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Farmers Group Challenges Designation as 'Threatened' by Gene Johnson, Associated Press Seattle Post-Intelligencer, March 5, 2004

A group representing farmers in Eastern Washington and Oregon sued the National Marine Fisheries Service yesterday, saying the agency is illegally listing Columbia River and upper Willamette River steelhead as threatened under the Endangered Species Act.

The Pacific Legal Foundation argued that when counting the fish, the fisheries service must include wild and hatchery-raised steelhead, as dictated by a federal court ruling on coho salmon in Oregon in 2001.

In addition, the lawsuit, filed in U.S. District Court in Yakima, says the fisheries service must count rainbow trout, which it says are scientifically indistinct from steelhead, though rainbows remain in fresh water while steelhead migrate to the ocean.

"The government can't cherry-pick which member of a species it includes or excludes in a listing," said Russ Brooks, the foundation's managing attorney, citing a recent 9th U.S. Circuit Court of Appeals decision. "These illegal steelhead listings have wreaked havoc in Washington and Oregon communities, seriously impeding private land use.

"For too long, Washington and Oregon residents have paid a high price to protect fish that don't need protection."

The lawsuit asks the court to invalidate the listings.

Fisheries service spokesman Brian Gorman said that since the 2001 ruling, known as the Alsea decision, his agency has been reviewing listings for salmon and steelhead up and down the West Coast. The issue, he said, is determining whether -- if wild fish and hatchery fish are counted together -- the populations would still be considered threatened.

Reviewing listings involves far more than simply counting how many fish there are, he said. The agency must also assess the overall health of the population and whether other conservation measures are in place to protect the fish, among other things.

The first results are due March 31, he said, and will include reviews of salmon and steelhead populations in the mid- and upper Columbia as well as the Snake River. A review of the lower Columbia is due later.

Brooks agrees the reviews are necessary, but said they're taking too long.

"The fisheries service's review has been going on for three years. I'm not about to sit around and wait another three years," he said. "They've done nothing but continually miss their own deadlines and then set new deadlines. This review should have been concluded within a matter of months."

U.S. District Judge Michael Hogan of Portland ruled in 2001 that the fisheries service could not give Endangered Species Act protection just to wild fish if it previously lumped hatchery fish in the same population.

The ruling effectively dissolved the threatened species listing for Oregon coastal salmon and prompted similar lawsuits challenging salmon listings elsewhere in Oregon, California and Washington.

Last week, the 9th Circuit dismissed an environmental group's appeal of that ruling, saying it did not have jurisdiction and that the group's concerns might well be addressed by the fisheries service review.

Kristen Boyles, a Seattle-based lawyer with the group Earthjustice, said the Pacific Legal Foundation should have waited until the review was complete before pursuing the matter. She said there was a time when 10 million to 16 million salmon and steelhead returned to Columbia Basin rivers every year; now, the number is below 1 million.

"The listing of fish under the Endangered Species Act isn't just a numbers game. It's 'How are those fish doing?' " she said. "We need to know the status of the species: How are they coming back? Are they in decline? We need that scientific background right now."

Groups represented by the Pacific Legal Foundation in the lawsuit include the Washington State Grange, the Oregon State Grange, the Washington Farm Bureau, the Building Industry Association of Washington, the Alsea Valley Alliance of Oregon, and Washington state's Okanogan and Kittitas counties.