[4] Niners Reverse District Court Ruling Over Harvest Lawsuit
The 9th U.S. Circuit Court has overturned a district court ruling that found several fishing conservation groups did not have standing to sue the federal government over its support of Canadian harvest levels allowed under the Pacific Salmon Treaty between the U.S. and Canada.
But the case has taken so long, the original reason for filing the lawsuit has pretty much become moot. Treaty talks between the two nations scheduled for 2008 have been completed and harvest cuts are planned.
The groups argued in 2005 that the agreement allowed for catches of ESA-listed stocks that were too high for stocks to recover, and that reconsultation should begin between the two countries under terms of the treaty "in the light of new information about listed salmon."
The three-judge panel found Oct. 8 that the groups do have standing to bring their third claim for relief, but not two others, reversing a decision [Salmon Spawning & Recovery Alliance v. NMFS] in Western Washington District Court that ruled the groups had no standing under any of their three claims. But the point is moot since the U.S. and Canada have completed new talks over harvest issues.
The Niners said no to the groups' first claim--that the harvest BiOp which authorized U.S. entry into the treaty was "arbitrary and capricious."
The groups' second claim asserted the participation of agencies and officials in the continued implementation of the treaty jeopardized listed salmon and was a violation of the ESA, and that such participation was "arbitrary and capricious" in violation of the Administrative Procedures Act.
Their third claim, which the panel upheld, was based on the groups' claim that consultation had to be reinitiated because new criteria developed by NMFS showed that Canadian harvesters were taking more Puget Sound fish than the BiOp had anticipated.
But the point is moot since the U.S. and Canada have completed new talks over harvest issues, including ESA interceptions, and the two countries have agreed to settle the issue. The U.S. will provide $30 million to reduce the size of the Canadian fleet off Vancouver Island and pay for impacts to coastal economies. In return, the Canadians have promised to reduce their impacts on U.S. stocks by 30 percent.
The U.S. will also pay Alaska fishermen $7 million to reduce their impacts on listed salmon from the Lower 48 by 15 percent.
Attorney Svend Brandt-Erichsen said he hadn't yet conferred with his clients, which also included the Native Fish Society and the Clark-Skamania Flyfishers.
He agreed that the action they had wanted had already occurred, so the issue "is pretty much moot." But he said the decision was likely to help his clients during the appeal of another case that has specifically targeted salmon harvest levels in Puget Sound. His clients in that action allege that NOAA Fisheries didn't follow its own criteria when it determined that harvest levels for ESA-listed salmon stocks in Puget Sound did not jeopardize efforts to recover the fish.
In the Puget Sound litigation, federal judge Robert Lasnik sided with the feds in a Mar. 20 decision, even though they admitted that the management plan put together by Sound-area tribes and WDFW, and approved by NOAA Fisheries, was less than ideal, but managers were faced with competing mandates of upholding tribal harvests and starting recovery efforts. They felt current harvest rates wouldn't really harm recovery because so little improvement in salmon numbers would occur from few habitat actions during the short, five-year life of the plan. -B. R.
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