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Coho Stripped of 'Threatened' Status by Judge by Jonathan Brinckman The Oregonian, September 14, 2001

In a decision that could affect the fate of salmon throughout the American West, a federal judge in Eugene has ordered that Oregon coastal coho salmon no longer be declared threatened under the Endangered Species Act.

Stunned officials of the National Marine Fisheries Service, the federal agency in charge of salmon, said Thursday they would immediately revoke federal protection for wild coho in dozens of coastal rivers across Oregon. That action lifts criminal and civil penalties for anyone caught killing or harming a wild coastal coho or its habitat.

It was unclear whether the decision would affect efforts led by Gov. John Kitzhaber to create improved habitat throughout Oregon watersheds to support coho.

But the deeper impact of the ruling, made Wednesday by U.S. District Judge Michael R. Hogan, extends well beyond coastal Oregon.

Hogan said the fisheries service erred by considering only wild fish and by not counting the far more numerous hatchery-born coho when it decided to list coastal coho for protection -- a finding that knocks the legal legs from under two dozen West Coast salmon and steelhead listings made by the fisheries service since 1991.

Those listings extend from Puget Sound to Northern California, including the Portland region, and have built a $4 billion-plus effort to save salmon throughout the Columbia Basin and coastal Oregon -- the largest wildlife stewardship in American history.

Hatchery-born salmon are rarely counted when the fisheries service decides whether to list stocks under the Endangered Species Act. Fisheries service officials say they are most concerned about wild salmon, and worry that hatchery salmon threaten wild stocks by contaminating their gene pool or taking food and habitat.

An attorney with the San Francisco-based Pacific Legal Foundation, which brought the action, said hatchery fish are genetically indistinguishable from wild fish. Not considering abundant runs of hatchery fish when making listing decisions, Russ Brooks said, allows the federal government to use the Endangered Species Act to impose unnecessary and Draconian land-use controls.

"It's a clear and unambiguous ruling, and we were certainly surprised," said Brian Gorman, a fisheries service spokesman in Seattle. "Its implications could be considerable."

Gorman said his agency had not yet decided whether to appeal and would wait for instructions from the Bush administration.

The ruling was sharply condemned by conservationists.

"There are a lot of people who have been working to weaken the ESA," said Jim Myron, conservation director of Oregon Trout. "Maybe they've got what they've wanted with this decision."

Property-rights organizations and other foes of the Endangered Species Act were thrilled.

"It's just a great day," said Bill Moshofsky, executive director of Oregonians in Action, a Tigard-based organization that defends property rights. "It's what we have been saying all along: Hatchery fish and wild fish are the same."

The ruling follows a 1999 legal action against the fisheries service by the Alsea Valley Alliance, an organization upset that hatchery-born coho were being clubbed at a state hatchery in order to keep them from breeding with wild coho.