Klamath coho listing ruled illegal but protection stays for now

1/11/2005, 4:42 p.m. PT By JEFF BARNARD The Associated Press

GRANTS PASS, Ore. (AP) — A federal judge ruled Tuesday that coho salmon in the Klamath River should not have been listed as a threatened species without taking into account hatchery fish along with wild, but let stand the Endangered Species Act protection pending a federal review.

In a repeat of his 2001 finding that struck down protection for Oregon coastal coho over the lack of genetic distinction between hatchery and wild salmon, U.S. District Judge Michael Hogan ruled from the bench in Eugene in favor of a lawsuit brought by property rights advocates challenging threatened species status for coho salmon in a region of Northern California and Southern Oregon that includes the Klamath and Rogue rivers.

However, he granted a motion from NOAA Fisheries to let stand the threatened species listing until the agency completes a comprehensive review of 26 West Coast salmon listings prompted by the Oregon coastal coho ruling.

That review, which considers hatchery fish along with wild, is expected to be finished this June, said NOAA Fisheries spokesman Brian Gorman.

The ruling affects coho in the Klamath River, where agricultural and fishing groups and Indian tribes have been fighting over scarce water since the Bush administration was forced by the Endangered Species Act in 2001 to shut off water to farmers on the Klamath Reclamation Project to assure water for threatened and endangered fish.

NOAA Fisheries has already said it expects Klamath coho to retain threatened species listing.

Hogan allowed the plaintiffs, the California State Grange and Oregon State Grange, to return to court if they are harmed by any actions based on the listing, such as a repeat of the 2001 irrigation water cutbacks, said Russell Brooks, an attorney for the Pacific Legal Foundation, a property rights public interest law firm that represents them.

Brooks said the ruling left plaintiffs well situated to resume their challenges of Endangered Species Act protections for salmon after the new listings are issued this June.

Glen Spain of the Pacific Coast Federation of Fishermen's Associations, which represents California commercial fishermen and was an intervener in the case, said it was an empty victory for property rights advocates.

"I would say this is a victory of common sense over denial and efforts to grab more water in the river," Spain said.

Brooks added that they were considering appealing the case in hopes of winning a U.S. Supreme Court ruling that would leave judges with no option to let the threatened species status stand in future cases. A rule in force in the West Coast jurisdiction of the 9th U.S. Circuit Court of appeals allows that option.