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Irrigators Petition to End Fish Protection by Jonathan Brinckman The Oregonian, October 2, 2001

The Columbia-Snake Irrigators Association petitioned the federal government Monday to remove seven runs of salmon and steelhead from the endangered species list because, it said, the agency conferring the protections had improperly distinguished between wild and hatchery-born fish.

The action is the first in a wave of lawsuits and petitions expected by federal officials following a Sept. 10 ruling by U.S. District Judge Michael R. Hogan in Eugene. In that ruling, Hogan ordered Oregon coastal coho removed from the endangered species list and said the National Marine Fisheries Service had applied inconsistent standards to hatchery and wild salmon.

Monday's petition seeks a like assessment and, if successful, could dramatically reduce the region's spending on salmon recovery.

Officials said they were stunned at how quickly the petition was filed. "We expected this but were surprised it was so fast," said Brian Gorman, a spokesman for the fisheries service in Seattle.

Oregon Gov. John Kitzhaber and conservation groups have urged the fisheries service to appeal the Hogan decision. Gorman said his agency has not decided whether to appeal. It has until Nov. 9.

The petition, filed by Portland attorney James Buchal on behalf of the irrigators association, calls for removal of federal protection for Snake River steelhead, Middle Columbia River steelhead, Upper Columbia River steelhead, Snake River spring/summer chinook, Snake River fall chinook, Upper Columbia River spring chinook and Snake River sockeye.

The area covered by the listings includes much of Eastern Oregon, Eastern Washington and central Idaho. The irrigation association represents farmers in Eastern Oregon and Eastern Washington, where the listings have brought strict controls on use of water from the Columbia and Snake rivers.

"The listings were defective for many reasons," Buchal said. "Now we have one of those reasons set forth in a document with the force of law."

Buchal said that removing the fish from the Endangered Species Act would get the federal government out of salmon recovery and would allow the state and local governments to take more control. That shift, he said, would benefit both salmon and local communities. "We're trying to restore order and delineated responsibilities to a situation that is essentially chaos," Buchal said.

The petition process, established under the Endangered Species Act, offers administrative remedy to a complaint. Unsuccessful petitioners, however, can bring legal action against the fisheries service if they think the agency rules in error.

Fisheries service officials have 60 days to decide whether they will consider the petition. If they rule to consider it, the Endangered Species Act stipulates that the agency has a year to decide whether one or more of the salmon runs should be delisted. "We'll do what the (Endangered Species Act) says we have to do," Gorman said.

Liz Hamilton, executive director of the Northwest Sportfishing Association, called the petition "utterly predictable." Hamilton opposes Hogan's ruling because she thinks that wild fish and hatchery fish should be legally distinguished, with imperiled wild fish protected and sport fishing of hatchery fish allowed.

"This is step one of many steps backward for salmon recovery," Hamilton said. "We're still hoping the federal government will do its job and file an appeal."

Russ Brooks, the attorney who brought the case that Hogan ruled on, said his organization, the Pacific Legal Foundation, is preparing similar legal actions against other federal listings. The foundation, Brooks said, plans to bring a lawsuit against the threatened listing of Northern California/Southern Oregon coastal coho. The federal government shut off water to Klamath Basin irrigators this summer to preserve water for those salmon and two other protected fish species.

"We expect all kinds of delisting petitions to be filed but don't expect the fisheries service will act on them," Brooks said. "It will take legal action."