After five years of litigation, federal judge Susan Illston, on October 27, 2000, ruled that the National Marine Fisheries Service's (NMFS) decision not to list steelhead populations in northern California and southern Oregon as threatened species under the Endangered Species Act was "arbitrary and capricious" and therefore illegal. The agency must now make a new decision "consistent with" the court's decision no later than March 31, 2001.
Beginning in September 1995, various environmental groups and commercial and sport fishing organizations, represented by Earthjustice Legal Defense Fund, have been suing NMFS to compel the agency to protect declining west coast steelhead populations in Washington, Idaho, Oregon and California. Steelhead have been in severe decline due primarily to the loss of their freshwater spawning and rearing habitat because of logging, dams, water diversions for irrigation and water pollution.
In March 1998, however, NMFS ignored the scientific conclusions of its own experts and decided that listing the Klamath Mountains Province population of steelhead was not warranted. NMFS justified the decision by pointing to various conservation measures proposed by the states of Oregon and California and the federal government. The environmental and fishing groups argued, however, and Judge Illston agreed, that the state plans do not sufficiently reduce or eliminate the threats to steelhead in this region so as to eliminate the need to list them under the ESA.
Both California and Oregon promised to strengthen their forest practice rules to provide greater protection to steelhead rearing and spawning streams from the impacts of logging and roadbuilding. The court ruled, however, that NMFS could not decide not to list an imperiled species on promises of future action because, "[t]here are no assurances that the measures will be carried out, when they will be carried out, nor whether they will be effective in eliminating the threats to the species." In fact, neither Oregon nor California has acted upon their promises to strengthen their forest practices rules.
"For years the states have been using sport fishers as the scapegoat for the decline of the steelhead, and have been ignoring the real causes for that decline, namely commercial timber harvest and irrigated agriculture. This has been the politically easy path, because anglers have relatively little political power and influence. The fish have suffered as a result," said Tim McKay of the Northcoast Environmental Center.
Both Oregon and California promulgated "emergency" restrictions on sport fishing for steelhead just weeks before NMFS made its decision, and the agency pointed to these restrictions as justification for not listing the steelhead. The court found, however, that recreational angling is not the primary cause for the decline of steelhead, and that state efforts to curtail sport fishing ignored the true reason for the decline, habitat loss.
"Now, there is reason to hope that NMFS will finally do the right thing for this region's steelhead and give them the strong legal protection of the ESA," said Michael R. Sherwood, Earthjustice staff attorney who represented plaintiffs in the case. "That should finally force the states to adopt real reform and real conservation measures to help these magnificent creatures recover from the brink of extinction."
Plaintiff organizations who filed the lawsuit include: California Sport Fishing Protection Alliance, Federation of Fly Fishers, Klamath Forest Alliance, Native Fish Society, Northern California Council of the Federation of Fly Fishers, Northcoast Environmental Center, Oregon Natural Resources Council Fund, Oregon Wildlife Federation, and the Siskiyou Regional Education Project.
Mike Sherwood, Earthjustice, 415-627 6700
Tim McKay, NEC, 707-822-6918
Barbara Ullian, Siskiyou Audubon, 541-474-2265
Dan McDaniel, Federation of Fly Fishers 209-465-5883
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