From: The Pacific Legal Foundation

PLF Sues to Remove Illegal Steelhead Listings from Endangered Species List: Lawsuit Filed One Week After PLF’s Landmark Alsea Victory Striking Down Government Undercounts of Salmon

Contact: Dawn Collier
Phone: (916) 362-2833

Seattle,WA; March 04, 2004: Pacific Legal Foundation today asked a federal court to invalidate three illegal listings of West Coast steelhead as "threatened" under the Endangered Species Act (ESA). PLF is charging the federal government with unlawfully manipulating fish counts in an attempt to bolster justification for otherwise unneeded listings by refusing to count hatchery and resident steelhead in the Columbia and Willamette Rivers. Stringent ESA regulations resulting from these unnecessary and illegal listings have for years crippled critical parts of Washington’s and Oregon’s economies.

The lawsuit comes one week after the Ninth Circuit Court of Appeals dismissed environmentalists’ appeal of PLF’s landmark victory in Alsea Valley Alliance v. Evans, invalidating the ESA listing of Oregon Coast coho salmon. The Ninth Circuit let stand the high-profile federal District Court decision holding that the government violated the ESA when it illegally distinguished between naturally spawned and hatchery coho. In a statement released last week, House Resources Chairman Richard Pombo (R-CA) said PLF’s Ninth Circuit victory "could be the best precedent ever set in Endangered Species Act case law."

"By affirming Alsea, the Ninth Circuit confirmed what PLF has argued for years. Government can’t cherry-pick which member of a species it includes or excludes in a listing. It has to follow the law and sound science," said Russ Brooks, the managing attorney for Pacific Legal Foundation’s Pacific Northwest Center who successfully litigated the Alsea case.

"These illegal steelhead listings have wreaked havoc in Washington and Oregon communities, seriously impeding private land use," said Brooks. "For too long, Washington and Oregon residents have paid a high price to protect fish that don’t need protection."

PLF argues that the National Marine Fisheries Service (NMFS) did not consider all steelhead when listing the species as threatened, using the same practice ruled illegal in Alsea. Members of the steelhead species, O.mykiss, include steelhead that are born in the wild and migrate to the ocean from freshwater, hatchery steelhead that also migrate to the ocean, as well as resident steelhead, also known as rainbow trout, that spend their entire lives in freshwater. NMFS listed only the migratory steelhead born in the wild as threatened, despite the fact that the agency admits that all of these fish are the same species and interbreed. As PLF explains in its lawsuit, one individual fish may become a steelhead, while its sibling from the same stream may remain a rainbow trout. Two steelhead may spawn and produce offspring that remain in freshwater to become rainbow trout and vice versa.

The illegal listings restrict water and land use throughout Washington and Oregon, hitting agricultural communities particularly hard, and impeding the construction of affordable housing. As a result, PLF is representing a large group of plaintiffs in the case, including the Washington State Grange, Oregon State Grange, Washington Farm Bureau, Alsea Valley Alliance, Okanogan County, Kittitas County, and the Building Industry Association of Washington.

"The plaintiffs in this case are over 100,000 farmers, ranchers, community leaders, and citizens, most of whom provide food and agricultural products for the entire nation," said Brooks. "When the livelihoods of so many people and a critical sector of the American economy hang in the balance, the government should be working overtime to follow the law, not finding ways to subvert it."

Conservatives without a Cause.

...and I am pretty god damn conservative myself!

No cause? I don't think so. Their cause is money and wild fish are getting in the way. Lets see,,, money or wild fish,,, I'd say the odds are on the money side.

Sorta surprised PLF waited this long before filing this.After Judge Hogans and the Ninth curcuit courts rulings in the first case.Looks like PLF is just taking it one step at a time.

Pretty much says it all......."best available science"?

F5A, very good post. I feel about how you do. Another point was made in the 20 page thread. This divides the fisherman. It fragments an already insufficient voice. But, there's a possibility the Hogan ruling will unite us once again with a common adversary.

IMO, whatever actions taken by fisherman in the future, it needs to include a plan with more vision than the current attempts to help the fish. A plan that ask for concessions from all involved, or that affects fishermen, developers, tribes and others collectively, and supported by unbiased science, is far more likely to get support.

As has been said before, WSR is a tool, not a plan. It seems very little thought went into how this would affet the larger picture, and what the reaction would be.

Lets do a little bit of science and math here:

Let z = total number of o. mykiss
y = total number of resident rainbow trout
x = total number of wild steelhead
v = total number of hatchery steelhead

z = y + x + v

When they count fish going over the Columbia river they count z but not y, x, or v. Besides y is close to zero since they don't migrate. So the equation is z = x + v. They can distinguish between x and v by a fin clip and take a statistical sample of the whole population by taking a a smaller sample of these fish. You can get it within a certain level of confience and then you can figure out x and v and z. You can also figure out v by subtracting out the number of hatchery fish returning to hatcheries along the Columbia tribs and from catch statistics. You can also do spawning surveys to figure out out v and x. It is science based. Are fisheries biologists trained in statistics?

Its all a bunch of BS. Judge Hogan appears to be uneducated on fish. The groups presenting the law suit are all a bunch of neo-conservative self-serving idiots that are going to drive the steelhead to extinction. A very conservative coworker, from the South, told me that the fish runs were healthy based on the total number fish. I told him that you have to differentiate between wild and hatchery fish. Obviously he doesn't fish but he liked the hatchery steelhead that I gave him to eat.

Even IF PLF is succesfull in getting the steelhead delisted on the Columbia basin I think the Bull Trout are still listed in those same watersheds and I dont think they are supplemented by hatchery production, so I wonder if delisting the Steelhead would really change anything as far as land use and water rights etc.

Steelheadman,

As a frustrated Upper Columbia Steelheader I've got to share a dirty secret with you. The WDFW did not clip any of the hatchery fish for several years. Now they are clipping some...but not all of the hatchery fish. So the fish that are coming over the dams back to the Methow and Wenatchee Rivers may well be hatchery fish....but they were never clipped.

Here's an idea, lets delete the decision.


That's the ticket!

The PLF does not care about fish, they just represent people who wanna destroy fish habitat that happens o occur on their property.. in other words they are anti stewardship which by deffinition means that they are irresponsible people who don't deserve to own land. PERIOD!!!!!

if there is wild fish habitat on your property take care of it or MOVE... the exsistence of these fish is more important than your self given right to do whatever the hell you want with the property you "own"..

not unlike the idiots in darrington destrpying portions of the Sauk river with heavy equipment..

if they refuse to be responsible then take their rights away!!!

you drink and drive you lose your drivers license.. property issues should be no different where species that are in danger are concerned..

I think what they are looking for is a scientific underpinning to any law that effects individual rights...We still have some left I think. The law is there so guys like you can't confiscate private property just because you feel like it.

grandpa Thats absolute BS..

The PLF has a vendetta against the pro wild fish people.. Just like the pro wild fish kill people.. Plain and simple this is done out of anger malice and spite. PLF is evil..

People who destroy salmon habitat that occurs on their property should have theit property taken away from them PERIOD.
When will people learn that they are personally responsible for their actions???? And we as a society are responsible for the actions of our citizens.. I don't wanna be responsible anymore for greedy jerks who clearcut their riverfront property and kill off wild fish. people who do so are scumbags IMHO.

Ok so I am angry about this issue everyone who loves there being wild fish should be angry too. PLF= permanent loss of fish

Rob..some advise:

Don't bother with a law degree....You will never make it as a lawyer.

Go to Costco and buy one of those commercial rolls of foil...There should be enough to wrap your whole body in atleast one layer..and you should designate a room at home and completely cover the walls , floor and ceiling with two layers of foil....make a big box out of lead and wrap that in foil....get inside the box and stay there. We'll send a messenger when the coast is clear.

Well, G, I gotta admit, that was pretty funny!

The U.S., and the states, of course, do have Constitutional guarantees against the government taking your property without due process of law, and while I find salmon and steelhead to be pretty darned important to all of us here in the PNW, I don't think that they rise to the level that "People who destroy salmon habitat that occurs on their property should have theit property taken away from them PERIOD."

Now if the law calls for specific fines for destroying fish habitat, and they can't pay, then by all means go after their property through the proper legal channels (i.e., due process) and get the fines paid.

PLF is not anti-fish, and they do not have a vendetta against anyone, even wild fish advocates.

They are, however, pro-money...pro-money to the point that it is more important than the environment or the animals that live in it, or the people who live off of or enjoy them.

Here's one way to look at them...

1. PLF hates wild fish, and the environmnent
2. PLF hates people who like wild fish and the environment
3. PLF sued the feds to have the fish de-listed so that they could destroy wild fish, the environment, and hurt the people who like wild fish and the environment.

I suppose you could see it that way, but I don't think that you'd be correct. I think it's more like this...

1. PLF's members make money damaging the environment
2. Environmental damage comes at a price, and the less allowed, the more expesive it gets.
3. The ESA is very restrictive, and any damage that comes under its umbrella is very expensive.
4. Making money in ways that damage the environment under the ESA umbrella is hard, and not as much money is being made.
5. Rather than violate the ESA and risk civil and criminal penalties to make money, use proper legal channels to remove the ESA restrictions.

I don't think that hate or love for the environment or environmentalists even comes into the picture...it's just money, and it's all money.

Anyone who doubts that we are very lucky to have groups like WT, NFS, etc., who are waging this battle on our behalf ought to sign up and send a few $$ to the PLF, not that they need it.

Here in the PNW, it's the age old saga of money versus fish. We (citizens and the government) always say how important the fish are, then try as hard as we can to make money without making them go extinct.

On the one extreme we have fish...the best thing for them is to all pack up and leave for a couple dozen years. I guess we all know that's not going to happen.

On the other extreme we have PLF and their ilk, to whom fish are just another obstacle to making money, like taxes and minimum wage hikes. The scary thing about this is that it could happen.

There is value in someone taking the opposite extreme as PLF so that the end result is somewhere in the middle where it probably ought to be.

Somewhere, though, there should be a line in the sand, with us on one side and PLF on the other, where there is no more negotiation, no concessions.

A line.

I think they've already crossed it, and we ought to be rallying to support anyone who is taking the fight to PLF.

Green, red, yellow, orange, blue...democrat, republican, independent...if you've never done anything I like...if I hate everything you've ever done...if I've never heard of you...if you want to help fight this battle, then welcome aboard, brother.

If you like wild fish, obviously you're screwed if PLF gets their way.

If you like hatchery fish, you're screwed, too. Either hatchery production will be stopped to accomodate the wild fish under the Alsea case, in which case there will be no fishing, or an environment for the wild fish to come back in, or hatchery production will carry on, the wild fish will go extinct, and we'll try to maintain fishable levels of fish with hatchery inbreeds who will, as they are doing all over with steelhead, continue to return less and less as we put more and more smolts in the rivers.

It's the "salmon without rivers" scenario that Lichatowich descrived in his book of the same name, which is biologically impossible.

If PLF gets their way, that's the end result.



Sorry for the rant, guess I got up on the wrong side of the bed today.

Fish on...

Todd

Well spoken Todd

You may very well be right about that, Aunty.

While the Boldt decision divided up the harvestable portion of the runs, and even included some verbiage there and in the subsequent cases to the case of protecting the runs and the habitat they depend on, this case attempts to do away with fish entirely.

Fish on...

Todd

I am not siding with PLF, so please don't start the attacks, or imply that I am….and you know who I am talking to

That funny Todd, I read that case completely through, and I didn't see where that was said, requested, or implied.

Can you post the part in the Alsea Valley Alliance v. Evans, (Hogan case) that says that? Maybe I misread it or something.

same here. I am pro-fish... just not pro-backroom deals.

Todd do you have any facts to back that statement? Or is that statement just your opinion?
Funny thing is the PLF case is afew years old and people are acting likes its something new.