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Settlement: NOAA Agrees to Stock Status Review Deadline by Barry Espenson Columbia Basin Bulletin - October 31 2003

Four special interest groups have agreed to drop their lawsuit against the federal government on the promise that NOAA Fisheries will deliver its findings on the Endangered Species Act status of eight Columbia Basin salmon and steelhead stocks by March 31, 2004.

The stipulated settlement agreement filed Oct. 16 in U.S. District Court in Spokane now awaits a dismissal order from Judge Robert H. Whalen.

"It is sitting on the judge's desk," Timothy Harris, one of the attorneys representing the Building Industry Association of Washington, said of the agreement. If approved by Whalen, the settlement also calls for the defendants -- NOAA Fisheries and the Department of Commerce -- to pay $12,005 in plaintiff's legal fees.

The association, the Kitsap Alliance of Property Owners, the Columbia-Snake Irrigators Association and the Skagit County Cattlemen's Association in August filed a lawsuit alleging that NOAA was in violation of the ESA by failing to respond within a year to the groups' requests to have the eight fish stocks delisted. Tired of the wait, the groups sought a legal hammer.

"The difference now is that we will have a court order" stipulating when those finding must be completed, Harris said. "That is where the victory is." Meanwhile the federal government avoids costly, time consuming litigation while it pursues its goal of reviewing the eight stocks' status.

Justice Department attorney Ruth Ann Lowery pointed out that the terms of the settlement agreement don't apply until the judge signs a dismissal order.

"But we don't expect there will be any problems," she said. She said the agency indicated March 31 deadline allows enough time to produce the findings -- decisions about whether and/or how the eight stocks should be listed.

The eight "evolutionarily significant units" targeted by the groups are among the 26 listed West Coast salmon and steelhead stocks whose populations are under review by NOAA Fisheries. In February 2002 the agency announced that 14 the 15 stocks petitioned for delisting (a total of six petitions had been received) warranted further investigation. At the same time it announced it would conduct status reviews of 11 additional ESUs and revise the hatchery policy that has been used in making listing determinations.

The action was prompted by a U.S. District Court decision in the Alsea Valley Alliance v. Evans case in which the court said it is illegal to exclude hatchery populations from a listing if they are part of the same ESU as the natural populations. The stocks now being re-evaluated include hatchery components in the ESUs defined by NOAA. The court decision calling the Oregon coastal coho listing invalid was used as the primary rationale in the delisting petitions for other stocks.

The overall tasks -- 25 status reviews and hatchery policy development -- were "more challenging than we thought when we announced that we'd be done in a year," said NOAA spokesman Brian Gorman. The agency announced this summer that it hoped to complete its status reviews -- based on a new hatchery policy -- and issue a proposed rule reflecting any revisions to the listings by March 2004. A final rule or rules would be completed within a year.

For eight of the listings, March will be more than a target. It will be a court-ordered deadline.

Gorman called the settlement "an agreement with the court that we know we can keep."

The lawsuit pleaded the case of the irrigators, who on Oct. 1, 2001, filed a petition asking that the Snake River sockeye salmon, fall chinook salmon, spring/summer chinook salmon and steelhead, the Upper Columbia River spring-run chinook and steelhead and the Middle Columbia River steelhead be delisted. It also puts on the clock consideration of the Puget Sound chinook and Hood River Canal summer-run chum salmon listings as requested by the property owners and cattlemen.

In its "90-day" finding published on Feb. 11, 2002, in the Federal Register, NOAA found that for eight of nine stocks, the two petitions presented "substantial scientific and commercial information indicating that the petitioned action may be warranted." The ESA status of the Snake River sockeye is not being reconsidered.

When what the plaintiffs called a "mandatory, nondiscretionary 12-month timeline" for action has passed early this year, they filed a 60-day notice of intent to sue the agency pursuant to an ESA citizen lawsuit provision. In August the lawsuit was filed, but settlement negotiations began soon thereafter.

Related Sites:
Federal Caucus: www.salmonrecovery.gov