in front of Oregon judges.
The coastal coho have been a political hot potato for years, and environmentalists had accused the state of Oregon of making a secret deal with the Bush administration to de-list them in exchange for lifting land-use restrictions affecting the state's timber industry.
Sources said at the time that the Oregon timber industry, heavy contributors to the Republican Party, had gained presidential advisor Karl Rove's ear over the coho issue, and the ensuing fracas nearly cost NOAA Fisheries regional administrator Bob Lohn his job (See NW Fishletter 209).
Only after other Northwest Republicans like Slade Gorton and Bill Ruckelshaus weighed in at the White House in their support of Lohn did he survive the near coup. -B. R.
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