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Customs Court Dismisses ESA Salmon Case by Bill Rudolph NW Fishletter, March 28, 2007

The U.S. Court of International Trade in New York has dismissed a lawsuit by a coalition of fishing-conservation groups attempting to hold the U.S. Customs Service and U.S. Fish and Wildlife Service responsible for enforcing regulations that keep ESA-listed animals from being imported.

At issue is the practice of many U.S. sportfishers travelling to British Columbia to catch U.S.-bound chinook--including some listed for protection under the ESA--and bring them back across the border on their way home.

But Judge Judith Barzilay ruled March 6 that the Customs Service has discretion in how it renders its enforcement powers, so that her court is "incapable" of redressing the plaintiffs' claim.

Plaintiffs also wanted the Customs Service to undergo a Section 7 consultation with NMFS to determine whether its action jeopardized the listed chinook. But the judge ruled that non-enforcement was a failure to act, and a section 7 claim by plaintiffs failed to meet the necessary "case" or "controversy" requirement of Article III of the Constitution.

The judge wrote that when Congress enacted the ESA, it was bound by, "and indeed sought to uphold-the delicate and vital balance of powers envisioned by the Constitution. The design of the ESA necessarily reflects these boundaries and limits the means by which the government may act to protect endangered and threatened species. While there is no doubt that all involved parties wish for the survival of the Chinook salmon and Snake River Fall Chinook, the solution does not reside in this Court."

Seattle attorney Svend Brandt-Erichsen, who represented the Salmon Spawning and Recovery Alliance and other groups in the litigation, said they will move for a rehearing in the case.

The case began in Western Washington District Court, where another lawsuit of theirs over harvest issues and the Pacific Salmon Treaty was dismissed last September. In that case, Judge Ricardo Martinez ruled the groups did not have standing to assert their claims, and that harvest levels now depleting the stocks may be due to other causes, such as ocean warming or natural population cycles.

"Further," wrote the judge, "the direct cause of the injury is the action of Canadian fishermen, independent third parties over whom this Court does not have jurisdiction."

The Alliance appealed that decision to the 9th U.S. Circuit Court of Appeals, where the government will file its brief April 2. Alliance attorneys have a couple of weeks to respond, then parties will wait for the court to set argument.

The groups have filed another action against government agencies over Puget Sound harvests, claiming that harvest rates are too high for the fish to recover--a fact they say federal scientists already acknowledge.