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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Critical habitat decision for the Cape Sable seaside sparrow excludes areas proposed in draft. | Main| Industry may intervene to oppose listing when environmentalists challenge decision not to list. »

Decision to withdraw listing of Oregon Coast coho arbitrarily relied on controversial analysis.

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Trout Unlimited v. Lohn, 2007 WL 2973568 (D.Or, Oct. 5, 2007)(decision withdrawing listing decision for Oregon Coast coho was inconsistent with the evidence)

Of the 27 salmon and steelhead populations in the Pacific Northwest, only the Oregon Coast coho (OCC) remained an unlisted species pursuant to the Endangered Species Act.   Although the National Marine Fisheries Service originally proposed to list the species, it withdrew the listing decision in January 2006.  Trout Unlimited filed suit.

coho.jpg
Coho image from U.S. Forest Service Pacific NW Fisheries Program

The NMFS withdrawal was influenced, in part, by paper prepared by the State of Oregon entitled “Oregon Coastal Coho Assessment.”  In this paper, Oregon concluded that the species remained biologically viable, with sufficient habitat, based in part upon a “low abundance paradigm.”  This paradigm suggested that the coho salmon would consistently have very high productivity at very low spawner numbers.  However, the theory was strongly criticized by an independent science team as “untested” and “circular in its argument.” NMFS scientists at the Northwest Fisheries Science Center similarly found the Oregon report to include “overly optimistic interpretations” based on models with flaws “serious enough to make the results unreliable.”

Citing the flaws in Oregon’s analysis, Trout Unlimited argued that NMFS's withdrawal decision was arbitrary and capricious because NMFS’s action was based upon similar and equally flawed reasoning.  Reviewing the NMFS legal analysis, the District Court upheld (and granted Skidmore deference to) NMFS’s explanation that a listing decision was needed only “if the best available information indicated that the species was more likely than not to become an endangered species in the foreseeable future.”   However, as a factual matter, the Court found the NMFS analysis “mainly relied" on Oregon's analysis and the flawed low abundance paradigm, despite peer-review criticism and the criticism of NMFS’s own scientists.  Given this competing evidence, the Court held that NMFS failed to provide a sufficient explanation of its analysis:

This Court cannot defer to the NMFS’s reliance on Oregon’s viability assessment to artificially create competing inferences from the scientific evidence.  By feigning an inability to make a listing finding in the face of Oregon’s competing conclusions or uncertainties, the NMFS’s determination not to list the Oregon Coast coho salmon is arbitrary, capricious, contrary to the best available evidence, and a violation of the ESA.

Importantly (and staying within its authority), the Court did not make a final determination that the coho species must be listed.  Rather, the U.S. District Court Judge Garr King gave the federal government 60 days to complete a new listing decision for the Oregon Coast coho based on the best available science.


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