http://www.oregonlive.com:80/newsflash/regional/index.ssf?/base/news-20/1184628937167340.xml&storylist=orlocal
Judge: Federal agency used flawed data in Ore. coho decision

7/16/2007, The Oregonian

PORTLAND, Ore. (AP) — A federal fisheries agency violated the Endangered Species Act by relying on scientifically flawed data from Oregon in deciding against listing the Oregon Coast coho salmon as a threatened species, a federal magistrate ruled.

Magistrate Janice Stewart wrote that the National Marine Fisheries Service's decision not to list the fish "in the face of Oregon's competing conclusions or uncertainties" was "arbitrary, capricious, contrary to the best available evidence and a violation of the ESA."

She recommended that the agency be ordered to issue a final ruling consistent with the Endangered Species Act within 60 days of her July 13 decision

If either side objects by July 30, she wrote, the case would go to a federal judge.

Brian Gorman, the NMFS spokesman in Seattle, said the agency was undecided.

"We're still looking at it. It's a pretty long ruling," he said Monday.

Stewart ruled in a lawsuit brought by Trout Unlimited, Pacific Rivers Council and the Pacific Coast Federation of Fishermen's Associations, among other plaintiffs.

The main defendant was the fisheries service, which is charged with administering the ESA with regard to threatened of endangered marine life.

The agency had twice proposed listing the fish as threatened but withdrew the requests at the urging of Oregon.

The fish is the only one of 27 salmon and steelhead populations in the Pacific Northwest and California not listed under the ESA. Its range is roughly from the Columbia River to Cape Blanco on the south Oregon coast.

Trout Unlimited contended the decision not to list the fish was not founded on the best science, thus violating the ESA.

A panel of scientists later decided that the Oregon coho did not face immediate extinction but could become endangered if present trends continue.

Oregon adopted a plan to address the coho's decline but much of it was voluntary and lacked specifics. The fisheries service called the plan a failure.

But the federal agency withdrew its proposed listing based on the predicted effects of future and voluntary conservation measures based on Oregon's plan.

A Northwest Fisheries Science Center review called Oregon's estimate of the coho to increase with low spawning numbers as overoptimistic.

Trout Unlimited contended that the "best available science" requirement required the federal agency to give the benefit of the doubt to the species.

The Oregon plan relied in part on a theory of density dependence, which holds that coho produce more offspring when populations are small, an idea that did not appeal to peer groups who studied it.