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."