Federal Court Ruling Could Spell Trouble for Endangered Species List

By Pat Taylor | July 7, 2008 | 8:20 PM EDT

(CNSNews.com) - The Bush administration has decided not to challenge a recent federal court ruling that ordered the government to remove the Oregon coast coho salmon from the endangered species list. The White House decision could serve as an important precedent.

Officials said the government plans to review similar Endangered Species Act (ESA) listings and, in the future, will measure the economic impact on communities and property owners before designating protected habitat for endangered species.

Friday's decision could also affect the long-standing dispute regarding water rights in the Klamath Basin on the California-Oregon state line.

On Sept. 13, U.S. District Judge Michael Hogan in Eugene, Ore., ruled that the National Marine Fisheries Service (NMFS) was "arbitrary and capricious" in 1998 when it listed the Oregon coast salmon under the ESA as a distinct "population segment" of salmon but did not list genetically identical hatchery salmon.

Hogan set aside the listing and said the agency must include both hatchery and wild salmon in determining whether they are endangered.

Bob Lohn, NMFS northwest regional administrator, said his agency would review its hatchery policies and develop a uniform standard by September 2002. He promised a full opportunity for public input and hearings in the review process.

Once a uniform standard has been developed, he said, the agency will also review the 23 other "population segments" of coho salmon throughout the West Coast states that are currently protected under the ESA, to determine whether they should be de-listed.

One of those is the Southern Oregon/Northern California coasts coho salmon, which is found in the Klamath Basin.

Earlier this year, the government, as a result of lawsuits brought by environmental activists, decided to cut off irrigation water to 1,400 family farms in the basin in order to protect the coho salmon and suckerfish.

Critics of the ESA say the Klamath Basin is a classic case of environmental activists intentionally misusing the act to destroy the livelihood of farmers, ranchers, and others who depend on the land.

Officials said Friday they hope to reach a decision on whether to de-list the Klamath salmon by next fall.

Dr. Bill Hogarth, assistant administrator for the National Oceanic and Atmospheric Administration fisheries, said Friday's decision "should not be construed as the administration backing away from the ESA." Rather, he said, it is a commitment to make sure the best, open process and the best science are used in making decisions.

Hogarth also said in the future, the potential economic impact on affected communities and property owners will be taken into account before the agency decides to designate protected habitat for endangered species.

This has been a key criticism of the way the ESA has been implemented in the past. Last May, the 10th U.S. Circuit Court of Appeals in Denver, Colo., ruled that the U.S. Fish and Wildlife Service, the other government agency responsible for implementing the ESA, must consider economic impact.

Lohn said future decisions would rely more on local knowledge and would focus on promoting local initiatives to develop recovery plans for species rather than on regulations. He said this approach represents a "major change in emphasis" for the agency, and would speed up the recovery of endangered species.

"It's time to stop fighting and start fixing," said Lohn.

But Earthjustice, the environmental activist legal firm that filed both the lawsuit that originally forced the government to list the Oregon salmon under the ESA and the suit that forced the government to shut off the Klamath Basin irrigation water, is not ready to stop fighting.

Earthjustice attorney Patti Goldman said her group has asked Judge Hogan to allow it to appeal his decision even though the government has decided against an appeal.

On the other hand, Russ Brooks of the Pacific Legal Foundation, which filed the suit that led to Hogan's decision, said his firm may file new lawsuits asking the government to remove ESA protection from the 23 currently listed "population segments," especially the one in Klamath Basin, during the review process.