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Oregon Coast Salmon Listing Invalidated:
Ninth Circuit Dismisses Appeal of Landmark Alsea Case;
Bogus ESA Protections for 'Wild' Salmon Must Go

February 25, 2004
Wednesday - 1:15 am

Portland, Ore. - Claiming victory for "good science and common sense," Pacific Legal Foundation attorney Russ Brooks on Tuesday hailed a decision from the Ninth Circuit Court of Appeals that effectively invalidates, once again, the listing of the Oregon Coast coho salmon as a "threatened species" under the Endangered Species Act (ESA). The case is Alsea Valley Alliance v. Evans, the most ground-breaking environmental decision of the last decade.

"We are elated with this decision," said Brooks. "The court dismissed an improper and needless appeal of a good, commonsense decision. By lifting the stay of the district court's decision, people along the Oregon coast can now resume normal lives as productive citizens, no longer hampered by unnecessary restrictive regulations imposed to protect fish that didn't need protecting to start with."

At issue in the case was how the National Marine Fisheries Service (NMFS) counted Oregon Coast coho salmon for protected status under the ESA. According to PLF, NMFS' counting of only naturally spawned salmon while totally disregarding hatchery spawned salmon kept the fish count artificially low, justifying otherwise needless ESA protections and locking up land use.

At the trial level, U.S. District Judge Michael Hogan ruled that NMFS acted illegally in protecting fish spawning in the wild, but not hatchery fish, which are genetically identical. Judge Hogan ruled NMFS could not pick and choose among fish swimming side-by-side in a stream which it would protect and which it would ignore. Environmental groups appealed the decision to the Ninth Circuit.

"With the Ninth Circuit's dismissal of this appeal, the 'sky is falling' rhetoric of hard-core environmental activists has been debunked and their true agenda exposed. This attempt to control private land use in the name of species protection has been successfully shut down. Families in the Pacific Northwest are sick of environmental hysterics that have resulted in rising home prices, choking traffic, higher taxes and a slowed economy," said Brooks. "Chalk up a win for people with today's decision."

The Decision

Rather than appeal the district court's decision, NMFS chose to comply with the order and instituted status reviews of salmon and steelhead listed under the ESA across the Western states, from Seattle to San Diego and east to Boise. As a result, the Ninth Circuit dismissed the appeal because it determined the environmentalists could participate like any other concerned individuals in the public process related to the status reviews. In that process, the Court theorized that the environmentalists might get what they wanted-separate consideration for hatchery and "naturally spawning" coho. Importantly, however, the Ninth Circuit concluded that "the district court legitimately doubts this is possible."

The biggest impact of the decision is the fact that it reinstates the district court's order invalidating and setting aside the coho listing, which had been postponed during the appeal. Consequently, the Oregon Coast coho listing no longer exists and may not be enforced. This decision stands to have huge implications for land stewards and natural resource providers-such as farmers, ranchers, and timber harvesters -- as well as local governments and citizens struggling with infrastructure development of schools, hospitals, and highways.

PLF Calls for Revision of NMFS Hatchery Policy

Following news of Tuesday's decision, PLF calls on NMFS to promptly complete its review of the hatchery policy and salmon and steelhead listings, consistent with the district court and Ninth Circuit decisions. NMFS has missed several deadlines in releasing the new hatchery policy and the results of its status review.

"NMFS appears to need a tutorial on ESA compliance. The Ninth Circuit just upheld a decision containing an easy arithmetic lesson saying, 'count all the fish,'" said Brooks. "You can't tell these fish apart. They can't even tell the difference between themselves as they have been interbreeding for ages."

Grange v. NMFS (Klamath Salmon Case)

Also in the wake of Tuesday's decision, PLF predicted success in Grange v. National Marine Fisheries Service. In Grange, as in Alsea, rather than consider the prolific numbers of hatchery salmon, NMFS instead considered only "naturally spawned" populations and then determined they were "threatened." This listing is one of the factors that led to the shut off of irrigation water to Klamath area farmers in 2001. Grange v. NMFS was stayed by Judge Hogan pending a decision from the Ninth Circuit in Alsea.



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