Decision to withdraw listing of Oregon Coast coho arbitrarily relied on controversial analysis.
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 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.
- Article from The Oregonian (Oct. 10, 2007)
- Coho Salmon Species Information from Oregon Department of Fish and Wildlife
- Trout Unlimited's Petition to List the Oregon Coast coho
- State of Oregon's Coastal Coho project
- Trout Unlimited's Webpages on the Oregon Coast coho: Why Wild Salmon?
- Genetics analysis of coho published byNMFS Conservation Biology Division scientists