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Appeal for Old Hatchery Lawsuit Snuffed by D.C. Judge by Bill Rudolph NW Fishletter, September 7, 2004

A lawsuit filed in 1999 by developers, farmers and builders taking issue with NOAA Fisheries policy governing ESUs [Evolutionarily Significant Units] and challenging the ESA listing of four Northwest salmon stocks has been thrown out of court.

Washington, D.C. District Court Judge James Robertson, the third judge involved in the litigation, threw out the challenge to the federal agency's ESU policy because it was "untimely." According to the judge, it was filed eight years after the 1991 policy was adopted, which means two years after the statute of limitations ran out on suits against the federal government over the issue.

Olympia, Wash.-based attorney Jim Johnson said his clients have decided to appeal, disagreeing with the ruling on every major point.

Judge Robertson also granted the government's motion to stay the plaintiffs' challenge to the four listings [Common Sense Salmon Recovery v. NMFS] until June 15, 2005, when the feds have promised to finalize listings under a new hatchery policy. The judge said plaintiffs had not asserted they would suffer immediate harm if the listings were allowed to stand while the new hatchery policy and listing determinations were made.

But attorney Johnson said no party in the litigation had even requested such a stay.

Robertson dismissed another plaintiff claim that took issue with the federal agency's approval of fishing on the listed stocks, ruling that precedent bars federal jurisdiction over suits for broad, programmatic relief filed under the Administrative Procedures Act. He also ruled that to the extent they filed their claim under the ESA, plaintiffs failed to comply with the 60-day notice-to-sue requirement of the ESA that mentioned their challenge of the agency's decision to allow fishing on the listed stocks.

When the suit was originally filed in April 1999, attorney Johnson said the action would take on the NMFS definition of "species." He claimed that NMFS' concept of evolutionarily significant units was "unlawful," and that it excluded "identical hatchery salmon which are a majority of those fish." The plaintiffs contended that if hatchery fish were counted, the stocks would not qualify for listing. They said that there was no biological basis for distinguishing between natural and hatchery produced stocks, contending that both have been reproducing since 1899 when hatchery production began.

The plaintiffs announced their lawsuit shortly after Puget Sound wild chinook were listed for protection under the ESA, claiming that "Puget Sound populations have continuously interbred with populations from neighboring ESUs and so fail to meet the criteria of a distinct population segment under the ESA."

They also accused NMFS of failing to adjust ocean fisheries to protect the stocks, despite a Congressional mandate to amend plans by December 1998. Plaintiffs also claimed that the federal agency violated the ESA by authorizing "directed take" by ocean, tribal, recreational and commercial fisheries.

Since then, NMFS was ordered by a federal court to produce an EIS that deals with salmon harvest effects on listed Columbia Basin stocks. The agency issued a draft environmental impact statement on Puget Sound stocks last April and in a programmatic EIS on the harvest of West Coast ESA stocks in November 2003.