By RANDY DOWLER
The U.S. Congress had no idea of the fertile soil for litigation that it was tilling when it passed the Endangered Species Act, (ESA) in all its radiant glory and splendor.
The Ninth U.S. Circuit Court of Appeals, on appeal review from district court findings, handed down a landmark decision this week with regard to protecting wild salmon off our Wild Rivers Coast.
This week the Circuit Court dismissed the legal appeal brought by environmental groups to continue the listing of coho as a "threatened species" along the Oregon Coast.
The court's dismissal immediately and very effectively invalidates and renders unenforceable the previous listing of the Oregon Coast coho salmon as a "threatened species" under ESA guidelines and provisions.
This means that for all practical purposes the coho in our area can be legally targeted as a piscatorial species.
Oh happy day!
Of course, the legal controversy of the elusive "Conook," the hybrid cross between a coho and a Chinook for the purposes of angling retention, is now, legally speaking, entirely moot, but then again maybe not.
At the trial level, U.S. District Judge Michael Hogan previously ruled that the National Marine Fisheries Service (NMFS) acted illegally in attempting to "protect" spawning in the wild coho by not counting hatchery-origin fish in their coho fish tallies, which are essentially genetically identical coho.
Judge Hogan previously ruled that the NMFS has to count all the coho in aggregate, regardless of the location of origin, wild or hatchery.
According to the judge's finding, the NMFS can not nitpick the fish tallies by deleting coho of hatchery origin as being inferior to those wild spawning coho swimming side by side in a stream.
That long overdue, common sense, district court decision stimulated environmental groups to file a stay of Judge Hogan's court order pending its review by the Ninth Circuit Court of Appeals.
The committee members of the NMFS, the federal committee charged with managing salmon and steelhead populations in both fresh and saltwater here in the west, chose to comply with the order and status reviews of salmon and steelhead listed under the ESA across the Western States from San Diego in the south to Boise, Idaho, in the east.
The biggest impact is that this week's dismissal of the appeal reinstates the lower District Court's order invalidating the listing of coho as a "threatened species."
Consequently, the previous Oregon Coast ESA "threatened listing" for coho no longer exists and may not be legally enforced by the NMFS, or any other governmental agency.
But more importantly, it does away with all legal shenanigans of NMFS committee members concerning fish tallies for all salmon and steelhead species within its applicable jurisdiction.
Following that decision, Russell Brooks, a pit bull attorney for the Pacific Legal Foundation (PLF) is calling on the NMFS to promptly complete its review of current policy for salmon and steelhead listings consistent with the findings of the lower district court and the Ninth Circuit Court.
According to Brooks, the "NMFS appears to need a tutorial on ESA compliance."
Founded in 1973, the PLF has been actively leading an effort to reform the Endangered Species Act and raise awareness of the impact on people inhabiting the Pacific Northwest.
Isn't that amazing! Those NMFS committee members who set the annual harvest angling limits and time slots for salmon and steelhead were deemed to be acting illegally by not including the counting of any "hatchery" coho in their fish tallies, even though both categories of coho, wild and hatchery, were swimming side by side.
The genetically identical "hatchery" coho were swimming right along side their kissing cousins, known as "wild" coho, which despite sufficient population levels, kept hatchery coho out of sport fishermen's nets along the shores of the Klamath Management Zone.
You know, it has been said many times before that an elephant is actually a mouse that has been designed by committee.
Naturally, the silver lining on the dark cloud of environmentalist reasoning is that the Oregon Department of Fish and Wildlife and the California Department of Fish and Game are going to have to figure out how to survive and thrive in the absence of all those "threatened species" (coho) $300 tickets for previously errant California and Oregon anglers visiting the Wild Rivers Coast.
Obviously, the NMFS being a federal committee composed of rather astute persons, will quite naturally require a little more time to get out of its comfort zone, and actively get up to speed with regard to issuing its new and reformed policies for salmon and steelhead angling opportunities along the Pacific Coast.
This federal committee generally makes known its management decisions to the public sometime in early April, prior to the commencement of the ocean trolling salmon season, which last year commenced during mid- May in the Klamath Management Zone.
However, with the current court ruling, we are now talking about a whole new enchilada.
As for the upcoming NMFS regulations regarding offshore coho angling opportunities in the Crescent City and Brookings-Harbor areas, I'm already salivating like Pavlov's dog with regard to dreaming about fishing for coho with a fork.