News from the Front #55:  

Judge Hogan Hits A Homer:  Oregon Coastal Coho Listing Is Unlawful

On September 10, 2001, United States District Judge Michael R. Hogan issued a long-awaited ruling in a case brought by the Alsea Valley Alliance challenging the 1998 Endangered Species Act listing of Oregon coastal coho salmon.  There are, of course, no endangered salmon species; all the listings are premised upon expansive language in section 3(16) of the Act permitting listings of "any distinct population segment of vertebrate fish or wildlife which interbreeds when mature".   

Judge Hogan observed, correctly, that Congress did not empower federal agencies to list groups of fish or wildlife smaller than a "distinct population segment" (DPS).  But Congress did not define a DPS, and the federal courts have all but abandoned their Constitutional duties to limit government powers by "deferring" to agency definitions of statutory terms, even unreasonable ones.  Thus federal fish and wildlife agencies can call nearly anything a DPS, and get away with it.  

So Judge Hogan took no issue with how the National Marine Fisheries Service defined the Oregon coastal coho DPS.   In this case, NMFS defined the DPS to include both hatchery and wild coho salmon along the Oregon  coast, including at least nine hatchery populations along with so-called "wild" populations.  Then NMFS determined that the hatchery populations did not merit Endangered Species Act protection, so that only the natural ones within the DPS would be listed as "threatened".  In practical effect, this amounted to extending Endangered Species Act protection to groups of fish smaller than a DPS. 

Thus Judge Hogan held that "[t]he central problem with the NMFS listing is that it makes improper distinctions, below that of a DPS, by excluding hatchery coho populations from listing protections even though they are determined to be part of the same DPS as natural coho populations".  In legal terms, the decision is "arbitrary and capricious" within the meaning of the Administrative Procedure Act.  While the logic of Judge Hogan's decision is irrefutable, environmentalists will doubtless attempt to persuade the United States Court of Appeals for the Ninth Circuit that the Judge has interfered with a "scientific" decision which only the High Priests of the Salmon Empire may make.

Unless and until his decision is reversed, Judge Hogan's ruling leaves only two options for bureaucrats and environmentalists who wish to continue Endangered Species Act protection of Oregon coastal coho:  NMFS must either (1) expand the listing protection to include the hatchery fish, or (2) redefine the DPS to exclude the hatchery fish.

As for the first option, it will be virtually impossible for NMFS to show that there is any danger that hatchery fish face a genuine risk of extinction.  That, of course, has never stopped NMFS from making Endangered Species Act listings before, but perhaps the new Administration will bring some common sense to NMFS.

As for the second option, Judge Hogan warned NMFS that  it "does not appear to be possible".  Among other things, Judge Hogan advised that the hatchery and natural runs "share the same rivers, habitat and seasonal runs" and most of the so-called "natural" fish are in fact the offspring of hatchery fish.  Indeed, Judge Hogan noted that "NMFS considers progeny of hatchery fish that are born in the wild as "naturally spawned" coho that deserve listing protection".  

The rationale of Judge Hogan's ruling applies to many, many other salmon listings in the Pacific Northwest.  Judge Hogan's ruling should serve as a wake-up call to the so-called leaders that sleep on as lawless federal actions continue to infringe upon the lawful rights of citizens of the Pacific Northwest, and destroy the sovereignty of their state and local governments.  Setting aside all the lawless salmon listings can slice the Gordian knot that paralyzes natural resource management in the Pacific Northwest.  

Moreover, the recent horrific attacks on our Nation confirm the dismal state of federal government's primary function:  national defense.  If the federal government confined itself to lawful, Constitutional powers, and focused its armies and intelligence upon the Nation's enemies rather than its farmers, loggers, and property owners, we would all be better off.  

               © James Buchal, September 14, 2001

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