ENVIRONMENT/LITIGATION
Endangered Species Act (ESA)/Alsea Valley v. Daley

On February 24, the Ninth Circuit Court of Appeals dismissed an appeal from a 2001 decision by District Judge Michael Hogan’s finding that the listing of Oregon coastal coho salmon was arbitrary and capricious. In September 2001, in Alsea Valley Alliance v. Evans, Judge Hogan ruled that the National Marine Fisheries Service (NMFS) cannot list wild-bred coho salmon under the ESA, while excluding hatchery-bred fish, since the two are part of the same distinct population segment (DPS) of salmon species (WSW #1426). Therefore, hatchery-bred fish can not be excluded in determining the endangered status of the coho. Judge Hogan remanded the listing rule to NMFS for reconsideration.

Three months later the Ninth Circuit stayed all enforcement of the district court’s decision, pending consideration of the appeal (WSW #1440). The Ninth Circuit dismissed the appeal for lack of jurisdiction. The court held that until NMFS comes out with a final listing rule, the court’s remand is not “final,” and therefore not appealable. With the appeal dismissed, the stay is lifted and wild coho salmon effectively lose ESA protections.

“The immediate effect is Oregon coast coho will not be protected under the Endangered Species Act,” said Bob Lohn, NMFS Northwest Regional Director. “As a practical matter, I expect the fish to continue to receive good protection from the state of Oregon.” (Oregonian, Feb. 25, 2004)

“We are elated with this decision,” said attorney Russell Brooks of the Pacific Legal Foundation, which represented the Alsea Valley Alliance, industry and business groups, in the original case. “With the Ninth Circuit’s dismissal of this appeal, the ‘sky is falling’ rhetoric of hardcore 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,” Brooks added. (Greenwire, February 25, 2004)

Pursuant to Judge Hogan’s remand in 2001, NMFS has been reviewing its listing policy for 25 of 26 listed stocks of West Coast salmon and steelhead. “The process that we embarked on in October 2001 following Hogan’s ruling is continuing. This Ninth Circuit ruling has not changed that one scintilla,” according to Brian Gorman, a NMFS spokesman. Still, for the present, NMFS cannot enforce ESA provisions related to the coho. (Seattle Post-Intelligencer, Feb. 25)

While dismissing the appeal, the Ninth Circuit noted there remains an implausible, but possible means of listing only wild-bred coho. “[I]f one Service rule includes hatchery Oregon coastal salmon in the same DPS as the wild variety, a second cannot exclude hatchery fish from the wild salmon’s ‘threatened’ listing. Permutations favorable to the [Appellants] remain. In theory, for example, [NMFS] could define hatchery coho as a separate DPS from naturally spawned coho under the Service’s current ESA standards (although the district court legitimately doubts this is possible), and a listing that includes only naturally spawned coho would no longer offend the district court’s holding. A more plausible route to the same natural only listing would be to have [NMFS] reformulate its criteria for determining which groups of salmon constitute DPSs. In addition, nothing prevents the Service from forging an entirely new set of rules from scratch.”

From the newsletter of the Western States Water Council, issue 155.