Federal Court Says Endangered Species Listing Of Klamath Coho Is Bogus

By Russ Brooks, Pacific Legal Foundation

January 15, 2005

Coho salmon in the Klamath River Basin region have been illegally listed under the Endangered Species Act as a threatened species, a federal judge declared yesterday.

Ruling from the bench, Judge Michael Hogan agreed with Pacific Legal Foundation that the federal government violated the ESA when it failed to consider hatchery fish in its assessment of coho in southern Oregon and northern California rivers. ESA protection of coho in the Klamath River was a significant factor in the government's devastating decision to shut off irrigation water to Klamath Basin farmers in the spring of 2001.

"This victory came too late for the farmers who where pushed into bankruptcy and the businesses that were forced to close to protect fish that were never endangered," said Pacific Legal Foundation attorney Russ Brooks. "Our rivers and streams are teeming with salmon, yet the Klamath community was practically destroyed because of environmental politics run amok."

"This ruling should send a message to NOAA Fisheries that they cannot continue to circumvent the ESA to keep salmon listed when the prolific number of hatchery fish means salmon are not endangered. If NOAA does not accept the reality that the ESA does not distinguish between wild and hatchery fish before it issues its new hatchery policy, we will wind up back in court," Brooks said.

The case, Grange v. National Marine Fisheries Service, had been stayed by Judge Hogan pending environmentalists' attempts to appeal PLF's landmark victory in Alsea Valley Alliance v. Evans (2001). In that case, Judge Hogan held that the government had illegally listed coho along the Oregon coast as threatened when it excluded hatchery coho from fish counts. The Ninth Circuit Court of Appeals rejected the appeal in February, 2004.

In yesterday's ruling, however, Judge Hogan did not set aside the illegal listing, but left it in place while the agency completes the review of 26 west coast salmon listings, which it agreed to undertake as a result of its loss in Alsea. In June, 2004, NOAA proposed a new hatchery policy, but simultaneously announced that it would result in the relisting - not delisting - of west coast salmon and steelhead populations.

However, Judge Hogan also indicated that if a federal agency took a specific enforcement action on behalf of the illegal listing which caused harm, those harmed could go to court and ask to have the federal action stopped.

"In other words, as long as the federal government complies with Judge Hogan's ruling that the listing is illegal, there won't be a problem. But if they try to cut off the water again or take some other similar action, we'll be back in court," Brooks said.

In November, 2004, PLF announced it will file a sweeping lawsuit challenging all 26 listings if NOAA enacts the proposed policy and continues to distinguish between hatchery and naturally spawned fish. The final rule is scheduled to be published in June, 2005.