Appeals Court Denies Oregon Coast Coho Salmon Protection

SAN FRANCISCO, California, February 26, 2004 (ENS) - A federal appeals court has dismissed conservationists' appeal to have Oregon coast coho salmon listed for protection under the Endangered Species Act.

The group appealed a 2001 lower court ruling that invalidated the listing of the salmon as threatened because the National Marine Fisheries Service (NMFS) failed to include hatchery fish in its assessment of the species' population.

The court's decision effectively removes federal protection for the species and could have far reaching effects on the battle to protect salmon and steelhead all along the West Coast.

In 2001, U.S. District Judge Michael Hogan ruled that federal officials should not have ignored the abundant hatchery raised coho when considering the fate of the species. Hogan determined that distinguishing between hatchery spawned and naturally spawned coho salmon was "arbitrary and capricious" and told the agency it could not choose to protect one and not the other.

Hogan invalidated the coho's Endangered Species Act listing and ordered NMFS to review its findings on the fate of the fish. The Bush administration declined to challenge this ruling.

Officials instead announced NMFS would review standards for determining the status of the Oregon coast coho and apply those standards to other salmon and steelhead populations in the West.

A male coho salmon with spawning coloration. (Photo by E.R. Keeley courtesy UBC)

In the decision on appeal announced Tuesday, a three judge panel of the U.S. Court of Appeals for the 9th Circuit dismissed that appeal because NMFS has not completed its review of the coho's status.

"The [district court] order does not compel the Service to remove Oregon coast coho salmon from the threatened species list or take any other actions," wrote Judge J. Clifford Wallace on behalf of the panel.

The lower court ruling simply "prohibits, as a practical matter, the enforcement of the Service's listing decision as is."

NMFS is reviewing the listing for Oregon coastal coho and other salmon and steelhead populations in the West. Officials said the first of its status reviews could be complete as early as next month.

The effect of Tuesday's ruling is that the Oregon Coast coho remains on the endangered species list, but the federal government is barred from enforcing ESA protections for it.

The agency could establish separate polices for wild and hatchery raised fish - federal biologists have repeatedly raised concerns that hatchery spawned fish can harm wild fish by introducing disease and altering the unique genetic makeup of the species.

"The undercurrents in this decision highlight the power and responsibility the Bush administration holds over the future of our salmon," said Patti Goldman with the nonprofit environmental law firm Earthjustice, which represented the conservationists in their appeal. "If the Bush administration had appealed, the appellate court would have been able to rule on this issue."

Coho populations on the Oregon coast are now less than five percent what they were in 1900, when more than a million salmon returned each year to spawn - and the vast majority of the returning fish are hatchery raised.

The battle over ESA protection reflects the major threat to salmon and steelhead all along the West Coast - habitat loss.

The ESA gives the federal government the ability to limit development and resource extraction that degrade or destroy the habitat of listed species. Conservationists fear that without such protection the future is bleak for wild salmon and steelhead.

"The bottom line is this - without adequate ESA protection, salmon recovery simply will not stand a chance," said Glen Spain of the Pacific Coast Federation of Fishermen's Associations.

But some private property rights advocates disagree.

Russ Brooks, an attorney with the Pacific Legal Foundation (PLF), called the ruling a victory for "good science and common sense."

Wild salmon are considered by many to be an irreplaceable icon of the Pacific Northwest. (Photo courtesy Columbia & Snake Rivers Campaign)

The PLF, a nonprofit law firm that frequently battles against the ESA, brought the original case to court in 2001 on behalf of an Oregon based private property rights group.

The organization argued that the failure to count hatchery coho kept the fish count artificially low and thereby illegally justified ESA protection.

"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," Brooks said. "This attempt to control private land use in the name of species protection has been successfully shut down."