Grange wins coho salmon ESA lawsuit

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Pioneer Press, Fort Jones, California
Wednesday, January 19, 2005 Vol. 32, No. 13 Page A1, column 2

 Grange wins federal coho salmon case

-- A federal judge ruled that coho were illegally listed with ESA.

By Liz Bowen, assistant editor, Pioneer Press, Fort Jones, California

YREKA, CALIFORNIA – "We prevailed," said Leo Bergeron, president of the Greenhorn Grange. "For seven years, we have maintained that coho salmon should not be listed with the Endangered Species Act."

David has beaten Goliath. It wasn’t easy. And there will still be challenges.

But it was the Greenhorn Grange, based in Yreka, which began gathering information to fight the coho listing in 1997, when the National Marine Fisheries Service (NMFS) proposed that 300 feet on each side of streams bearing coho should be subject to federal regulations – including private property.

Landowners grew upset that the government would mandate what they could and could not do on their own property.

In the ensuing foray, rallies were held with 600 to 1,000 people attending from Yreka to Happy Camp. Strategies for fighting a federal agency were discussed and argued. While options were bantered, officers of the Greenhorn Grange encouraged citizens to sign a petition against the terminology that claimed 300 feet from the high water mark on streambanks was "critical habitat" for coho.

"That is dry ground," reiterates Bergeron.

More than 7,000 individuals from Oregon and California signed the petition; and four state Granges also signed on. They were the same state Granges that eventually added weight to the most recent win against the listing of the coho salmon. They are California, Oregon, Washington and Idaho.

"This action is a salute to the grassroots movement throughout the country,"
said Bergeron. "Mom and pop can made a difference."

 

The decision --

On Jan. 12, 2005 federal Judge, Michael Hogan, ruled for a second time that coho salmon were illegally listed with the federal Endangered Species Act (ESA).

The first case involved landowners in the Alsea Valley of Oregon. That decision was handed down by Judge Hogan in February of 2004.

The lawsuit was brought against U.S. Secretary of Commerce Donald Evans and one of his agencies – the National Marine Fisheries Service. It was NMFS, which listed the coho salmon in Oregon and Northern California with the federal ESA in 1996. The lawsuit claimed that not all of the coho were counted. NMFS admitted that it only counted the "wild" coho and that hatchery born coho were not included.

While environmental groups and Tribes tried to file an appeal of the decision to the federal Ninth District Court of Appeals, last summer; the second lawsuit led by the Grange was already in court; and this time it included the Northern California listed coho. The Alsea Valley lawsuit only affected Oregon coho.

Last fall, that appeal was denied, which allowed Judge Hogan to continue deliberating on the Grange v. Evans and National Marine Fisheries Service.

"It is not a natural fish here," said Bergeron, adding yet another aspect to the ruling. "It is a planted fish and should not be subject to the ESA listing."

Pacific Legal Foundation brought in lawyers to fight –

The gathered information supporting the lawsuit became so telling that the national property rights group, Pacific Legal Foundation (PLF) saw merit in the lawsuit and took over the legal fight for the Greenhorn Grange, the four state Granges, Builders Associations and the California State Chamber of Commerce.

By this time, NMFS was identifying itself as NOAA Fisheries. It is the same agency, which is under the National Oceanic Atmospheric Administration agency, which is part of the U.S. Department of Commerce.

PLF also led the fight for the Alsea Valley landowners. The Granges also signed on to support the Alsea v. Evans and National Marine Fisheries Service lawsuit.

The two decisions are huge, although the judge did not set aside the illegal listing to the ESA. The listing is still in place, while NMFS completes the review of 26 west coast salmon listings. The final rule by the federal agency is scheduled to be published in June 2005.

In November 2004, PLF announced it would file a sweeping lawsuit challenging those listings and the proposed policy.

Russ Brooks, the lead PLF attorney on the Grange case, said, "If NOAA does not accept the reality that the ESA does not distinguish between wild and hatchery fish, before it issues its new hatchery policy, we will wind up back in court."

Enforcement action cannot be taken --

Even though the coho is still listed on the ESA, federal regulations cannot be enforced at the present time regarding coho – in the Southern Oregon and now Northern California areas.

If enforcement action is imposed, which causes harm, those harmed could go to court and ask to have the federal action stopped, according to a press release from the PLF.

Agency was caught killing coho --

Pacific Legal Foundation provided information on the killings of Oregon hatchery coho during the Alsea Valley Alliance win.

Counting only "wild" salmon and refusing to count hatchery salmon and endorsing the closure of hatcheries allow the government to keep the fish count artificially low and justify the ESA listing, said PLF lawyers.

The listing enables the government to place severe restrictions on the use of land.

Without the listing, there is no basis for exercising control over human lives and private property.

Based in part upon NMFS’ policies, the Oregon Department of Fish and Wildlife has been exterminating hatchery coho salmon from the Alsea River Basin. PLF asked the Oregon Federal District Court to protect the hatchery salmon returning to the Alsea Valley in 2001, while the parties conducted the litigation. Unfortunately, the court denied the motion and Oregon Department of Fish and Wildlife destroyed the last remaining hatchery coho in the Alsea Valley.

However, PLF continued to challenge NMFS’ junk science in federal court, to force the agency to abide by the structures of the ESA.

 

Could Klamath Project farmers be compensated for water loss?

The "taking" of property must be paid for, according to a recent precedence set between the Bush administration and California farmers.

As a result, the Klamath Project farmers may be able to sue several federal agencies and possibly environmental groups for "taking" their irrigation water in 2001. In fact, a billion-dollar suit was brought against the federal government in 2001 by farmers, but has been on hold. Now it may gain some advantage.

Because of the decision by NMFS and the U.S. Fish and Wildlife Service to create regulations for coho and sucker fish that were listed with the ESA, water deliveries were cut by the federal Bureau of Reclamation to 1,400 farmers in the Klamath Project. Financial and environmental devastation to family farms, wildlife refuges and business throughout the Klamath Basin in Oregon and California resulted.

In late December 2004, the U.S. government agreed to pay California farmers $16.7 million to compensate for water the government held back for two fish species.

The taking of irrigation water, which is a property right in this case, occurred in 1992 and 1994 in five San Joaquin Valley water districts. The several thousand farmers lost as much as a third of their water deliveries, when that water was used to aid chinook salmon and delta smelt that were listed with the ESA.

Roger Marzulla represented the farmers in the lawsuit that utilized the Fifth Amendment to the U.S. Constitution. This amendment states that if the government confiscates property, the government must provide just compensation. In this case, the federal government took water, which is a lawful piece of property; so then the federal government must pay for that water.

"This sets a precedence that water cannot be reallocated for ESA demands without just compensation," said Dan Keppen, executive director for the Klamath Water Users Association.

As a result, there are federal and state agencies that may be facing enormous "takings" judgements. Some individuals have speculated that damages may come directly out of agency budgets, which may rein-in the runaway regulations that affect private property owners.

The decision was made in the U.S. Court of Federal Claims, which has been upholding "takings" decisions.