For Immediate Release
February 25, 2004
Contact Brian Kennedy at (202) 226-9019

Ninth Circuit Court Sets Precedent for Science in Landmark ESA Case

Washington, DC - A ruling yesterday by the Ninth Circuit Court of Appeals confirmed a lower court's decision that scientific contributions to species recovery must be incorporated in Endangered Species Act (ESA) decision making. At issue in this case was how the National Marine Fisheries Service (NMFS) counted Oregon Coast coho salmon in determining the species' status.

Background: The Pacific Legal Foundation (PLF) filed suit in U.S. District Court charging that NMFS counted only naturally spawned salmon, disregarding hatchery spawned salmon, thereby keeping fish counts artificially low and invoking unnecessary protection under the ESA. District Court Judge Michael Hogan agreed, ruling that the agency acted illegally. As a result, NMFS instituted status reviews of salmon and steelhead listed under the ESA across Western States. Environmentalists then appealed the case to the Ninth Circuit, which also ruled in favor of PLF. In dismissing the appeal, the court ruled that environmentalists could participate in the public process on status reviews like other citizens and had no basis for suit.

"This could be the best precedent ever set in Endangered Species Act case law," Resources Committee Chairman Richard W. Pombo (R-CA) said. "By arguing that some fish are somehow superior to other fish, environmentalists have once again revealed their radical beliefs that humans can do no good for species. Given modern science and common sense, this court just reaffirmed that such extreme positions are absurd and can be detrimental to species recovery. To be successful in our stewardship role we have to use all the tools at our disposal, especially advanced science."

"Hopefully, this case will serve as a catalyst for the use of 21st century science and American ingenuity in species recovery," Pombo continued. "That's exactly what we need to do to be successful, and Americans understand that. Endless, frivolous litigation does nothing to save species, but that is the unfortunate state of the ESA today."

"With the Ninth Circuit's dismissal of this appeal, the 'sky is falling' rhetoric of hard-core environmental activists has been debunked and their true agenda exposed," said PLF attorney, Russ Brooks. "This attempt to control private land use in the name of species protection has been successfully shut down. Families in the Pacific Northwest are sick of environmental hysterics that have resulted in rising home prices, choking traffic, higher taxes and a slowed economy," Brooks continued. "Chalk up a win for people with today's decision."

According to Brooks, the biggest impact of the decision is the fact that it reinstates the district court's order invalidating and setting aside the coho listing, which had been postponed during the appeal. Consequently, the Oregon Coast coho listing no longer exists and may not be enforced. This decision stands to have huge implications for land stewards and natural resource providers-such as farmers, ranchers, and timber harvesters -- as well as local governments and citizens struggling with infrastructure development of schools, hospitals, and highways.

Following news of the decision, PLF called on NMFS to promptly complete its review of the hatchery policy and salmon and steelhead listings, consistent with the district court and Ninth Circuit decisions. NMFS has missed several deadlines in releasing the new hatchery policy and the results of its status review.

Maybe Washington Trout can shime in on this one.