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Salmon Coalition Challenges Agencies by Mike Lee Tri-City Herald, December 1, 1999

While the region squabbles about the science and politics of dam breaching, Common Sense Salmon Recovery is doing something different.

It's aiming for the heart.

The coalition of real estate agents, farmers, builders, counties and politicians is challenging how federal agencies enforce the Endangered Species Act for Washington salmon.

"Before we endanger the lives of family-wage workers, we first need to look at the root problems," said Trent Matson, with the Building Industry Association of Washington, one of the major backers of the suit.

Fueled by the indignation of property-rights advocates across the state, Common Sense stumped Tuesday in Pasco trying to gather public support and money for its suit. It claims nearly 1 million supporters in Washington state.

The somber message from those who have seen the ESA enforced in across the country is that Northwest residents have yet to feel anything close to the full force the law.

But that hasn't quelled the fear in the Mid-Columbia.

"We are the endangered species," said Dean Strawn, president of Dependable Janitor in Kennewick. "We not only have the right, but also the responsibility to speak up."

Challenges to water rights and land rights - basic tenants of Western living - are predicted to increase in coming years, affecting everything from irrigation water to streetlight projects.

"The ESA is the most severely skewed and unbalanced environmental law on our books," said Rob Rivett, with the Pacific Legal Foundation. "(It) has a very good intent, but the way it is being applied is wrong."

The legal foundation is working with Common Sense, representing private property rights it says are in danger of being trampled by overzealous federal agencies and fearful state and local agencies.

Property rights lawyers played to fears that federal agencies will take their property - or use their property - by imposing illegal restrictions that residents don't have the resources to fight.

"Most people are going to throw their hands up and say, 'I simply can't afford that,'" said Rivett, complaining that federal agencies paid by taxpayers seemingly have bottomless resources to enforce their regime.

To make matters worse, he said, defendants who win environmental suits rarely are paid attorney fees, providing big incentives for them to negotiate away their rights to the government out of court.

Tuesday's audience, more than 200 Mid-Columbia farm, business and labor leaders, was primed by the recent release of federal fish recovery options that foreshadow severe land-use restrictions across the Northwest if the dams above Pasco aren't removed.

Lawyers predicted onerous land takings by federal agencies across the Columbia Basin as they target not only documented problems for salmon but also speculate on potential problems.

Rivett said Congress won't change the ESA anytime soon, so the private property protections of the 5th Amendment must be staked out in court.

The Common Sense suit attempts to do just that by challenging some of the basic presumptions of federal fish recovery measures in the Northwest.

One of its chief complaints is that the federal government for decades used hatchery fish to supplement wild runs and now refuses to count hatchery fish toward recovery goals.

The ESA doesn't make any distinction between wild and hatchery fish, said Timothy Harris, Bellevue lawyer for the Pacific Legal Foundation.

"There is no question that wild and hatchery fish interbreed in nature," he said. "They are indistinguishable."

Common Sense also is upset about NMFS's management of the ocean harvest, which in some cases keeps rising even though stocks are endangered. The lawsuit alleges NMFS's harvest program is illegal.

And as long as it continues, Harris said it's nonsense to tell farmers or builders they must give up their land to improve habitat.

As the federal agencies start making land and water decisions - as they are doing from Okanogan to Oregon - Galen Schuler, Seattle land-use attorney, encouraged residents to stand together for their rights.

"It's very important to challenge unlawful (actions)," he said. "It's in all of your best interest to make sure the wrong precedent doesn't get set."