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Court Dismisses Earthjustice Appeal

by Jim Katzinski
Wheat Life, April, 2004

The Ninth Circuit Court of Appeals handed Pacific Legal Foundation (PLF) and our supporters a tremendous victory recently by dismissing Earthjustice’s appeal of our landmark decision in Alsea Valley Alliance v. Evans in 2001. Hailed by U.S. House of Representatives Resource Committee Chairman Richard W. Pombo (R-California) as possibly “the best precedent ever set in Endangered Species Act case law,” PLF is proud to be the first and only organization to invalidate an illegal listing of salmon under the Endangered Species Act (ESA).

In 1998, environmental extremists in the Pacific Northwest convinced federal regulators to count only naturally spawned coho salmon—not hatchery fish—to determine whether they alone qualified for listing under the ESA. Ignoring hatchery coho swimming side by side with naturally spawned fish, federal regulators listed Oregon Coast coho as a “threatened” species under the ESA.

Representing the Alsea Valley Alliance, PLF sued to reverse the listing, noting that hatchery and naturally spawning fish are genetically identical and must be considered equally under the ESA, a point that was prominent in the trial-court decision invalidating the salmon listing and remanding the process back to the National Marine Fisheries Service. The government decided not to appeal but to move forward with a status review of all its salmon and steelhead ESA listings, revising them consistent with the district court’s decision. A group of environmental organizations led by Earthjustice and including the Sierra Club, the Oregon Natural Resources Defense Council and others, sought to Court dismisses Earthjustice appealappeal the decision as intervenors.

The Ninth Circuit Court of Appeals issued its decision February 24 denying these environmental activist groups’ appeal. What this now means is that the federal regulators’ “wild fish” theory has been strongly discredited, numerous other Pacific Northwest fish listings have been brought into question, and the environmental organizations are now on the defensive.

The next step in the process will be the government reviewing its current listings with respect to hatchery fish. We expect the government to propose listing changes, hopefully resulting in fewer salmon and steelhead listings. Additionally, we expect environmental organizations to increase pressure to change hatchery policies in ways that reduce or eliminate hatchery-spawned fish. Obviously, PLF will oppose such a policy and remain on the front line of this important battle.‘We all hear about pesticides getting into the groundwater’‘We all hear about pesticides getting into the groundwater. Since pesticides can cause cancer, we have a problem. Thus, they must be banned. Not many other fields would be able to sustain that sort of argument. “The Department of Defense has uncovered that State X has developed so-called Y6 missiles, which is a problem. We will therefore have to develop and set up a missile defense system.” Most of us would probably ask how probable it was that State X would attack, how much damage a Y6 missile could do and how much the necessary defense system would cost. As regards pesticides, we should also ask how much damage they actually do and how much it would cost to avoid their use. Recent research suggests that pesticides cause very little cancer. Moreover, scrapping pesticides would actually result in more cases of cancer because fruits and vegetables help to prevent cancer, and without pesticides fruits and vegetables would get more expensive, so that people would eat less of them.’—From The Skeptical Environmentalist: Measuring the Real State of the World, by Bjorn Lomborg, Ph.D., the director of Denmark’s Environmental Assessment Institute. Lomborg’s book, a global bestseller that embarrassed green groups by documenting their systematic exaggeration of the Earth’s environmental problems, caused such outrage among environmentalist groups that pressure was created to censure Lomberg. The Danish Committees on Scientific Dishonesty (DCSD) seems to have been bought off by so-called environmentalists, censuring Lomberg without citing any evidence for its decision. In late December, 2003, Denmark’s Ministry of Science, Technology and Innovation rebuked the DCSD, telling them to screw their supposedly scientific heads on and think again. Free speech wins a round. As The Economist magazine wrote recently, under its headline of “The scourge of the greens wins a round”: “What kind of panel is it that purports to be concerned with scientific dishonesty (the DCSD) but needs somebody else to point this out?” (Ed. note: this background information repeated intentionally.)

Jim Katzinski, Northwest Center, Pacific Legal Foundation
Court Dismisses Earthjustice Appeal
Wheat Life - April 2004

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