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Lawsuit Aims to Alter Endangered Species Act
By Paul Boerger, Mt. Shasta Herald
December 1, 2004

The Pacific Legal Foundation has announced it will file a lawsuit intended to challenge provisions of the Endangered Species Act aimed at de-listing numerous species throughout California including salmon on the Klamath River.

The suit will contend, among other issues, that the United States Fish and Wildlife Service and the National Marine Fisheries Service has erred in not distinguishing between hatchery and naturally spawned fish. The policy counts only spawned fish that creates the conditions for fish to be listed as Endangered.

The PLF claims the method of counting is in violation of a court order in another lawsuit that directed agencies to include hatchery coho in the counts in the Klamath Basin and steelhead throughout the West.

Specifically, the PLF argues that "critical habitat designations throughout California violate the ESA because the federal agencies did not adequately identify the areas that are essential to species conservation and routinely relied on inadequate economic analysis in evaluating the social impact of designations as required under the act."

"The federal government has been using a flawed template to designate critical habitat," said PLF attorney Reed Hopper. "The government's strategy is to set aside as much land as possible without doing the work to determine where the species actually live and what they require to recover. The result is that species languish on the endangered species list endlessly without any real hope of being saved."

Hopper said the lawsuit will "promote species recovery by forcing the federal government to set goals and meet clear standards in designating critical habitat."

The PLF has an established record of challenging the ESA including lawsuits that the PLF says are intended to "protect human life and protect individual freedom."

In a press release on Earth day 2004, the PLF said that "environmental extremism" has been responsible for "dramatically impacting people's lives and livelihoods every day, often for species protections that are illegal or unnecessary."

Among the top five human costs of environmental extremism the PLF declares is, "Cutting people off from water to give to fish."

The statement is a direct reference to the Klamath Basin Project.

"To provide more water to 'endangered' salmon, even though there was no scientific evidence that the fish should even be listed as 'endangered,'" the report said. "Klamath farmers lost their crops and the local economy lost an estimated $200 million in crop and property value, devastating the region. Some families lost farms that had been in their families for generations."

The Pacific Coast Federation of Fishermen's Association official position is that Klamath Basin irrigators siphoning off water for crops has been devastating to fish populations.

"The Klamath River was once the third most productive salmon river system in the United States. Today, thanks to habitat blocking dams, poor water quality and too little water left in the river, the once abundant Klamath salmon runs have now been reduced to less than 10 percent of their historic size. Some species, such as coho salmon, are now in such low numbers in the Klamath River that they are listed under the Federal Endangered Species Act," the PCFFA states. "Salmon losses in the Klamath Basin have had devastating impacts on the lower river fishing-dependent economy, putting thousands of people out of work and eliminating tens of millions of dollars annually from the economy of these rural areas and coastal ports, from Fort Bragg, CA, to Florence, OR. The need to protect depressed Klamath salmon runs has also triggered fishing closures on otherwise abundant stocks, mostly hatchery fish from the California Central Valley, all up and down the west coast, causing many indirect economic costs as well."

"The PLF is just grandstanding for media attention," said Glenn Spain of the PCFFA. "Their notice to sue is six months premature. The decision as to how the count will be done isn't due until June of next year."

Spain says the Federation "opposes the PLF in all this."

"Salmon are in trouble whether they believe it or not. The numbers are clear." Spain said. "The resource is too valuable not to have some protection to prevent extinction."

Dan Keppen of the Klamath Water Users Association that represents irrigators in the Klamath Project supports the PLF.

"The 2001 shutoff was because of the salmon. If the coho weren't listed, we would have the water we need," Keppen said.

To protect salmon, the federal government shut off water to farmers in 2001 resulting in a loss of crops with many farmers going bankrupt, some losing their farms.

Keppen contends the studies on flows needed for salmon was flawed and that counting the hatchery fish would result in the a de-listing of the salmon from endangered status.

"The hatchery fish have been in the system for a long time," Keppen said. "The PLF is saying count them all. We consider them as allies."

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.

Salmon Habitats Face Cuts
By Glen Martin, San Francisco Chronicle
December 1, 2004

The Bush administration proposed Tuesday an 80 percent reduction in designated habitat for endangered Pacific salmon and steelhead, leading environmentalists to charge that recovering populations of the rare fish could collapse once again.

Twenty populations of West Coast salmon and steelhead are listed under the U.S. Endangered Species Act, which requires that the government identify "critical habitat areas" -- the places where a listed species can recover.

The plan put forth by the National Marine Fisheries Service designates habitat for the endangered fish in Washington, Oregon, Idaho and California.

But the habitat proposed Tuesday is 80 percent less than the habitat identified by the service from 1999 to 2002, when it announced it would suspend the process pending further study. The proposal resumes the habitat-designation program.

"We've reduced the area under designation to one-fifth as large as it was, "said Brian Gorman, a spokesman for the agency.

Critical habitat areas can be subject to restrictions on activities such as development, logging and grazing -- and Tuesday's proposal also emphasized that potential impacts on such economic activities would be weighed in the consideration of critical habitat.

A 60-day public comment period follows the announcement. The agency is expected to make a final decision on the matter by June 2005.

Gorman said the move was essentially procedural and wouldn't have a major impact on salmon and steelhead protection.

"The real teeth of the ESA (Endangered Species Act) comes from the listing itself, not the critical habitat," Gorman said. "(Critical habitat) is basically a red flag to other agencies that they have to be careful, to adjust their activities accordingly."

Gorman said that original critical habitat proposals for Pacific salmon and steelhead were more extensive than has turned out to be necessary because the agency had not completed its research -- and wanted to err, if at all, on the side of caution.

"We now have scientific tools and maps that allow much more refined determinations, that show which streams have viable populations (of fish), which should be critical habitat," Gorman said.

But Bill Kier, a Sausalito-based fisheries consultant who specializes in salmon and steelhead, said the announcement marked "a sea change" in federal policy, one that could prove disastrous for the fish.

"It's a default shredding of the ESA," Kier said. "Salmon and steelhead have essential freshwater stages, and they need precisely those areas NMFS (National Marine Fisheries Service) plans to abandon. If 80 percent of the critical habitat is to be cut, I don't see how these fish can sustain their recovery."

Kier said that much progress has been made in resuscitating populations of steelhead and coho and chinook salmon, particularly in California.

"This, however, could pull the rug out from lots of landowner groups, community groups and local agencies that have been working to bring these fish back," he said.

The agency did not announce which streams might be eliminated from the habitat program. In California, most of the coastal and Sacramento Valley rivers and streams were considered critical habitat for endangered salmon and steelhead prior to 2002.

While the clause emphasizing that economic considerations play a part in habitat designation might be viewed as an overture meant to reassure the business community, some private property and business rights groups felt it did not go far enough.

M. Reed Hopper, the principal attorney for the Pacific Legal Foundation, a group that generally opposes endangered-species listings and has litigated successfully in a case involving the definition of wild endangered salmon, said an initial reading of a synopsis of the fisheries service's proposal left him uneasy.

"I'm dubious about whether the agency did an adequate economic analysis," Hopper said. "In the past, they guessed, speculated and overstated potential critical habitat. I hope they didn't do it in this case."

Zeke Grader, the executive director of the Pacific Coast Federation of Fishermen's Associations, a commercial fishing lobbying group, also criticized the economic impacts alluded to in the announcement -- but for a reason different from Hopper's.

"I wish NMFS would also consider the economic impacts decades of habitat degradation have had on commercial, tribal and sport fisheries," he said. "These are industries that have been devastated by neglect of the resource."

In a separate move, the agency announced it would no longer consider removing federal dams on the Columbia and Snake rivers to facilitate endangered salmon runs, saying the fish could be satisfactorily routed around the dams via fish ladders as they migrated to their spawning grounds.

The move is a departure from the Clinton administration policy, which viewed dam removal as an option if all other approaches to restore the salmon proved unsuccessful.

"We saw that one coming for a while," Grader said. "At one point it definitely looked possible that four dams on the lower Snake River might be removed. But there was too much opposition from interests in the Columbia Basin that wanted to make sure Lewiston (Idaho) remained a deep-water port."

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.