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Salmon Lawsuit Against the Feds Suffers Initial, But not Fatal, Blow

by Cookson Beecher
Capital Press - September 6, 2002

The ag community is disappointed that a federal judge has nixed a request for a preliminary injunction against listing Puget Sound and Columbia river salmon as "threatened."

But an attorney and several ag-group representatives say the decision is by no means the end of the legal line.

During a preliminary hearing late last week, U.S. District Judge Paul Freidman ruled the salmon should continue to be protected while a lawsuit aimed at overturning the designation proceeds.

The judge also agreed to hear the merits of the case in November.

Shortly after the salmon were listed as "threatened" early in 1999, Common Sense Salmon Recovery, a coalition that includes farmers, ranchers, builders and real estate interests, filed a lawsuit against the federal government.

The lawsuit asks that National Marine Fisheries Service be required to justify scientifically its decision to exclude hatchery fish in its evaluation of salmon runs.

It also asks that the courts order the agency to remedy the problems of overfishing and predation before imposing onerous burdens on property owners to restore habitat.

Jim Johnson, attorney for the coalition, said he was encouraged that the judge did designate a time when the case could be heard, provided that the coalition and NMFS get their legal paperwork submitted in October.

He doesn't think the coalition and the agency should have any problem meeting that time line.

The paperwork consists of cross motions from each side showing why its arguments should be accepted as the final decision.

Johnson said the coalition's cross motions will be based in large part on a ruling last year by U.S. District Judge Michael Hogan in Oregon that NMFS in error for not including certain hatchery fish when it listed an evolutionarily significant unit (ESU) of coho salmon as "threatened."

Although the ruling deals specifically with Oregon coastal salmon, it was based on the principle that the agency cannot segregate wild-born fish from genetically identical hatchery-born fish when listing an ESU.

Johnson said the Washington state coalition has an even stronger case than that, primarily because when the Columbia river dams and other energy-producing dams were built in Washington, Congress ordered that hatchery fish be used to replace the native fish that were blocked from going upstream.

Another argument on the coalition's side is the strength of fish runs in recent years.

Johnson said that this year, the Lower Columbia fall chinook run is predicted to come in at 400,000 to 500,000 fish. Earlier this year, the Upper Columbia spring chinook run came in at more than 300,000 fish.

"The runs are huge now," he said.

When salmon listings went into effect several years ago, many fish runs were very low. But some scientists had said then that the low runs reflected typical cycles in ocean conditions.

Johnson said NMFS has already put a notice out that the delisting petitions that have been submitted to the agency have merit.

"Under ESA rules, fish can be delisted because runs have recovered," said Johnson. "They don't have to wait for this to go through the courts."

If NMFS were to go forward with delisting, Johnson said it would solve some of the Northwest's energy problems. He pointed out that last year, a large part of the power shortage was caused by fish-recovery requirements based on what he calls "mistaken fish listings."

"There is a light at the end of the tunnel," he said. "It's our hope that the light is open air and that we'll finally be rid of the burdens being placed on landowners."

Dean Boyer, spokesman for the state's Farm Bureau, said that it's been a long struggle to get this before the judge.

"We'll finally get our day in court to argue the merits of the case," he said. "We have argued that if you look at all the salmon, including the hatchery fish, that the numbers don't justify protection under the Endangered Species Act. That's not to say we don't think that the runs are so depressed that they need to be regulated under ESA."

Boyer said that the listing of salmon three years ago let loose a torrent of government regulations and potential regulations that have affected or could affect the way farmers and land owners can use their land.

Tip Hudson, executive director of the state's Cattlemen's Association, said he, too, is happy to hear that the case could be heard in court as early as November.

"It says a lot that the judge has decided to act on the case," he said.

"That's good news."

Environmentalists, meanwhile, are hailing the judge's recent decision not to place a preliminary injunction on the "threatened" listing as a good indication that the listing will stay in place.

Related Pages:
Enviros Go After Hogan Decision NW Fishletter, 10/19/1 by Bill Rudolph
Irrigators Want 7 Runs Off Endangered List Tri-City Herald, 9/29/1 by Mike Lee
Court Ruling Clouds Salmon Recovery Tri-City Herald, 9/27/1 by Mike Lee
Consider the Wild Coho Seattle Times, 9/22/1 by Editors

Cookson Beecher, Staff Writer
Salmon Lawsuit Against the Feds Suffers Initial, But not Fatal, Blow
Capital Press - September 6, 2002

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