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You may have heard that federal district court magistrate Janice Stewart ruled Tuesday (6/2/98) that NMFS cannot avoid listing coastal coho based on voluntary based measures (e.g., OCSRI). For the complete text, go to http://www.eskimo.com/~andy/Coho/

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From: The Oregonian, June 2, 1998

Judge orders coho nonlisting reconsidered

The decision leaves Gov. John Kitzhaber's plan to save the coastal fish runs by voluntary measures up in the air

By Joan Laatz Jewett of The Oregonian staff

Striking a blow to Gov. John Kitzhaber's salmon-recovery plan, a federal judge said Monday that federal officials should not have relied on the plan as a basis for refusing to place wild coho salmon under the protection of the Endangered Species Act.

U.S. Magistrate Janice M. Stewart, in a sternly worded opinion, said the National Marine Fisheries Service's April 1997 decision not to protect coho was arbitrary and capricious and "flies in the face" of the agency's own scientists' concerns.

"Instead of placing the risk on the future and voluntary conservation measures proposed by (the state's recovery plan), the (fisheries service) unlawfully placed the risk of failure squarely on the species," Stewart wrote.

The judge said she would not "tie the fate of Oregon coast (coho) to the whim of politics and promises of future state conservation actions that may be years or decades away from implementation."

Stewart ordered the fisheries service to reconsider its decision by July 2. The judge said the decision had no legal basis under the Endangered Species Act or case law.

The fisheries service will consider whether to appeal the ruling within 60 days, said Donna Darm, director of protected resources.

"We're obviously disappointed," Darm said. "We think we did the right thing for coho."

The governor's office said the judge's conclusions were "disturbing" because of the assertion that voluntary conservation efforts carried no legal weight.

"It's surprising to think that only regulatory actions count," said Kitzhaber's natural resources director, Paula Burgess. "I think it has a tremendous chilling effect on voluntary actions."

Conservationists who sued the fisheries service over its decision not to list coho for protection were elated.

"The (decision) was really political," said Mike Sherwood, a lawyer with the San Francisco-based Earth Justice Legal Defense Fund, which filed the case on behalf of the Oregon Natural Resources Council and a dozen other groups.

"If they'd made the decision solely on the biological facts, they would have no choice but to list the species," Sherwood said.

More than a million coho once returned to Oregon's coastal streams.

But in recent years fewer than 100,000 fish returned. Last year, a record low of 24,000 wild fish came back. This year's return is expected to be even lower.

The ruling could have the effect of derailing the governor's Oregon Plan for saving coastal coho. The plan depends heavily on an infusion of timber industry money -- payment of which is contingent on the fish not being listed for federal protection.

The 1997 Oregon Legislature passed a bill imposing a timber harvest tax to raise as much as $13 million during the 1997-99 biennium to pay for habitat restoration projects on private land along coastal streams.

The tax was supported by the timber industry.

But the bill stated that the tax would be suspended if the coho were listed.

"I think it's automatic," Ray Wilkeson, legislative director of the Oregon Forest Industries Council, said, referring to a possible suspension of financing.

The timber industry tax was expected to provide nearly half the $30 million the state expected to spend on coastal salmon restoration efforts.

The other half of the cost was to come from the state general fund.

Wilkeson said the judge's ruling would not necessarily erode the timber industry's willingness to support the governor's plan. But he added, "I don't know to what extent our members' enthusiasm for voluntary efforts under the Oregon Plan will be dissipated."

The forest industries council would continue to support Kitzhaber's plan, Wilkeson pledged. "We've been working with the governor on this for three years now and we'll continue to take our lead from (him)."

The fisheries service found in 1996 that the coho deserved to be protected as a threatened species. But the next year, it decided not to list the fish, largely on the strength of Oregon's proposed conservation plan. The plan relies heavily on the voluntary efforts of private landowners and other citizens to restore coastal stream habitat.

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