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Judge: Government improperly listed coho

Issue Date: January 19, 2005

By Christine Souza
Assistant Editor

Bolstering efforts to have the government apply the best available science to decisions about protected species, a federal judge has ruled that the government improperly listed Klamath Basin coho salmon as threatened under the Endangered Species Act.

U.S. District Judge Michael Hogan declared last week that the federal government violated the ESA when it failed to consider hatchery fish in its assessment of coho in Northern California and Southern Oregon rivers.

The California Farm Bureau Federation says the ruling highlights the need for sound science when the government makes decisions that impact people's lives and influence the fate of plant and animal species.

"We are working tirelessly and on all fronts to deal with the 'science problem' as it relates to environmental regulation, a problem which is really two separate issues: the government ignoring the science and imposing regulations, and the government imposing regulations without the best available science," said Brenda Jahns Southwick, managing counsel of the CFBF Natural Resources and Environmental Division.

"The latest decision by Judge Hogan will not immediately help the community of the Klamath Basin, but it will help long-term," said Ronda Azevedo Lucas, CFBF Natural Resources and Environmental Division associate counsel. "Cases like this provide tools to hopefully rectify the situation and that is what we are working on."

The ESA protection of threatened coho in the Klamath River was a significant factor in the government's decision to shut off irrigation water to the Klamath Basin. The U.S. Department of the Interior announced in April 2001 that it would halt water deliveries to nearly 200,000 acres of farmland served by its Klamath Project. The water instead was to be used to ensure adequate lake levels and river flows for protected fish species, including coho salmon.

The department's decision was based on biological opinions regarding the coho salmon and suckerfish given by the U.S. Fish and Wildlife Service and NOAA Fisheries (National Marine Fisheries Service).

The government's decision to shut off water to irrigators harmed and, in some cases, ruined farms and local businesses. People were forced to leave the area and find new ways to make a living.

"There are farming families who never got back into farming because they lost a significant amount of money and couldn't qualify for loans. To find out now that it was not justified still does not reimburse those who lost and we've never recovered from it," said Tulelake Growers Association President Marty Macy.

Last week's decision in Grange v. National Marine Fisheries Service was stayed by Judge Hogan, pending environmentalists' attempts to appeal a related case, Pacific Legal Foundation's victory in Alsea Valley Alliance v. Evans (2001). In that case, Hogan held that the government had illegally listed coho along the Oregon coast as threatened when it excluded hatchery coho from fish counts.

In last week's ruling, Hogan did not set aside the illegal listing, but left it in place while the agency completes a review of 26 West Coast salmon listings, which it agreed to undertake as a result of its loss in Alsea. In June 2004, NOAA Fisheries proposed a new hatchery policy, but simultaneously announced that it would result in the relisting?not delisting?of West Coast salmon and steelhead populations.

Hogan also indicated that if a federal agency took a specific enforcement action on behalf of the illegal listing, which caused harm, those harmed could go to court and ask to have the federal action stopped.

Farm Bureau's Natural Resources and Environmental Division is conducting research and drafting comments to ensure that the science used by the government in forming these kinds of decisions is reliable, valuable and eventually leads to the recovery and delisting of species.

"The situation that occurred in the Klamath Basin is indicative of a larger battle," Southwick said, "and that is why Farm Bureau is so dedicated to ensuring sound science is used in all ESA decisions."

The division used its goal of the government's application of sound science as the basis of its comments on NOAA Fisheries' proposed hatchery listing policy.

The hatchery policy considers the role of hatchery fish in ESA listing determinations and the updated listing proposals address the ESA status of 27 "evolutionarilly significant units" of salmon and steelhead on the West Coast, including 10 that occur in California.

"As the court in Alsea Valley Alliance v. Evans explained, the ESA does not give the federal government the discretion to give preferential treatment to some members of the same species in order to support a listing determination of the whole species. And as Alsea also explained, the agency cannot rely on other ESA-related goals such as prioritizing 'natural' salmon populations or ecosystem preservation to justify treating the hatchery fish differently at the listing stage. Unfortunately, this is precisely what the proposal does," Farm Bureau stated in its comments on the proposed hatchery policy.

(Christine Souza is a reporter for Ag Alert. She may be contacted at csouza@cfbf.com.)

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