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October 2001

Oregon Judge Removes Coho From Endangered List

By Elena Belsky

In a stunning move, a federal judge from Oregon's 9th Circuit Court has removed the Coho salmon from the Federal Endangered Species List. While Coho are obviously still a severely impacted species, US District Judge Michael Hogan sent the 1998 listing of Oregon coastal Coho as a threatened species back to the National Marine Fisheries Service (NMFS) "to consider additional information in any further listing decision concerning coastal Coho." Also calling NMFS initial listing of the wild fish and not the hatchery fish "arbitrary and capricious." The federal government has 60 days to either appeal the decision or to make another determination based on new genetic evidence. While the Court's ruling applied to Coho along mostly the upper two-thirds of the Oregon coast, it could easily affect all West Coast salmon if similar lawsuits are successful. There are 25 other salmon that are listed under the Federal ESA. The Coho have just been proposed by the California State Department of Fish and Game for "endangered" status on the California list, due to the severe degradation of salmon populations and habitat conditions.

If enough hatchery fish can be produced to boost the overall numbers of Coho salmon in the streams, it could possibly de-list the species because it would appear that the population had rebounded successfully. If this were to occur, protection of habitat and water becomes less stringent on landowners and users in general.

At dispute is the legal definition of whether hatchery raised Coho should receive the same Federal protection status as their wild brethren. Genetic research, habitat competition, and behavioral differences between the two types of salmon are the subject of much speculation and debate between scientists, agencies and landowners and the fishing industry. Some Coho hatcheries are used to support sport and commercial fishing downstream and in the ocean - these hatchery fish are marked to differentiate them from the wild Coho, which are protected and not allowed to be harmed. Usually, Fish and Game, Wildlife and Fisheries Agencies recognize wild salmon but not "production" hatchery fish, with the exception of certain "wild broodstock" hatcheries fish receiving equivalent protection, because they are used as a part of an overall recovery strategy to supplement a natural recovery of the wild population. Much of the Agency's decision depends on long-term objectives, genetic stock quality, and survivability. NMFS, Fish and Wildlife Service, and the Department of the Interior legal staff are in consultation to determine just what the Oregon ruling means, how to deal with the potential for additional rulings of de-listing these species, and other possible ramifications.

Of critical importance are whether scientific research and studies can demonstrate that there are valid, classifiable differences between hatchery and wild salmon-that they are genetically different.

According to an Associated Press interview, Jason Miner, conservation biologist for Oregon Trout, a group working to restore salmon in Oregon, called the judge's decision `catastrophic.''

Quoting Judge Hogan, "There is a factual finding that hatchery fish and wild fish are genetically the same," which is both inaccurate and vastly oversimplifies the complex biology of Oregon's native fish,'' Miner said.

The firm that brought the Oregon lawsuit, the Pacific Legal Foundation (PLF), is known as a conservative law firm that supports private property owners' rights where they are at issue in environmental law cases and other disputes. Their client, the Alsea Valley Alliance (ALA), is a coalition that includes sport fishermen and the owners of a bait-shop and a charter boat. The motivation behind forcing hatchery fish to be protected under the Endangered Species Act (ESA) appears to be to relieve the ALA from responsibility for any destruction of fish habitat. If PLF can show that all salmon are genetically the same, then protections would be extended for hatchery as well as wild Coho. It would become impossible to enforce the ESA protections, as however many hatcheries as necessary could be commissioned and put into production to maintain large enough populations for the species to be considered "healthy".

Even though the Federal Endangered Species Listing of Coho is in question, the States of California and Oregon have separate regulations, restoration programs and overlapping protections for the salmon, which are not placed in jeopardy by the Oregon ruling. Unlike the Federal ESA, the State protections cannot be removed or challenged without a lengthy public process.

 

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