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Environmental Law

: ESA Blawg

Federal Judge Upholds Listing of the Lower Columbia River Coho Salmon

By Keith Rizzardi

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Jack Marincovich v. Conrad C. Lautenbacher, Jr., Civil No. 07-6228-Ho, 2008 U.S. Dist. Lexis 26560 (D.Ore. March 31, 2008)

Plaintiffs allege damage and continuing harm as a result of the listing of the Lower Columbia River Coho salmon ESU, as defined by defendants, under the Endangered Species Act, 16 U.S.C. § 153 1 et seq., which listing occurred on or about June 28, 2005. Plaintiffs seek a judgment declaring the defendants' listing determination of June 28, 2005, as to the Lower Columbia River (LCR) Coho salmon invalid and unlawful under the Endangered Species Act (ESA) and arbitrary and capricious or an abuse of discretion or otherwise not in accordance with law under the Administrative Procedure Act (APA)…

The Court summarized its own opinion as follows:

Plaintiffs primarily attack the numbers in this challenge to a listing decision and do not generally address the science. Disputes involving "primarily issues of fact" must be resolved in favor of the expert agency so long as the agency's decision is based on a reasoned evaluation of the relevant factors. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377-78 (1989). A Court must look at the decision not as the biologist or statistician that courts are qualified neither by training nor experience to be, but as a reviewing court exercising its narrowly defined duty of holding agencies to certain minimal standards of rationality. See Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 36 (D.C. Cir. 1976). NMFS analyzed the complex genetic data, interpreted marine coded-wire-tag recoveries, assessed the origin and viability of small, self-sustaining populations based upon incomplete but the best available data, dating back nearly a century, and predicted the likely conservation benefits of hatchery stocks and the overall ESU extinction risks. The court cannot disturb this rational decision. While plaintiffs may suffer economic harms and disagree with NMFS's conclusions, such does not justify vacating the listing decision. The decision to list the LCR coho ESU as threatened is upheld.

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