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Snake River Fish Escape Hooks of Lawsuit by Eric Barker Lewiston Tribune, March 6, 2004

Statute of limitations lets salmon, steelhead pass through loophole

Endangered species listings of Snake River salmon and steelhead are safe from legal challenge.

The statue of limitations on the listings has passed, according to an attorney who filed suit Thursday challenging the listing of mid-Columbia River and Willamette River steelhead.

"That was the only thing stopping us from pretty much including all of the steelhead in Idaho and Washington," said Russell Brooks of the Pacific Legal Foundation at Bellevue, Wash.

Brooks successfully sued the federal government in 2001 over the listing of wild Oregon coastal coho. He argued the listing was illegal because the National Marine Fisheries Service included both wild coho and hatchery coho in the same population, but listed only the wild fish. Oregon District Judge Michael Hogan agreed and threw out the listing. The decision recently stood up to appeal.

Brooks is parlaying his 2001 victory and challenging as many West Coast salmon and steelhead listings as possible. He maintains the fisheries service, now known as the National Oceanic and Atmospheric Administration Fisheries Division, should not be enforcing endangered species protections for the fish, especially protections harming private landowners.

"This is just a whole great big racket," he said. "They have illegal listings on the books, and they just keep enforcing them. The heck with that. We will just keep going after them one by one."

Many of the salmon and steelhead listings on the West Coast were done the same way. For example, steelhead raised at Dworshak National Fish Hatchery are included in the same population -- called an evolutionary significant unit--as wild Snake River steelhead.v But Brooks can't challenge listings that are more than six years old. Snake River steelhead where listed as a threatened species in 1997. Snake River spring, summer and fall chinook were listed as threatened in 1992 and Snake River sockeye were listed as endangered in 1991.

However, because of the Hogan decision in 2001, NOAA Fisheries began a status review of 26 salmon and steelhead listings on the West Coast. That review, which has been be delayed several times, is scheduled to be partially released at the end of March. The rest of it will be completed by the end of this summer, according to Brian Gorman, spokesman for NOAA Fisheries at Seattle.

He said the review would not lead to broad changes in the number of salmon and steelhead stocks on the endangered species list.

"I don't expect there to be wholesale shifts," he said. "Maybe some specific changes but not the kind of shifts I think a lot of supporters of the Judge Hogan decision back in 2001 felt were going to have to take place."

Gorman said even if hatchery fish were counted with wild fish when stocks are considered for listing it doesn't mean the listing would not happen.

"It is a great deal more complicated than just counting fish," he said.