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U.S. Court of Appeals Keeps Fish Protection

by Jonathan Brinckman
The Oregonian, December 15, 2001

Oregon coastal coho are again on the federal endangered species list -- at least temporarily -- because of a Friday appeals court decision.

The 9th U.S. Circuit Court of Appeals in San Francisco issued a one-sentence statement late Friday saying that it would consider an appeal by a coalition of conservation groups challenging a Sept. 10 decision to delist coho by U.S. District Judge Michael R. Hogan of Eugene.

Hogan had removed coho from federal protection because the National Marine Fisheries Service, he said, had "arbitrary and capriciously" treated wild and hatchery salmon differently when it protected only wild salmon as threatened. His decision sent shock waves through the Pacific Northwest, where multiple runs of salmon enjoy federal protection at public expenditure.

The appeals court Friday said Hogan's ruling would be stayed until the appeal is decided.

Though federal protections for wild Oregon coastal coho were lifted at the time of Hogan's ruling, state protections have remained in place. Now, with Friday's appeals court action, Oregon coho are again federally protected, and killing or harming them is a federal crime, punishable by prison sentences and fines of up to $25,000.

The 9th Circuit decision is a significant victory for conservation groups. An attorney for the conservationists said it could take a year or more for the appeal to be decided.

Conservationists had called for the Bush administration to appeal Hogan's ruling and were disappointed when it did not.

"The Ninth Circuit prevented the sacrifice of wild Oregon coast coho by the Bush administration and the National Marine Fisheries Service," said Patti Goldman, an attorney with Earthjustice in Seattle, the legal organization representing eight conservation groups appealing the ruling. "All wild imperiled salmon, including Oregon coho, now remain protected."

The U.S. Forest Service and the Bureau of Land Management had announced after Hogan's ruling that they would allow to go forward 28 timber sales that had been stopped by the coho listing. Those sales are now stopped again until the appeals court rules.

"This is great news," said Glen Spain, the Northwest director of the Pacific Coast Federation of Fishermen's Associations. "It returns protection to all coho along the coast so we no longer have a big hole in our safety net."

The ruling does not mean coastal coho will remain federally protected. For one thing, the appeal outcome is uncertain. Also, the National Marine Fisheries Service, when it said in early November that the Bush administration would not appeal Hogan's ruling, announced that it was launching a review of federal hatchery policy.

The Fisheries Service said then that it would review 23 runs of salmon and steelhead to see if they should be removed from the endangered species list. Both those reviews remain in effect. The Fisheries Service listed Oregon coastal coho as threatened in 1998 under the Endangered Species Act.

Bill Moshofsky, vice president of Oregonians in Action and a supporter of the Hogan ruling, called the appeals court decision "unfortunate." Still, he expects that federal protection will be removed from many salmon runs because of the Fisheries Service review, regardless of what the appeals court rules.

"I don't believe this decision changes the basic fact that these rulings have been discredited," Moshofsky said.

Jonathan Brinckman
U.S. Court of Appeals Keeps Fish Protection
The Oregonian, December 15, 2001

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