By Barry
Espenson
A
Spokane-based U.S. District Court judge this
week ordered the federal government to deliver
its judgment within 30 days on whether eight
stocks of West Coast salmon and steelhead still
merit listing under the Endangered Species Act.
The
Wednesday order also says the government must
pay the legal fees of the Building Industry
Association of Washington, the Kitsap Alliance
of Property Owners, the Columbia-Snake
Irrigators Association and the Skagit County
Cattlemen's Association. Those are the groups
that filed two petitions in October 2001 asking
that nine salmon and steelhead stocks be
delisted. They argued that if NOAA counted the
hatchery fish, numerous stocks would have to be
delisted.
They based
arguments on an opinion issued the previous
month by Oregon-based U.S. District Court Judge
Michael Hogan. He declared the Oregon coast coho
listing illegal because NOAA impermissibly
excluded from the federal protections hatchery
fish that it had earlier included in the coho
stock's "evolutionarily significant unit" and
included only naturally spawned fish in the
listing.
NOAA
Fisheries has drafted a revised hatchery policy
that will in many cases take into account
related hatchery stocks when it makes listing
decisions.
The April
28 order from Judge Robert H. Whaley says NOAA
must issue long-overdue "findings" regarding
eight of the petitioned stocks within 30 days.
He said the court had no authority to extend the
time allotted under the ESA for NOAA to make a
determination whether the suggestion action --
delisting -- is "warranted, warranted but
precluded, or not warranted."
The ESA
says the finding must be produced within 12
months of receipt of a petition.
"It was a
win across the board," attorney Tim Harris said
of the judge's order. Harris represented the
BIAW in the lawsuit. He said the legal pressure
applied as a result of the lawsuit may also have
helped spur NOAA to a decision on the revised
hatchery policy. NOAA Fisheries, in March
filings in the BIAW case, had asked for a 90-day
extension of a March 31 deadline for completion
of its findings. It promised in that filing to
have the hatchery policy out in draft form
before April 1.
"We
finally got them to get of their butts and do
something," Harris said.
NOAA
Fisheries spokesman Brian Gorman said Thursday
that "we're working very hard on finishing this
effort and fully expect to meet the court's
deadline."
The groups
filed the lawsuit in August 2003 after NOAA
Fisheries failed to produce findings within the
12-months period. The parties involved in the
lawsuit reached a settlement
The March
11 motion filed by U.S. Justice Department
attorneys asked that the court amend a
settlement agreement filed in that lawsuit in
October 2003 that set the March 31, 2004
deadline for completion of the eight status
reviews. The agency said in March that it was
unable to complete the tasks and suggested that
it has the "good cause" necessary to extend the
deadline.
Whaley's
order said the good cause standard is irrelevant
since the court did not have authority to alter
the ESA, or the settlement.
"Put
another way, even if good cause could be
demonstrated, that is not enough to get around
the mandatory, non-discretionary requirements….
The Court cannot do something that it is not
authorized to do under the law," Whaley wrote.
The judge granted the plaintiffs' request to
have a 30-day deadline established.
The eight
stocks undergoing review are the Snake River
sockeye salmon, fall chinook salmon,
spring/summer chinook salmon and steelhead, the
Upper Columbia River spring-run chinook and
steelhead, the Middle Columbia River steelhead,
the Puget Sound chinook and Hood River Canal
summer-run chum salmon. They are actually a
subset of a more extensive review. NOAA opted in
February of 2002 to undertake status reviews 26
listed salmon and steelhead ESUs with related
hatchery components, as well as of one candidate
species. They include 12 Columbia River Basin
stocks.
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