Petition Aims to Cancel Fish Protectionby Jonathan Brinckman
The Oregonian, October 24, 2001
The National Marine Fisheries Service has received a petition to strip federal protection from the three species -- one of them Klamath River coho -- whose guardianship shut down irrigation water to Klamath Basin farmers this year.
The petition, filed by Portland attorney James Buchal, follows a judge's ruling last month that ordered Oregon coastal coho removed from the endangered species list. It links a contentious battle between farmers and conservationists in southern Oregon and northern California with a ruling that challenges federal protection for nearly two dozen runs of salmon and steelhead up and down the West Coast.
U.S. District Judge Michael R. Hogan of Eugene ordered the fisheries service Sept. 10 to delist Oregon coastal coho, asserting that federal biologists erred by including hatchery fish in their definition of coastal coho while assigning protection only to wild coho.
Buchal, in a petition received by the fisheries service Tuesday, argues the agency made the same error when it listed Southern Oregon/Northern California coastal coho, which include Klamath River coho.
"All the listings were bogus," Buchal said Tuesday. "In the case of the coho, they did precisely what Hogan said you shouldn't do."
In addition to the coho, Buchal also calls for removal of the shortnose sucker and Lost River sucker from the endangered species act. Irrigation water for about 1,000 farms in the Klamath Basin was shut off on April 6 to reserve water for all three species of fish.
Fisheries service officials said they will decide within 90 days whether to consider Buchal's petition.
Hogan's ruling, however, has already sent shock waves up and down the coast.
"From my perspective, it's an unprecedented attack on the Endangered Species Act," said Paul Englemeyer of the National Audubon Society.
In question is the fisheries service's attempt to extend federal protection to imperiled runs of wild fish while allowing the sport and commercial catching of hatchery-produced salmon and steelhead.
The fisheries service now has several choices, none attractive to agency officials. It can extend federal protection to hatchery fish, closing fisheries. It can lift federal protections for all West Coast salmon with large hatchery populations. Or it can create a new set of rules under which both hatchery and wild fish are listed under the Endangered Species Act -- but with harvest allowed of hatchery fish.
Agency officials have until Nov. 12 to appeal Hogan's ruling.
People opposed to the Endangered Species Act, including farmers and ranchers, have launched a telephone campaign.
"We're urging the Bush administration not to appeal this," said Bill Moshofsky, executive director of Tigard-based Oregonians in Action. "The judge's decision makes sense. With the huge hatchery returns this year, how can anyone claim that these fish are in danger of extinction?"
Calls counted, disregarded Brian Gorman, a fisheries service spokesman, said the agency has received 600 telephone calls urging that no appeal be filed and about a dozen urging appeal. Gorman said the agency will not be influenced by telephone calls.
Gorman said the agency is weighing the consequences -- and the precedent that could follow -- of losing an appeal to the Ninth U.S. Circuit Court of Appeals in San Francisco. In that scenario, the agency would lose control of all its listings, Gorman said.
"No matter which way we go there a considerable legal difficulty down the road," Gorman said. "This matter of appeal is not a no-brainer; it's a tough, tough decision."
Conservationists' role Seven conservation groups, represented by Earthjustice, have asked Hogan to stay his decision and grant them intervenor status, which would allow them to file an appeal. Patti Goldman, an attorney for Earthjustice, said the fisheries service should support the groups regardless of whether it decides to appeal.
"The fisheries service has got a problem and needs some time to sort this out," Goldman said. "The most important thing is to keep this (Oregon coastal coho) listing in place while they come up with a more global vision of what they are going do do."
The fisheries service has received a wave of delisting petitions since Hogan's decision.
Washington farm groups and others petitioned last week to remove federal protection from 12 salmon and steelhead stocks. Buchal has petitioned to remove protections for 10 stocks, including the Willamette River chinook and steelhead.
"It was never legitimate for the federal government to seize control of protecting fish," Buchal said. "If you take account of hatchery fish, there aren't any endangered salmon."
Survival of Downstream Migration 2000 FCRPS Biological Opinion by NMFS
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