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Groups to Sue Over Slow Pace of Delisting Petition Action by Barry Espenson Columbia Basin Bulletin - June 27, 2003

Four citizens groups say they will sue the federal government to force action on their request to have nine Pacific Northwest salmon and steelhead stocks dropped from the Endangered Species Act list.

The 60-day notice of intent to file a lawsuit says the NOAA Fisheries has violated the Act by failing to respond to the delisting petitions within the allotted 12-month timeframe and "neglecting its duty to comply with mandatory review of all ESA listings every five years." The letter was sent to Commerce Secretary Donald L. Evans and NOAA's regional administrator, D. Robert Lohn. The National Ocean and Atmospheric Administration is an agency within the U.S. Department of Commerce.

"It's well past time. We're just seeking a court order to compel them to act," said Timothy M. Harris, general counsel for the Building Industry Association of Washington.

NOAA Fisheries received six delisting petitions almost immediately in the wake of a Sept. 10, 2001, order issued by Oregon-based U.S. District Court Judge Michael R. Hogan calling the agency's' 1998 listing of Oregon coastal coho "arbitrary and capricious." Hogan said the NMFS went contrary to the ESA when it designated both hatchery and naturally spawning coastal coho as part of an "evolutionarily significant unit," then declined to include the hatchery population in the actual ESA listing.

In February 2002, NOAA fisheries officially concluded that five of the six delisting petitions it had received following Hogan's decision contain "substantial scientific and commercial information to suggest" that 14 of the 15 Pacific salmon and steelhead stocks addressed in the petitions could warrant removal from the Endangered Species list. The agency announced its findings in the Feb. 11, 2002, Federal Register, saying it would conduct status reviews on 14 of the 15 petitioned ESUs, and on 11 additional ESUs.

"In the Federal Register notice we also reaffirmed our action plan in response to the September 2001 Alsea Valley Alliance v. Evans court decision," said the agency's Northwest regional office. "The court's ruling questioned our treatment of hatchery populations in ESA listing determinations. In response, we are evaluating our policy on the proper role of hatchery fish in Endangered Species Act listings, as well as our guidelines on hatchery operations." At the same time the agency launched official status reviews of 25 listed West Coast salmon and steelhead stocks.

That hatchery policy rulemaking and status review processes were expected later that year, with public reviews to follow. The process, much to the chagrin of the petitioners, is ongoing with the agency acknowledging there is no end point in sight.

The petitions were submitted by the Washington Farm Bureau et al., the Columbia-Snake River Irrigators' Association, the Kitsap Alliance of Property Owners and the Skagit County Cattlemen's Association, seven anonymous petitioners, the Greenberry Irrigation District and the Interactive Citizens United.

The Columbia-Snake River Irrigators' Association, the Kitsap Alliance of Property Owners and the Skagit County Cattlemen's Association were joined by the Building Industry Association of Washington in the threatening the lawsuit.

"Every listing for which petitioners submitted a de-listing petition was fashioned in the same arbitrary manner as was the case in Alsea," according to the letter. An appeal by intervenor conservation groups is pending in the federal Ninth Circuit Court of Appeals. The court has stayed the district court's order pending resolution of the appeal.

The irrigators are pushing for the removal of ESA protections for the Snake River, mid-Columbia River and Upper Columbia River steelhead, the Snake River spring/summer chinook salmon, the Snake River fall chinook salmon, the Upper Columbia River spring-run chinook salmon and the Snake River sockeye salmon ESUs. The Kitsap Alliance and cattlemen want an additional two ESUs removed, the Puget Sound chinook salmon and Hood River Canal summer-run chum salmon.

"Ignoring hatchery salmon within the salmon count, both within and outside the defined ESU, involves an inconsistent and artificial 'species' definition not supported by the ESA and is contrary to the ESA's intent," according to the letter.

The letter said that commerce secretary has "mandatory, non-discretionary duty under the ESA to make a final determination on a proposed delisting rule within one year of the date the petition was received. The secretary is in clear violation of this mandate."

The groups claim the developing hatchery policy -- which NOAA Fisheries says will be key to its delisting decisions -- is irrelevant. They cite the ESA as saying a species must be delisted if "The species has recovered and is no longer endangered or threatened; or investigations show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, was in error.

"Prospective policies, like the draft hatchery policy, are wholly irrelevant in determining whether delisting is warranted," according to the 60-day notice. "Delays associated with adoption of this policy are no excuse for failure to take action.

"NOAA must act promptly. The delay is untenable. Under the weight of these arbitrary and capricious salmon listings, property owners and small business owners are suffering an unnecessary loss of employment, devaluation of property and a deterioration of their quality of life," the letter says.

"Washington residents, and builders in particular, live under the threat of federal action for normal activities associated with their livelihood -- felling a tree, graveling a driveway, and other general home building activities that happen to occur within several hundred feet of a watershed -- all in the name of protecting salmon that are returning in record numbers."

"The petitioners and residents of Washington state can ill afford further delay," the letter says.

The federal agency does not necessarily interpret the Hogan ruling to mean that all fish (naturally and hatchery produced) must be either in or out (conservation group petitions being considered by NOAA ask that hatchery origin fish be dropped out of 15 ESUs) of a listing. As it stated in February 2002, NOAA Fisheries is working to revise its policy regarding the consideration of hatchery fish in ESA status reviews and listing determinations.

"We're sort of aiming toward the end of the year", said NOAA spokesman Brian Gorman.

The supervisory biologist heading up the project, Garth Griffin, said the agency is just being painstaking in its development of the policy, "wanting to get it right." The project has complex biological and technical aspects, as well as serious legal ramifications.

"From a policy and procedural standpoint, it raises all sorts of thorny issues," Griffin said.