Court Rules Feds Violated Law in Failing to Protect Coho Salmon

Federal court rules the National Marine Fisheries Service violated the law when it refused to protect Oregon coastal coho salmon as threatened under the Endangered Species Act.


Michael R. Sherwood (415) 627-6725


Claudia Polsky (415) 627-6725


Ken Rait (503) 804-2940


Glen Spain (503) 689-2000

A federal court has ruled that the National Marine Fisheries Service violated the law when it refused to protect Oregon coastal coho salmon as threatened under the Endangered Species Act. The ruling, dated June 1, by Magistrate Judge Janice Stewart will force the agency to reanalyze its decision, and will almost certainly lead to Endangered Species Act protection for coho.

In April 1997, the National Marine Fisheries Service denied protection to Oregon’s coastal coho, claiming that the salmon did not need federal protection because a recovery plan implemented by the State of Oregon would adequately protect the fish.

Commercial fishing and conservation groups, worried that Oregon’s salmon recovery plan alone would not save the fish, challenged the federal government’s decision not to protect the coho. Magistrate Judge Stewart agreed with plaintiffs that the Oregon plan was not sufficiently protective of coho to justify a no-list decision. She wrote that NMFS’s final rule “is premised upon promises of future, as well as voluntary, actions, the ability of which to protect and restore the Oregon Coast coho is necessarily speculative and uncertain. This court declines to tie the fate of the Oregon Coast ESU [evolutionarily significant unit] to the whim of politics and promises of future state conservation actions that may be years or decades away from implementation.” The court ordered NMFS to reconsider its listing decision and to issue a final rule for coastal coho by July 2, 1998.

Michael Sherwood, an attorney at Earthjustice Legal Defense Fund who represented the plaintiffs, said, “Politics is said to be the art of compromise. But disappearing species can afford no more compromise. Had the agency’s decision been based on science rather than politics, as the law requires, the agency would have had no choice but to list the coho long ago. We are delighted with the court’s decision and think it is the correct one. The fish are the real winners here.” Sherwood emphasized plaintiffs’ desire to work with the state of Oregon on coho recovery efforts. As co-counsel Claudia Polsky noted, “All parties in this case want the same thing: more coho. Unlike extinction, an Endangered Species Act listing need not be forever. We hope that with state and federal protections, coastal coho will eventually recover to the point where federal regulation is no longer necessary.”

Fishermen and conservationists expressed optimism that additional protections for coho will soon be put in place and emphasized that today’s decision does not undermine Oregon’s salmon recovery plan. In fact, they explained, Endangered Species Act protection will work to supplement and strengthen the Oregon Plan.

“As Oregonians who care about salmon, we strongly support Oregon’s coho recovery plan. Today’s ruling does not put that plan in jeopardy,” said Glen Spain of the Pacific Coast Federation of Fishermans’ Associations. “The Endangered Species Act is an important safety net for coho salmon, and will supplement the Oregon salmon plan in saving these fish.”

Conservationists echoed Spain’s sentiments.

“The Oregon Salmon Plan actually was intended to work with Endangered Species Act listings and protection,” said Paul Engelmeyer, an Oregon representative for the National Audubon Society. “Southern Oregon coho are listed as threatened and the Oregon Plan is proceeding in that area of the state. Additionally, steelhead are listed in the lower Willamette River and officials are working on combining Endangered Species Act protections with state and local efforts to save the fish.”

Fishermen and conservationists hope that the stakeholders involved with Oregon’s salmon recovery plan don’t use today’s court decision as an excuse to abandon state salmon recovery efforts.

“We are all in this together. Just because Endangered Species Act protection is put in place for coho salmon does not give anyone the right to shirk their responsibilities for saving these fish,” said Ken Rait of the Oregon Natural Resources Council.”We need to have continued funding for the Oregon Plan and a continued commitment from everyone for salmon recovery.”

“We are all fighting for the same thing – to save coho salmon,” said Rait. “No one should walk away from the table just because an added safety net will be put in place.”

Complete text of Federal Magistrate Janice M. Stewart’s ruling

Plaintiffs in the lawsuit are the Oregon Natural Resources Council; Pacific Coast Federation of Fishermans’ Associations; Native Fish Society; National Audubon Society; Northcoast Environmental Center; Coast Range Association; and Sierra Club. The plaintiffs are represented by the Earthjustice Legal Defense Fund.

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