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Ninth Circuit Stays Hogan Ruling by Bill Rudolph NW Fishletter, December 20, 2001

NMFS may be facing lawsuits from all points in the salmon spectrum, but one case the agency has opted to stay out of made waves last Friday, when the Ninth Circuit Court stayed the Oregon district court decision that threw out the agency's ESA listing for coastal coho.

A two-judge panel of the Ninth stayed the Oregon decision--on appeal by Earthjustice attorneys--in a two-sentence ruling that offered no explanation for the action. Hogan's September ruling tossed out the ESA listing for Oregon coastal coho because NMFS failed to offer protection to the hatchery stocks that made up part of the coastal coho ESU. Hogan had earlier granted intervenor status to environmental groups after NMFS itself decided not to appeal.

The latest ruling will halt some timber sales in Oregon by re-instating federal ESA protection for the coastal coho.

"The Ninth Circuit Court prevented the sacrifice of wild Oregon coast coho by the Bush Administration and the National Marine Fisheries Service," said Earthjustice attorney Patti Goldman. "All wild, imperiled salmon, including Oregon coho, now remain protected."

Another Earthjustice lawyer, Kristen Boyles, said the court threw cold water on the "opportunists seeking to de-list wild salmon up and down the coast. It's time for them to stop posturing and join with the majority of Northwesterners who want our fish protected."

But Olympia attorney Jim Johnson, who represents Common Sense Salmon Recovery in litigation against NMFS over ESA and harvest issues, said he was "still marching" after a Dec. 13 meeting with NMFS officials. At that session, discussions centered on settling his clients' lawsuit by de-listing the fish based on the Oregon ruling. (Common Sense Salmon Recovery v. NMFS).

"The cleanest remedy was suggested by NMFS in our last meeting," Johnson said in a Dec. 6 letter to federal attorneys, "--immediately withdrawing each of the listings in our case which were clearly unlawful based upon application of the Alsea ruling. The Administrative Record already filed with our Court dictates the withdrawing of the Lower Columbia, Upper Columbia Spring, Willamette and Puget Sound Chinook, all of which were directly challenged in our litigation (Causes of Action 2-4). The inclusion of hatchery fish, if considered on this Administrative Record (as of the listing date) requires withdrawal. This year's salmon returns--some of the largest ever recorded--make these listings absurd (and mean there is no harm to the runs by removing ESA protection). "

Johnson was pleased that the Department of Justice will soon have a new face to lead the federal response, Wyoming attorney Tom Sansonetti, who served as solicitor for the Interior Department during the reign of Bush senior. President George W. Bush nominated Sansonetti for the post of Assistant Attorney General for Environment and Natural Resources in April; he was confirmed by the Senate Nov. 30.

NMFS is still planning on reviewing stock status for listed ESUs, agency official Donna Darm said at a Dec. 18 seminar in Seattle. "There's lot of confusing language in the Hogan decision," Darm said. "People think we have to take into account hatchery populations to determine viability [of listed ESUs]." But the judge didn't say that, according to Darm, who told an audience of mainly NMFS personnel that government attorneys said there was some logic to Hogan, but an appeal could take two years. In the end, the agency decided it would be more productive to take a fresh look at the de-listing policy.

She said the agency is also developing a new hatchery policy in response to the Hogan ruling. "How you use hatchery fish is still the subject of debate," she said, and promised lively public discussion over the issue this year as the agency goes through the rulemaking process to finalize its new policy, promised by the end of next summer.

"The agency has also said it wants all populations consistent with the Hogan decision," Darm added, to determine if each listing is still appropriate. That process is already under way, she said, although the environmentalists' Ninth Circuit appeal could take longer than the NMFS effort.

NMFS geneticist Robin Waples said there was no chance "not to continue" the status updates, pointing out that the ESA calls for reviews every five years. "Some are older than that already," he said. He also told the group that simple increases in fish numbers will not lead to de-listings, and fish won't be officially de-listed until underlying problems that led to population declines are addressed. He said issues of juvenile freshwater productivity must be addressed as well, to help stocks become healthy enough to weather the next climate regime shift in 20 or 30 years, when conditions are expected to be less favorable to West Coast stocks. "They need to get through the next downturn." -Bill Rudolph