Salmon decision brings proposed '99 lawsuit settlement

Washington species still protected as recovery continues

THE ASSOCIATED PRESS

Originally published November 10, 2001

OLYMPIA -- The National Marine Fisheries Service's decision not to appeal a judge's ruling throwing out the threatened species listing of Oregon coastal coho could have sweeping effects on Washington salmon.

In September, U.S. District Judge Michael Hogan ruled that NMFS erred when it lumped hatchery fish and wild fish together in the same group, known as an "evolutionarily significant unit," then gave threatened species protection only to the wild fish.

Hogan's ruling came in an Oregon lawsuit that made arguments similar to those in a 1999 lawsuit brought by a coalition of Washington builders, farmers and cattlemen. That lawsuit challenged the listing of chinook salmon in Puget Sound and the Columbia River.

Friday, NMFS announced it would not appeal Hogan's ruling. Instead, the agency plans to make a new policy on hatchery fish versus wild fish between now and next September. Afterward, it will announce whether 23 of the 25 groups of Pacific salmon listed as threatened or endangered species warrant further protection under the Endangered Species Act.

The process will consider newly filed petitions to take those fish off the endangered species list. In the meantime, protection for the fish still listed as threatened or endangered will continue.

Jeff Koenings, director of the Washington Department of Fish and Wildlife, said the decision doesn't immediately alter the state's salmon recovery efforts because Hogan's ruling dealt only with Oregon coho, not listed species in Washington.

"Protections for these species remain in effect, and this agency's recovery efforts will continue uninterrupted," Koenings said. "At the same time, WDFW welcomes a public review by NMFS of its salmon hatchery policies -- particularly those relative to excluding hatchery fish as nonessential for recovery -- and expects WDFW scientists to play an integral role in that review process along with others."

Jim Johnson, an attorney representing Common Sense Salmon Recovery, the group that brought the Washington lawsuit, said he has made a settlement offer to NMFS based on Hogan's ruling.

"The consequence will be a delisting for Puget Sound salmon and Columbia River salmon," Johnson predicted. The coalition includes the Washington Farm Bureau, Washington Cattlemen's Association, Washington Association of Realtors and the Building Industry Association of Washington.

A NMFS spokeswoman said the agency's lawyers are reviewing the offer.

"We'll continue to have discussions about settlement," said Janet Sears, a spokesman for NMFS. "There will be more to come on this one as time goes on."

The lawsuit, ridiculed by NMFS when it was filed, challenged the practice of only counting wild populations in assessing the health of regional salmon runs, and argued there was no biological basis for distinguishing between native and hatchery fish.

The group argued that Endangered Species Act restrictions could make it impossible to profit from private land already zoned and used for agriculture are other commercial purposes.

On the Web:

- National Marine Fisheries Service: www.nwr.noaa.gov

- Pacific Legal Foundation: www.pacificlegal.org

- Earthjustice: www.earthjustice.org

The Olympian Copyright 2001

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