The Bangor Daily News
Thursday, November 19, 1998
By Orna Izakson, Of the NEWS Staff-- A coalition of four environmental groups and three individuals on Wednesday notified federal fish-protection agencies that they will sue if Atlantic salmon are not granted protection under the federal Endangered Species Act. The notice comes in response to a decision announced last December, in which the U.S. Fish and Wildlife Service and the National Marine Fisheries Service accepted a largely voluntary plan put forward by state officials as an adequate step toward recovering the imperiled fish. Maine's congressional delegation, Gov. Angus King and many residents of Down East Maine hailed the decision for staving off what they predicted would be an economic blow to the impoverished area of the state.
The decision affected fish in the Sheepscot, Ducktrap, Pleasant, Machias, Narraguagus, East Machias and Dennys rivers.
The would-be plaintiffs include the Washington, D.C.-based Defenders of Wildlife, the Rockland-based Coastal Waters Project, Biodiversity Legal Foundation of Boulder, Colo., Maine residents Charles FitzGerald and Douglas Watts and David Carle of Groton, Mass. Trout Unlimited, based in Arlington, Va., filed a separate notice on the same issue.
The move comes as no surprise. Several environmental groups promised to sue in the wake of last year's announcement, and reiterated their commitment to a lawsuit in June after a similar suit succeeded in Oregon.
A spokeswoman for Gov. Angus King said Wednesday the governor had not yet seen the notice and could not comment on it. Mary Colligan of the National Marine Fisheries Service said her agency also had not seen the notice and could not comment.
David Carle, one of the signatories to the coalition's notification, said the coalition's argument turns on the voluntary and prospective nature of the state's restoration plan. The Maine plan, he said, "lacks accountability, enforceability and relies on future programs that may or may not take place.''
That argument has swayed judges in five other cases around the country, where the fish and wildlife protection agencies have accepted local plans, relying on voluntary or future actions, in lieu of listing animals or fish.
The most recent case holds many parallels for Maine. A federal magistrate in Oregon this summer told the National Marine Fisheries Service it could not accept Oregon's Coastal Salmon Restoration Initiative instead of listing coho salmon as a threatened species because the state plan relied on unenforceable measures and tenuous future funding.
"The wait-and-see stance of the NMFS has no support in the [Endangered Species Act] or case law,'' Magistrate Janice Stewart wrote in the Oregon decision. "Instead of placing the risk on the future and voluntary measrures proposed by the [Oregon plan], the NMFS unlawfully placed the risk of failure squarely on the species ... This court declines to tie the fate of the [coho salmon] to the whim of politics and promises of future state conservation actions that may be years or decades away from implementation.''
Although Oregon officials subsequently warned their Maine counterparts that Stewart's June ruling meant trouble for the Maine plan, state and federal officials here unanimously have said the plan will both restore the fish and survive any legal challenge.
Carle insisted that Wednesday's action was not aimed at Maine, but rather at the federal agencies, and said the move merely puts all the parties on notice that changes are necessary.
With those changes, he said, the Maine plan would provide an excellent foundation for substantive recovery efforts under the law because "the Endangered Species Act listing will make the plan enforceable and accountable.''
"A 60-day notice provides a window of opportunity for the various parties to sit down and address the issues, hopefully to avoid a lawsuit,'' he said. "We hope the feds will do this.''
The coalition's notice charges that the agencies violated the 1973 Endangered Species Act by relying on political, rather than scientific rationales, in not listing the fish.
The law requires the agencies to consider existing state measures, but requires them to list a species for reasons that include substantial contraction of range, overharvest, or inadequate existing regulations.
Defenders and the co-plaintiffs argued that the U.S. Fish and Wildlife Service and NMFS only considered the state plan, which was not an existing regulation because of its reliance on future actions. For example, the plan specifies the future placement of weirs in the seven rivers - one has been built, but subsequently was torn out during a storm - and the development of voluntary plans to address risks posed by aquaculture, forestry and overfishing.
One example they cited to show that Maine cannot handle salmon recovery alone was this summer's decision to override the recommendation by a panel of scientists about restricting water withdrawals for agriculture during low-flow periods. The state's Land and Water Resources Council, which was charged with formalizing that recommendation, instead accepted a less-restrictive proposal by blueberry giant Cherryfield Foods.
Charles Gauvin, the president and chief executive officer of Trout Unlimited in Arlington, Va., said his group's suit challenges the agencies' decision on many of the same grounds. Trout Unlimited filed separately, he said, because of some separate concerns.
"We've really very concerned about working to strengthen the Maine plan,'' he said. "Whether the Fish and Wildlife Service and NMFS are the driver of that or the state of Maine is the driver, our primary concern is about restoring fish. We're less concerned about the sort of national policy precedents that are involved in the Maine plan and other state plans.''
Gauvin said he hoped that officials in Maine would understand that the group's action "is an indication of our seriousness in seeing that very weak plan strengthened.''
Trout Unlimited, he said, would like to see an independent, scientific review of the state's use of hatchery reared salmon as a way to restore wild runs. Hd said the state should impose best management practices for agriculture and forestry in cases where voluntary measures fail. The plan should be expanded to cover wild populations in Cove Brook, a tributary of the Penobscot River, he said, as well as Togus Stream and Bond Brook, which are tributaries of the Kennebec River.
And, Gauvin added, the plan needs more money. The funding covers one full-time position, he said, which is inadequate to address all of the needs on the wild salmon rivers in Maine.
Douglas Watts of Hallowell was one of three individuals to sign onto the broader coalition notice. A member of Trout Unlimited, president of the Maine Council of the Atlantic Salmon Federation and president of Friends of the Kennebec Salmon, Watts felt strongly enough to put his name on the suit, regardless of which organizations ultimately joined it.
The federal agencies should have listed Atlantic salmon, he said, "because they're possibly going to go extinct. If two or three fish coming back into a river [isn't endangered], I don't know what is.''