James Buchal is one
of the attorneys assisting the farmers in
the Klamath Basin.
http://www.buchal.com/salmon/news/nf55.htm
News from the
Front #55:
Judge Hogan Hits A Homer: Oregon
Coastal Coho Listing Is Unlawful
On September 10, 2001, United
States District Judge Michael R. Hogan
issued a long-awaited
ruling in a case brought by the Alsea
Valley Alliance challenging the 1998
Endangered Species Act listing of Oregon
coastal coho salmon. There are, of
course, no endangered salmon species;
all the listings are premised upon
expansive language in section 3(16) of
the Act permitting listings of "any
distinct population segment of vertebrate
fish or wildlife which interbreeds when
mature".
Judge Hogan observed, correctly, that
Congress did not empower federal agencies
to list groups of fish or wildlife
smaller than a "distinct population
segment" (DPS). But Congress
did not define a DPS, and the federal
courts have all but abandoned their
Constitutional duties to limit government
powers by "deferring" to agency
definitions of statutory terms, even
unreasonable ones. Thus federal
fish and wildlife agencies can call
nearly anything a DPS, and get away with
it.
So Judge Hogan took no issue with how the
National Marine Fisheries Service defined
the Oregon coastal coho DPS.
In this case, NMFS defined the DPS to
include both hatchery and wild coho
salmon along the Oregon coast,
including at least nine hatchery
populations along with so-called
"wild" populations. Then
NMFS determined that the hatchery
populations did not merit Endangered
Species Act protection, so that only the
natural ones within the DPS would be
listed as "threatened".
In practical effect, this amounted to
extending Endangered Species Act
protection to groups of fish smaller than
a DPS.
Thus Judge Hogan held that "[t]he
central problem with the NMFS listing is
that it makes improper distinctions,
below that of a DPS, by excluding
hatchery coho populations from listing
protections even though they are
determined to be part of the same DPS as
natural coho populations". In
legal terms, the decision is
"arbitrary and capricious"
within the meaning of the Administrative
Procedure Act. While the logic of
Judge Hogan's decision is irrefutable,
environmentalists will doubtless attempt
to persuade the United States Court of
Appeals for the Ninth Circuit that the
Judge has interfered with a
"scientific" decision which
only the High Priests of the Salmon
Empire may make.
Unless and until his decision is
reversed, Judge Hogan's ruling leaves
only two options for bureaucrats and
environmentalists who wish to continue
Endangered Species Act protection of
Oregon coastal coho: NMFS must
either (1) expand the listing protection
to include the hatchery fish, or (2)
redefine the DPS to exclude the hatchery
fish.
As for the first option, it will be
virtually impossible for NMFS to show
that there is any danger that hatchery
fish face a genuine risk of
extinction. That, of course, has
never stopped NMFS from making Endangered
Species Act listings before, but perhaps
the new Administration will bring some
common sense to NMFS.
As for the second option, Judge Hogan
warned NMFS that it "does not
appear to be possible". Among
other things, Judge Hogan advised that
the hatchery and natural runs "share
the same rivers, habitat and seasonal
runs" and most of the so-called
"natural" fish are in fact the
offspring of hatchery fish. Indeed,
Judge Hogan noted that "NMFS
considers progeny of hatchery fish that
are born in the wild as "naturally
spawned" coho that deserve listing
protection".
The rationale of Judge Hogan's ruling
applies to many, many other salmon
listings in the Pacific Northwest.
Judge Hogan's ruling should serve as a
wake-up call to the so-called leaders
that sleep on as lawless federal actions
continue to infringe upon the lawful
rights of citizens of the Pacific
Northwest, and destroy the sovereignty of
their state and local governments.
Setting aside all the lawless salmon
listings can slice the Gordian knot that
paralyzes natural resource management in
the Pacific Northwest.
Moreover, the recent horrific attacks on
our Nation confirm the dismal state of
federal government's primary
function: national defense.
If the federal government confined itself
to lawful, Constitutional powers, and
focused its armies and intelligence upon
the Nation's enemies rather than its
farmers, loggers, and property owners, we
would all be better off.
© James Buchal, September 14, 2001
You have permission to reprint this
article, and are encouraged to do so. The
sooner people figure out what's going on,
the quicker we'll have more fish in the
rivers.
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"The
Constitution is
not
an instrument for the
government to restrain
the people, it is an
instrument for the people
to restrain the
government."
---Patrick Henry
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